Daily Media Links 8/16

August 16, 2019   •  By Alex Baiocco   •  
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The Courts

Courthouse News Service: Conservative Students in First Amendment Case Over Use of Student Fees

By Bianca Bruno

California State University’s process of allocating mandatory student fees to fund student group activities is unconstitutional and excludes “unpopular viewpoints,” a federal judge has ruled in the group Students for Life’s challenge over being denied funding to bring an anti-abortion lecturer to CSU San Marcos.

In a 28-page order issued Tuesday, U.S. District Judge James Lorenz found the funding disbursement process by Associated Students Inc. (ASI), a nonprofit auxiliary organization which oversees student body organization programs at the university, is not based on “viewpoint-neutral criteria.”

Lorenz also found CSU San Marcos cannot use the mandatory student fees paid by Students for Life members opposed to two ASI-funded community centers – the Gender Equity Center and LGBTQA Pride Center, which advocate for abortion and LGBTQ rights – “until specific and detailed standards guiding decision-making is adopted.”

The Bill Clinton appointee directed ASI, “at its election,” to modify its guidelines for allocating student funding to implement “viewpoint-neutral regulations” should it want to use the mandatory fees of objecting students.

Pacific Legal Foundation: Freedom of speech means freedom not to speak, too

By Timothy Snowball

People have a First Amendment right to speak freely without government interference or compulsion. This freedom also includes the right not to speak for-or pay for the speech of-anything against one’s will.

Yet many states violate that fundamental right by requiring attorneys to maintain state bar association memberships against their will, and contribute money to the bar, in order to practice law.

It’s that fundamental right that inspired Louisiana attorney Randy Boudreaux to challenge Louisiana’s mandatory bar membership and dues requirements. Even if he disagrees with many of the Louisiana State Bar Association’s public positions, Louisiana requires Randy to be a dues-paying member of the bar in order to practice law. By forcing Randy to join and pay dues, Louisiana is forcing him to pay for the bar’s speech.

But hopefully that will soon change. Represented by the Goldwater Institute and the recently launched Pelican Center for Justice, Randy filed a federal civil rights lawsuit on August 1 challenging Louisiana’s mandatory bar membership requirement…

Since Janus, many cases have cited public-sector workers’ First Amendment rights that were recognized in the Janus case. One recently filed case, Jackson v. Napolitano, filed by PLF and Liberty Justice Center, challenges a California statute designed to keep workers in the dark about their rights.

But the question of Janus’s effect on mandatory bar requirements remains open.

In addition to Randy Boudreaux’s case, the Goldwater Institute has filed a series of cases on behalf of licensed attorneys in multiple jurisdictions in North Dakota, Oregon, and Oklahoma. Goldwater argues that, like public-sector workers, licensed attorneys cannot be forced to be members or to pay dues or fees to state bar associations in order to practice law.

In an encouraging development, the Supreme Court recently granted and remanded one of Goldwater’s mandatory bar dues cases to the Eighth Circuit Court of Appeals to reconsider in light of Janus.

Courthouse News Service: NAACP Sues Over Confederate Names on Virginia Schools

By Brad Kutner

A Virginia chapter of the NAACP filed a federal lawsuit Friday against a Richmond-area school district for using the names of Confederate leaders on two school buildings, claiming it forces black students to support a legacy of oppression.

Filing its 31-page complaint in Richmond federal court, the Hanover County NAACP seeks to change the names of Lee-Davis High School as well as Stonewall Jackson Middle School, calling them “vestiges of a shameful, racist educational system.”…

The group, represented by lead attorney Azadeh Erfani of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, claims the continued use of the names violates students’ First Amendment right to free speech and Fourteenth Amendment right to equal protection…

“Forcing public school children to use Confederate names as a condition of participation forces them to engage in speech they disavow,” the lawsuit states…

The lawsuit says black students of the school must adhere to policies supporting the schools’ mascots – the Rebels and the Confederates – and “endorse the violent defense of slavery pursued by the Confederacy and the symbolism that these images have in the modern white supremacist movement.”…

“The deliberate retention of those names creates a stigma against and feeling of inferiority among African American students who attend Lee-Davis HS and Stonewall Jackson MS,” the lawsuit states. “This effect endures even after students leave Lee-Davis HS and Stonewall Jackson MS, because former students continue to be associated with those schools by virtue of the schools’ names being represented on those former students’ transcripts, diplomas, resumes, and job applications.”

First Amendment 

Federalist Society: Citizens’ Secret Recording and the First Amendment (Audio)

Featuring Steve Klein

For over half a century, federal law and most states have regulated secretly recording speech over phone lines and in person by the government and private citizens. Recently, some of the most restrictive of these laws have been struck down on First Amendment grounds, and even some longstanding, widespread provisions are now subject to litigation. Steve Klein, partner at Statecraft PLLC and counsel to James O’Keefe, Project Veritas and Project Veritas Action Fund in several of these lawsuits, will discuss the constitutional and policy considerations of secret recording by citizens.

FEC

Law & Crime: FEC’s Chair Says GOP Members Blocked Probe into ‘Blockbuster’ Claim Involving Russians, NRA

By Alberto Luperon

Chair Ellen Weintraub, a Democrat, called out Republican members on Friday. She said they blocked an investigation into whether Russian nationals illegally funneled money through the National Rifle Association to help then-candidate Donald Trump win the 2016 presidential election…

“Some allegations are too serious to ignore,” she wrote. “Too serious to simply take Respondents’ denials at face value. Too serious to play games with. Yet in this matter, my colleagues ran their usual evidence-blocking play and the Commission’s attorneys placed too much faith in the few facts Respondents put before us. As a result, this agency barely lifted a finger to find out the truth behind one of the most blockbuster campaign finance allegations in recent memory.”

She’s talking about a complaint filed with the FEC, in which the National Rifle Association, Russian central bank official Alexander Torshin, and Russian national Maria Butina allegedly violated a federal ban against foreign electoral assistance. This stemmed from a January 2018 McClatchy DC report that the FBI was investigating whether Torshin funneled money through the NRA to help Trump win…

“Once again, Chair Weintraub rejected the advice of the FEC’s lawyers but blames her Republican colleagues,” FEC GOP member Caroline C. Hunter told Law&Crime in a statement. “Her statement is long on conjecture and short on the evidence and the law. She relies on an ‘article’ in McLatchy written by the same individuals who inaccurately reported Michael Cohen was in Prague in 2016. The FEC is forbidden from investigating groups purely based on rank speculation.”

Florida Politics: FEC Chair issues scathing statement on Cliff Stearns ‘zombie campaign’

By Noah Pransky

A scathing statement, penned by the chair of the Federal Election Commission (FEC), was released to the public Thursday following the completion of the agency’s investigation into how former Congressman Cliff Stearns misspent campaign funds after leaving office.

FEC Chair Ellen Weintraub called the penalties – a $6,900 fine and $8,120 in personal reimbursements – “frustrating” given the evidence the Ocala Republican “used his campaign account as a personal checking account … to pay club memberships, conference attendance fees, travel, and meals.”

Florida Politics first reported the settlement last month, the first accountability measures taken by the FEC against a former candidate for abusing campaign finance loopholes after leaving office. Stearns’ old account was one of more than 100 zombie campaigns identified by the Tampa Bay Times and WTSP in 2018…

“While it should be newsworthy that the routinely deadlocked Commission found a violation of the law and assessed a penalty,” Weintraub wrote of the Stearns investigation, “this is not the whole story.

“The Office of General Counsel concluded that Stearns used committee funds to further his lobbying career and subsidize his family by paying for a variety of expenses to the tune of over $26,000 – not just the almost $10,000 that the Commission could agree was a violation of the law…

The FEC commission did unanimously agree to take one significant action following the Times/WTSP zombie campaigns investigation; it voted to start reviewing the federal filings of former lawmakers for the first time. That action resulted in the opening of more than 50 inquiries this spring regarding campaign spending long after candidates’ campaigning was done.

Congress

The Fulcrum: Foreign interference in our elections is an American crisis

By Meredith McGehee

There are a handful of bipartisan bills in the House and Senate, sponsored by members of the Intelligence committees, that would serve to directly plug loopholes in our elections that foreign actors are looking to exploit in 2020 and beyond: The Secure Elections Act would help better safeguard our political system while reaffirming each state’s role in administering federal elections; the Honest Ads Act would directly counter the tactics used throughout the 2016 election that led to more than 126 million Americans consuming disinformation; the DETER Act would sanction countries found to be interfering in our elections; the Foreign Agents Disclosure and Registration Enhancement Act would modernize and enforce lobbying laws on the books and impose real penalties for rule breakers; the Shell Company Abuse Act would stop foreigners from using tax loopholes to engage in illegal political activity.

Disclosure 

ScottRasmussen.com: 30% Believe It’s Appropriate For Congressmen To Release Names Of Trump Supporters In Their District

By Scott Rasmussen

Just 30% of voters nationwide believe it is appropriate for members of Congress to release the names, addresses, and employers of people in their District who contributed to Donald Trump’s campaign. Rep. Joaquin Castro (D-TX) tweeted out such a donor list last week. A ScottRasmussen.com survey found that 52% consider it inappropriate and 18% are not sure.

By a 62% to 26% margin, Republicans believe such behavior is inappropriate. Independent voters, by a 55% to 22% margin, agree.

Democrats, however, are evenly divided. Thirty-nine percent (39%) believe it is acceptable behavior while 41% say it is not (see crosstab results).

Among all voters, 71% believe it is at least somewhat likely that anti-Trump activists will harass people on the list. Seventy-two percent (72%) believe the activists will boycott the employers of people who have given to the president’s campaign.

Perhaps showing that every political action generates an opposite (but not necessarily equal) reaction, 82% believe Trump supporters are likely to support the employers of people who have given to the president’s campaign.

Fundraising 

Mother Jones: Political Campaigns Are Pitching Donor-Match Programs That Might Not Exist

By Russ Choma

[Paul S. Ryan, vice president of policy and litigation at Common Cause,] and other campaign finance attorneys said there is nothing in election law that prohibits campaigns from pitching deceptive matching donor schemes. But it could violate other laws. “The Federal Election Campaign Act doesn’t address it,” says one Republican election law attorney who does not represent any presidential candidates but asked not to be named because other clients of his use the matching donor tactic. “If I was worried about a Democrat doing this kind of email I think you could make consumer fraud problems.”

Dan Backer, a conservative campaign and election law attorney, says he thinks it is unlikely that anyone is actually going to be pursued for fraud over the matching schemes because candidates are given wide latitude over how truthful their political statements must be. But he says he’s not a fan of the tactic and advises his clients, which include both super-PACs and more tightly regulated committees, to devise a real matching program if they’re going to pitch one in fundraising appeals.

“We make a point that you really do have to have that mechanism,” he says. “I have a hard time believing that’s the case in the rest of the industry. How do you do that, if you’re a traditional campaign?”

Backer says he’s seen the matching tactic used more and more in recent years. “I think people just use it because it’s a tactic that works,” he says, noting that in most cases there is no actual matching donor program. “I think it’s a little shameful, but I don’t think anyone is going to get prosecuted for it.”

Politico: Democrats complain Waters is slow to spread Wall Street wealth

By Zachary Warmbrodt

The House Financial Services Committee is a magnet for Wall Street campaign cash, but some Democrats are grumbling that Chairwoman Maxine Waters has been slow to deliver the goods to members who are key to holding the majority.

Lawmakers, aides and lobbyists say Waters, a Los Angeles Democrat serving her 15th term, has yet to emulate other committee leaders who have used their perch to shower members with money through direct contributions and fundraising events.

Campaign finance filings paint a stark picture.

Waters’ GOP counterpart on the committee, ranking member Patrick McHenry (R-N.C.), contributed about $159,000 to Republicans through his leadership PAC over the first half of the year. Waters disbursed just $10,000 to House Democrats during the same period.

But she makes no apologies for that.

“This committee is no longer simply a ‘juice committee,'” Waters said in a statement, referring to lawmakers who introduce legislation on behalf of special interests to raise money.

Some lower-ranking Financial Services Democrats distributed double and triple what Waters did from their own leadership PACs, which lawmakers form to dole out money to their colleagues’ campaigns and raise their own political status.

“It’s been less of her focus,” said one committee Democrat, who like several people interviewed for this story declined to be identified criticizing Waters’s political activities. “That’s a nice way to say it.”

Among the reasons Democrats and industry sources offered: Waters was not a prolific fundraiser even before she took over the chair of the powerful committee in January, and she has a more distant – often adversarial – relationship with finance industry players, though she continues to accept corporate PAC money.

ABC News: 2020 candidate Sen. Michael Bennet trolls McConnell with book release, vows to send him a copy for every donation

By Briana Stewart

The self-published book, entitled “Dividing America: How Russia Hacked Social Media and Democracy,” examines foreign interference into the 2016 U.S. presidential election.

“The propaganda Russia drove into our social media feeds is shocking, but what’s even more frightening is that we didn’t recognize these divisive images as distinct from our own political rhetoric for over a year,” said Bennet in a campaign statement.

“This book makes crystal clear what Russia did and how they did it. The 2020 election is around the corner, yet the Trump administration has done nothing to protect our democracy from these attacks again. We must demand that Mitch McConnell see these disturbing images and act now,” the statement continued.

The campaign created a website for the digital version of the book, referring to McConnell as “#MoscowMitch” on multiple donation requests throughout the homepage…

The Colorado senator said he created the book when he realized many Americans may not know what Russian interference on social media may have looked like…

“They’re on both sides of every question, and you can see it in the book. Sometimes they are Black Lives Matter advocates, sometimes they are Blue Lives Matter advocates,” he continued, flipping through the pages of his book.

“The American people need to know what’s in this book so that they could defend themselves if they have a president that’s not willing to defend them.”

The Media

American Prospect: A Public Option Might Be Journalism’s Last Best Hope

By Alexander Sammon

It’s likely that a robust antitrust enforcement regime, in tandem with a suite of economic policies could create a market more amenable to sustaining journalism. But in the absence of that, and the uncertainty as to whether the market is fundamentally able to provide the necessary journalistic coverage to inform and serve a functioning democracy and civic life, it’s worth considering what no Democrat has dared advocate for 50-some years: a renewed and robust public investment in media…

Despite a number of policies being introduced that might work as a market corrective to rein in some of the monopoly players at the various levels of the media ecosystem (and a proposal from Elizabeth Warren to curtail private equity), the question of public-sector journalism has gone largely ignored…

“There is no commercial solution for saving journalism. A public option is required,” Victor Pickard, associate professor at the Annenberg School for Communication at the University of Pennsylvania, told me. “We need to guarantee that we adequately fund public media so that it is not kept economically weak and vulnerable to political and commercial pressures.”

The return to a public option in media would not only be popular; it would dovetail readily with a spate of small-d democratic reforms like automatic voter registration and campaign finance reform, both of which were hallmarks of the 2018 House bill HB-1. And it could even prove politically expedient in the general election against Trump…

Saving journalism will require significant policy prescriptions of many sorts. But for the first time in 50 years, there’s an opportunity to champion a public option, to reinvest in and expand public media. As Pickard told me: “Public subsidies are journalism’s last best hope.”

The States

Oregonian: Oregon Democrats call for “substantial regulation” of money in state politics

By Rob Davis

Citing concerns about the flood of corporate cash identified by The Oregonian/OregonLive’s investigation “Polluted by Money,” the Oregon Democratic Party’s central committee has adopted its strongest language to date calling for strict controls on campaign donations.

A non-binding resolution adopted by party leaders last weekend calls for “the substantial regulation of money in politics,” saying it is “of paramount importance” to the Democratic Party.

It is the clearest statement to date by the party controlling Oregon’s executive and legislative branches that its members want the state’s freewheeling campaign finance system reined in…

The resolution said the newsroom’s series “raised additional public concern over the influence of unlimited money in Oregon politics.”…

The party resolution included stronger language than the party has previously used. The party’s 2018 platform called for restricting the influence of private and corporate wealth in the election of candidates, but stopped short of declaring it a major problem. The party’s legislative priorities for the past session supported legislation to limit donations to ensure mega donors “do not dominate the political process.” …

The party’s resolution also signaled support for changing Oregon’s constitution to allow campaign contribution limits. It praised lawmakers for sending a ballot referral to voters next November that will allow Oregonians to decide whether the state constitution should be changed to expressly permit limits.

Even if the measure passes, lawmakers or voters would still need to establish limits. A bill to set caps failed in the state Senate this year over criticism that it preserved too many avenues for unlimited donations.

Washington Post: Democratic Party’s complaint on Hogan donations forwarded to Md. prosecutor’s office

By Ovetta Wiggins

The Maryland State Board of Elections has forwarded a complaint alleging campaign finance violations in Gov. Larry Hogan’s 2018 reelection bid to the state prosecutor’s office, saying the scope of the allegations – involving “suspicious LLCs” – are outside the board’s authority.

Jared DeMarinis, the board’s director of campaign finance, said the transfer of the complaint by the Maryland Democratic Party does not mean the state board found wrongdoing. The board is still investigating a separate complaint by the state party filed last month.

The first complaint, filed in June, asked the board to investigate whether nearly 100 businesses and individuals, including several former members of the University of Maryland Medical System’s board, gave donations to Hogan that exceeded the $6,000 legal limit for an election cycle.

The second one alleged that Hogan took contributions over the legal limit from a number of “suspicious LLCs.” Democratic Party officials alleged the campaign improperly received more than $200,000 from several individuals and nine groups of potentially affiliated companies after those donors had reached the individual donation limit.

“We don’t investigate corporate structure or ownership so therefore we can’t determine the veracity of the complaint,” DeMarinis said of the decision to refer that complaint to the state prosecutor’s office.

Under Maryland law, any liability for exceeding the campaign limit falls on the donor, not the campaign that receives the money.

Alex Baiocco

Alex Baiocco