In the News
By Dave Levinthal
[W]hen the Republican National Committee in June spent more than $14,000 on “building maintenance,” none of its facilities were getting a face-lift.
Instead, the RNC purchased face masks designed to limit the spread of COVID-19, according to Insider interviews and a review of federal campaign-finance disclosures released earlier this week…
Did the RNC violate federal campaign rules with its misleading spending disclosure? No, three election-law attorneys said…
Bradley Smith, a former Republican chairman of the FEC, said it was “entirely appropriate” for the RNC to pay for COVID-19 face masks using its national party-building fund, an obscure class of political money created by Congress in 2014 as part of its “cromnibus” spending bill.
“They do not benefit particular candidates, they are a safety measure akin to repairing emergency exits and maintaining fire extinguishers,” Smith, who is now the chairman of the nonprofit Institute for Free Speech, said. “They are a normal cost in maintaining and operating the facility, as provided by law.”
New from the Institute for Free Speech
By Tyler Martinez
Dear Secretary Buchanan and Director Schon:
On behalf of the Institute for Free Speech (“Institute”), I write to discuss Proposed Code of Wyoming Rules Chapter 002.0005.28 (“Proposed Rule”) regulating “direct coordination.” Earlier this year, the Wyoming Legislature passed a bill banning organizations from making contributions to political committees that “directly coordinate with a candidate or a candidate’s campaign committee” and then left to this Office the unenviable task of defining “direct coordination.”
The Institute urges the Secretary to rewrite and narrow this Proposed Rule to avoid unnecessarily encroaching on core First Amendment rights. In the campaign finance context, rules defining “coordination” are meant to police the line between independent expenditures and expenditures that are controlled by the candidate. The relevant section of the new chapter is a single paragraph…
The alliterative phrase “consultation, cooperation, or communication,” is undefined in the Proposed Rule and is not elsewhere defined in the campaign finance statutes or rules. This is a problem as, for example, the word “communication” can be read quite broadly to include indirect contact and can lead to unconstitutional infringement on core First Amendment freedoms.
By Jacob Sullum
A federal judge in Oregon yesterday issued a temporary restraining order that bars the U.S. Department of Homeland Security and the U.S. Marshals Service from “arresting, threatening to arrest, or using physical force” against journalists or legal observers at the ongoing Portland protests against police brutality. Responding to a lawsuit filed by the American Civil Liberties Union of Oregon, U.S. District Judge Michael Simon, who on July 2 issued a similar order against Portland police, also said federal agents may not order journalists and legal observers to disperse or confiscate their press passes, cameras, or audio recorders.
Reason (Volokh Conspiracy): Oregon Doesn’t Get Injunction Against Certain Federal Enforcement Procedures
By Eugene Volokh
From Judge Michael W. Mosman’s opinion yesterday in Rosenblum v. Does (D. Or.):
In the wake of the tragic killing of George Floyd in Minneapolis, international protests have demanded fundamental changes to our criminal justice system, particularly to police culture and tactics. These important protests have, in Portland, centered on a four-block area that includes the U.S. Courthouse, known as the Mark O. Hatfield Courthouse. By virtue of it being a federal building, the law enforcement personnel involved are federal agents.
One of the most difficult tasks for law enforcement in a free country like ours is to support robust protests while still maintaining order through lawful methods…. It is … common for [police-citizen] interactions [in such cases] to result in lawsuits, with protesters contending the police violated their First and Fourth Amendment rights and seeking redress by money damages and injunctive relief. There is a well-established body of law paving the way for such lawsuits to move forward in federal court.
This is not such a lawsuit. It is a very different case, a highly unusual one with a particular set of rules. In the first place, although it involves allegations of harm done to protesters by law enforcement, no protester is a plaintiff here. Instead, it is brought by the State of Oregon under a rarely used doctrine called parens patriae.
In the second place, it is not seeking redress for any harm that has been done to protesters…
Courthouse News: Chicago Protests
Black Lives Matter Chicago and the National Lawyers Guild brought a federal complaint to stop the U.S. deploying federal agents to the streets of Chicago “to intimidate and falsely arrest civilians who are exercising their constitutional right to speak and to assemble.”
Cincinnati Enquirer: The Washington Post, Nick Sandmann settle $250 million lawsuit out of court
By Cameron Knight
The Washington Post and Nick Sandmann have settled a libel and slander lawsuit stemming from coverage of the Northern Kentucky teen, who became the center of a social media firestorm in 2019…
The teen and his family sued The Washington Post for $250 million after it reported on a viral video from a trip Sandmann took with his Covington Catholic High School class to Washington D.C. for the Right to Life March…
The details of the settlement have not been released publicly. A motion filed in U.S. District Court by Sandmann’s lawyers requested the case be dismissed at the request of both sides of the suit…
Sandmann and his attorneys argued that the gist of a Washington Post article falsely conveyed that Sandmann had assaulted or physically intimidated Nathan Phillips and engaged in racist conduct.
The suit said the paper’s coverage was like a “modern-day form of McCarthyism.”
Sandmann’s attorneys claimed The Post incorrectly characterized the teen as the aggressor in the situation and exposed him to public ridicule.
The lawsuit was at first dismissed in federal court, but then was allowed to continue on a limited basis examining specific statements that said Sandmann “blocked” Phillips and “would not allow him to retreat.”
Seattle Times: Get a grip on money in politics
By Daniel I. Weiner
For the FEC to become a functional guardian will require a significant overhaul by Congress. It should include reducing the number of commissioners from six to five, with no more than two from either major party. The fifth commissioner should be a tiebreaking independent. Lawmakers should also help ensure agency accountability by requiring that the president appoint a real chairperson to oversee the FEC’s administrative needs and operations.
Congress must ensure more regular and predictable turnover by ending commissioners’ ability to hold over indefinitely past the expiration of their terms (the two who recently resigned were both George W. Bush appointees whose terms had long expired).
Finally, the commission’s enforcement process should be streamlined, including by allowing its dedicated nonpartisan staff to investigate potential legal violations and dismiss frivolous complaints without getting commissioner approval.
Candidates and Campaigns
Washington Post: Democrats brace for a flood of disinformation about vote-by-mail
By Greg Sargent
So what’s going on with Russian efforts to disrupt the 2020 election?
We got a glimpse into this question on Friday, when the Office of the Director of National Intelligence put out a statement that purported to “share insights with the American public about foreign threats to our election.”
The news is that foreign interference is happening right now. It says “our adversaries” are “seeking to compromise the private communications” of campaigns and candidates – which appears to mean efforts at another 2016-style cybertheft…
The statement also says this:
In addition, foreign nations continue to use influence measures in social and traditional media in an effort to sway U.S. voters’ preferences and perspectives, to shift U.S. policies, to increase discord and to undermine confidence in our democratic process.
Specifically, it says that Russia in particular is trying to undermine such confidence, via the “spread” of “disinformation.” In other words, there are active disinformation campaigns underway, they are focused on undermining public faith in our democracy, and Russia is pushing such messaging.
By Colby Itkowitz
The Ronald Reagan Presidential Foundation and Institute formally asked the Trump campaign and the Republican National Committee to stop using the 40th president’s name and image to raise money.
The request came in response to a fundraising appeal sent from the Trump Make America Great Again Committee, a joint effort of the Trump campaign and the RNC, offering two commemorative coins, one engraved with Reagan’s image and the other with that of President Trump to anyone who donates $45 or more for Trump’s reelection. The email was “signed” by Trump.
By Jim Provance
The nearly $61 million bribery scheme described as the biggest in Ohio history could not have happened if the nonprofit at its center had been required to disclose where it got its money…
But neither state nor federal campaign-finance laws currently require such disclosure by nonprofits…
Gov. Mike DeWine now says he would support closing that gaping dark-money loophole in state election law after a decade of Statehouse blockades…
Catherine Turcer, executive director of the government watchdog group Common Cause, said that, in the 10 years after Citizens United, state lawmakers in Columbus have never considered applying more stringent disclosure laws to corporations, too.
“This is the time to take action,” she said. “This is an epic scandal, the largest pay-to-play, bribery, corruption, money-laundering scheme ever. It’s time to take this seriously, to set some guardrails up so candidates and elected officials understand the rules and Ohioans can follow the money.” …
Sen. Teresa Fedor (D., Toledo) said Friday that she plans to introduce legislation “to reform Ohio’s campaign-finance laws so we can make sure this never happens again.”
Gotham Gazette: How a Big Brooklyn Upset Unfolded
By Victor Porcelli
Community activist Emily Gallagher ran a successful insurgent Democratic primary campaign like few others: one with no endorsements from elected officials, no support from ascendent lefitist groups the Working Families Party or New York City branch of the Democratic Socialists of America, and relatively little money compared to her opponent [Joe Lentol,] a 47-year incumbent State Assembly member who had not even faced a primary challenge for a decade…
Gallagher’s win is surprising to many. For one, Lentol’s name recognition, track record in the district (which was also represented by his father and grandfather), and initial campaign war chest of more than $350,000 from past fundraising efforts. Lentol raised close to $200,000 more as of July 16 and had outside groups spend almost $400,000 in support of him between January 1 and primary day, June 23, through independent expenditures. Those two buckets brought the total spending in support of Lentol to close to $1 million, a virtually unheard of amount for an Assembly campaign.
Meanwhile, Gallagher raised a little over $80,000 and spent about $70,000…
Michael Kinnucan, a member of the New York City branch of the Democratic Socialists of America who worked as deputy campaign manager for [Julia] Salazar’s 2018 campaign, where she upset incumbent State Senator Martin Dilan, said at a certain point money becomes less effective.
“There are real diminishing returns to money in campaigns,” Kinnucan said. “Fundamentally, Joe [Lentol] spent, what, $600,000 or something like that on the race? And what was he doing with it? I mean once you send six mailers, sending a seventh, eighth, ninth, and tenth, if the message isn’t connecting, is not going to move the ball.”