Daily Media Links 5/20

May 20, 2020   •  By Tiffany Donnelly   •  
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In the News

Washington Post: Senate confirms Trump appointee to Federal Election Commission, restoring panel’s voting quorum for first time since August

By Michelle Ye Hee Lee

The Senate on Tuesday confirmed a conservative Texas lawyer nominated by President Trump to the Federal Election Commission, restoring a voting quorum on the agency for the first time since August amid a mounting backlog of complaints and requests for guidance in an election year.

James E. “Trey” Trainor III, an Austin-based election law attorney, has pushed for less regulation of money in politics and opposed efforts to require politically active nonprofit organizations to disclose their donors…

The party-line confirmation of Trainor ends the longest period in the agency’s history without a quorum, giving the panel the four votes necessary to regulate and enforce federal campaign finance laws…

Brad Smith, chairman of the conservative group Institute for Free Speech, welcomed Trainor’s confirmation, saying the agency’s work is especially crucial in an election year. Smith, a former FEC chairman, called on Senate and White House leaders to restore the full six-member commission.

“Trey Trainor is a well-qualified and welcome addition to the Commission. The FEC can now, hopefully, defend its actions in court and provide guidance to speakers on how to comply with the law,” Smith said in a statement.

New York Times: Election Watchdog, Dormant for Months, Can Finally Move Into Action

By Rebecca R. Ruiz

“There has been this ideological divide on this commission that’s been particularly sharp since 2008,” said Ellen L. Weintraub, a Democratic commissioner of the agency since 2002. Ms. Weintraub overlapped at the F.E.C. with Donald F. McGahn II, Mr. Trump’s former White House counsel, who served as a commissioner from 2008 to 2013 and has been a forceful proponent of deregulation.

“The Republican commissioners were, in my view, hostile to enforcing the campaign finance laws at all,” Ms. Weintraub said of the dynamic…

Caroline C. Hunter, a Republican commissioner who was confirmed in 2008 and is the agency’s current chair, said in an interview Monday that she and fellow Republicans like Mr. McGahn had simply shared a conservative view of the law.

“Democrats didn’t like it because it didn’t match their overly regulatory, heavy-handed, anti-First Amendment reading,” Ms. Hunter said. “To the extent that there’s ambiguity, my colleagues on the commission want to enforce the law. We refuse to push the bounds.” …

A former Republican commissioner, Bradley A. Smith, urged the White House and the Senate to nominate and confirm two more commissioners, filling all available seats to allow the agency to function properly.

“There’s no room for compromise right now,” he said of the four-person commission in an interview. “I’m a small government guy, and I’ve been critical of a lot of the F.E.C.’s mission. But it is its mission – Congress has given it – so it ought to be operable.”

Roll Call: FEC, hamstrung for months, can start meeting again

By Kate Ackley

Former FEC commissioner Bradley A. Smith, a Republican, praised Trainor for his qualifications, especially for offering the perspective of someone who has represented campaigns.

“One of the real strengths he brings is that knowledge of a practitioner,” Smith said during a brief interview. “He’s also strongly conscious of the First Amendment problems that always hang over the commission’s activity, so that will be a plus.”

Federalist Society: Litigation Update: Associational Privacy at the Supreme Court

Teleforum: May 20 at 12:00pm EDT

In NAACP v. Alabama ex rel. Patterson, the Supreme Court recognized a First Amendment right to privacy of association and belief. Almost 60 years later, while California’s Attorney General began requiring charities to provide their office with a federal form listing major donors. That document — Schedule B to IRS Form 990 — is provided directly to the IRS, and its privacy is guaranteed by federal law. The California Attorney General asserted that her office would also protect donors’ privacy, and that the information was necessary to pursue law enforcement duties. The American for Prosperity Foundation and others assert the evidence at trial indicated that donor information was publicly available, and that California authorities seldom used it for the reasons stated. The Supreme Court has been asked to review the Attorney General’s policy, and has called for the views of the Solicitor General in what could prove a seminal case concerning associational privacy. 

Mr. Robert Alt, President & CEO, The Buckeye Institute
Mr. Allen Dickerson, Legal Director, Institute for Free Speech
Mr. Paul S. Ryan, Vice President, Policy & Litigation, Common Cause
Mr. Derek Shaffer, Partner, Quinn Emanuel Urquhart & Sullivan, LLP

New from the Institute for Free Speech

Statement on Confirmation of FEC Commissioner Trey Trainor

The Institute for Free Speech released the following statement in response to today’s vote by the Senate to confirm Texas attorney Trey Trainor to the Federal Election Commission. The confirmation restores the agency’s quorum and its partisan balance.

“Trey Trainor is a well-qualified and welcome addition to the Commission. The FEC can now, hopefully, defend its actions in court and provide guidance to speakers on how to comply with the law. That is critical at any time, but it is even more important in an election year,” said Institute for Free Speech Chairman and former Federal Election Commission Chair Bradley A. Smith.

“Unfortunately, with just four commissioners, any one member can still prevent the Commission from acting. That’s why it is important that the President nominate, and the Senate promptly confirm, new commissioners until all six seats are filled,” said Smith.

Trainor was originally nominated to the FEC in 2017, but the Senate did not act at that time. On February 27, 2020, President Trump re-nominated Trainor to the Commission. The six-member FEC lacked a quorum since September 1, 2019.

The FEC’s three other commissioners have all served for years past their original terms. The Institute for Free Speech supports replacing the holdover commissioners and filling the two remaining vacancies at the FEC.

The Courts

RealClearInvestigations: Investigative Issues: Erik Prince Sues The Intercept for Alleging Proposed Alliance With Russians

By Eric Felten

Erik Prince, founder of the global security firm Blackwater USA, is suing the investigative news site The Intercept for defamation over an April 13 article headlined “Erik Prince Offered Lethal Services to Sanctioned Russian Mercenary Firm Wagner,” his lawyer said on Tuesday.

The article claimed provocatively that “[a]ny business relationship between Prince and Wagner would, in effect, make the influential Trump administration adviser a subcontractor to the Russian military.”

The lawyer, Matthew L. Schwartz of Boies Schiller Flexner LLP said, “The Intercept accused Erik Prince of being a criminal and a traitor based on dishonest and biased anonymous sources that it made no effort to corroborate.” …

Schwartz confirmed that the complaint, a copy of which was provided in advance to RealClearInvestigations, was filed Tuesday in U.S. District Court in Cheyenne, Wyoming, the state where Prince “conducts the majority of his business.” …

The lawsuit accuses The Intercept of purposefully making “defamatory statements … as part of a long scheme by the Defendants to knowingly publish false, misleading, and defamatory statements about Mr. Prince in order to further the Defendants’ political agenda, boost The Intercept’s readership, and reap the associated financial gains, including the continued viability of the publication.”


National Review: Barr’s Remarks on Obama and Biden Make an Important Point

By Andrew C. McCarthy

Attorney General Barr’s remarks on Monday, signaling that the Justice Department anticipates no criminal charges against former President Obama and former Vice President Biden, should come as a surprise to no one…

To be sure, the media reporting will portray Barr’s latest comments as indicative of a rift between the AG and President Trump, whose latest “Obamagate” rhetoric frames Obama-era investigative abuses as “crime.” Barr’s remarks will also be applauded as an “exoneration” of Obama officials – consistent with the media approach that portrays Democrats as innocent victims of right-wing smears if they manage to evade indictment, while a “guilty until proved innocent beyond any doubt” standard is applied to Republicans. Barr’s comments will feature in the “nothing to see here” storyline, the press’s counter to stunning revelations about the baselessness of the Russia collusion narrative willfully peddled by Democrats, and the exploitation of counterintelligence powers – powers that are supposed to protect us from jihadists and hostile regimes – for partisan political purposes.

To the contrary, my sense is that the AG believes there is plenty to see and be outraged about. It simply may not be criminal. 

Independent Groups

Politico: Phantom super PAC says it returned donations

By Zach Montellaro

A phantom super PAC that reported dropping millions of dollars on the battle for the Senate said in a report it was returning money to its alleged donors following an investigation by POLITICO.

POLITICO reported earlier this month that there was scant evidence that Americans for Progressive Action USA, a super PAC created earlier this year, was actually spending the millions of dollars in outlays it reported to the Federal Election Commission.

Six ad-makers and advertising platforms listed in the filings said they’ve never heard of the super PAC and have no records of doing business with it. Since then, no ads from the super PAC have appeared on television or in the public databases of either Facebook or Google.

The filing also had other inconsistencies, including several vendors listed as doing business in Washington not appearing in a public database maintained by the District of Columbia government.

In a new filing with the FEC on Monday, Americans for Progressive Action USA reported that it returned more than $4.8 million in donations it said it received from three donors with Texas addresses. In memo lines explaining why the donations were being returned, three reasons were listed: “refund due to POLITICO”, “refund” and “refund after Montellaro” – the last name of a POLITICO reporter…

Separately, the Foundation for Accountability and Civic Trust, a conservative ethics watchdog, said it filed a complaint with the FEC about Americans for Progressive Action USA.


Washington Post: ActBlue raised $141 million in April, after coronavirus halted fundraising in second half of March, officials say

By Michelle Ye Hee Lee

With campaign fundraising going fully virtual, there were signs of a pickup in online donations for both parties in April after they tapered off in March as the pandemic halted political fundraising, according to new data…

Both parties are projecting an explosion of online donations this year, and their online fundraising platforms are upgrading technology and hiring staff to accommodate campaigns going fully virtual…

“What is encouraging to me is not just seeing things coming back, but that we’re also seeing growth,” Erin Hill, ActBlue’s executive director said. “This is not a new moment that the movement is adapting to. Candidates have been building robust, resilient small-dollar online communities for years now, over several elections.”

Candidates and Campaigns

Washington Post: In the battle of Biden vs. Trump, money may be less important than ever

By David Von Drehle

[W]hile money can be decisive in down-ballot races, where candidates are buying every bit of exposure and interest in their campaigns, there is little evidence that those dollars pick presidents. Consider Mike Bloomberg. The former New York mayor essentially fired greenbacks from confetti cannons in pursuit of the Democratic nomination. Spending an incredible $1 billion on his roughly 100-day campaign – an average of some $10 million a day – proved an exercise in futility…

Biden lagged in fundraising during the primaries, too – yet he is the nominee-in-waiting. In 2016, Hillary Clinton outspent Trump by almost 2 to 1…

As far back as 1980, John Connally of Texas…spent what was at the time a mountain of money, $12 million, on a campaign that won exactly one delegate.

In the battle of Biden vs. Trump, money may be less important than ever. Biden’s task of defining and attacking Trump is already done; much of it, the president has done to himself. It’s difficult to imagine a voter in America who is not thoroughly familiar with the subject, and data suggest that most people settled on their conclusions some time ago and aren’t budging. Biden is less familiar but only by comparison to the most-watched person in the world. He will have plenty of money to do all the advertising he needs.

The States

Americans for Tax Reform: Oklahoma Gets it Right On Citizen Privacy Protections

By Doug Kellogg

Last week, the Oklahoma legislature overwhelmingly passed protections for free speech and citizen privacy, as the Personal Privacy Protection Act sailed through the Senate, having passed the House earlier in the year.

This is a critical step to protect Oklahomans who contribute to causes they believe in. We continue to see efforts to undermine the right to free speech with aggressive state laws that expose private citizens’ personal information, with the effect of chilling speech.

These aggressive laws go far beyond the usual political campaign regulation, undermining the ability of citizens to effectively engage with their legislators and even give to educational groups.

Whether it is the rise of Antifa, Democrat Presidential candidate Joaquin Castro publishing the personal and business information of contributors to the Trump campaign, or story after story of union intimidation, it is clear that if people’s personal information is revealed, hyper-political interests will abuse that information.

Oklahomans who contribute to non-profit educational groups, advocacy organizations, and alike, should have their privacy protected…

Oklahoma joins West Virginia, Mississippi, and Arizona as states who have enacted these vital measures. Tennessee has a chance to join Oklahoma by passing SB 2293/HB 2396, if and when they return to session.


Tiffany Donnelly

Tiffany Donnelly