Daily Media Links 3/10: GOP congressman wants to ban IRS employees from using personal e-mails for work, Former Rep. Steve Driehaus loses libel lawsuit against the Susan B. Anthony List, and more…

March 10, 2015   •  By Scott Blackburn   •  
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In the News

The New Mexican: National group challenges bill that would require advertisers to disclose funding sources  
By Steve Terrell
But a spokesman for Washington, D.C.-based Center for Competitive Politics, which promotes “First Amendment political rights of speech,” told House leaders in a Feb. 17 letter that the bill would chill free speech rights of independent expenditure groups by making them say who is paying for their ads.
The letter from Matt Nese, the center’s director of external relations, said the bill “seeks to improve transparency, but ultimately falls short in this effort by discouraging donors and workers from contributing to societally important nonprofit organizations, subjecting these donors and workers to potential harassment, and making disclosure information less meaningful overall by broadly capturing the activity of smaller, inconsequential contributors or activity that is not related to the election or defeat of candidates.”
Nese’s letter says, “Disclosure information can result in the harassment of individuals by their political opponents and should be carefully balanced with the public’s ‘right to know.’ ”
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Significant Constitutional and Practical Issues with Washington Senate Bill 5153 
By Matt Nese
Ultimately, the Court has made clear that this concern over harassment exists, whether the threats or intimidation come from the government or from private citizens,[33] who receive their information because of the forced disclosure. In short, mandatory disclosure of political activity requires a strong justification and must be carefully tailored to address issues of public corruption and provide the provision of only such information as is particularly important to voters. It is questionable that the monetary disclosure threshold mandated by S.B. 5153 for organizations, which lack a major purpose of influencing elections, but may opt to speak about a particular issue, is sufficient to meet this standard.
Ultimately, Senate Bill 5153 inappropriately ignores decades of jurisprudence regarding the need for a “major purpose” test for organizational registration and reporting, places an unreasonable and legally-suspect burden on many organizations, will perversely create “junk disclosure,” and may subject donors to harassment. As a result, many provisions in this legislation raise serious legal concerns.
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PDF version of letter…
Policing Political Speech
Wall Street Journal: Eric Holder’s Speech Police 
A coordination investigation can be started on almost any pretext. All you need is an allegation that someone talked to someone they should not have. Once the investigation makes it over that low evidentiary hurdle, the feds can comb through every shred of personal and group communications to find illegal contact.
We’ve seen how this wrecking ball works in Wisconsin, where Governor Scott Walker ’s conservative allies had their records seized and homes raided based on mere claims of coordination. Justice is now essentially giving itself sway to probe every Republican presidential campaign based on an accusation from some left-wing activist. 
Justice is also elbowing into an area handled by the Federal Election Commission, which is responsible for civil campaign finance violations. The Justice Department traditionally handles knowing and willful violations of the law, a smaller subset of campaign offenses.
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Washington Post: GOP congressman wants to ban IRS employees from using personal e-mails for work  
By Colby Itkowitz
Several days before the world found out former secretary of state Hillary Rodham Clinton was using a private e-mail account exclusively for all communication, including work-related conversations, a Republican congressman sought to bar Internal Revenue Service employees from using their non-official e-mail for government business.
Rep. Kenny Marchant (R-Tex.) introduced a bill on Feb. 27 directed at the IRS and intended to address allegations that former IRS official Lois Lerner used her personal account to discuss IRS matters. A House Republican-conducted report released in March 2014 said: “Her willingness to handle this information on a non-official e-mail account highlights her disregard for confidential taxpayer information.”
Marchant’s somewhat prescient legislation highlights a loophole in the Federal Records Act. While federal government employees are discouraged from using personal e-mail, it’s not barred. The law was updated in late 2014 to say that if personal e-mail is used for work, it must be turned over to be officially archived within 20 days.
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Washington Post: Former Rep. Steve Driehaus loses libel lawsuit against the Susan B. Anthony List  
By Eugene Volokh
Some readers may recall last year’s Supreme Court decision in Susan B. Anthony List v. Driehaus, in which the U.S. Supreme Court allowed a challenge to the Ohio ban on false statements in election campaigns; that was followed by a district court decision holding that law unconstitutional.
But there’s another half to the Driehaus / Susan B. Anthony List litigation: a simple libel lawsuit that he had brought against the List based on its allegedly false statements. Friday, a 6th Circuit panel held that the statements likely weren’t false after all — and at least that there wasn’t enough evidence that the defendants knew they were false or likely false — and therefore threw out Driehaus’s lawsuit.
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Candidates, Politicians, Campaigns, and Parties

Washington Post: How you (and a few thousand of your friends) can become the biggest donors in American politics  
By Philip Bump
 The public perception (which is flawed) is that campaign donations act a a sort of authorized bribery. If politicians weren’t reliant on fundraising, if they didn’t have to spend so much time begging for contributions, what would the process look like? What would a reform of the donation system look like?
Which brings us to if.then.fund.
Here’s how it works. Let’s say that Congress is considering a bill to, I don’t know, fund the Department of Homeland Security. If.then.fund allows users to commit money to a particular outcome of that vote. Maybe you want the vote to fail, because you want Republicans to hold steady on opposition to the president’s immigration reform actions. (Hopefully you know the details of the bill we’re talking about here.) You go to If.then.fund, pledge $50 to oppose the bill, and decide how you want that money divided up after the vote occurs. You can say, for example, that you want the money you’ve pledged to support the reelection of people who vote the way you want. Or, perhaps, you want it to support challengers to those who don’t. Make your pick, sit back, and wait.  
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Washington Post: McDonnell appeal gains high-profile supporters  
By Matt Zapotosky and Laura Vozzella
Forty-four former state attorneys general asserted that if upheld, the former Republican governor’s conviction would change the face of U.S. politics. 
“The District Court handed federal prosecutors virtually unfettered discretion to prosecute state officials for political courtesies and other innocent acts that are a routine part of American political life,” the former state attorneys general said in the brief. “No lunch with a lobbyist is safe.”
The full-court press to the U.S. Court of Appeals for the 4th Circuit came after McDonnell sent a personal appeal to some of those whose support he might have wanted or ultimately received. “This is important not just for me but for all elected officials in saying routine acts for donors are not illegal,” he wrote in an e-mail sent over the weekend to at least some state lawmakers. “Appreciate your friendship,” he signed off. 
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Senator Menendez

AP: Menendez Case Would Test Justice Dept. Anti-Corruption Unit 
Behind the effort to charge Menendez is the Justice Department’s Public Integrity Section, a unit created nearly 40 years ago to prosecute government officials for abusing the public trust. The cases charged by the office, whose alumni include Attorney General Eric Holder, mostly involve prosecutions of lower-level public officials, such as a former Arizona state lawmaker who bilked a nonprofit and an Arkansas judge who pocketed a bribe, as well as corrupt police officers and military personnel.
But it’s the high-profile cases of nationally known officeholders on which the unit is judged by the public.
“If a senator gets indicted, that’s just always going to be a lot more newsworthy than if a lobbyist does,” said Matthew Kaiser, a Washington defense lawyer.
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State and Local

California –– LA Times: State panel considers raising thresholds for campaign reporting 
By Patrick McGreevy
Citing inflation, the state’s campaign finance watchdog agency is considering a proposal to raise the fundraising thresholds at which campaigns must report their financing, drawing some concerns from an advocate for fuller disclosure.
Currently, campaign committees and independent expenditure committees must report their fundraising and spending when they receive contributions of $1,000 or more in a calendar year. The state Fair Political Practices Commission staff is recommending that the panel support legislation that would raise that level to $2,000.
Read more…
New York –– NY Times: Mayor de Blasio Is Quietly Soliciting Donations for Future Policy Battles 
By Michael M. Grynbaum
Mr. de Blasio and his fund-raising team have quietly solicited large contributions in recent weeks from donors in the mayor’s inner circle, according to three people who requested anonymity to describe moves by the administration that were not yet intended to be public.
The mayor’s aim, according to these people, is to create an advertising and social media campaign that would buttress his top policy goals, such as securing more state funding for New York City public schools and advancing his affordable housing plan in neighborhoods that are wary of gentrification.
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West Virginia –– State Journal: Campaign spending bill gets facelift in WV House committee  
By Mandi Cardosi
A bill that would provide disclosure and cap campaigns spending was transformed by a WV House of Delegates committee over the weekend.
Senate Bill 541, relating to regulation and control of elections, was worked on in the WV Senate during several meetings, and was amended with bipartisan support. The bill is sponsored by Senate Majority Leader Mitch Carmichael, R-Jackson.
Clean elections advocates say they are “dismayed” by what the House Judiciary Committee did to the bill on March 8, regulating election campaign contributions and disclosures. The committee essentially gutted the financial disclosure portion of the bill.
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Scott Blackburn

Scott Blackburn


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