Daily Media Links 9/25

September 25, 2019   •  By Alex Baiocco   •  
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In the News

State Policy Network: Connecticut Supreme Court to hear Institute for Free Speech campaign case

By Matt Nese

The case, Markley and Sampson v. SEEC, began in 2014 when two state legislators were fined for criticizing the governor’s tax hike in a series of mailers. Former State Senator Joe Markley and current State Senator Rob Sampson reached out to IFS for assistance. Our attorneys took the case to vacate the fines and vindicate the candidates’ First Amendment right to express their policy positions.

In 2014, Sampson was a state representative whose district overlapped with Senator Markley’s. Both were staunch opponents of then-Governor Dannel Malloy’s tax policies, so they sent out mailers highlighting their positions.

One such mailer read, “Fought the Malloy Tax Hike: As members of the Appropriations Committee, Rob & Joe opposed our state’s largest tax hike ever, and helped craft an alternative budget that didn’t raise a single tax or cut any aid to our community or its seniors.”

The Connecticut State Elections Enforcement Commission (SEEC) declared this and other commonplace pieces of campaign literature illegal. It cited state law requiring the cost of ads that support multiple candidates to be split equitably. The SEEC argues that because the mailers mentioned the governor’s policies, these were also ads in opposition to the governor and therefore must be paid for (in part) by someone running for governor. Few candidates for governor, however, will be willing to subsidize a campaign mailer for a down-ballot race.

Both Markley and Sampson were heavily fined for this supposed violation of the law. IFS stepped in to put a stop to this outrageous assault on the candidates’ right to speak…

The Connecticut Supreme Court agreed to hear the case before the lower appeals court had ruled on it. Such a decision often indicates the Court sees a serious legal issue that needs to be resolved. The case will be argued in October.

Supreme Court

Law360: Calif. Donor Info Law Violates Constitution, US Justices Told

By Daniel Tay

A California law requiring charitable organizations to disclose donor information to the state violates the First Amendment and should be blocked, supporters of a conservative advocacy group affiliated with billionaire activist Charles Koch told the U.S. Supreme Court on Tuesday.

The Ninth Circuit’s holding that California Attorney General Xavier Becerra need not show that the disclosure requirement advances the government’s law enforcement interests was wrong, the Institute for Justice and the Liberty Justice Center told the Supreme Court in separate amicus briefs. The reason is that the burden is on the government to establish a need for the information, the groups said in briefs filed in support of the Koch-affiliated Americans for Prosperity, a group that has asked the Supreme Court to consider its challenge of the law.

Both amicus briefs urged the court to clarify the level of scrutiny applicable to burdens on charitable solicitation and freedom of association. The Institute for Justice also asserted that the Ninth Circuit had improperly applied elements of Supreme Court jurisprudence on campaign finance to other protected First Amendment activity.

The justices should agree to hear the case “so that it can make clear that nothing in its campaign finance disclosure cases was meant to supplant or overrule this court’s earlier decisions on compelled disclosure in other contexts,” the institute said, adding that the court should align its campaign finance doctrine with the rest of its First Amendment jurisprudence in the long term.

The Courts

National Review: The Sixth Circuit Pounds Another Nail in the Coffin of the University Speech Code

By David French

Last year, a group called Speech First filed an important lawsuit against the University of Michigan, challenging the content of the university’s bullying and harassment policy and its bias-response team’s procedures. The district court denied Speech First’s request for an injunction, holding in part that the group lacked standing to challenge the policy…

Yesterday, in a decision with national implications, the Sixth Circuit Court of Appeals sided with Speech First, reversed the district court and ordered it to reconsider the group’s request for an injunction. Its ruling recognized the obvious power of the bias-response team:

The Response Team’s ability to make referrals – i.e., to inform OSCR or the police about reported conduct – is a real consequence that objectively chills speech. The referral itself does not punish a student – the referral is not, for example, a criminal conviction or expulsion. But the referral subjects students to processes which could lead to those punishments. The referral initiates the formal investigative process, which itself is chilling even if it does not result in a finding of responsibility or criminality.

The university will now be required to defend its response team on the merits, and it is highly likely to lose. But even this standing ruling alone is likely to spawn additional litigation, including in different federal circuits.

FEC

Washington Examiner:  FEC chairwoman’s Trump bashing comes under fire, ‘expanded role’ slapped down

By Paul Bedard

The criticism is to take center stage at an upcoming a House Administration Committee hearing where the bitter division on the FEC is to be probed by Rep. Rodney Davis, the top Republican on the committee. The hearing was scheduled for Wednesday but the Democrats put it off due to a meeting on impeachment…

“Chair Ellen Weintraub, for instance, states in her response that ‘recent developments in U.S. elections’ have expanded the Federal Election Commission’s jurisdiction to areas not supported by statute,” said Davis in a Tuesday release.

“I am unaware of any changes to federal statute made by Congress that would allow for an ‘expanded role’ of the Federal Election Commission by the chair’s definition,” said the Illinois Republican…

In letters to Davis about the FEC, Weintraub and Republican Caroline Hunter described two different worlds. And Hunter said that Weintraub has gone far past FEC boundaries.

“While I would welcome my colleague’s exercise of her First Amendment rights if she were to speak on these subjects in her personal capacity, instead she has consistently invoked her position as Commission chair. Whatever her motivation might be, I am concerned that her statements create the false impression of Commission imprimatur and risk politicizing the Commission in the eyes of the public, undermining the Commission’s legitimacy, and profoundly misrepresenting the Commission’s actual, assigned role in this country’s electoral process,” wrote Hunter.

Said Davis, “It is alarming to me that the commissioners are not even in agreement in their responses as to what is the basic mission of the FEC.”

In preparing for the hearing, his panel also said that Weintraub has crossed a political line. “Recently, FEC Chair Ellen Weintraub has demonstrated blatant partisan bias, overstepping her official Commission duties and making politically motivated social media and TV appearances,” it said.

Internet Speech 

Washington Post: Google scores major victory in E.U. ‘right to be forgotten’ case

By Rachel Siegel

The European Union’s top court ruled Tuesday that Google does not have to extend the E.U.’s “right to be forgotten” rules to search results worldwide, handing the U.S. tech giant a major win as it comes under increasing scrutiny from European regulators.

In 2014, the European Court of Justice gave E.U. residents more control over what pops up when their names are searched online. The ruling required search engines to delete links to sensitive, embarrassing or out-of-date information upon request. But a French privacy watchdog wanted Google to honor those requests globally – not just within the bloc or a country, such as on France-specific Google.fr, for example.

The same court ruled Tuesday that Google does not have to remove links to people’s sensitive data beyond the E.U.’s 28 member states. The case offered a lens into how and whether different jurisdictions and their courts can police the Internet. The “right to be forgotten” law also tackles evolving questions about whether people can demand that their data be removed from search engines without interfering with free speech and the public’s right to information…

Google, meanwhile, had the support of Microsoft, the Wikimedia Foundation (which owns Wikipedia) and the Reporters Committee for Freedom of the Press. Others argued that the case could set a dangerous precedent for more restrictive governments around the world to adopt their own means of censoring the Internet.

Trump Administration

Axios: Trump-Ukraine call was referred to DOJ for possible campaign finance violation

By Zachary Basu

Sometime in August, the director of national intelligence referred a whistleblower complaint involving a conversation between President Trump and Ukrainian President Volodymyr Zelensky to the Justice Department for investigation as a potential campaign finance violation, according to a DOJ spokesperson.

“Relying on established procedures set forth in the Justice Manual, the Department’s Criminal Division reviewed the official record of the call and determined, based on the facts and applicable law, that there was no campaign finance violation and that no further action was warranted. All relevant components of the Department agreed with this legal conclusion, and the Department has concluded the matter.”

– DOJ spokesperson Kerri Kupec

Daily Caller: DOJ: Whistleblower Had An ‘Arguable Political Bias’ Against Trump And Relied On ‘Hearsay’

By Chuck Ross

The intelligence community inspector general found that the whistleblower behind a complaint against President Donald Trump had indications of “an arguable political bias” in favor of a Trump political opponent and also relied on “hearsay” to file allegations against the Republican, according a Justice Department legal opinion released Wednesday.

The document is not entirely favorable to Trump.

Intelligence Community Inspector General (ICIG) Michael Atkinson found the whistleblower complaint “credible” and “urgent,” according to Steven A. Engel, the head of DOJ’s Office of Legal Counsel, and referred it to DOJ for possible investigation into whether Trump illegally sought foreign assistance for the 2020 election during a phone call that is at the center of the complaint.

“According to the ICIG, statements made by the President during the call could be viewed as soliciting a foreign campaign contribution in violation of the campaign-finance laws,” Engel wrote, adding:

“The ICIG said that Trump’s actions could involve a ‘serious or flagrant problem,’ ‘abuse,’ or violation of law, and the ICIG observed that federal law prohibits any person from soliciting or accepting a campaign contribution or donation from a foreign national.”…

The Justice Department ultimately decided against opening an inquiry into whether Trump broke the law and also blocked the complaint from being sent to Congress.

Washington Examiner: Andrew Napolitano says Trump has admitted to crime

By Tim Pearce

Fox News senior judicial analyst Andrew Napolitano said President Trump has already admitted to committing a crime by asking Ukraine to investigate former Vice President Joe Biden.

Napolitano appeared on Fox News with host Shepard Smith on Tuesday to discuss the recent battle between the Trump administration and Democrats in the House over the president’s discussions with Ukraine.

Napolitano said Trump has admitted to committing a campaign finance violation.

“It is a crime for the president to solicit aid for his campaign from a foreign government,” Napolitano said. “This is the same crime for which the Trump organization was investigated by [former special counsel Robert Mueller] who decided not to seek an indictment because there wasn’t enough evidence.”

Napolitano also said that what Trump’s personal attorney Rudy Giuliani has admitted to also potentially amounts to a campaign finance violation. Giuliani has said that he, under direction from the Trump administration, has pushed the Ukraine government to open an investigation into the former vice president and his son, Hunter Biden.

“If that was done in order to enhance the president’s reelection campaign, yes, it’s the same crime that the president would have committed if the president said ‘I want you to investigate my principal opponents son’ while thinking to himself it is going to help his campaign,” Napolitano said.

The States

Oregonian: Oregon campaign finance watchdog will seek to beef up enforcement

By Mike Rogoway and Rob Davis

[Deputy Secretary of State Richard] Vial said he, Secretary of State Bev Clarno and elections director Steve Trout met Monday afternoon to discuss how the office handles investigations. Vial said planned changes include:

  • Asking alleged violators to answer questions from investigators in the form of a declaration that carries a penalty of perjury if untruthful.
  • Directing the office’s audit division to review practices in the elections office and make recommendations for improvements. There’s no deadline for completing the review, but Vial said it will definitely be finished before the Legislature’s next session, in February.
  • Asking the Oregon Legislature to pay for two elections investigators, positions that were eliminated in budget cuts in 2011.

Historically, Vial acknowledged, the elections office hasn’t launched investigations on its own initiative. It has only acted when an outside party filed a complaint. He said that “seems to be a tradition” in the secretary of state’s office dating back many years.

The office is discussing potential changes in that practice, Vial said, but has reached no conclusions on how to proceed.

Ann Ravel, the former chairwoman of California’s elections watchdog, questioned how much difference the proposed changes would make.

“It sounds like window dressing,” she said…

Vial also said the secretary of state’s office wants to ensure investigations are triggered by legitimate concerns rather than opening another front in increasingly heated contests for political power. While the elections division is determined to improve the process for addressing campaign impropriety, Vial said it’s not evident there have been widespread problems under the current system.

Statehouse News Bureau: Elections Chief Says Nuke Bailout Law Campaign Shows Reform Is Needed

By Jo Ingles

An effort to circulate petitions to repeal the nuclear bailout law known as House Bill 6 has brought out a high-profile opposition campaign with ads and mailers.

And despite repeated calls to reveal their donors, neither the bailout’s supporters nor the group that wants to overturn the law has said where they’re getting their money.

Ohio’s top elections official says anonymity is not warranted in campaigns like this. Secretary of State Frank LaRose’s office takes in campaign finance reports, and he says it’s unfair that these groups are allowed to keep their donors private for now – though the anti-bailout group will have to disclose their donors in a few weeks.

“This whole thing about anonymously going out there and filling the airwaves with nonsense. It’s bad government. It’s bad democracy and it needs to stop,” LaRose says.

LaRose says most changes would need to be done at the federal level, but he’d support a state effort to require campaign that spends money in Ohio to reveal its donors. But there’s been no legislation proposed to do that.

Alex Baiocco

Alex Baiocco