In the News
State Policy Network: Week in Review: May 28, 2021
The Institute for Free Speech announced the addition of four new attorneys—Senior Attorneys Don Daugherty, Del Kolde, and Julie Smith and Attorney Martha Astor—in a significant expansion of its now eight-member legal team. The Institute’s attorneys will work to defend Americans’ First Amendment speech, press, assembly, and petition rights.
New from the Institute for Free Speech
The Wyoming Gun Owners (WyGO) late yesterday sued Wyoming in federal court, saying the state unconstitutionally regulates its speech about public policy as campaign advertisements.
“Wyoming’s campaign laws are too vague to be understood. That’s not good enough when the state is regulating core First Amendment rights. Candidates’ views on gun issues go to the heart of WyGO’s mission, and they have a right to speak about them,” said Institute for Free Speech Senior Attorney Del Kolde, who is representing WyGO in the case along with Stephen Klein from Barr & Klein PLLC and Seth Johnson from Slow and Steady Law Office, PLLC.
WyGO made multiple communications to its members and the public about the policy views of candidates for the 2020 election but did not directly support the election or defeat of any candidate. Nevertheless, the Wyoming Secretary of State’s Office investigated WyGO’s political speech after receiving a complaint from a frequent opponent of the group’s policy views. Deputy Secretary of State Karen Wheeler ultimately assessed a $500 fine against WyGO after determining that one of its radio ads “can only be reasonably interpreted as an appeal to vote” for the candidate whose views it praised and against the candidate it criticized.
Speakers in Wyoming, however, cannot predict when state officials will determine that their criticism or praise of a candidate’s views has crossed the line into advocacy for their election or defeat, the lawsuit explains…
Making matters worse, Wyoming allows private individuals to file complaints alleging that someone else’s speech violates the law…
By Ben Leonard and Christopher Cadelago
President Joe Biden has tapped Vice President Kamala Harris to lead the administration’s push for voting rights legislation, he said in a speech Tuesday…
In a statement following the speech, Harris said she would work with Congress, community and voting rights organizations, and the “private sector” to push voting rights efforts both nationally and in statehouses…
In his speech, Biden renewed his calls for the Senate to pass the For The People Act, the broad legislation reforming ballot access and campaign finance that passed the House but faces long odds in the Senate. Biden said he’d “fight like heck” to get the legislation passed and touted the John Lewis Voting Rights Advancement Act as well, saying June should be a “month of action.”
But there are clear impediments that Harris now faces in producing that action. The For The People Act does not have the support of all Democrats in the Senate. And even if the one notable holdout — Sen. Joe Manchin (D-W.Va.) — were to announce his support, Senate Democrats would still lack the votes to avert a Republican filibuster. Biden acknowledged these hurdles on Tuesday.
“I hear all of the folks on TV saying why doesn’t Biden get this done? Well, because Biden only has the majority of effectively four votes in the House and a tie in the Senate. With two members of the Senate who vote more with my Republican friends,” Biden said in a thinly veiled swipe at Manchin and fellow moderate Sen. Kyrsten Sinema (D-Ariz.).
By Nicholas Fandos
But the Democrats’ strategy for moving [S. 1] increasingly hinges on the longest of long shots: persuading Mr. Manchin and the other 49 Democrats to support both the bill and the gutting of the filibuster.
“We ought to be able to pass it — it really would be transformative,” Senator Chris Coons, Democrat of Delaware, said recently. “But if we have several members of our caucus who have just point-blank said, ‘I will not break the filibuster,’ then what are we even doing?”
Summarizing the party’s challenge, another Democratic senator who asked to remain anonymous to discuss strategy summed it up this way: The path to passage is as narrow as it is rocky, but Democrats have no choice but to die trying to get across…
Despite the intense focus on him, Mr. Manchin is not the only hurdle. Senator Kyrsten Sinema, Democrat of Arizona, is a co-sponsor of the election overhaul, but she has also pledged not to change the filibuster. A handful of other Democrats have shied away from definitive statements but are no less eager to do away with the rule.
“I’m not to that point yet,” [Senator Jon Tester of Montana] said. He also signaled he might be more comfortable modifying the bill, saying he “wouldn’t lose any sleep” if Democrats dropped a provision that would create a new public campaign financing system for congressional candidates. Republicans have pilloried it.
“First of all, we have to figure out if we have all the Democrats on board. Then we have to figure out if we have any Republicans on board,” Mr. Tester said. “Then we can answer that question.” …
“I don’t think they can convince 50 of their members this is the right thing to do,” said Senator Roy Blunt, Republican of Missouri. “I think it would be hard to explain giving government money to politicians, the partisan F.E.C.”
By Jacqueline Alemany
.A Democratic Senate aide, who spoke on the condition of anonymity to discuss internal matters, said there is a misconception that Sens. Joe Manchin III (D-W.Va.) and Kyrsten Sinema (D-Ariz.) are mainly responsible for holding on to the filibuster. In reality, the aide said, there are at least 10 Democratic senators who disagree with key parts of the bills that Republicans are filibustering, but “they just don’t need to say anything crazy because Joe Manchin is out there taking all the arrows for them.”
Going beyond GOP obstruction: The month of June might reveal some of the major cracks on the left as Majority Leader Charles E. Schumer (D-N.Y.) has promised to put the For the People Act on the floor this month — a sprawling overhaul of federal elections, ethics and campaign finance law that would reverse many of the restrictions that have been pursued by Republican-controlled legislatures in the wake of the 2020 election…
The internal tensions emerged in a Democratic caucus meeting on Wednesday afternoon during which the voting legislation was discussed, according to multiple senators who attended. It was the second time this month the subject had been broached with the group of senators meeting in person. The first time, Manchin wasn’t present — he opted instead to attend an appearance by first lady Jill Biden in his home state.
Washington Post: Democrats’ big voting bill is a proposal to ignore the Constitution
By George F. Will
[Democrats’ “For the People Act” (FTP)] sweeps beyond elections by expanding regulation of “electioneering communication” to include any communication that mentions a federal official, even if only to urge support for a policy, not influence an election. Unsatisfied with their advantages in the mainstream media, Democrats aim to impede alternative forms of advocacy, especially by requiring disclosure of even small-dollar donors to organizations involved only in issue advocacy, not elections. This is sinister, given the ferocious vindictiveness of today’s virtual mobs that hound people associated with controversial causes. Soon, the Supreme Court might issue a ruling strengthening its defense of the First Amendment right to speak anonymously. (In 2020, outside groups supporting Joe Biden raised anonymous donations — what Democrats tendentiously call “dark money” — that were six times the amount raised by allies of Donald Trump.) …
FTP reflects an appetite for constitutional vandalism that was displayed seven years ago when 54 members of the Democratic Senate caucus voted to amend the First Amendment to empower Congress to regulate the quantity, content and timing of campaign speech. They thereby implicitly acknowledged that the amendment (“Congress shall make no law . . . abridging the freedom of speech”) is, by its text, and Supreme Court rulings, incompatible with their desire to strictly control campaign spending, all of which directly or indirectly funds political advocacy.
By Shane Goldmacher
The tabloid publishing company that paid $150,000 to a former Playboy model in 2016 to suppress her account of an alleged affair with Donald J. Trump, then a presidential candidate, has agreed pay $187,500 to the Federal Election Commission to settle accusations that the company violated campaign finance law in making the payment.
The commission found that the firm, American Media Inc., and its former chief executive, David J. Pecker, had “knowingly and willfully” violated campaign laws by secretly routing the $150,000 payment to the former model, Karen McDougal, in coordination with senior officials with the Trump campaign, including Michael D. Cohen, who served as Mr. Trump’s personal lawyer at the time.
The idea behind the payment scheme — a method known as “catch and kill” — had been to buy the rights to Ms. McDougal’s story and then never publish it. The details of the effort came out widely in 2018 during Mr. Cohen’s federal trial for, among other things, campaign finance violations.
Mr. Pecker and Mr. Trump had been friends and allies, and American Media tried to argue to the commission that “payments for silence are not contributions or expenditures because silence is not a ‘thing of value,’” according to the settlement, which is known formally as a conciliation agreement…
Mr. Trump himself faces no further investigation in relation to the payment to Ms. McDougal, however.
By Caitlin Oprysko
The gush of money flowing into federal elections continues to pose an issue for the FEC, whose annual budget has failed to even keep up with inflation over the past few decades, the agency’s watchdog said in a report Friday.
— “Total spending on federal election campaigns has increased from $1.6 billion in 1998 to roughly” $14 billion last year, the semiannual report from inspector general Christopher Skinner reads. “However, the FEC’s budget has remained largely static over the past decade or more (and even decreased when accounting for inflation). That dynamic has placed great strain on the FEC staff and creates significant risks to the FEC.”
— Skinner also cited the lack of resources in a review of congressional Democrats’ landmark election reform bill, H.R. 1 (117), writing that while proposals to change the agency’s oversight of inaugural committees would bring that oversight “more in line with that of political committees,” lawmakers “should also consider whether additional oversight measures warrant the appropriation of additional personnel, information technology, and other resources for the FEC in light of the strain already placed on the FEC staff” because of budget constraints and the surge in campaign spending.
— Among the agency’s other challenges were its lack of a quorum for a large part of last year, which tied the agency’s hands when it came to enforcement, the pandemic and cybersecurity.
Online Speech Platforms
By Cristiano Lima
A nonprofit advocacy group with close ties to President Joe Biden on Wednesday joined calls for Facebook to review whether its actions contributed to the spread of unfounded election fraud claims leading up to the Jan. 6 siege on the Capitol.
Building Back Together, an outside coalition formed by top Biden allies and campaign advisers, urged Facebook in a letter reviewed by POLITICO to commit to an internal probe of the matter, something the company’s oversight board recommended last month.
By Hannah Metzger
An Arapahoe County District Court judge has granted a preliminary injunction in Aurora Mayor Mike Coffman’s lawsuit against the city, claiming that a new campaign finance law violates his freedom of speech.
The lawsuit alleges the law, passed by the City Council last year, prohibits former and future candidates from pushing for ballot issues or helping other candidates with their campaigns, which Coffman argues is intended to prevent his supporters from mobilizing in support of other candidates.
With this injunction, the city must cease enforcing the new campaign finance law until the lawsuit is resolved. The lawsuit was first filed in March 2021.
“I’m grateful that the court has granted an injunction suspending these rules while our lawsuit to have them declared unconstitutional continues,” Coffman said in a statement. “These extreme rules are designed specifically to deny me the fundamental right to publicly support candidates or ballot initiatives.”
Ballotpedia News: Tennessee enacts law limiting disclosure of nonprofit donor information
By Jerrick Adams
On May 25, Gov. Bill Lee (R) signed into law HB0159, legislation prohibiting public agencies from disclosing identifying information about a nonprofit’s donors…
HB0159 bars any public agency (including state and municipal government units and courts) from:
- Requiring a tax-exempt nonprofit to provide a public agency with personal information about its donors, members, supporters, or volunteers.
- Requiring individuals to provide personal identifying information about their involvement with nonprofits.
- Publicly disclosing any personal information a public agency might possess.
- Requiring a current or prospective contractor to provide a public agency with a list of the nonprofits “to which it has provided financial or nonfinancial support.” …
Under HB0159, a person alleging a violation of its provisions can file a civil action for relief, damages, or both. Damages range from $2,500 to $7,500 for each violation.
The law takes effect on Oct. 1, 2021.
Louisiana lawmakers have agreed to let candidates for office take unlimited sums directly from political action committees, in a significant change to campaign finance limits that govern donations that come largely from special interest groups.
The House gave final passage to the measure with a 75-29 vote Thursday, sending the bill by Sen. Ed Price to the governor’s desk. The Senate earlier in session had voted 29-5 for the legislation.
Gov. John Bel Edwards hasn’t taken a position on the proposal, which would take effect Aug. 1.
Political action committees represent specific industries, businesses, labor groups or other ideological organizations. They raise money from members of their companion organizations or other donors. Sometimes they’re formed to boost a specific candidate or cause.
Price, a Democrat from Gonzales, described his bill as a transparency effort. He said candidates sidestep the current limits by creating multiple PACs to accept the cash, and he argued that makes it harder for the public to track who’s contributing to a candidate’s election effort.
The state Board of Ethics opposed the change.
Current law restricts PAC donations to $80,000 for major office candidates in Louisiana, $60,000 for district office candidates and $20,000 for smaller office candidates. That cap is a total applied to the combined primary and general elections for a candidate.
The bill is filed as Senate Bill 4.
The Spokesman-Review: Court: YouTube channel not consider media under records law
By Rachel La Corte, Associated Press
A Washington man with a YouTube channel does not qualify as a member of the media under the state’s public records law, meaning he is not entitled to certain records that are available to news organizations but otherwise exempt from release to the general public, the state Supreme Court ruled Thursday.
In a 7-2 opinion, which overrules part of a Thurston County Superior Court ruling that found otherwise, the high court said that the statutory definition of “news media” requires an entity “to have a legal identity separate from the individual.”
The ruling comes in the case of Brian Green, who runs the “Libertys Champion” YouTube channel and sought photographs and birth date information from the Pierce County personnel files of jail staff and law enforcement employees. Such information is exempt from release to the public under current law, but an exception to the exemption exists for members of the news media.