Daily Media Links 8/1

August 1, 2019   •  By Alex Baiocco   •  
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In the News

Los Angeles Times: Can a California law requiring Trump to disclose his tax returns survive legal challenges?

By Maura Dolan

A measure signed into law by California Gov. Gavin Newsom on Tuesday adds another requirement for presidential candidates who want to appear on the state’s presidential primary ballot: They must disclose their income tax returns.

Passed on a party-line vote, the law was clearly aimed at President Trump, who has refused to release his returns.

Legal scholars said Wednesday that the 1995 ruling that barred states from imposing certain requirements for ballot access is likely to be at issue in litigation over the constitutionality of California’s new law. They disagreed, however, about whether the law would be upheld.

“This new law raises some very interesting and novel constitutional issues,” said UCLA constitutional law professor Adam Winkler. “Because it is novel, it is hard to know how the courts would go, but there is plenty of reason to think courts will be hostile to California’s requirements.”

One lawsuit has already been filed.

Roque “Rocky” De La Fuente, a perennial candidate who is seeking the Republican presidential nomination in 2020, sued California in U.S. District Court in San Diego on Tuesday to overturn the ballot requirement. The suit said California could not force him to waive rights he is guaranteed under federal law…

David Keating, president of the Virgnia-based Institute for Free Speech, said Trump could mount a write-in campaign in California or just skip the state.

Because no one significant is running against him, he will most likely have enough electors to win the nomination without California’s, Keating said.

“Whether it is constitutional or not, I don’t think it is clear,” said Keating, whose organization is part think tank and part law firm.

Free Speech

National Review: Progressives’ Push for Campaign-Finance Reform Is an Assault on Free-Speech Rights

By Nate Hochman

A recent New York Times article reports that seven Democratic presidential candidates, including viable contenders such as Elizabeth Warren and Pete Buttigieg, have taken the so-called “Reform First” pledge, promising to make campaign-finance reform their first order of legislative business were any of them elected president. The pledge was created by End Citizens United, the influential progressive advocacy group named for the landmark 2010 Supreme Court case that rendered a host of campaign-finance restrictions unconstitutional…

The pledge also stipulates that these future regulatory efforts should be “similar to or [build] upon the For the People Act,” the breathtakingly flawed 700-page campaign-finance-reform bill passed in March by House Democrats. The bill, which subsequently died in the Republican-controlled Senate, is symbolic of the campaign-finance agenda that’s now a centerpiece of the progressive platform. It would ban or severely restrict lobbying and PAC spending. It is also so wrought with flagrant First Amendment violations that it was opposed by, among other liberally inclined organizations, the ACLU. And for good reason: It constitutes a frontal assault on the constitutional rights of all Americans…

The push for campaign-finance restrictions is premised on the seemingly noble desire to “get money out of politics.” But what its proponents fail to recognize is that money is the conduit through which Americans of all political stripes and colors and tax brackets express their political will. This is not least true for middle- and working-class voters, who rely on the ability to collectively organize in order to exercise political influence…

 “Money isn’t speech, but money facilitates speech,” says [Ilya] Shapiro. “Money isn’t abortion, but if there was a ban on spending money on abortion then that would violate the right to abortion as defined by the Supreme Court. Money is not guns, but if you ban spending money on firearms, that’s a Second Amendment violation. It’s kind of facile to say that money isn’t speech – if you limit political speech or any speech besides that which you can print up on your own leaflets or stand on the corner shouting, well, that’s a pretty big restriction on speech.”

The Courts

Forbes: All Over The Land Of The Free, Sign Laws Restrict Basic Speech Rights

By Andrew Wimer

Freedom of speech is perhaps the most cherished right protected in our founding documents. Yet local governments across the country often closely monitor and restrict how residents and businesses communicate on their own property. Putting up a sign in front of your home or painting your business can attract the attention of a local speech bureaucrat, who takes offense and threatens you with ruinous fines if the message isn’t taken down or painted over…

The small village of Flat Rock, North Carolina is embroiled in an argument over whether a local road should be widened. Throughout 2018, residents of the village put up signs advocating against the North Carolina Department of Transportation proposal. Although the village council approved the widening, the controversy didn’t die down and some residents kept their signs up.

Supposedly responding to complaints about “clutter,” the village council passed new restrictions on yard signs in December of last year. Under them residents may no longer place more than one political sign in their yard per candidate or per issue. Residents are then required to take signs down within three days of an election or a village council vote. If residents defy these new rules, fines start at $10 a day for the first 30 days and then $100 a day after that…

Residents, upset at having their speech micromanaged, worked with pro bono attorneys at the national law firm Kirkland & Ellis to file a federal lawsuit this past week…

Unfortunately, Flat Rock is far from the only town in America that is using unconstitutional sign codes to act like the “speech police.” Micromanagers in the plains of North Dakota and the suburbs of Washington, D.C. insist that their codes require local businesses to paint over murals because they display a message related to their business.

FEC

Axios: FEC considers making “valuable information” a campaign contribution

By Alayna Treene

The Federal Election Commission (FEC) announced Wednesday that it is seeking public comments on a rule-making petition that would define “valuable information” as an official campaign contribution that must be regulated…

The rule would define “valuable information” as information that:

– Is not freely available to the public.

– Is provided to a person regulated by the Federal Election Campaign Act at a cost less than the market rate, or by a person not hired by the recipient to generate such information.

– Would cost a substantial amount for the recipient to obtain at their own expense.

– Is information that would likely influence any federal election or that parties or candidate committees have traditionally expended money to obtain. 

The rule would also require that any person who receives “foreign information” and “compromising information” to notify the FEC in writing within three days…

“The Commission is not considering defining ‘valuable information’ as an official campaign contribution that must be regulated. What the Commission announced today was that it has received a petition from a member of the public proposing new rules on the subject,” Republican FEC Commissioner Caroline Hunter said in a statement to Axios.

“The Commission is required to accept public comments on rulemaking petitions – this is a purely administrative act. The Commission has not decided to accept the petition and has certainly not decided to change its regulations. In fact, elements of this proposal appear to me to be clearly unconstitutional and contrary to our statute.” …

Public comments on the petition are due by September 30, 2019, after which the FEC will determine how to proceed.

Congress

The Fulcrum: Don’t give up on HR 1. The battle lies ahead.

By Fred Wertheimer

From the beginning, the effort to enact the democracy reforms in HR 1 has assumed a three-to-five-year strategy at least. With all congressional Democrats now on public record in support of HR 1 or its Senate counterpart, the battle moves to making breakthroughs with enough Senate Republicans to overcome a filibuster, and firming up waivering congressional Democrats…

The Declaration for American Democracy coalition of more than 135 national organizations, including my organization, Democracy 21, conducted extensive grassroots and Washington lobbying to pass the bill.

Stage two is playing out in the 2020 campaign. The coalition is taking various steps, including communicating directly with presidential campaigns and conducting grassroots activities, to advocate that all candidates make democracy reform a central part of their message. The candidates also are being asked to commit to making the democracy reforms in HR 1 a first priority if elected.

Groups in the coalition also will work to make breakthroughs with Senate Republicans to obtain the 60 votes needed to overcome a filibuster against HR 1. If not enough Republicans can be persuaded, alternative approaches will be explored to enact democracy reform without being subject to the filibuster rules.

Stage three will depend on the outcome of 2020. If a more responsive president and Senate are elected, and if House support for HR 1 remains intact, we will be on the doorstep of historic campaign finance, voting rights, redistricting and government ethics reforms in the next Congress.

Otherwise, the fight will continue in the next Congress, during the 2022 congressional elections and for as long as it takes to win this battle to protect our democracy and repair our political system.

Online Speech Platforms 

Election Law Blog: Now Available: Revised Draft of My Paper, Deep Fakes, Bots, and Siloed Justices: American Election Law in a Post-Truth World

By Rick Hasen

This new draft has a much more extensive discussion of First Amendment issues related to the regulation of deep fakes…

Independent Groups

Washington Post: Independent Democratic effort to defeat Trump raises more than $23 million, group says

By Michael Scherer and Michelle Ye Hee Lee

The bulk of the money Priorities USA raised this year – nearly 80 percent – flowed into its nonprofit arm, which does not disclose its donors. Previously, Priorities USA raised most of its donations through its super PAC, which must disclose donors.

So far in 2019, Priorities USA has raised $18.6 million through the nonprofit and $4.8 million through the super PAC, officials said…

Aides to longtime donors to the Democratic Party have said they were directing donors to Priorities USA to help shore up the voter-registration and messaging infrastructure while they wait for the sprawling primary field to consolidate.

Seattle Times: Super PAC backing Jay Inslee raises $2.2 million, including $1 million from a single donor

By Jim Brunner

Inslee has been the only Democratic presidential candidate to embrace the help of a super PAC, a type of political committee that can accept unlimited contributions from individuals, corporations and unions, but must disclose those donors. This year, the pro-Inslee super PAC was required to disclose by a July 31 deadline.

A Super PAC also was started in support of New Jersey Sen. Cory Booker, even though he said he didn’t want its help…

Inslee’s refusal to disavow super PAC support been criticized by End Citizens United, an activist group pushing for campaign-finance reform.

“Governor Jay Inslee is the only candidate in the race who has welcomed the support of a single candidate super PAC and now he is the only candidate using big money to do his dirty work and attack fellow Democrats,” said Tiffany Muller, the organization’s president, in a statement. “The Democratic nominee should be chosen by voters, not a handful of special interests and wealthy donors contributing massive sums to super PACs and dark money groups.” …

So far, the spending seems to have had little impact. Inslee’s poll numbers have remained near the bottom of the Democratic pack and, barring a breakthrough in the coming weeks, he seems unlikely to qualify for the third Democratic debate in September.

Candidates and Campaigns 

Roll Call: 4 ways the Democratic debate was actually about 2018

By Bridget Bowman

It was reminiscent of 2018 that a conversation about gun control on Tuesday night quickly bled into a discussion about campaign finance reform.

“What is broken is a political system that allows the NRA and other large big money to come in and make things not happen when the majority of people are for it,” Minnesota Sen. Amy Klobuchar said…

Depending on their districts, some of those Democrats who helped win the House majority talked about gun control. But even more talked about getting money out of politics – but not just for the sake of campaign finance reform. In 2018 Democrats connected that message, frequently conveyed through a pledge to reject corporate PAC money, to other issues, such as opioid addiction, rising prescription drug costs, and climate change.

End Citizens United, a liberal PAC, helped craft a narrative about how money in politics affects issues voters care about…

Former Texas Rep. Beto O’Rourke said he’d ban political action committee contributions to any member of Congress, which would have sounded unfamiliar before 2018.

South Bend, Indiana, Mayor Pete Buttigieg used this conversation to try to argue that he’ll be the candidate of even bigger systemic change…

“Of course we need to get money out of politics,” he said, as if that idea was already well-accepted. “Does anybody really think we’re going to overtake Citizens United without constitutional action?”

Bullock, a late entrant to the race who’s made campaign finance a signature issue, used that moment to tout his own successes.

“You can make changes,” he shot back at Buttigieg.

Washington Free Beacon: Collins Challenger Used PAC to Reimburse Own Contributions

By Brent Scher

On September 30, 2015, for example, Gideon contributed $1,000 to Democratic congressional candidate Emily Cain’s campaign, according to a Cain for Congress disclosure filing to the Federal Election Commission. A month later on October 28, 2015, Gideon received a $1,000 payment from Gideon Leadership PAC, a Maine entity. The payment was openly described on the Maine disclosure as a “reimbursement for federal contribution.” …

Cleta Mitchell, a veteran campaign finance attorney who reviewed the filings, said she was surprised by such clear violations by a longtime officeholder and political candidate…

“I’ve seen laypeople who periodically need reminders that it’s illegal to reimburse someone for a campaign contribution, but I’ve never seen anyone in the political arena, especially an officeholder, who doesn’t understand that this is a serious thing you just do not do,” she added…

Erin Chlopak, who led the Federal Election Commission’s policy division until 2018, noted that the Gideon PAC’s acceptance of direct contributions from corporations further complicates things.

“Separate and apart from the potential violations of the straw donor ban is the use of corporate money to effectively contribute to federal candidates,” said Chlopak, who is now director of campaign finance strategy at the Campaign Legal Center…

Corporations may be allowed to contribute directly to PACs in Maine, but are strictly prohibited from contributing to federal campaigns, Choplak explained.

“Corporations cannot make contributions to a federal campaign, and you can’t circumvent that ban by using a straw donor to funnel money originally from a company to a federal candidate,” she said.

The States

New York Times: Abuse Victim’s 3 Billboards Called for Stronger Laws. Then the State Showed Up.

By Vivian Wang

When Kat Sullivan rented a billboard last year in upstate New York to call for stronger protections against child sex abusers, she believed she was engaging in the democratic process, using her own time and money to make her voice as an abuse survivor heard.

So she was shocked when state regulators afterward sent her a letter ordering her to register as a lobbyist.

New York State defines a lobbyist as, in part, someone who spends money to influence lawmakers. But Ms. Sullivan, a registered nurse, has argued that she was exercising her rights as a citizen.

She is now locked in a battle with the state’s ethics commission, which has warned that she could be guilty of a misdemeanor and fined more than $40,000 if she continues to refuse to register.

Ms. Sullivan’s case is unusual; few unpaid advocates spend more than $5,000 on an issue, the annual threshold for registering as a lobbyist in New York. Ms. Sullivan has said that she spent $14,000 on three billboards, plus about $2,000 on a website.

But the case illuminates a larger conundrum facing lawmakers across the country: Who counts as a lobbyist in the age of social media and renewed grass-roots involvement, when it is easier than ever for people to make themselves heard?

New York revised its lobbying guidelines this year to explicitly include grass-roots campaigns as well as meetings with officials, and to define when social media counts as lobbying. In California, lawmakers are weighing a proposal to increase regulation of online advertisements about legislation…

Some experts have argued that overregulation strangles grass-roots activism.

Alex Baiocco

Alex Baiocco