Daily Media Links 9/30

September 30, 2019   •  By Alex Baiocco   •  
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In the News

Bloomberg Government: FEC Chair At Odds With Justice Position on Foreign Campaign Help

By Kenneth P. Doyle

The chairwoman of the Federal Election Commission has drafted a regulation to clarify that a candidate asking for information from a foreign country could amount to an illegal campaign solicitation.

Ellen Weintraub (D) proposed such a rule Sept. 26 following the whistleblower complaint that President Donald Trump sought to get Ukrainian President Volodymyr Zelenskiy to investigate former Vice President Joe Biden, who’s seeking the 2020 Democratic presidential nomination, and his son Hunter Biden…

Caroline Hunter, a Republican FEC commissioner who often disagrees with Weintraub, said the chairwoman’s proposal is “useless and misleading” and noted she doesn’t have a quorum to adopt a rule. “Once again, she is misusing her official position for her own ends,” Hunter said in an emailed statement…

[Paul S. Ryan, an attorney with the group Common Cause,] has filed a complaint with the Justice Department and the FEC alleging that Trump’s conversation with the Ukrainian leader violated the ban on soliciting a foreign campaign contribution…

Other election lawyers disagreed, including Eric Wang, a former FEC staffer for Hunter. He wrote in the Daily Caller that the landmark 1976 Supreme Court case Buckley v. Valeo narrowed the definition of a campaign contribution and held “there must be bright-line, objective parameters of how we regulate” under campaign finance law.

In the Trump-Zelenskiy call, “it does not appear that Trump explicitly (or even implicitly) tied the request for an investigation of Biden’s son to his reelection” so there is no objective evidence that something was being solicited or provided to benefit Trump’s campaign, Wang said. Such evidence is required, he said, or “official actions by elected officeholders that they believe benefit society, but that also may benefit their reelections, could be prohibited.”

Wang now works with the nonprofit Institute for Free Speech, a critic of campaign finance regulation.

Washington Examiner: In Trump impeachment, ‘no one is above the law’ could backfire on Democrats

By Byron York

The problem is that the campaign finance question is highly debatable. The Democratic case is this: Trump asked Ukrainian President Volodymyr Zelensky to investigate allegations that Joe Biden and son, Hunter Biden, were involved in corruption in Ukraine. Any information Zelensky provided to Trump would be a “thing of value” and thus an illegal foreign campaign contribution.

“I think it’s absurd,” Bradley Smith, a former Federal Election Commission chairman and a frequent critic of campaign finance laws, said in an email exchange. “If ‘anything of value’ were interpreted so broadly, it would mean that foreign governments are consistently violating the ban in foreign spending, whenever they take official actions that may benefit one candidate or another. Similarly, Americans would have to report such activity to the FEC. That is clearly not the law.”

“Absent the partisan juices that Trump sets off,” Smith concluded, “no election law attorney would ever say otherwise.”

Smith’s view of current campaign finance law reflects the attitudes of many Republicans and conservatives. They see the laws as an infringement on political speech and see attempts to broadly interpret those laws as a way to tighten limits on speech. (By the way, they have felt that way for decades; it has nothing to do with Trump.)

WVXU Cincinnati Public Radio: Former Federal Elections Commission Chair Concerned About Lack Of Quorum

By Karen Kasler

The Federal Elections Commission has only three of its six seats filled, so with the 2020 presidential election ahead, it can’t go forward with full investigations or levy fines for campaign finance violations.

However, Capital University law professor Bradley Smith – the past chair of the Federal Elections Commission – says that’s not what he’s concerned about.

Though there’s no quorum for meetings and other action now, Smith says those who run afoul of campaign finance laws now and into 2020 will eventually be investigated when the open seats on the FEC are filled.

“The people who really benefit are the folks who are under investigation for violations from maybe 2016 campaign for whom the statute of limitations is about to run,” Smith said. “And now the FEC might suddenly say, ‘Oh well – we no longer have a quorum to take a final vote to assess a penalty against you.'”

Smith says the terms of the three commissioners still on the FEC have all expired, but they can remain on the panel. The last time the FEC was short of a quorum was in 2008.

First Amendment 

Washington Post: The government might ask activists to repay the costs of securing protests. Experts say it could price them out.

By Marissa J. Lang

The National Park Service last year floated a proposal that would alter protest regulations and require organizers to repay the federal government for security costs. Earlier this month, Rep. Jim Banks (R-Ind.) announced he was crafting legislation to hold protesters arrested during unpermitted demonstrations liable “for police overtime and other fees related to the action.”

But both proposals are scant on dollar amounts.

Putting organizers on the hook for the costs of policing could mean invoices in the tens of thousands of dollars, according to U.S. Park Police budgets obtained by The Washington Post through the Freedom of Information Act. That’s enough to price most activists out of protesting altogether, according to experts and activists awaiting a decision from the Park Service.

“If someone called me to say, ‘I want to have a protest,’ and I said, ‘Cool, the Park Service is going to charge you $150,000 for security,’ they would hang up the phone,” said Samantha Miller, an organizer with DC Action Lab, a company that helps out-of-towners plan and organize demonstrations in Washington. “There are already a lot of preexisting fees that organizers get asked to pay. Add in something like a security fee, and there’s just no way most people or organizations would be able to afford it.”…

Civil rights organizations, as well as those on both sides of the political spectrum, have voiced opposition to the Park Service proposal.

“The government can’t, without violating the First Amendment, impose costs on demonstrators based on how much security they’re going to need,” said Art Spitzer, legal director of the American Civil Liberties Union’s D.C. office.

Reason: New York City Declares Using the Term ‘Illegal Alien’ Can Result in a $250,000 Fine

By Robby Soave

Last week, New York City’s Commission on Human Rights declared that using the term “illegal alien” pejoratively to describe an undocumented person violates laws designed to protect employees and tenants from discrimination, and could result in fines of up to $250,000. But the city’s interpretation of the law is so broad that it may very well be unconstitutional under the First Amendment.

Perceived immigration status has long been a protected category under the New York City Human Rights Law, and the commission has now issued guidance that “use of the term ‘illegal alien,’ among others, when used with intent to demean, humiliate, or harass a person, is illegal under the law.”

It’s important to note that this guidance does not affect all kinds of speech: The law covers workplace harassment, tenants’ rights, and public accommodation. Merely calling someone an illegal alien on the street, or threatening to call Immigration and Customs Enforcement on them, would not be illegal.

The courts have, of course, held that anti-discrimination ordinances can survive scrutiny, even if they appear to limit the free speech rights of employers and landlords. But NYC is going further here. The 30-page guidance notes, for instance, that “the severity or pervasiveness of the harassment is only relevant to damages. Even an employer’s single comment made in circumstances where that comment would signal discriminatory views about one’s immigration status or national origin may be enough to constitute harassment.”

That’s a problem, and one that might push the guidance into unconstitutional territory. Government decrees to prohibit free speech in the name of anti-harassment or anti-discrimination must come with certain limiting conditions to survive a First Amendment test.

FEC

New York Times: Federal Election Commissioner Posts Foreign Interference Memo on Twitter

By Neil Vigdor

The Federal Election Commission chairwoman, Ellen L. Weintraub, on Friday took the dramatic step of using Twitter to release the entire draft of a memo addressing foreign election interference after its disputed publication in the agency’s weekly digest.

Ms. Weintraub, a Democrat appointed by President George W. Bush, said a Republican commission member, Caroline Hunter, had thwarted the release of the memo and the digest, so she self-published the materials in a tweet storm that drew widespread attention to the tensions on the commission.

Ms. Weintraub said on Sunday that the memo, which can also be found on the agency’s website, was drafted by the commission’s staff and was meant to provide guidance on rules about prohibited activities involving foreign nationals in elections…

“I don’t need her permission to put out a statement,” Ms. Weintraub said in an interview. “I’m entitled to put something out there.”…

“Funny story,” Ms. Weintraub said in the opening line of her Twitter thread on Friday.

“I always thought these anti-regulatory people liked the First Amendment well enough,” she wrote. “I guess they think it’s just for corporations. I’m not fond of anyone trying to suppress my speech.”…

She said digest items are typically reviewed by the commission’s communications committee, which is made up of Ms. Weintraub and Ms. Hunter.

Congress

New Hampshire Union Leader: Shaheen calls out ‘dark money special interests’ over surprise billing ads

By Paul Feely

Sen. Jeanne Shaheen, D-NH, took to the floor of the Senate on Wednesday to call out the dark money special interests she said have flooded states across the country, including New Hampshire, with millions of dollars’ worth of advertisements aimed at derailing efforts to end surprise medical billing.

Shaheen said the ad campaign is a consequence of the Supreme Court’s Citizens United decision allowing special interests to spend unlimited amounts of money while remaining anonymous.

“This ad campaign is not only confusing to voters – it’s Exhibit A on how our campaign finance system is broke,” said Shaheen. “The voices of Granite Staters who are struggling to pay surprise medical bills are being drowned out – in this case – by private equity firms on Wall Street who are making billions off of the status quo.”

Trump Administration

National Review: How about a Bipartisan Treaty against the Criminalization of Elections?

By Andrew C. McCarthy

Through intermediary hosts, the pair – Napolitano a former New Jersey Superior Court jurist and law professor, DiGenova a former United States Attorney for the District of Columbia and prominent defense lawyer – brawled this week on Fox News (where I, like they, contribute regularly)…

Judge Napolitano argues that the July 25 conversation between President Trump and Ukrainian President Volodymyr Zelensky contains the makings of a campaign-finance crime…

DiGenova strongly disagrees. Though there wasn’t much time to elaborate, he is clearly relying on the lack of past campaign-law prosecutions on similar facts. DiGenova is also voicing the prudent conservative hostility to campaign-finance laws: Any expansion of criminal liability would necessarily restrict political speech, the core of First Amendment liberty.

I’m with DiGenova on this, but it’s a closer question than he suggests. Napolitano’s construction of the campaign laws, while not wholly implausible, is purely academic. It ignores real-world concerns about free speech and the prosecutor’s burden to prove intent…

The campaign-finance offense that Napolitano urges be charged against President Trump appears to be the same one Mueller considered charging against Don Jr. The Mueller team’s analysis (Vol. 1, pp. 186-187) is thus on point. And it is frustratingly ambiguous – as befits the constitutionally dubious campaign-finance laws.

Two offense elements proved to be stumbling blocks for the prosecutors. The first is the question whether opposition research is a “thing of value” under federal law. Mueller’s team assumed that, in theory, it might be (the Napolitano view), but that to interpret it as such would break new ground and raise troubling First Amendment issues (the DiGenova position).

The second problem was the intent element.

Candidates and Campaigns 

Washington Post: Are Warren and Sanders ‘100% grassroots-funded’?

By Salvador Rizzo

Sanders and Warren have raised most of their campaign money this year from small-dollar donations. Yet both also have tapped millions of dollars left over from previous campaigns – from a time when they had not yet adopted the strict fundraising practices they currently follow. That complicates their claim to “100 percent” grass-roots purity.

It’s a good example of how the complexities of the campaign finance system sometimes get blurred in the service of an appealing talking point…

Sanders and Warren say they’re running presidential campaigns funded “100%” by grass-roots donors. It’s a big claim with no wiggle room.

Money is fungible, so it’s an artifice to claim that money from wealthy donors last time around isn’t being used this time around.

The key here is that Sanders and Warren define their presidential campaigns as entirely grass-roots-funded because of their self-imposed restrictions: no hobnobbing with rich donors in closed events and no PAC money, for example.

But Warren held high-dollar fundraisers for her 2018 Senate run and then transferred $10.4 million from that campaign account to her presidential committee. Her Senate run raised $6 million from donors who gave $1,000 or more, and she also took some PAC contributions.

Sanders in 2015 sought and received big checks from wealthy donors. Sanders’s 2020 committee so far has gotten $4.6 million from his prior presidential campaign.

These are omissions worthy of Two Pinocchios. As a share of total fundraising, however, Sanders was less dependent than Warren on high-dollar contributions in his previous campaign.

Quartz: How these well-intended political reforms landed us with Donald Trump

By Robert Rosenkranz

As a founder of a series of live debates that provide a zone for respectful dialogue-and respectful disagreement-between experts on public policy issues and in the wider American public sphere, I spend a lot of time reflecting on the reasons those qualities are so increasingly rare in our political culture today…

The law of unintended consequences often frustrates even the best of intents. I have identified the following reforms as some of the key drivers of our current political dysfunction…

Like the primary election system, the concept behind campaign finance reform was to make elections more democratic by limiting the amount of money voters could contribute to individual candidates and to federal election campaigns in total. But again, the unintended consequence of this regulation was to drive our politics to extremes. Political campaigns have become dauntingly expensive. The average Senate race can cost more than $20 million; and a presidential election costs more than $1 billion. In order to raise that kind of money with a $2,800 individual giving limit, a candidate must attract tens of thousands of people to write individual checks. To get those checks, the popular winning strategy is to scare voters into thinking they will lose their gun rights, or their abortion rights, or their jobs. A losing strategy is to promise that the candidate will seek bipartisan compromise in pursuit of more effective government.

Washington Post: Montana Gov. Bullock eyes public financing for 2020 run

By Brian Slodysko, AP

Steve Bullock will apply to be the first – and perhaps only – Democrat in the presidential primary who accepts public financing for his campaign…

Bullock . . . says his turn to public financing demonstrates that he is “walking the walk” at a time when rejecting big money in politics has become an animating issue for party activists. He will submit his application to the Federal Election Commission after the close of the third fundraising quarter, which ends Monday.

“As the only candidate for President who is choosing to participate in the public finance process, Governor Bullock is leading with his values and defending our shared belief that our democracy should never be for sale to the highest bidder,” campaign manager Jennifer Ridder says in a memo provided to The Associated Press that outlines his rationale.

Yet Bullock’s decision comes as he has trailed far behind the leading fundraisers in the race. While he is touting it as a demonstration of his commitment to campaign finance reform, he also has little to lose in doing so and would have to see a dramatic increase in fundraising to hit an estimated $60 million spending cap triggered by his acceptance of the money…

“This is a key part of our strategy to ensure we have the financial resources to be competitive as the early states prepare to vote,” the memo states. “We expect this will add millions of dollars to our organizing and paid media efforts just ahead of the Iowa Caucus, allowing us to amplify our message and one-of-a-kind field program at a crucial juncture in the campaign.”

The States

CommonWealth Magazine: Campaign finance bill partisan power grab

By Paul D. Craney

The Sole Purpose for any campaign finance law is to hold politicians accountable for any possible corruption. To do so, campaign finance law should always be fair and clear. Fair for all involved, be it differing political parties or those on the opposite side of the negotiating table (such as unions and employers). Clear so both politicians and everyday citizens can follow the law and not run afoul.

Yet on Wednesday, the House overwhelming voted in favor of H.4072, a bill that started out as an effort to increase transparency in campaign finance reporting – but which at the last minute was amended to significantly change how the director of the Office of Campaign and Political Finance is appointed. That change was clearly unfair.

I know the original bill was sold to the public as modernizing legislation to improving transparency because I was one of the few people who attended the legislative committee hearing. Everyone offering testimony on the bill only addressed the reporting requirements. No one testified about the change to how the director would be appointed, and for good reason: it had not yet been included in the bill. No one at the hearing mentioned or asked for the change. No lawmaker on the committee sughgested it. In fact, it would not publicly appear in the bill until just before the full House vote…

This newly fabricated bill would replace a fair system for selecting the director of the Office of Campaign and Political Finance that has been in place since 1973…

In practice, the new bill concentrates the power to select the director with the majority party. This is because selection of the director will no longer require a unanimous decision, but will instead require only a four-fifths vote. Nor will the selection committee be guaranteed – as is the case currently – to include a representative of the primary minority party…

If H.4072 becomes law, the independence of the Office of Campaign and Political Finance should rightly be called into question.

Reason: This Obnoxious Drunk’s Opinions Could Earn Him an Extra 59 Months Behind Bars

By Jacob Sullum

There is little question that Timothy Trybus, the obnoxious drunk who angrily confronted Mia Irizarry as she was preparing for a birthday party at a Chicago park in June 2018, was guilty of disorderly conduct. He may also have committed simple assault. But both of those offenses are Class C misdemeanors, punishable by up to 30 days in jail. So why does he face up to five years in prison?

It is entirely because of the opinions Trybus expressed during his tirade, which this week led a jury to convict him of two felony hate crimes.

This case is highly instructive for anyone who doubts that hate crime laws punish people for what would otherwise be constitutionally protected speech. If Trybus had yelled at Irizarry because he hates birthday parties or because she was wearing a Green Bay Packers hat, he might still have been arrested for harassing her, but he would not be facing a prison sentence. Because he yelled at Irizarry about her Puerto Rican flag T-shirt, his misdemeanors became felonies…

To put it another way, the maximum sentence for Trybus’ offenses is 60 times as long as it would have been if prosecutors had not invoked the hate crime statute. And that staggering multiplier applies purely because the object of his ire was the Puerto Rican flag on Irizarry’s shirt, suggesting that he targeted her because of her race, color, or ancestry. Trybus could spend an extra 59 months behind bars for no reason other than the content of his beliefs, as opposed to the manner in which he expressed them. That clearly amounts to punishing him for his opinions, which is not something the government should be doing in a society that claims to respect freedom of conscience and freedom of speech.

Alex Baiocco

Alex Baiocco