Daily Media Links 4/7: Forbes: The McCutcheon Supreme Court Case Is A Victory For Free Speech, Washington Post: The solution to money in politics, Wall Street Journal: Justice Thomas Was Right, and more…

April 7, 2014   •  By Kelsey Drapkin   •  
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In the News

National Journal: Group Wants the FEC to Release Redacted Crossroads GPS Document

By Shane Goldmacher

Now the deadlocked commission is presented with a request to hand over the pages—or else. The Center for Competitive Politics, founded by former Republican FEC Commissioner Bradley Smith, aggressively fights campaign finance restrictions, and the missing pages could serve as a road map for political groups for how far a nonprofit can go without earning a rebuke from election officials.  

The final line of the center’s records request ominously reads: “Under FOIA law, the FEC has twenty days to reply before a lawsuit can be filed to compel disclosure of the document.”  

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Forbes: The McCutcheon Supreme Court Case Is A Victory For Free Speech

By Luke Wachob

Freedom of speech is often treated as a contemptible burden in American politics; something that must be endured but not respected. When hateful speech is heard, or a wealthy individual spends huge sums of money on speech we disagree with, we commonly ask why they ought to possess a right that we feel does more harm than good. This was the general reaction to the McCutcheon decision: why does anyone need the right to spend more than $123,000 (the limit declared unconstitutional) on political contributions?  

This misses the point by focusing solely on the speaker and ignoring the broader social benefits that result from a free and uninhibited exchange of ideas. Speech is constitutionally protected and unlimited because society benefits from the increased knowledge that is generated by it, and because the government cannot be trusted to decide what speech is “good” and what speech is “bad”. Chief Justice Roberts writes in the McCutcheon decision that “The First Amendment does not protect the government, even when the government purports to act through legislation reflecting “collective speech.””  

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Newsmax: Group Files FOIA Request to FEC Seeking Redacted Report on Crossroads

By Todd Beamon

“It’s outrageous that the FEC ignored its own policies and regulations that require this document to be disclosed,” Dave Keating, the center’s president, said in a statement.

Crossroads GPS was cofounded by Republican political strategist Karl Rove in 2010. The group spent $70.8 million in the 2010 election cycle.

News of the redacted, 76-page report surfaced in December when the six FEC members — three Republicans and three Democrats — deadlocked over another report that found that Crossroads had failed to register as a PAC as it should have because of its election-cycle spending.

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Sumner Canary Lecture (October 17, 2011): Saving Elections from Politics

Having the government pay for political campaigns remains unpopular among liberal, conservative, and independent voters. Voters have rejected or repealed government-funded campaigns in Oregon, California, Alaska, Massachusetts, and Missouri. Bradley A. Smith argues it is dangerous to give government control over electoral speech, because the tendency to use such control for partisan purposes is a constant temptation. He recommends a doctrine of “separation of campaign and state” similar to the separation of church and state or of civilian and military authority. 



Syracuse: Supreme Court campaign finance ruling: Experts weigh in on decision (Poll)

By Nick Canedo

Former Federal Election Commisioner Bradley A. Smith, now chairman of the Center for Competitive Politics, wrote for Time that the decision restores the First Amendment:  

“If nothing else, the real takeaway from today’s opinion is that federal and state governments are not permitted to squelch First Amendment rights based on a fear that monsters are under the bed. Regulatory advocates both on and off the Court have long credulously accepted wild fears as a substitution for hard facts in this area. This has led to a tremendous regulatory overkill. For example, in recent years, governments have defended contribution limits against the deceased, demanded the donor lists of groups which print nonpartisan voter guides, and forced four citizens to register with the state in order to run $600 worth of radio ads. But from now on, governments will have to defend their campaign finance statutes with grounded, concrete reason and facts — not flights of fancy.” 

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Center Demands FEC Release Counsel’s Report

“It’s outrageous that the FEC ignored its own policies and regulations that require this document to be disclosed,” said CCP president David Keating.  “The three Democratic commissioners who voted to ignore these policies claim to favor disclosure. By making this request, we hope these commissioners will change their minds and vote to disclose the document as required by the Commission’s regulations and FOIA itself.”

Typically, when the FEC’s General Counsel recommends whether to find reason to believe a violation of the federal election laws has occurred, a First General Counsel’s Report is distributed to the Commission. As a matter of longstanding policy, consistent with federal regulations which provide that the FEC “will make the fullest possible disclosure of records to the public,” the FEC has made First General Counsel’s Reports public.

The FEC abandoned this practice after the Commission determined that a § 501(c)(4) organization, Crossroads GPS, had not run afoul of federal campaign finance rules. According to the three Republican FEC commissioners, there were two versions of the First General Counsel’s Report and they sought to disclose the other version by attaching it to their statement of reasons on their vote on the complaint.  The attached 75-page document only had the words “redacted” on each page.

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Independent Groups

Washington Post: The solution to money in politics

By Michael Kinsley

On Thursday, the day after the Supreme Court’s decision in McCutcheon v. Federal Election Commission, The Post and the New York Times between them carried eight separate print articles about the ruling. McCutcheon is the latest in a string of decisions in which the court has held that various limits on campaign contributions violate the First Amendment free speech rights of rich people and corporations. The articles ranged from fairly balanced news reports through only slightly slanted sidebars to open frothing and foaming on the Times editorial page.  

Nevertheless, this was all too much for a group of Republican House members who introduced H.R. 2532, the so-called “Freedom From the Press Act,” which would place strict limits on how much a corporation or individual could spend putting out a newspaper or any other medium in which political opinions are expressed. “For too long,” said a news release issued with the text of the bill, “wealthy media companies have been able to dominate the political debate, drowning the voices of ordinary citizens who may not agree with these companies’ elitist views on subjects such as campaign contributions by wealthy corporations. Some of these ordinary citizens are veterans, who have fought for freedom in Afghanistan or Iraq, only to come home and find that their own voices are drowned out by the blowhards on ‘Morning Joe’ or the mandarins at the New York Times. Media corporations dominate the political debate, not just because of money but because they control the established channels of communication. This bill will be one step toward a level playing field.”  

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Washington Post: Meet the wealthy donor who’s trying to get Republicans to support gay marriage


New York state’s legalization of gay marriage would not have been possible without the support of four Republican state senators or the financial help of Singer and fellow hedge fund managers Cliff Asness and Daniel Loeb. Reframing the marriage debate in New Hampshire around freedom instead of equality probably played a role in the state’s decision to legalize.

Singer has given more than $10 million to these different state efforts. In 2012, he gave $250,000 to Marylanders for Marriage Equality. He, former Republican National Committee chair Ken Mehlman and Paypal founder Peter Thiel hosted a anti-Proposition 8 fundraiser in New York City in 2010, organized by the American Foundation for Equal Rights. Singer has since tackled bigger battles at the national and international level.

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Wall Street Journal: Justice Thomas Was Right

By James Taranto

It’s reasonable to surmise that Eich’s departure was a defenestration rather than a voluntary resignation. The Journal notes that “some Mozilla employees took to Twitter to call for his resignation.” Denouncing one’s boss on social media is normally an imprudent move, to say the least, but it seems that in this case the dissenting employees had the support of the board.

So here we have at least three corporations ganging up on an individual and depriving him of his livelihood solely on account of his personal political views. For the past few years, since the Supreme Court’s decision in Citizens United v. Federal Election Commission, we’ve been hearing incessantly from liberals and Democrats outraged at the notion that corporations have the right to free speech.

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Washington Post (Volokh): Breyer’s dangerous dissent in McCutcheon (the campaign finance case)

By David Bernstein

The problem for Progressives with a newfound interest in freedom of speech was that many of them were skeptical of the notion of rights more generally, finding the American tradition of natural rights to be reactionary, unscientific, and anti-democratic. But how could one protect the right to freedom of speech if one did not believe in rights to begin with?  

Moreover, Progressives were adamantly opposed to a strong role for the judiciary in enforcing constitutional norms. Prior generations of free speech radicals had sought broad protection for a wide range of expression, but to concede that the judiciary had a role to play in protecting broad individual speech rights would have conflicted with the Progressives’ strong aversion to judicial review.

As a result, leading Progressive defenses of freedom of expression, such as Zechariah Chafee’s, relied on utilitarian considerations and not on freedom of expression as a fundamental individual right. Progressives identified freedom of speech as a civilliberty to differentiate it from what Progressive understood to be the obsolete, individualist, natural-rights based liberties of the American past. While activist government was inimical to such rights as liberty of contract and property rights, it arguably buttressed a Progressive case for freedom of speech.  According to Progressive advocates of constitutional protection for freedom of expression, the more active a role played by government, the more important it is to ensure that public policy is subject to vigorous and uninhibited debate.  Such debate not only could bring important considerations to light, but also could serve as a check on those who would use public power for private gain, which in turn would lead to better public policy, which in turn would create a welcome demand for even more government.

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SCOTUSBlog: Symposium: The First Amendment’s protection of political speech extends to both donations and spending

By Ilya Shapiro

What kind of bizarro world do we live in where a near majority of Justices of the United States Supreme Court criticizes a First Amendment ruling for being overly concerned with “the individual’s right to engage in political speech”? Where these same jurists instead elevate “the public’s interest in preserving a democratic order in which collective speech matters”? Are these four reactionary horsemen who won’t countenance anti-war protestors, marches against oppressive laws, and other anti-establishment speech-acts? Or perhaps they’re censorious troglodytes inveighing against flag-burning, nude dancing, and other emotion-riling forms of expression?  

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Washington Times: The McCutcheon ruling protects political rights from government interference

By Jerad Najvar and Dan Backer

The Supreme Court issued a landmark First Amendment decision this week in McCutcheon v. FEC, illustrating timeless principles that apply outside of the campaign-finance context.

Our Constitution recognizes that the individual’s rights are intrinsic. Whether one believes they spring from God, from nature or from the birth of our nation, one is born with his rights — they are not something granted us by government and revocable at its whim.

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SCOTUSBlog: Symposium: Opposing more speech — a disturbing & recurring reality

By Floyd Abrams

The McCutcheon v. FEC ruling and the identity of the Justices aligned in it on one side or the other should surely have come as no surprise to Court-watchers.  The case is both an easier one thanCitizens United and a far less far-reaching one, both in theory and potential political impact.  There was never any reason to expect those members of the Court who joined the Citizens United majority to vote to sustain a provision of law that, at least on some readings, would have trouble passing a reasonable basis test – i.e., if a $2600 contribution by Shaun McCutcheon to sixteen candidates did not corrupt them, why would similar contributions corrupt the twelve other candidates he wished to support? 

What seems to me most surprising and disturbing about the ruling, though, is not to be found in the predictably much assaulted (and I believe sound) majority opinion but in the dissent.  For there, for the first time, Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan join with Justice Stephen Breyer’s minimization of long-recognized  and well-established First Amendment interests by maintaining that, after all, the side seeking to overcome those interests had at least as strong a First Amendment argument on its side.  In McCutcheon, that argument is based on the notion that the avoidance of whatever is defined as “corruption” strengthens the First Amendment.  With the First Amendment thus placed in some sort of supposed equipoise (since “First Amendment interests lie on both sides of the legal equation”) the case becomes an easy one.  It is, in my view, but in a different direction.

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Forbes: Mozilla’s CEO Showed the Cost of Disclosure Laws by Crossing the Satan-Scherbatsky Line

By Ilya Shapiro

The policy lesson from the case of Mozilla’s Brendan Eich, who was forced out as CEO of the tech giant he co-founded as a result of his support for Proposition 8—California’s ballot initiative that defined marriage as the union of a man and a woman—has nothing to do with either gay rights or tolerance for unpopular viewpoints. Instead, this episode showed the very real costs that donation-disclosure requirements inflict on civil society.

That is, the only reason Eich resigned is because his $1,000 contribution to the Prop 8 campaign became public. Or rather he was outed, so to speak, by activists—whom liberal satirist Bill Maher called the “gay mafia”—who scour the publicly accessible donor database in search of high-profile targets with “incorrect” views. Eich is only the most recent victim of such targeting, but he’s unlikely to be the last.

Even low-profile Prop 8 supporters—ones who didn’t create the JavaScript programming language or head major companies—have been subject tointimidation, vandalism, and other personal and financial hardships. All committed by individuals complaining about intolerance and demanding acceptance of diverse lifestyles.

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NY Times: To Strike at Kochs, Democrats Revive Tactic That Hurt Romney


WASHINGTON — After months of wincing in the face of negative ads funded by the industrialists David and Charles Koch, Democrats believe they have finally found a way to fight back: attacking the brothers’ sprawling business conglomerate as callous and indifferent to the lives of ordinary people while pursuing profit and power.  

By drawing public attention to layoffs by subsidiaries of Koch Industries across the country — a chemical plant in North Carolina, an oil refinery in Alaska, a lumber operation in Arkansas — Democrats are seeking to make villains of the reclusive billionaires, whose political organizations have spent more than $30 million on ads so far to help Republicans win control of the Senate.  

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State and Local

New York –– NY Times: Comptroller to Opt Out of Public Financing System


ALBANY — Thomas P. DiNapoli, the state comptroller, is the first to admit that what he plans to do is hypocritical.

But it is true: After decades spent calling for the public financing of political campaigns, Mr. DiNapoli, a Democrat, says he will opt out of a public financing system that New York lawmakers have just enacted, in time for this fall’s elections.

Then again, Mr. DiNapoli says the new system is a badly written, sloppy piece of legislation that was obviously rushed into effect — “a Frankenstein monster,” he calls it — and he fears that it may actually have been designed to fail, by lawmakers who either do not really believe in, or do not understand, public campaign financing at all.

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Kelsey Drapkin


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