Daily Media Links 5/5: Is the American free speech consensus under attack?, California Attorney General Targets Political Nonprofits, and more…

May 5, 2017   •  By Alex Baiocco   •  
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Free Speech     

FIRE: ‘So to Speak’ podcast transcript: Former ACLU Executive Director Ira Glasser

By Nico Perrino

Ira Glasser: The notion that by limiting the amount of money you can spend on a right doesn’t restrict the right is absurd. It’s a fantasy. I mean, if I’m at the ACLU and I want to take out a full-page ad to advance a civil liberties cause, where – I have to spend the money to buy the space in the Times. If I’m planned parenthood and I want to take out an ad advancing the right to contraception and I want to buy it at the super bowl, I have to spend money. If I want to distribute leaflets, a fundamental First Amendment right, I have to produce the leaflets. Sometimes the cost is considerable, sometimes it isn’t considerable, but you ask anybody who’s ever run a political campaign, what about buttons, what about leaflets, what about travel, what about going to – you can’t exercise your First Amendment rights without spending money…

You know, the right to free speech is not the right to sit in the closet by yourself and mutter. It, it requires you – to be effective, it means you have to get out there and reach many, many people, otherwise the government could let you speak all you want if you only get to speak to yourself and three people that you know. It’s only when the speech gets to be disseminated that’s a problem, and there is no way to disseminate it without money.

National Constitution Center: Is the American free speech consensus under attack?

By Nicandro Iannacci

What does “free speech” mean, anyway? According to constitutional scholars Geoffrey Stone and Eugene Volokh, “the government may not jail, fine, or impose civil liability on people or organizations based on what they say or write, except in exceptional circumstances.” This is an extraordinary idea, sweeping in its defense of expression in a wide variety of forms and contexts; it is, as legendary First Amendment attorney Floyd Abrams recently noted, “a story of American exceptionalism.” To be sure, it is not a story without struggle or controversy. But in America today, there is a widespread, bipartisan consensus that leads the world in protecting and celebrating the freedom of speech…

In the last decade, however, a rapidly changing nation has given new voice and urgency to simmering critiques of this free speech consensus.

One major argument is the corporate critique…

Another argument is the equality critique, resurgent as protests against Ann Coulter, Richard Spencer, and other provocative speakers on university campuses have endured blowback from traditional free speech advocates…

For these visions to emerge triumphant, critics will have to convince a nation that is more protective of speech than any other. Despite some evidence that attitudes are changing, such changes remain an uphill battle.

Trump Administration    

Washington Post: Trump signs order seeking to allow churches to engage in more political activity

By John Wagner and Sarah Pulliam Bailey

The order, Trump said, removes the financial threat faced by tax-exempt churches from the Internal Revenue Service when pastors speak out on behalf of political candidates. But some experts said it amounts to a mostly symbolic gesture with little likelihood of changing how the agency polices the issue…

As a candidate and shortly after taking office, Trump declared that he would “totally destroy” what is known as the Johnson Amendment, the long-standing ban on churches and other tax-exempt organizations supporting political candidates…

The provision is written in the tax code and would require an act of Congress to repeal fully. An administration official said Trump was instead directing the IRS to “exercise maximum enforcement discretion of the ­prohibition.”

The language in the order is less robust: It merely instructs the administration not to take “adverse action” against churches or religious figures for political speech that has “not ordinarily been treated as participation or intervention in a political campaign” for or against a candidate for office.

Roll Call: Trump Order Could Lure Churches into Dark Money Politics

By Kate Ackley

“Dark-money operators are very creative,” said Meredith McGehee, chief of policy, programs and strategy for Issue One, a bipartisan campaign finance overhaul group.

Churches and other religious charities that do not disclose their donors “could act as a laundromat to clean the actual source of that money,” McGehee added…

James Bopp Jr., a well-known conservative lawyer, said he opposes the Johnson Amendment because it offers the IRS overly loose standards that can give the government an excuse to target certain groups for their political agenda.

“Those kind of vague standards allow arbitrary enforcement and political viewpoint discrimination,” said Bopp, who favors campaign finance deregulation…

Public Citizen, a liberal group that favors strict campaign finance limits, said it planned to challenge the new executive order in court.

“This executive order may go down in history as the Citizens United of church/state separation in the context of political spending,” said the group’s president, Robert Weissman.

Independent Groups      

The Hill: Outside group readies lawsuit on Trump’s religious exemption order

By Lydia Wheeler

At least one group is gearing up to file legal challenges against President Trump’s executive order intended to make it easier for religious groups to participate in politics without risking their tax-exempt status, though another has said it isn’t worth the trouble.

The Freedom From Religion Foundation (FFRF) said Thursday it had a 17-page complaint ready to be filed in the federal District Court for the Western District of Wisconsin…

The American Civil Liberties Union (ACLU) said before the order’s full text was released that it was also ready to go with a lawsuit challenging the order. But after seeing the language, the ACLU said no substantive changes to current policy were being made and it would not immediately be filing suit.

“Today’s executive order signing was an elaborate photo-op with no discernible policy outcome. After careful review of the order’s text we have determined that the order does not meaningfully alter the ability of religious institutions or individuals to intervene in the political process,” the group’s executive director, Anthony D. Romero, said in a statement.


American Prospect: Shareholders Demand Disclosure — and Republicans Push Back

By Eliza Newlin Carney

Shareholders have filed dozens of resolutions this proxy season that call on companies to explain and account for their political spending…

But Republicans on Capitol Hill, under pressure from business lobbyists, have introduced legislation authored by Texas Representative Jeb Hensarling that would silence most shareholders as part of a larger bill to overhaul the Dodd-Frank regulations…

Companies have typically shied away from contributing directly from their corporate coffers to super PACs, which may take unlimited contributions but must publicly report their donors, to avert consumer backlash.

But that may be changing under Donald Trump, who has stocked his cabinet and his White House staff with CEOs and Wall Street insiders…

At present, a shareholder who has owned 1 percent or $2,000 of a company’s market capitalization for a year may file a resolution.

Hensarling’s legislation would eliminate the $2,000 threshold and expand the ownership minimum to three years, a proposal in line with recommendations by the Business Roundtable.

The Courts      

Public Policy Legal Institute: A Standard to Judge By

“Regulating campaign speech is not easy. It’s not supposed to be.” Jeffrey Sutton, Sixth Circuit Court of Appeals, Winter v. Wolnitzek, (Aug. 24, 2016)…

Would Amul R. Thapar, now a U.S. District Court judge in Kentucky, really “eviscerate what remains of the law limiting the influence of money on politics”, as Ian Millhauser [said] in Think Progress.

Evidence? Thapar’s District Court decision in Winter v. Wolnitzek, 186 F.Supp.3d 673 (E.D. Ky, 2016) (earlier case: 56 F.Supp.3d 884 (E.D. Ky, 2014))…

People for the American Way, for example, said: “Judge Thapar ignored Supreme Court precedent and, without meaningful analysis, applied “strict scrutiny” (the highest level possible) to the contributions ban.” To its credit, PFAW not only mentioned McCutcheon, but quoted it. Their take was different though, citing McCutcheon for emphasizing a “lower, but still rigorous standard of review.”

So this “without meaningful analysis” criticism turns on the new “exacting scrutiny” standard for review of certain campaign finance restrictions. See, e.g., Buckley v. Valeo, 424 U.S. 1, 26-27 (1976). And what does McCutcheon say that standard is? The restriction may be constitutional “if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgement of associational freedoms.” 134 S.Ct. at 1444.

The States

KPLR 11 St. Louis: Missouri state senators in solidarity for ethics reform at capitol 

By Vic Faust

A group of bi-partisan senators want true ethics reform discussed on the senate floor, but they claim State Senate Majority Leader Ron Richards is stalling.

“This week, we adjourned for two days without doing any business at leadership’s discretion,” said State Sen. Ryan Silvy. “We are ready to talk about ethics and help move the budget forward.”

But the budget is the only thing this group of Republican-led senators will pass through until the issue of “dark money” is cleaned up in the capitol. These are donations made by extremely wealthy donors to a politician’s 501c4, which allows the donors to remain anonymous. That money allows attacks against lawmakers.

“The House passed an ethics gift ban early in session, but the Senate refused to hear it in committee,” Silvy said.

U.S. News & World Report: California Attorney General Targets Political Nonprofits 

By Don Thompson, Associated Press

California’s new attorney general said Wednesday that he plans to target political nonprofit organizations that he said mislead donors and influence campaigns…

“When you come up with these benevolent names for your organizations and what you’re really doing is out there doing politics and political backstabbing, I don’t think most Americans expected that that would be the use of the not-for-profit legal status,” Becerra said…

“The last thing I think most people want to find out is that all these groups that are getting tax breaks because they are not-for-profit are actually going out there and influencing our political system,” he said…

Campaign watchdogs said the practice is rampant and praised Becerra’s interest.

“There is no question that the rise of nonprofits in campaigns is overshadowing not just political parties but individual donors,” said Ann Ravel, previously a member of both the Federal Elections Commission and California’s Fair Political Practices Commission. “They have an enormous influence and because of that they’re able to funnel money from one to another and so they have no accountability to the public.”

Detroit Free Press: Senate bill would allow political candidates to solicit big money 

By Kathleen Gray

Under the bill, candidates could solicit unlimited contributions to independent expenditure committees or super PACs, which could then use the money to support the candidate’s aspirations.

Supporters say the measure simply codifies the federal Citizens’ United decision into state law…

“Michigan has a long history of codifying court rulings to keep our campaign-finance law current,” said Bob LaBrant, general counsel for the Sterling Corp. and a former executive with the Michigan Chamber of Commerce.

But Craig Mauger, director of the Michigan Campaign Finance Network, said the bill allows candidates to skirt campaign-finance contribution limits that cap individual donations to a candidate at $6,800…

Sen. David Robertson, R-Grand Blanc, sponsored a similar bill in 2015 that passed the Senate on a mostly party-line vote, with Republicans supporting the measure and Democrats opposing, but it never got a hearing in the House of Representatives.

“I believe we’re being consistent with the Citizens United decision and with federal law, and I’m comfortable with that,” he said.

Alex Baiocco

Alex Baiocco


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