Daily Media Links 9/4

September 5, 2019   •  By Alex Baiocco   •  
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Free Speech

Washington Post: Canada’s left finally learns the pitfalls of anti-speech laws

By J.J. McCullough

Last May, I warned against the Trudeau administration’s tightening of Canada’s already draconian campaign speech laws, which require anyone spending a relatively modest amount of money on political activism during or near a Canadian election to register with the government and comply with all manner of restraints and restrictions.

My critique focused on how doubling down on such policies would discourage the political activism of smaller groups who lack the legal and professional resources necessary to follow the hundreds of clauses and sub-clauses of the sprawling Canada Elections Act. This, I thought, would have the effect of quieting “those upstart actors and activists whose political organization is more amateurish and whose causes, accordingly, are most likely to be disruptive or challenging to Ottawa.”

What I failed to anticipate was that the degree the revised act is actually so draconian, it makes political speech onerous even for those safely in Canada’s mainstream…

Laws that give government the power to impose punishments on those who spend “too much” money on politicized speech necessitate a government willing to supervise all political speech to ensure the line is never crossed. This, in turn, requires the government to come up with a workable definition of “political” speech, which, given politicians’ insecurity, is inevitably one that places themselves and their parties at the center. Once this definition is further expanded to include not only agitation for or against specific politicians and parties but their “associated issues” as well, there becomes essentially no limiting principle to the sort of speech government has a right to monitor, regulate and restrict.

The inevitable outcome is a country where citizens’ right to speak clearly and forcefully about issues important to them during election time is chilled by bureaucratic intimidation.

The Courts

Press of Atlantic City: Courts must fix New Jersey’s bungled donor disclosure law

By Editorial Board

Disclosure of donors to campaigns favoring particular candidates or outcomes on public questions would help citizens see who is trying to steer an election. A bill to do that sat neglected in the state Legislature for a few years.

Then it was picked up to use as a weapon in the political squabbling among Democrats, who saw it as an opportunity to force a group favoring policies supported by Gov. Phil Murphy – New Direction New Jersey – to disclose its donors after it reneged on a promise to do so. To weaponize it, the bill was changed to also require disclosure of donors to groups that don’t back candidates or ballot issues, but limit their advocacy to issues and regulations. That made it objectionable to many independent nonprofits, both for its onerous reporting requirements and potential to discourage donors.

We had hoped that Murphy’s conditional veto of the bill would allow its overreach to be amended.

Instead, apparently fearing an override by the Legislature, Murphy agreed to sign into law a bill identical to the one he vetoed.

One group – Americans for Prosperity – already has sued, seeking to have the disclosure bill declared unconstitutional. The state branch of the American Civil Liberties Union has said it will sue as well…

A federal court has barred enforcement of the law pending a decision on it and has scheduled its first hearing for Sept. 17…

Such is the wisdom in the design of American government, that its separate branches can keep things reasonable when one stumbles in its important duties.

Arkansas Democrat-Gazette: 8th Circuit panel to hear arguments [this] month in campaign-donors suit

By Linda Satter

A three-judge panel of the 8th U.S. Circuit Court of Appeals in St. Louis will hear oral arguments Sept. 25 on a Pulaski County woman’s challenge of a state law prohibiting candidates for statewide office from accepting campaign contributions more than two years before an election.

On June 17, U.S. District Judge James Moody Jr. blocked the law’s enforcement until its constitutionality can be determined. However, the state appealed, and Moody then agreed to stay his preliminary injunction, allowing the campaign contribution blackout period to remain in effect until the 8th Circuit decides whether to let the injunction stand.

Moody won’t set a hearing on the merits of the case until the case is returned to his court from the 8th Circuit.


The Hill: ‘Honest’ political ads: Watch out, Drudge, you’re next

By Lee E. Goodman

When Congress returns to business next week, it will take up legislative responses to foreign meddling in American elections. Front and center will be the Honest Ads Act, a bill severely restricting the First Amendment rights of American citizens and media companies but barely impacting foreign meddlers…

The first legislative response in Congress was the Honest Ads Act, principally targeting speech by law-abiding Americans and media companies in a clumsy effort to screen a tiny fraction of potential foreign propaganda…

Fortunately, Congress need not meddle with the free speech of Americans to address foreign political meddling. A law already targets such foreign-sponsored propaganda. It’s called the Foreign Agents Registration Act, or FARA, and is enforced by the National Security Division of the Department of Justice (DOJ) in consultation with other intelligence agencies…

FARA should be amended to adapt it to foreign operatives targeting Americans via social media platforms. Its registration and disclaimer provisions could be extended to cover foreign speakers – not just their U.S. agents – whenever they purposefully utilize American telecommunications systems and equipment, including social media accounts, advertising platforms, computer servers and internet connections…

[T]he Honest Ads Act imposes such harsh, potentially criminal penalties upon private media companies that many will simply censor a large amount of political content. Some platforms have refused all political advertising – by Americans – in places like Maryland and Seattle, due to the heavy burdens of compliance and consequences of accidental noncompliance with local “honest ads” acts.


Washington Examiner: FEC’s Weintraub has long overstayed her welcome

By Quin Hillyer

Why does Federal Election Commission Chairwoman Ellen Weintraub still have her job?

Weintraub should leave her position both because she has served 11 years beyond the normally prescribed term and, more importantly, because her repeated public comments give evidence of crusading, anti-Constitution attitudes. Her behavior is unbefitting someone in a job demanding dispassionate application of existing law.

The chairwoman’s most recent in a series of objectionable agitations came Aug. 30 on MSNBC’s All In with Chris Hayes. There, while conveniently ascribing to foreigners the idea that the presidential Electoral College creates results that are “not legitimate,” Weintraub gave what amounted to an official imprimatur to that idea. Rather than defend our constitutional structure, she tacitly undermined its validity.

A single lapse in judgment like this might be forgivable. Alas, this wasn’t an isolated instance. Weintraub has a long history of intimating that her political views should supersede the Constitution she is sworn to serve and uphold.

In particular, Weintraub is no fan of the First Amendment. Rather than defend the free speech that is an essential part of free and fair elections, Weintraub has complained that the amendment has been “weaponized,” has said the FEC should take it upon itself to “blunt the impact” of a Supreme Court decision protecting free speech rights, and is hosting an event this month aimed at targeting supposed “disinformation” online.

Fox News: Ilhan Omar protected – for now – against accusations of campaign finance law violations

By Hans A. von Spakovsky

Rep. Ilhan Omar, D-Minn., who is accused of improperly using political campaign funds to reimburse her alleged lover for travel expenses, doesn’t need to worry for now about a complaint filed against her with the Federal Election Commission. Vacancies on the FEC make it impossible for the commission to take any action.

The FEC, where I served as a commissioner over a decade ago, is supposed to act as a government watchdog against election law violations. But unless it has four members, the watchdog is effectively muzzled and chained, helpless to act. Right now there are three members and three vacancies on the commission…

The six FEC commissioners are nominated by the president and confirmed by the Senate. There is a long tradition that whenever a seat held by the political party not in control of the White House opens up, the president asks the leader of that political party in the Senate for his choice to fill the seat.

There are currently two empty Republicans seats and one empty Democratic seat on the commission.

The names of FEC nominees are sent to the Senate in pairs – one Republican and one Democrat.

President Trump nominated a Texas lawyer, Trey Trainor, in 2017 to fill an open Republican seat. But there has been no public report that Senate Minority Leader Chuck Schumer, D-N.Y., has given Trump a nominee for the Democratic seat that has been empty since 2017.

Without a quorum – four commissioners on the six-member FEC – the commission can’t hold meetings, initiate audits, vote on enforcement matters, issue advisory opinions, or engage in rulemaking…

Right now the ball is in Sen. Schumer’s court to nominate a Democratic FEC commissioner, and for the Senate to then confirm a Democrat and a Republican to the commission.

The Media

Wall Street Journal: End the Media’s Campaign Privilege

By David B. Rivkin and Lee A. Casey

“With the advent of the Internet and the decline of print and broadcast media,” the Supreme Court observed in Citizens United v. Federal Election Commission (2010), “the line between the media and others who wish to comment on political and social issues becomes far more blurred.”

Like the prerevolutionary French aristocracy, media institutions enjoy legal privileges whose rationale expired long ago. As a result, their exemption from campaign-finance law is vulnerable to constitutional challenge. “We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers,” the Citizens United court declared.

The justices also indicated that a statutory privilege would be difficult to uphold. “The Government may commit a constitutional wrong when by law it identifies certain preferred speakers,” they wrote. “The First Amendment protects speech and speaker, and the ideas that flow from each.”

The court could resolve the problem by declaring the exemption unconstitutional and applying campaign-finance laws to media organizations. But that would make journalism untenable.

Consider the ban on “coordinated communications.” Under current law, corporations and other independent organizations have the right to speak for or against a candidate, but they are forbidden to develop messages “in cooperation, consultation or concert with, or at the request or suggestion of, a candidate, a candidate’s authorized committee, or their agents, or a political party committee or its agents.”…

But the rule against coordinated communication would prohibit a vast amount of ordinary journalistic behavior, too-from interviewing candidates and campaign staffers to editing and publishing opinion articles under their bylines…

The justices could protect everyone’s right to speak and gather news by declaring the coordination rule unconstitutional as applied against anyone, as they invalidated the rule against independent corporate campaign expenditures in Citizens United.

Independent Groups

ABC News: Firm tied to top Trump campaign aide Brad Parscale has side deal with pro-Trump super PAC

By Katherine Faulders, Matthew Mosk and Soo Rin Kim

A digital data firm connected to President Donald Trump’s campaign manager has received more than $900,000 in business from a pro-Trump super PAC, a low profile financial entanglement that could renew questions from critics about whether the senior advisor, Brad Parscale, found discreet ways to profit from his work for the president.

Parscale told ABC News that the contractor, called Red State Data and Digital, LLC, was not a secret and that the firm complied completely with election laws and was primarily working to support congressional candidates during the 2018 midterms…

A public indication of his connection to the firm surfaced on corporate documents in Delaware, which can only be accessed from a state registrar’s office in Dover. The records showed that Candice Parscale signed a form submitted to change the name of the company’s registered owner…

Brad Parscale confirmed the firm is an offshoot of Parscale Strategy LLC after ABC News contacted him. He said his wife has long served as a bookkeeper for his businesses.

“Red State is a valued vendor that provides us with digital consulting services at a competitive rate,” America First Action spokesperson Kelly Sadler told ABC News. “America First strictly complies with FEC rules and regulations and any suggestion otherwise is patently false.”

Red State was set up to be a “firewall company” — a legal maneuver that allowed it to continue working for the America First super PAC during the mid-term elections, without risking a violation of election rules that prohibit any coordination between a campaign and a like-minded super PAC, Parscale said. Election law experts said that type of arrangement is not new.


Washington Post: Gregory Craig found not guilty of lying to investigators probing work to aid Ukraine president

By Spencer S. Hsu

A federal jury found Gregory B. Craig not guilty of lying to the Justice Department, acquitting the Democratic former White House counsel on Wednesday of concealing media contacts in 2012 related to his work for the Ukrainian government.

Jurors deliberated less than a day before vindicating Craig, 74, a former top legal adviser to Barack Obama and Bill Clinton. Craig’s defense urged them to weigh his towering reputation in Washington and decades in government and private practice before passing judgment after a three-week trial.

The acquittal marks a high-profile setback for a Justice Department crackdown on foreign lobbying in the United States, exposing flaws in a difficult prosecution that was handed off among several offices before Craig’s April indictment. Before the trial began, a judge dismissed a count against Craig directly involving the registration requirements, saying the rules seemed vague as applied to Craig’s circumstances.

The verdict is likely to stir debate over whether to clarify or strengthen provisions of the Foreign Agents Registration Act, which requires Americans paid by foreign governments or politicians to influence U.S. policy or opinion to register with the Justice Department.

The States

Boston Globe: A small campaign with a six-figure problem

By Edward Fitzpatrick

When he ran for the state House of Representatives back in 2010, Samuel J. Tassia raised a grand total of $50…

But when he came before Rhode Island Board of Elections on Tuesday, Tassia owed a whopping $118,120 in fines for failing to file his campaign finance forms on time…

After hearing from Tassia, the Board of Elections agreed to lower the fine to $605 – matching the amount the board spent on mailing, labor, and issuing subpoenas to Tassia over the years.

His was one of nearly a dozen campaign finance cases that came before the board on Tuesday, prompting renewed calls to revise the state’s campaign fine structure and to establish a standardized system for such appeals…

Board Vice Chair Stephen P. Erickson agreed with the recommendation to lower Tassia’s fine, saying, “We are saddled with this fine structure that is completely out of whack with any sense of proportionality that is required by the Supreme Court in assessing fines. So someone who raised $50 now owes us $118,000.”

Earlier this year, the US Supreme Court ruled that the value of property seized in criminal cases can’t be out of proportion to the crimes involved, Erickson noted. And the Board of Elections must ensure that its fines are proportional to the campaign finance violations, or the cases won’t stand up in court, he said.

Erickson said the board has proposed legislation to address this issue in recent years, and possible solutions could involve the flat fines or caps on fine totals used in other states. He said it would be better to have a blanket policy than to address these situations on a case-by-case basis.

New York Post: Why judges will end up writing New York’s new campaign laws

By Editorial Board

In a telling sign of what’s ahead, the special commission that’s rewriting New York’s state election laws spent most of its first “public” session behind closed doors.

Commissioners were apparently discussing what legal counsel to hire, since their work is sure to face a host of court challenges – not least because it’s insane to have an unelected panel revise the rules of a democracy.

Gov. Andrew Cuomo and the state Legislature set up the commission to create a statewide system for taxpayer funding of political campaigns and to tackle other issues…

Unless the Legislature returns for a special session in December to reject or revise the commission’s plan, it will automatically become law – at least, until the courts start weighing in…

The commission got its first meeting listed on the state website with just minutes to spare to meet the Public Meetings Law’s three-day notice requirement.

Meanwhile, as Cameron Macdonald of the Government Justice Center discovered, the lefty Citizens Action of New York had already listed not just that meeting, but future ones, on its own site.

Presumably, it got the info from commission member Denora Getachew, who is former counsel at the Brennan Center for Justice, a Citizen Action ally. Both groups are in the Fair Elections NY coalition, which is pushing for a state system based on the city’s public campaign finance laws…

The larger problem, though, is the whole gimmick of the people’s elected representatives passing the business of writing new election and campaign law off to a bunch of appointees.

If a majority of legislators dislike the final package – but find themselves helpless because the Legislature’s leaders refuse to allow a special session – they’ll have to sue.

Alex Baiocco

Alex Baiocco