Daily Media Links 5/23: Democrats vs. Free Speech, Proposed Rules on Tax-Exempt Groups Face Revision, and more…

May 23, 2014   •  By Joe Trotter   •  
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Amending the First Amendment

The Weekly Standard: Democrats vs. Free Speech

By Terry Eastland

In the lead opinion in McCutcheon, Chief Justice John Roberts said that the equality rationale is “not an acceptable government objective.” The reason it is not, he pointed out, is the First Amendment, which states that “Congress shall make no law .  .  . abridging the freedom of speech.” And at the core of the speech that it protects is political speech, which is exercised when money is contributed to candidates or spent on campaigns. In other words, there is a constitutional right of political speech. And under the Court’s cases so far, it may not be abridged except in cases of corruption.   

The Udall amendment would effectively remove political speech from the speech protected by the First Amendment and relocate it in a new amendment, where it would assume the guise of a political activity to be strenuously regulated. So it is that by amending the Constitution as Udall and company propose the country would be losing a most basic freedom.   

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Wall Street Journal: Proposed Rules on Tax-Exempt Groups Face Revision

By John D. McKinnon

“This proposed rule was wrong from the start,” said Rep. Dave Camp (R., Mich.), chairman of the House Ways and Means Committee. “The American people spoke out loud and clear against it, and hopefully the IRS and the Obama administration will think twice before ever trying to go down this path again. If they do, we will continue to defend Americans’ First Amendment rights.”  

Sen. Charles Schumer (D., N.Y.) said he hopes the IRS doesn’t soften the proposal and instead restricts what he views as abuse of the rules. “The only hope we have is, when the IRS goes back, they don’t succumb to any form of political pressure and enact a very tough rule that will equally curtail liberal and conservative groups,” he said.  

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Newsmax: GOP Slams Proposed IRS Changes on Nonprofits

By Todd Beamon

But the embattled agency said that it would only hold one public hearing on the revised regulations — and that would only come after those revisions have been published.

“They’ve taken a half-step,” Washington attorney Cleta Mitchell told Newsmax in an interview. She represents the Tea Party Patriots, which sued the IRS over the proposal in federal court last month. “But before they rewrite regulations in secret, they need to have a hearing before they come up with new proposed regulations.

“Yes, they got all these comments, but I’m not real happy about the idea that they’re going back to the drawing board in secret,” Mitchell added. “We have absolutely no idea what they’re doing, what they’re changing. They need to have multiple views instead of the views of those who just want to crack down on people’s free speech.”

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The Blaze: $1 Million Bounty to Be Offered for ‘Smoking Gun’ in IRS Targeting Scandal

By Sarah Carter

A nonprofit group hopes to award a $1 million bounty to anyone who can provide “smoking gun” evidence to implicate IRS leadership or members of the Obama administration who purposefully targeted conservative and tea party-affiliated groups, TheBlaze has learned.

Gregg Phillips, the managing director for The Voters Trust, a political nonprofit 501 (c)(4) which was established to identify and mobilize Americans, told TheBlaze on Wednesday “that this is the people’s bounty to seek the truth.”

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Independent Groups

More Soft Money Hard Law: Politicians In the Making and Review of Campaign Finance Regulation

By Bob Bauer

Discussion of the role of politicians in the production of  campaign finance laws has produced striking differences of opinion.  George Will warns that elected officials will always serve themselves when writing the rules, and the outcome will more likely than not be unconstitutional.  But Norm Ornstein—dissatisfied with the Court’s polarized performance on campaign finance, among other issues—would prefer to see more politicians among The Nine. Off the campaign trail and on the bench, they can provide a “real world” perspective on law and politics that would make for better judicial review.

It is hard to see how far either point can be taken.  Will is right: incumbent or partisan self-interest has been a major problem with the development of the campaign finance laws.  He is correct, too, that the continuous reference to campaign finance controls as a response to “Watergate”—meant to confer nobility on recent reform undertakings—is seriously misleading.  But then what?  Elected officials do write campaign finance laws, and it is only one of any number of instances, if not the clearest one, where  political self-interest leaves its mark on legislative performance.  The task of judicial review is to take account of the dangers of self-interest while leaving adequate scope for reasonable campaign finance regulation—like disclosure.

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Fox: Memo to big government lawmakers: Supreme Court did right thing when it ruled in my favor on McCutcheon vs. FEC

By Shaun McCutcheon

It’s funny to me how so many long-time incumbents in both parties with huge war chests of money want to stop free people from spending a mere $5,200 per candidate on political ideas. It seems that they just don’t want hear any better ideas.   

The proposed constitutional amendment would significantly impair the First Amendment’s free-speech rights, which the Supreme Court has diligently sought to protect. The so-called reformers fail to mention this point, which is self-evident. As described by Schumer, the proposal is a license for endless regulations. The government that couldn’t manage computers to oversee health-care insurance now has plans to dictate how you spend your money in politics.  

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Corporate Governance 

Wall Street Journal: Good News in the Proxy Wars


This non-change is nonetheless news because it comes despite a continuing political campaign to pressure CEOs and corporate boards. The leader of the movement is Bruce Freed, whose Center for Political Accountability is funded in part by George Soros’s Open Society Foundations.

Mr. Freed works with political investor groups like Walden Asset Management and Trillium that own shares but whose real purpose is to put proposals on the proxy ballot. The proposals are backed by the AFL-CIO and SEIU, which want to shut down political competition from business groups. Also providing public harassment muscle is the left-wing Democracy Alliance, which connects high-dollar liberal donors with progressive groups like CREW, Public Citizen, Common Cause and Media Matters for America.

In a 2011 memo, Media Matters wrote that its strategy was to launch “shareholder resolution campaigns to prevent corporations from making these types of [political] expenditures.” The disclosures, it continued, would then “create a multitude of public relations challenges for corporations that make the decision to meddle in political campaigns”; and “allied organizations” will “provoke backlashes among companies’ shareholders, employees, customers, and the public at large.”

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State and Local

California –- Sacramento Bee: Schools chief candidate files ethics complaint against teacher union

Marshall Tuck, one of two challengers in this year’s race for state superintendent of public instruction, has filed an ethics complaint against the California Teachers Association for a series of television ads supporting incumbent Tom Torlakson.  

The complaint filed with the Fair Political Practices Commission, California’s political ethics enforcement agency, alleges that CTA misleadingly characterized the ads as “issue advocacy” rather a campaign expenditure, which involves more financial disclosure, in violation of the “transparency required by the letter and spirit of the Political Reform Act.”  

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California –– California Appellate Report: ProtectMarriage.com v. Bowen (9th Cir. – May 20, 2014)

To be fair, though, the standing issue arises in the context of Proposition 8.  That’s the biggest pitch in favor of reading this otherwise technical opinion.  The question is whether it’s unconstitutional for the state to make public donors to that Proposition.  You can readily understand the arguments of both sides.  The disclosure proponents say the state has a legitimate anti-corruption and electoral interest in letting the public know who is funding ballot measures.  The disclosure opponents say that it allows contributors to be harassed and thus burdens their right to associate and participate in elections.  

But the majority says that dispute’s moot since the names here have already been disclosed for five years, and nothing can take that back.  Judge Wallace, by contrast, agrees, but argues that the capable of repetition yet evading review exception applies. 

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Mississippi –– Roll Call: Another McDaniel Supporter Arrested in Connection to Photographs of Cochran’s Wife

By Alexis Levinson

Mississippi state Sen. Chris McDaniel weighed in Thursday on the illegal photographing of Sen. Thad Cochran’s wife, now that multiple McDaniel supporters have been arrested in connection to the incident.

Mark Mayfield, the vice chairman of the Mississippi Tea Party, was arrested Thursday along with Richard Sager, The Clarion-Ledger reported. Last week, blogger Clayton Kelly was arrested after allegedly posting online images of Rose Cochran, who suffers from dementia, that were taken at the nursing home where she lives.

The connections to the McDaniel campaign has raised some issues for the challenger since Kelly’s arrest was first reported over the weekend. The Clarion-Ledger has a photograph of McDaniel with a group of volunteers, including Mayfield, and Kelly had written about his support for McDaniel on his blog.

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New York –– AP: Poll finds New Yorkers support campaign finance

A Quinnipiac University poll released Thursday finds 46 percent of voters support matching small donor contributions with state funds. That’s up from 38 percent in November. Meanwhile, 44 percent oppose it.

The poll shows 55 percent of voters think state government is dysfunctional, as opposed to 38 percent who disagree. A total of 81 percent of voters say government corruption is “very serious” or “somewhat serious.”

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Joe Trotter