Daily Media Links 7/20: Whitehouse Introducing New Campaign Finance Bill, FEC Contacts With IRS Broke No Rules, Report Says, and more…

July 20, 2017   •  By Alex Baiocco   •  
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In the News

St. Louis Post-Dispatch: Court: Activist’s fight with ethics panel not over

By Kurt Erickson

Ten months after Ron Calzone declared victory when a circuit judge blocked the Missouri Ethics Commission from requiring him to register to lobby the Legislature, a state appeals court said the original ruling was premature…

Calzone, director of a group called Missouri First, speaks to lawmakers at the Capitol, often at public hearings, but says he does not buy food or gifts for legislators. Missouri First is a group that promotes constitutional governance.

However, in 2015, a complaint was filed against him with the Missouri Ethics Commission, which decided that Calzone should have been registering as a lobbyist and would need to in the future.

In fighting that decision, Calzone won a ruling from Cole County Circuit Judge Jon Beetem that he did not have to register or pay a $1,000 fine to the MEC.

But, the appeals court found that Calzone had not exhausted his ability to appeal the MEC decision before he went to court.

The ruling said because other remedies were available, it was an “abuse of discretion” for Beetem to block the MEC from further pursuing its case against Calzone.

San Francisco Chronicle: Court restores activist’s fight with Missouri ethics panel

By Associated Press

A Missouri appellate court says a judge’s blocking an ethics panel from requiring a conservative activist to register to lobby the Legislature was premature.

The St. Louis Post-Dispatch reports a Missouri Court of Appeals ruling Tuesday allows the Missouri Ethics Commission to again begin a hearing over whether Ron Calzone can appear before the House and Senate without formally registering.

Calzone heads the Missouri First group that promotes limited government.

He speaks to lawmakers often at public hearings but says he doesn’t buy food or gifts for them.

The commission in 2015 fined Calzone $1,000 and barred him from trying to influence potential state legislation until he registers and files expenditure reports. But a Missouri judge last year tossed that case and barred any further action on it.

Portland Mercury: A National Right-Wing Group Wants to Keep Big Money in County Elections

By Doug Brown

“They gave me a call,” says TAO Executive Director Jason Williams. “And I’m glad they’re around. I hate these laws that try to limit free speech.”

Owen Yeates, the lead CCP attorney representing TAO in opposing the reform measure, defends his organization’s involvement in protecting a status quo that allows wealthy donors to greatly influence elections: “It’s not a case of a big group coming from out East violating the will of the people,” Yeates says, noting he personally lives in Portland. “The First Amendment and Bill of Rights have always been about protecting minorities from the majority. That’s why we’re doing this-we want to protect people who feel they’re being violated and oppressed.”…

The provisions are at odds with a controversial 1997 Oregon Supreme Court ruling and the often-criticized 2010 Citizens United ruling…

Since the campaign finance measure is potentially at odds with Supreme Court precedent, the Multnomah County Board of Commissioners voted unanimously in April to send the measure to what’s known as a court validation proceeding, where a judge preemptively rules on whether a law is constitutional before it’s implemented.

CCP

CCP Brief: $18 Million Campaign Finance Fine is Unconstitutional

The case, State of Washington v. Grocery Manufacturers Association, started in 2013 when the Grocery Manufacturers Association (GMA), a national trade group, opposed a ballot measure that would have mandated GMO labeling. To do so, the group contributed to a Washington State ballot committee, and was properly reported as a donor. The funds were fully under the trade group’s control and GMA said it consulted multiple lawyers to ensure it complied with Washington law.

Nevertheless, the state of Washington, pursuing a complaint filed by supporters of the ballot measure, thought the group had acted improperly. The state demanded that GMA file as a political committee and disclose all of its donors. GMA promptly complied, filed the appropriate paperwork and disclosed all of its contributions and spending involving the Washington ballot measure.

Despite this, the state of Washington sued the trade group. In a shocking decision, Judge Anne Hirsch of the Thurston County Superior Court found that not only was GMA guilty of violating Washington’s campaign reporting rules, it also intentionally evaded the law, allowing for the fine to be tripled…

“The GMA made — at worst — a good-faith, technical error, and then made every effort to fix its mistake,” said CCP Legal Director Allen Dickerson. “By imposing an excessive fine in response, Washington will inevitably cause other groups to wonder whether even careful political participation is worth the risk.”

Brief of Amicus Curiae Center for Competitive Politics in State of Washington v. Grocery Manufacturers Association

The Eighth Amendment identifies, and seeks to prevent, the universal temptation toward heaping increasingly severe penalties upon unlawful conduct in the hopeless pursuit of universal compliance and complete deterrence. That tendency is not limited to obviously corrupt conduct: here, GMA simply failed to meet reporting obligations while engaging in constitutionally protected activity. Nevertheless, in what the Attorney General has called a “historic decision,” the Superior Court assessed an unprecedented fine1 that will chill lawful and constitutionally protected activity: “speech about public issues and the qualifications of candidates for elected office,” a category that “commands the highest level of First Amendment protection.” Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1665 (2015).

The fine imposed by the Superior Court is constitutionally excessive because, in failing to take First Amendment considerations into account, it “is grossly disproportional to the gravity of” GMA’s offense. United States v. Bajakajian, 524 U.S. 321, 334 (1998). In particular, the Superior Court’s standards for activity triggering trebled fines cannot meet the scrutiny necessary to justify such punitive penalties, especially given the vast range of activity for which the state demands disclosure. Based on these flawed standards, the Superior Court has imposed a massive fine-a death sentence for most groups-with tremendous potential to chill specially protected speech.

Petitioners Reply Brief in Howard Jarvis Taxpayers Association v. Brown

Although the people in enacting Proposition 73 initially granted limited power to the Legislature to amend the terms of the initiative (but not to enact laws conflicting with it), that authority was revoked by two later carefully drafted initiatives. The first one, Proposition 208 put forward by amici, carefully left the ban on taxpayer financing of campaigns for elective office in place, but repealed the statute added by Proposition 73 that allowed legislative amendment. Proposition 34, put forward by the California Legislature, similarly was careful to maintain Government Code § 85300’s ban on public financing of political campaigns and similarly repealed the authority of the Legislature to amend that section. The Constitution is clear. The Legislature, on its own, has no authority to amend voter-enacted statutes without express authority from the voters. The attempted amendment of Section 85300 to authorize that which the voters prohibited is void as an act beyond the powers of the Legislature.

Even if there were some hidden authority for legislative amendments of the voter-enacted provisions of Proposition 73, Senate Bill No. 1107 must fall because its amendments do not “further the purposes” of Title 9 of the Government Code as amended by Proposition 73 and Proposition 34.

The Courts

Washington Post: Court order bans ‘memes’ that use photo of local community activist

By Eugene Volokh

The order is not limited to constitutionally unprotected speech, such as defamation or threats. Nor is it based on any findings of past defamation or threats…

The order includes political criticism – indeed, the whole basis for the restraining order was Rynearson’s past political criticism…

There were many comments criticizing Moriwaki on Rynearson’s own page about Moriwaki, including memes that used Moriwaki’s photograph: “One has [Moriwaki’s] photo with barbed wire and a message that Moriwaki supports ‘politicians who made indefinite detention without charge or trial ‘legal.’ ” Rynearson also apparently “paid for advertising of the site and those ads for the site appeared in feeds of people who did not sign up to see it.”

This is core First-Amendment-protected criticism, related to political issues. It was repeated; but people have a right to speak a lot, and not just a little. It might well be lacking in a sense of proportion, and thus more alienating than persuasive; but it’s not for government officials to judge that, whether as to speech by ordinary citizens, campaigns by crusading newspaper columnists or any other speech.

Reason: Do You Have a Right to Follow the President on Twitter?

By Jacob Sullum

A federal lawsuit filed last week argues that Trump’s current use of the Twitter account he established in 2009 makes it a “designated public forum,” meaning that banishing people from it based on the opinions they express violates the First Amendment.

The idea that you have a constitutional right to follow the president on Twitter is not as silly as it might seem. If the White House let visitors to its website post comments and used a filter to block criticism while allowing praise, that would pretty clearly violate the right to freedom of speech.

The Knight First Amendment Institute at Columbia University, which filed the Twitter lawsuit on behalf of itself and seven Trump critics blocked by his account, argues that the president’s viewpoint discrimination on the social media platform is analogous. The institute’s beef is not with Twitter, a private company that is not constrained by the First Amendment, but with the president and his staff.

Congress

Politico: Whitehouse Introducing New Campaign Finance Bill

By Theodoric Meyer

Sen. Sheldon Whitehouse (D-R.I.) is introducing a new version of the DISCLOSE Act today. The legislation, as in previous versions, would require super PACs, nonprofits, corporations and unions that spend money in elections to disclose donors that have given $10,000 or more each time they spend at least $10,000 on political activity. The bill would also prohibit domestic corporations under foreign control from spending money in elections and force shell companies to make their funders public…

Whitehouse will also lead a Democratic Policy and Communications Committee hearing at 4 p.m. in the Capitol Visitor Center titled “Democracy for Sale: How Our Broken Campaign Finance System Allows Foreign Governments to Buy Influence in Our Elections and What We Can Do About It.” Ellen Weintraub of the Federal Election Commission, Norm Ornstein of the American Enterprise Institute, Larry Noble of the Campaign Legal Center, Sheila Krumholz of the Center for Responsive Politics and Liz Kennedy of the Center for American Progress plan to speak.

The Intercept: U.S. Lawmakers Seek to Criminally Outlaw Support for Boycott Campaign Against Israel

By Glenn Greenwald and Ryan Grim

The criminalization of political speech and activism against Israel has become one of the gravest threats to free speech in the West. In France, activists have been arrested and prosecuted for wearing T-shirts advocating a boycott of Israel. The U.K. has enacted a series of measures designed to outlaw such activism. In the U.S., governors compete with one another over who can implement the most extreme regulations to bar businesses from participating in any boycotts aimed even at Israeli settlements, which the world regards as illegal. On U.S. campuses, punishment of pro-Palestinian students for expressing criticisms of Israel is so commonplace that the Center for Constitutional Rights refers to it as “the Palestine Exception” to free speech.

But now, a group of 43 senators – 29 Republicans and 14 Democrats – wants to implement a law that would make it a felony for Americans to support the international boycott against Israel. . . Anyone guilty of violating the prohibitions will face a minimum civil penalty of $250,000 and a maximum criminal penalty of $1 million and 20 years in prison…

Warning that “proponents of the bill are seeking additional co-sponsors,” the civil liberties group [ACLU] explained that “it would punish individuals for no reason other than their political beliefs.”

FEC

Bloomberg BNA: FEC Contacts With IRS Broke No Rules, Report Says

By Kenneth P. Doyle

Federal Election Commission staffers contacted former IRS official Lois Lerner about tax-exempt groups involved in politics, but the contacts didn’t violate any rules and weren’t intended to target conservative groups, an investigation by the FEC’s Office of Inspector General found.

“No evidence was developed to indicate the communications between FEC employees and the IRS were made for the purpose of improperly coordinating the targeting of tax exempt political organizations for political reasons,” a report on the investigation concluded…

The new FEC inspector general’s report was completed earlier this year and released to Bloomberg BNA July 18 following a request under the Freedom of Information Act. A summary of the investigation’s findings about contacts between the FEC and the IRS was released last month as part of a semiannual report to Congress from the FEC inspector general’s office.

Free Speech

Wall Street Journal: EU Court to Rule on ‘Right to Be Forgotten’ Outside Europe

By Nick Kostov and Sam Schechner

The European Union’s top court is set to decide whether the bloc’s “right to be forgotten” policy stretches beyond Europe’s borders, a test of how far national laws can-or should-stretch when regulating cyberspace…

At issue: Can France force Google to apply it not just to searches in Europe, but anywhere in the world?

The case will set a precedent for how far EU regulators can go in enforcing the bloc’s strict new privacy law. It will also help define Europe’s position on clashes between governments over how to regulate everything that happens on the internet-from political debate to online commerce.

France’s regulator says enforcement of some fundamental rights-like personal privacy-is too easily circumvented on the borderless internet, and so must be implemented everywhere. Google argues that allowing any one country to apply its rules globally risks upsetting international law and, when it comes to content, creates a global censorship race among autocrats…

In the U.S., the First Amendment forces officials to give broad leeway for free expression, even if objectionable. That makes it difficult for individuals to remove personal information gathered and published online by a slew of companies.

Political Theory

Vox: Even the intellectual left is drawn to conspiracy theories about the right. Resist them.

By Henry Farrell and Steven Teles

If Democracy in Chains were just another overheated partisan book, it wouldn’t be worth discussing. Yet the book was written by a highly respected professor in a first-rate department, and was published by a major trade press – and has been acclaimed by well-known figures on the left. There is every reason to believe it will shape how those on our side of the political spectrum understand the history and strategies of their adversaries.

Why have so many left-wing readers embraced such a transparently flawed book? The most persuasive explanation is that MacLean confirms and extends their deep preexisting suspicions. The book tells them how a single man with a single plan united neoliberal economists, the Kochs, and Republican operatives in a secretive plot against democracy…

Conservatives have their own versions of a mythology portraying opponents as secretive plotters, focusing on such supposed puppet masters as George Soros, Saul Alinsky, and Frances Fox Piven. Each side assumes the existence of a flawless, ruthlessly executed plan on the other side, while bemoaning the chaos and excessive scruples that beset their own allies.

Investor’s Business Daily: Yes, Politics Is Dirty. No, It Isn’t As Dirty As You Think It Is

By Ben Shapiro

Voters like to believe, as Trump does, that politics is filthy, because we refuse to acknowledge that in a representative republic, we’re the ultimate sources of blame. We keep electing these moral idiots. We keep voting for them, demanding that they give us things and suggesting that they’ve “sold out” if they don’t. We’re the ones who decry crony capitalism while complaining that the local factory will leave unless the government “does something.”

Politicians like to believe, as Trump does, that politics is sordid, because that’s a tailor-made excuse for participating in bad behavior. It’s also an excuse for legislating morality, as Sen. John McCain tried to do with campaign finance reform – you can use the public distrust of politicians to restrict the political speech of citizens, all in the name of “cleaning up the system.”

It’s always easier to shift our vision of politics than to shift our vision of ourselves.

Alex Baiocco

Alex Baiocco