Daily Media Links 9/26

September 26, 2019   •  By Alex Baiocco   •  
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In the News

National Review: Elizabeth Warren’s Anti-Corruption Proposal Would Silence Dissent

By Bradley A. Smith & Luke Wachob

Throughout the 2000s, then-Harvard professor Elizabeth Warren wanted desperately to influence members of Congress. She wanted the government to enact stricter regulations on banks and home loans, and she vigorously advocated that policy. She testified before Congress, worked with a number of groups to promote her plans, and shared her perspectives with as many policymakers as possible. As she recounted in a presidential town hall this year: “I was waving my arms, ringing the bell, doing everything I could. I said families are getting cheated all over this country. . . . I went everywhere I could. I talked about it to anyone who would listen – a crisis is coming.”

“Anyone who would listen” included members of Congress. NBC News reported that Warren “bent the ear of [then-senator] Hillary Clinton,” and by the Democratic primary campaign in 2007 Warren was “lobbying candidates behind the scenes to create what would become the Consumer Financial Protection Bureau.”

In 2019, Senator Elizabeth Warren is proposing legislation that would restrict, tax, regulate, and otherwise impede the activities of Americans who want to advocate public policies, just as she herself did ten years ago. She calls it a plan to end corruption. It won’t work; in fact it will hurt the very people it is supposed to help, and will establish deeply rooted government bureaucrats who can shut down – or even jail – Americans who speak out or support groups that speak out. Whether or not it becomes law, the proposal offers a window into the way all too many progressives (and even some conservatives) approach the regulation of politics and political speech.

Daily Caller: Take It From This Campaign Finance Attorney: Trump Is In The Clear In My Area Of Law

By Eric Wang

Whether Trump’s request for Zelenksy to investigate the role of Joe Biden’s son in a Ukrainian gas company was generally proper or violated any other laws, it assuredly did not violate any campaign finance laws.

Some – including the intelligence community’s inspector general – have alleged otherwise. This tendency to view every political act that one finds unsavory or disagreeable as a campaign finance violation has far-reaching and extremely harmful consequences for democratic government. Simply applying the theory on its face, it would inhibit a broad range of government actions by elected officials, as well as routine interactions between officials and constituents…

As Rick Hasen, an election law professor, argued in a column for Slate, Trump solicited a “thing of value” from Zelensky – a foreign national – to the extent the requested investigation would have politically damaged Biden…

The problem with this theory is that it could convert a vast universe of governmental actions taken by elected officials into regulated campaign contributions or expenditures…

This overbroad understanding of what constitutes campaign spending also would eviscerate the longstanding legal distinction between official and campaign events held by elected officeholders…

In the seminal Buckley v. Valeo case, the U.S. Supreme Court recognized that “the ambiguity of [the] phrase” “for the purpose of influencing any election for Federal office” – to which the phrase “anything of value” is tethered in the “contribution” definition – “poses constitutional problems” (not to mention the practical ones illustrated above). While the Court’s attempt to narrow the “contribution” definition was still troublesome, the basic principle it articulated was sound: There must be bright-line, objective parameters on how we regulate or not regulate things as campaign contributions.

New from the Institute for Free Speech

Amicus Brief: Supreme Court Should Review California’s Demand for Charity Donor Lists

The Institute for Free Speech filed an amicus brief with the U.S. Supreme Court late yesterday urging the Court to review California’s demand that all charities soliciting in the state provide a list of their major donors’ names and addresses to the Attorney General. The brief explains that the Ninth Circuit Court of Appeals erred in applying campaign finance precedent to groups that do not engage in electoral advocacy.

“The Supreme Court has consistently struck down donor disclosure mandates for groups that do not tell people how to vote. Americans have the right to privacy, both as individuals and when they join together in support of a cause,” said Institute for Free Speech Legal Director Allen Dickerson.

The case began when then-Attorney General Kamala Harris issued a flurry of demands to nonprofit organizations soliciting funds from Californians to report the names and addresses of donors who give $5,000 or more in a year. Americans for Prosperity Foundation (AFPF), a 501(c)(3) nonprofit, filed a lawsuit to defend the privacy of its supporters. The Institute for Free Speech also filed a separate lawsuit against Attorney General Harris in 2014, which remains ongoing.

On March 29, the Ninth Circuit Court of Appeals upheld the state’s demand for AFPF’s donor information. The majority decision, however, applied campaign finance precedent in a case brought by a charity, which federal law bans from electioneering. The Institute’s brief explains that the Supreme Court has purposefully limited the scope of donor disclosure requirements to avoid infringing on the rights of non-electoral groups…

The case is Americans for Prosperity Foundation v. Becerra. The same brief was filed in a companion case, Thomas More Law Center v. Becerra.

Amicus Brief of the Institute for Free Speech in Americans for Prosperity Foundation v. Becerra (U.S. Supreme Court)

The First Amendment protects the right of all Americans to “to pursue their lawful private interests privately and to associate freely with others in so doing.” NAACP v. Ala., 357 U.S. 449, 466 (1958). This Court has issued ruling after ruling re-affirming that cardinal principle, repeatedly striking down donor disclosure regimes. There is one limited exception: in the context of money given and spent on political campaign advocacy, some donor disclosure has been found constitutional. The Ninth Circuit, however, has messily grafted that narrow exception onto the Attorney General’s dragnet demand for the major donors to all federally-registered nonprofit organizations operating in California. Certiorari should be granted so that this Court may return its campaign finance precedents to their proper context and restore the general rule that the compelled disclosure of donors to nonprofit organizations can rarely be squared with the First Amendment.

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Supreme Court

Law360: Calif. Donor Info Law Unnecessary, 14 States Tell High Court

By Daniel Tay

California’s required “blanket and preemptive” disclosures are not sufficiently related to state Attorney General Xavier Becerra’s law enforcement interests and cannot survive First Amendment scrutiny, according to the states’ brief. The brief was filed – by the attorneys general for Arizona, Alabama, Arkansas, Georgia, Indiana, Kansas, Louisiana, Oklahoma, South Carolina, Tennessee, Texas, Utah, West Virginia and counsel for Republican Mississippi Gov. Phil Bryant – in support of the Koch-affiliated Americans for Prosperity, a group that has asked the Supreme Court to consider its challenge of the law.

The disclosure requirement would chill associational rights by placing membership information at risk of public disclosure, the states said, adding that California’s law would also impair other states’ ability to protect their own citizens’ associational rights.

“This disclosure is unnecessary, exposes donors to retaliation and jeopardizes the First Amendment rights of citizens across the nation,” the states said, adding that “this is just one more reason why California’s infringement on associational rights is grossly disproportionate to the interest served.”…

The states said their lack of donor disclosure requirements had not prevented them from effectively regulating nonprofit organizations, saying this showed that California’s disclosure requirements were “not appropriately correlated” to the state’s law enforcement interests…

Further, the collected donor information was at increased risk of public disclosure, the states said, noting that California had previously posted more than a thousand unredacted Schedule Bs online. The states said the danger of such exposure is why most states “pursue their law enforcement interest without demanding that every charity surrender a list of this sensitive information.”

The states also said California’s law undermined First Amendment protections in 48 other U.S. jurisdictions that do not require blanket disclosure. 

Cato: States Shouldn’t Facilitate Boycotts and Harassment of Donors to Controversial Causes

By Ilya Shapiro and James Knight

AFP and Thomas More each refused to give California their Schedule Bs and filed lawsuits to protect their donors’ anonymity. Both charities won at the trial court level, where a federal judge found that the disclosure requirement violated the donors’ First Amendment rights. The U.S. Court of Appeals for the Ninth Circuit reversed that judgment in both cases, however, and refused AFP and Thomas More’s requests for a rehearing. This prompted a sharp dissent from several judges, who argued that the court had made “crucial legal errors” by going against decades of Supreme Court precedent and refusing to apply what is known as “narrow tailoring.” “Narrow tailoring” is a common-sense requirement that the government carefully craft laws so that they infringe as little as possible on fundamental rights. The Ninth Circuit dispensed with this crucial requirement and applied a lower standard of protection.

AFP and Thomas More have each petitioned the Supreme Court to hear their cases. Joined by the Committee for Justice and Texas Charter Schools Association, Cato has filed a brief in support of these petitions. We argue that the Court should take this opportunity to clarify that narrow tailoring is always a requirement for laws infringing on First Amendment freedoms, including the freedom of association…

Recently, donors and activists across the political spectrum have faced threats, harassment, boycotts, and violence because of their political views and activities. These range from the boycotts and public shaming of President Trump’s donors to the attempted bombing of billionaire George Soros for his donations to progressive causes. In this polarizing political environment, it is imperative that the First Amendment’s protections for anonymous expression and association be vigorously protected.

Wall Street Journal: Chief Justice Roberts Defends Supreme Court Against Partisan Criticism

By Jess Bravin

Chief Justice John Roberts rejected criticism of the Supreme Court as a political body, pointing to disagreements between President Trump’s two appointees as evidence that the justices do not always toe a party line.

“Everybody said…Justices [Neil] Gorsuch and [Brett] Kavanaugh are going to march in lockstep through the docket, agreeing with each other all the time,” the chief justice said Tuesday in a talk at Temple Emanu-El in New York. In fact, the two agreed in only 20 of the 39 cases that weren’t decided unanimously last term, he said.

Likewise, he said, only seven of 19 cases decided by 5-4 votes fell along partisan lines, with the majority, justices appointed by Republican presidents, overcoming the minority of Democratic appointees.

The chief justice, who last year protested after Mr. Trump dismissed the author of a district court case he lost as an “Obama judge,” said today’s sharp partisan divide was infecting public perception of the court.

“The point is, when you live in a politically polarized environment, people tend to see everything in those terms. That’s not how we at the court function. And the results in our cases do not suggest otherwise,” he said.

Congress

NBC News: Trump and Republicans don’t hate gun control because of the NRA. They just love guns.

By Noah Berlatsky

The progressive argument for NRA corruption is seductive because it’s so straightforward. No matter how many mass shootings we endure – including two in the same week just this August – Republicans in Congress steadfastly oppose even very popular gun control measures like expanded background checks. As former Think Progress reporter Igor Volsky has repeatedly pointed out, the NRA consistently contributes money to the Republican party and Republican congresspeople, who then turn around and support NRA positions. The conclusion is obvious; Republicans are listening to contributors, not to their voters. They block gun control legislation because they’ve effectively been bribed.

But if contributions are all that’s at issue, then gun control advocates should be able to sway Republicans by simply outbidding their pro-gun rivals and offering their own campaign cash for lawmakers who come out in support of background checks. This money shouldn’t be too hard to find. The CEOs of 145 companies, including Dick’s Sporting Goods, Uber, Twitter and Reddit, just signed a letter demanding action on gun control…

In fact, in 2014 Michael Bloomberg decided to try to end NRA influence by offering more money to Republican lawmakers to support gun control. It hasn’t worked…

Tightening campaign finance regulations or getting big money out of politics, as Elizabeth Warren has promised, is not likely to reduce pro-gun sentiment among Republicans. The NRA’s ongoing financial difficulties aren’t likely to affect Republican votes much either.

Trump Administration

Associated Press: How Trump’s Ukraine call could violate campaign finance laws

By Brian Slodysko

“It turns on a basic question,” said Larry Noble, a former general counsel to the Federal Election Commission who is a Trump critic. “Is it legal for the president of the United States to ask a foreign country to intervene in our election to help him and investigate his potential opponent? And I think it is clearly illegal.” …

“Given the context of the call, President Trump created an implicit understanding that U.S. support for Ukraine and taxpayer-funded security aid to Ukraine was hanging in the balance,” said Trevor Potter, a Republican former FEC commissioner who is now president of the nonpartisan Campaign Legal Center…

Aside from Trump’s request to Zelenskiy, there are other campaign finance issues that could carry civil or criminal penalties for others involved in the effort – like whether someone footed the bill for work done by Giuliani, who has said he is not compensated.

Giuliani’s actions on Trump’s behalf could be construed as political activity, but there are no records in FEC filings of him getting paid. If he were compensated or incurred expenses that were paid from outside the campaign, that would likely need to be reported as a contribution, Noble said…

Still, establishing that the effort violated campaign finance law will not be an easy task, said Dan Petalas, a former FEC attorney…

“It certainly raises a question,” he said. “It really will turn on a better picture of the facts and connecting the dots. It is just so outside the norm.”

The States

MassLive.com: House approves campaign finance reporting, OCPF changes

By Matt Murphy, State House News Service

While many Republicans cheered the proposed switch to a reporting system that would require more frequent disclosures of campaign fundraising and spending, GOP leaders objected to changes in the way the director of the Office of Campaign and Political Finance is chosen.

The bill would create a new commission in charge of hiring the director of OCPF that would no longer include the chairs of the Democratic and Republican parties.

House Speaker Robert DeLeo and other supporters said the change would prevent a situation like the one occurring in Washington, D.C., where the Federal Elections Commission has too few members to conduct business.

“I think taking party chairs, both Democrats and Republicans, out of the process is depoliticizing the process. I think it’s the right thing to do,” DeLeo said.

Critics, however, said the reform had the potential to silence Republicans, with no guarantee that anyone in charge of hiring the state’s top campaign finance regulator was a member of the state’s second largest political party…

The bill proposed to create a new, five-person commission that includes the governor, attorney general and secretary of state, as well as an elected municipal and an elected county official picked by a majority of the three statewide officeholders.

No more than three of the five commissioners could be members of the same party, and four votes would be required to hire a new director. Nothing in the bill prevents the municipal or county official from being unenrolled or a member of a non-major party.

Everett Herald: ‘Tough as nails’ ex-Supreme Court justice offers to help Eyman

By Jerry Cornfield

Embattled initiative promoter Tim Eyman may soon have a lawyer again.

And it is a well-known name: Richard Sanders, a former state Supreme Court justice…

Sanders, who practices law in Tacoma, conditioned the deal on Eyman giving Attorney General Bob Ferguson unfettered access to the bank accounts through which the activist’s private and political lives are funded…

Eyman set out do that Monday.

He filed a motion asking Thurston County Superior Court Judge James Dixon to reconsider a sanction he imposed Sept. 13.

He submitted materials including written permission for the Office of the Attorney General to gather “all information” from five personal bank accounts and five other bank accounts related to his legal defense…

Dixon ruled that nearly $800,000 collected by Eyman between February 2012 and July 2018 should be treated as contributions in support of his political endeavors and not gifts for personal use. He took the action because Eyman has been in contempt of discovery orders for 19 months and racked up hundreds of thousands of dollars in fines.

Those are in addition to the $2.1 million in penalties Ferguson is seeking in his lawsuit accusing Eyman of secretly moving campaign funds between two initiatives in 2012. The suit, filed in March 2017, also alleges Eyman received hundreds of thousands of dollars in kickbacks from one of the signature-gathering vendors. Eyman has denied wrongdoing.

Ferguson also is seeking to bar Eyman from managing, controlling, negotiating or directing financial transactions of any kind for any political committee in the future. The trial is now set for July 2020…

“The thing that killed Tim is not having a lawyer, and the state did everything it could to discourage him from getting a lawyer,” Sanders said. “It’s a lot better to litigate with someone that doesn’t have a lawyer.”

Alex Baiocco

Alex Baiocco