Daily Media Links 5/14

May 14, 2019   •  By Alex Baiocco   •  
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In the News

Daily Caller: Free Speech Experts Warn Democrats’ Solution To Russian Meddling Will Chill Speech

By Amber Athey

“It is a large speech grab for speech about all issues by American citizens. It requires the advertising platforms to publicly expose the names and identity of any American who wants to spend as little as $500 on advertisements,” former FEC chairman Lee Goodman told The Daily Caller. “It is sold by proponents as a response to Russian meddling but it’s not tailored to the justification given for the law.”

Goodman also argues that a lack of disclosure of funding sources for ads was not the issue at hand in 2016, explaining that Facebook was “duped” by Russian actors posing as Americans and even using stolen American identities when purchasing ads.

“[The Honest Ads Act] will not be successful at preventing that type of conduct,” he said, adding that it turns online platforms into both the police and criminals when it comes to foreign advertisement.

“If they fail to catch the foreign meddler, they can be punished,” Goodman explained. “That should be the job of the Department of Justice (DOJ) and the intelligence agencies.”

The Institute for Free Speech (IFS) agrees, stating in an analysis on its website, “Congress could consider addressing the problem of foreign interference in our election campaigns by passing legislation that actually focuses on the problem of foreign interference in our election campaigns.” …

“There are very sensitive issues of public policy that people want to talk about without being exposed,” Goodman said, dubbing the disclosure rules a “moving subpoena.” “It will chill small organizations and grassroots efforts.”

David Keating, the president of the Institute for Free Speech, told the Caller, “In Utah, it may be controversial to push for gay rights … we don’t really see the need to have congressmen regulating grassroots behavior.” …

“It’s practically any issue that anyone cares about,” Keating said. “If in doubt, they’ll say it’s covered.”

Rapid City Journal: Federal judge rules IM 24 unconstitutional

By Sarah Mearhoff, Forum News Service

U.S. District Court Judge Charles Kornmann in Aberdeen ruled in favor of plaintiffs, who argued that the ban known as Initiated Measure 24 violated the First Amendment and the Commerce Clause of the U.S. Constitution.

“IM 24 is unconstitutional because it violates First Amendment rights to engage in political speech and to associate with others to fund political speech,” Kornmann wrote in his ruling. “IM 24 is also unconstitutional because it violates the Commerce Clause by interfering with the free flow of money between persons or entities from another state and ballot questions committees in South Dakota.”…

“IM 24 bans all direct political speech from one segment of society, a practice specifically struck down in Citizens United,” Kornmann wrote…

“It is clear that the Governor of South Dakota urged voters to adopt IM 24 to further the interest of preventing non-residents from having any voice concerning South Dakota ballot issues in connection with ballot issue committees.”

In a state with a Republican supermajority, Kornmann said it’s especially important that out-of-state political speech is allowed. With one-party control over the governor’s office, House and Senate, Kornmann said it is “more difficult for the opposition party to pursue its agenda in the state Legislature.” Banning out-of-state speech makes that even harder, he said…

Virginia-based Institute for Free Speech called the ruling “a big win for free speech.”

“Government cannot ban speech simply because it dislikes who is speaking,” said Institute for Free Speech Legal Director Allen Dickerson in a written statement. “South Dakotans have the right to hear messages from all Americans.”

Courthouse News Service: Judge Curbs South Dakota Political Contribution Law

By Levi Lass

U.S. District Judge Charles Kornmann struck down Initiated Measure 24 (IM 24) stating it “is unconstitutional because it violates the First Amendment right to engage in political speech and to associate with others to fund political speech.”

Kornmann also wrote in the 16-page ruling that IM 24 violates the Commerce Clause by “interfering with the free flow of money between persons or entities from another state.”

A permanent injunction was sought by the South Dakota Newspaper Association and SD Voice who aim to prevent South Dakota from enforcing IM 24, which was enacted by voters in the 2018 general election with 55.5% of the vote.

The newspaper association was also concerned about facing “significant civil penalties” for accepting advertising money from out-of-state entities that run political ads. A judge could fine up to $5,000 per violation under the law…

IM 24’s prohibition on out-of-state contributions does not apply to political parties, candidates or candidate committees. The measure only seeks to curtail “statewide ballot question committees,” which IM 24 fails to define, nor is the term defined by any existing campaign finance laws in South Dakota, according to the ruling.

“The Supreme Court has long recognized that ‘virtually every means of communicating ideas in today’s mass society requires the expenditure of money,'” Judge Kornmann wrote. “All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech, and the First Amendment protects the resulting speech.”

ICYMI

South Dakota Out-of-State Donor Ban Ruled Unconstitutional

A federal judge has ruled unconstitutional South Dakota Initiated Measure 24, a state law which would have banned Americans from other states from contributing to ballot measure campaigns in South Dakota. The Institute for Free Speech and former South Dakota Attorney General Marty Jackley represented a coalition of trade associations, an advocacy group, and a former South Dakota resident in a challenge to the law.

“Today’s ruling is a big win for free speech. Government cannot ban speech simply because it dislikes who is speaking. South Dakotans have the right to hear messages from all Americans,” said Institute for Free Speech Legal Director Allen Dickerson.

Plaintiffs in the case include the South Dakota Newspaper Association, South Dakota Retailers Association, South Dakota Broadcasters Association, South Dakota Chamber Ballot Action Committee, Thomas Barnett, Jr., and Americans for Prosperity. The law was also challenged by SD Voice and Cory Heidelberger. The judge’s ruling applies to both cases.

The law was ruled unconstitutional under both the First Amendment and the Commerce Clause.

“The evidence presented in this case demonstrates how important out-of-state contributions are for the ballot question committees to pursue political speech. The State cannot enact restrictions that so completely prevent those pursuing unpopular laws from amassing the resources necessary for effective advocacy,” wrote Judge Charles B. Kornmann.

The state will now have the opportunity to appeal the ruling. The Institute for Free Speech is committed to ensuring that every American’s First Amendment right to free political speech is respected across the country.

To read the court’s ruling, click here. To read more about the case, click here.

The Courts

Election Law Blog: Breaking: DC Circuit Denies En Banc Consideration in Crew v. FEC Case, Essentially Giving Republican Commissioners Unfettered Ability to Block All Campaign Finance Enforcement Matters with No Judicial Review of the Decision

By Rick Hasen

Huge decision not to take the case en banc today. Under the ruling, if the FEC deadlocks (typically along party lines) on an enforcement matter and those blocking enforcement claim “prosecutorial discretion,” there can be no meaningful judicial review of the matter.

As Judge Pillard explains in her dissent from denial of rehearing en banc: “If a partisan bloc of the FEC can thwart a case like this one, FECA’s controls on campaign money, including the political committee registration and disclosure requirements here, are not worth much. “

Or as FEC Commissioner Weintraub put it last month: the decision in this case “vividly shows how a few magic words sprinkled onto the end of a statement by less than a majority of commissioners, suggesting what they could have done – but didn’t – in a case, can paper over even thoroughly debunked legal reasoning and protect even the most outrageous dismissals from any review whatsoever. The power the D.C. Circuit panel granted to these magic words eviscerates the right that Congress gave the American public to review this agency’s decisions.”

Denver Post: ACLU sues Republican state lawmaker Ray Scott over social media snub

By Nic Garcia

The ACLU of Colorado has sued a Republican state lawmaker after he blocked a constituent on social media, adding to a nationwide trend of lawsuits that already have cost Colorado taxpayers.

The federal lawsuit against state Sen. Ray Scott, a Grand Junction Republican, filed Monday, alleges that two years ago Scott blocked Anne Landman, a vocal critic, on his official Facebook and Twitter accounts. The lawsuit argues that Scott violated Landman’s First Amendment rights and seeks an order to unblock.

“Sen. Scott censored me for being a critical constituent. Yet, he’s allowed his like-minded followers to ridicule me on his page and retain their right to speak freely,” Landman said in a statement. “This doesn’t feel like democracy. This feels like hypocrisy and punishment for having a different point of view.” …

The ACLU has filed lawsuits against officials in Kentucky, Maine and Maryland.

Scott is not the first Colorado lawmaker to face such a lawsuit. Last month, state Senate President Leroy Garcia, a Pueblo Democrat, was fined $25,000 for banning a constituent from Facebook. The state covered his fines, according to 9News.

Congress

The Hill: Schiff introduces constitutional amendment to overturn Citizens United

By Rachel Frazin

Rep. Adam Schiff (D-Calif.) on Wednesday introduced a constitutional amendment to overturn the Supreme Court’s 2010 Citizens United ruling…

“The Supreme Court’s decision in Citizens United overturned decades of legal precedent and has enabled billions in dark money to pour into our elections,” Schiff said in a statement.

The amendment would also allow states to enact laws creating public financing of campaigns.

“Amending the Constitution is an extraordinary step, but it is the only way to safeguard our democratic process against the threat of unrestrained and anonymous spending by wealthy individuals and corporations,” he added. “This amendment will restore power to everyday citizens.”

Schiff also announced the amendment on Twitter.

“Our democracy is not for sale,” he wrote. “We must stop the flood of dark money from drowning out the voices of everyday citizens.”

Center for Responsive Politics: Lawmakers seek to curb foreign influence by closing online political ad loopholes

By Karl Evers-Hillstrom

Sens. Amy Klobuchar (D-Minn.) and Lindsey Graham (R-S.C.) introduced the 2019 Honest Ads Act, which would mandate disclosure of those paying for online political ads and create a publicly available database of political ads that appear on major online platforms…

The bill was introduced with the backing of several campaign finance watchdogs. In a conference call Wednesday, Campaign Legal Center (CLC) President Trevor Potter, a former Republican FEC commissioner, said the bill would give “voters, journalists, and law enforcement officers important tools to help root out illegal foreign activity.” …

Reps. Derek Kilmer (D-Wash.) and Elise Stefanik (R-N.Y.) are lead sponsors of companion legislation in the House, which has 26 co-sponsors…

Erin Chlopak, director of campaign finance strategy at CLC, said more steps could be taken to limit foreign interference in U.S. elections. She noted individual states – including Vermont, Washington and Wyoming – have extended reporting and disclaimer requirements to online ads.

Chlopak said the FEC could do much more to limit foreign interference by simply adding reporting and disclaimer requirement to online ads – and by clarifying rules on whether U.S. subsidiaries of foreign-owned corporations may take part in U.S. elections…

Issue One sent a letter of support for the Honest Ads Act from 114 former lawmakers – 49 Republicans and 65 Democrats – to members of Congress…

The 2017 version of the bill didn’t get a vote in the Senate. Senate Majority Leader Mitch McConnell has repeatedly blocked similar transparency-related bills on grounds that they would chill free speech.

Washington Examiner: Adam Schiff renews the Democratic war against the First Amendment

By Washington Examiner

In September 2014, 54 Democratic senators voted to repeal the First Amendment of the Constitution.

They were supporting a proposed constitutional amendment by Sen. Tom Udall, D-N.M., whose stated goal was to overturn the Supreme Court’s landmark Citizens United decision…

Now, Rep. Adam Schiff, D-Calif., has proposed a similar amendment. It is not identical, yet it has the same core flaw. In their zeal to overturn the Citizens United decision, Democrats want to abolish the freedom of political speech…

As we noted at the time, Udall’s amendment gave Congress unlimited powers to regulate campaign finance; in its text, the regulation of funds raised or contributed was part of a list of things “included” in this open-ended power. This arguably would have given Congress … or at least the executive, through selective enforcement, immense powers to police the content of political speech.

After Udall proposed his amendment, Democrats on the Senate Judiciary Committee, ignoring testimony from free speech advocates such as noted First Amendment jurist Floyd Abrams, tried to fix this by adding the adjective “reasonable.” …

Schiff’s amendment adds the hyphenated adjective “content-neutral” before the still-meaningless “reasonable” in describing the limits Congress can place on political speech. But this Band-Aid demonstrates the original weakness of the concept…

There can be no freedom of political speech if Congress can prevent you, under penalty of fine or prison, from spending money to disseminate your message as widely as possible. That applies whether you choose to exercise your rights alone or in groups with other like-minded citizens.

FEC

Center for Public Integrity: FEC Lays Bare Internal Conflicts and Challenges in Letters to Congress

By Dave Levinthal

The FEC’s greatest challenge to fulfilling its mission is a misperception that “adherence to the rule of law and sensitivity to Americans’ First Amendment rights reflect hostility towards enforcing the law or, even, toward the Commission itself,” Republican commissioners Matthew Petersen and Caroline Hunter wrote.

Chairwoman Ellen Weintraub, a Democrat, took the opposite view, arguing the FEC has been “severely challenged from the inside by a group of commissioners who harbor ideological opposition to the very nature of the agency and the law we are charged with enforcing.”

The FEC commissioners’ comments are part of 171 pages’ worth of responses to dozens of questions Committee on House Administration Chairwoman Zoe Lofgren, D-Calif., sent the FEC on April 1.

The Center for Public Integrity on Thursday obtained the FEC responses, dated May 1, from the Committee on House Administration. Commissioners at the FEC – an independent, bipartisan agency tasked with enforcing and regulating federal campaign finance laws – had refused the Center for Public Integrity’s requests to review their responses.

Independent Groups

Wall Street Journal: Bernie Sanders, a Front-Runner With Financing to Prove It, Struggles to Retain Outsider Status

By Julie Bykowicz

Our Revolution lists names of donors on its website but doesn’t reveal the amounts they give.

The politically active nonprofit-armed with Mr. Sanders’s list of millions of supporter email addresses from the last presidential campaign-has been cheering him on in Facebook ads…

Our Revolution’s fundraising pleas say donations will help the group support Mr. Sanders’s presidential bid…

Its website names more than 9,400 donors through the end of 2018 but gives no information about how each person contributed. Its 2016 and 2017 tax filings list without names larger gifts of $300,000, $100,000, $25,000, $11,187 and six of $5,000 or more. Its 2018 tax returns won’t be available until later this year, and its total fundraising during the presidential campaign years won’t be revealed until well after Election Day.

Diane May, the spokeswoman for Our Revolution, said the group has no plans to expand its public disclosures…

Tax filings for a nonprofit called the Sixteen Thirty Fund show it contributed $100,000 to Our Revolution in 2017. The Sixteen Thirty Fund describes itself as a financier to groups promoting economic, criminal and racial justice and doesn’t disclose its donors, making it unknown who, or even how many people, gave the money to make up the $100,000 that ended up in Our Revolution’s coffers…

Our Revolution’s board members include Huck Gutman, a longtime friend of Mr. Sanders. Another, Nina Turner, is a progressive activist whom Mr. Sanders appointed as his presidential campaign’s national co-chair. Ms. Turner “has recused herself from decisions regarding our work to support Sen. Sanders’ campaign,” Ms. May said. After a reporter asked Mr. Sanders’s campaign about the arrangement, she resigned from the board, a campaign aide said.

DOJ

Associated Press: AP source: Barr launches new look at origins of Russia probe

By Michael Balsamo

Attorney General William Barr has appointed a U.S. attorney to examine the origins of the Russia investigation and determine if intelligence collection involving the Trump campaign was “lawful and appropriate,” according to a person familiar with the issue.

Barr appointed John Durham, the U.S. attorney in Connecticut, to conduct the inquiry, the person said. The person could not discuss the matter publicly and spoke Monday to The Associated Press on condition of anonymity.

With the appointment, Barr is addressing a rallying cry of President Donald Trump and his supporters, who have accused the Justice Department and FBI of unlawfully spying on his campaign…

Durham’s inquiry, which will focus on whether the government’s methods to collect intelligence relating to the Trump campaign were lawful and appropriate, is separate from an investigation by the Justice Department’s inspector general. The agency’s watchdog is also examining the Russia probe’s origins and Barr has said he expects the watchdog report to be done in May or June.

Miami Herald: Feds open foreign-money investigation into Trump donor Cindy Yang

By Jay Weaver, Nicholas Nehamas, Caitlin Ostroff, and Sarah Blaskey

The FBI has opened a public corruption investigation into Republican donor and South Florida massage-parlor entrepreneur Li “Cindy” Yang, focusing on whether she illegally funneled money from China into the president’s re-election effort or committed other potential campaign-finance violations, the Miami Herald has learned.

Investigators obtained a federal grand jury subpoena Tuesday seeking records from Bing Bing Peranio, an employee of Yang’s family’s spa business who last year contributed a maximum $5,400 to President Donald Trump’s re-election effort, according to a source familiar with the probe. Yang came to Peranio’s workplace and helped her write the check, Peranio told reporters from The New York Times, who first reported the contribution. Peranio told The Times she didn’t “say no.”

The subpoena asked for any records related to that March 5, 2018, donation and possibly other contributions between 2014 and the present, said the source, who asked for anonymity to discuss an ongoing federal investigation.

In a brief phone interview with the Miami Herald, Peranio confirmed that she had received a subpoena and that FBI agents had interviewed her at her home Thursday.

She declined to discuss the nature of the conversation but said she did not understand why investigators were interested in her political contributions.”It’s not just me,” Peranio said. “I don’t know why I always get it.”

The Justice Department declined to comment.

Associated Press: Ex-Fugees rapper charged in campaign finance conspiracy case

By Eric Tucker and Michael Balsamo

A four-count indictment accuses Prakazrel “Pras” Michel of conspiring with fugitive Malaysian financer Low Taek Jho, usually known as Jho Low, to make and conceal foreign campaign contributions. He is alleged to have used straw donors to give campaign contributions to a U.S. presidential candidate, who is identified in the indictment only as Candidate A…

Prosecutors allege that from June to November 2012, Low directed more than $21.6 million to be moved from foreign entities to Michel’s accounts in order to funnel money into the 2012 presidential election. They say Michel then paid about 20 straw donors and conduits so they could make the donations in their names and conceal where the money actually came from, according to the indictment.

More than $1 million was also sent to an independent expenditure committee, prosecutors said.

“Mr. Michel is extremely disappointed that so many years after the fact the government would bring charges related to 2012 campaign contributions,” said defense lawyer Barry Pollack. “Mr. Michel is innocent of these charges and looks forward to having the case heard by a jury.”

Representatives for Low said in a statement that he is innocent and the allegations against him “have no basis in fact.”

“Mr. Low has never made any campaign contributions directly or indirectly in the U.S. and he unequivocally denies any involvement in or knowledge of the alleged activities,” the statement said.

Fred Wertheimer of Democracy 21, a nonprofit campaign finance watchdog group, said that his organization and another one filed a complaint against Michel to both the Federal Election Commission and the Justice Department.

“It’s pretty unusual to get the government to bring criminal campaign finance cases,” he said. “On the other hand, we thought this was a clear case where enforcement was called for.”

The Media

Washington Post: The White House revoked my press pass. It’s not just me – it’s curtailing access for all journalists.

By Dana Milbank

I was part of a mass purge of “hard pass” holders after the White House implemented a new standard that designated as unqualified almost the entire White House press corps, including all seven of The Post’s White House correspondents. White House officials then chose which journalists would be granted “exceptions.” …

The White House press office granted exceptions to the other seven, but not to me. I strongly suspect it’s because I’m a Trump critic. The move is perfectly in line with Trump’s banning of certain news organizations, including The Post, from his campaign events and his threats to revoke White House credentials of journalists he doesn’t like…

Trump’s elimination of briefings and other changes have devalued White House coverage anyway. But there’s something wrong with a president having the power to decide which journalists can cover him…

Last year, Judge Timothy Kelly, a Trump appointee, ordered the White House to restore Acosta’s press credentials, saying that the White House’s process for revoking his access (after Acosta had aggressively questioned Trump) was “shrouded in mystery.”

In response, it seems, the White House established a clear – if nearly impossible – standard: no credentials to any journalist who is not in the building on at least 90 out of the previous 180 days…

The White House has also restricted access by allowing only one journalist from a news organization at most events, and by admitting journalists to events only if they register days in advance. This has sharply reduced journalists’ attendance at the White House – just in time for the 90-day attendance purge.

White House officials offered me and others it disqualified a lesser credential called a six-month pass. They say it will grant equivalent access, but for various technical reasons, that isn’t true.

The States

Wall Street Journal: N.J. Gov. Phil Murphy Vetoes ‘Dark Money’ Legislation

By Joseph De Avila

New Jersey Gov. Phil Murphy conditionally vetoed legislation that beefed up disclosure requirements for groups that try to influence elections, saying it wasn’t strong enough while other parts may infringe on protected speech.

The bill would have required independent expenditure groups, tax-exempt organizations that attempt to influence elections or legislation, to report sources of contributions of $10,000 or more.

Mr. Murphy, a Democrat, said in his veto message issued Monday that the disclosure requirements were too broad and could hurt efforts to advocate for controversial issues unrelated to elections such as abortion rights, the Second Amendment and racial justice. Advocates for polarizing issues will be reluctant to make financial contributions if those donations were subject to widespread disclosure, he said.

“As a result, broad disclosures such as those prescribed in this bill could significantly hinder the ability of organizations to advocate,” Mr. Murphy, a Democrat, said in his veto message. Those requirements would have also made it tough for the legislation to survive a court challenge, he said.

Mr. Murphy also objected to the legislation’s exclusion of limited liability corporations from reporting disclosure requirements. He said the exclusion of LLCs created a loophole for groups to avoid reporting donations.

The governor said he wants LLCs added to the legislation and also called for requiring groups receiving more than $25,000 in state tax credits to disclose donations to independent expenditure organizations…

Mr. Murphy also called for nixing part of the bill that sought to bar public officeholders from serving on independent expenditure groups, saying it also raises free speech concerns. 

Alex Baiocco

Alex Baiocco