Daily Media Links 9/7: Court order restricting online tabloid images that sharply criticized a recently withdrawn presidential nominee, Russian firm tied to pro-Kremlin propaganda advertised on Facebook during election, and more…

September 7, 2017   •  By Alex Baiocco   •  
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In the News

Washington Examiner: How government enables online outrage mobs

By Bradley A. Smith

Bloomberg columnist Megan McArdle recently noted that “we live in fear of online mobs.”…

McArdle argues that the rise of the Internet and online mobs may require us to rethink “the hard, bright line that classical liberalism drew between state coercion and private versions.”

But what about when government coercion enables the actions of mobs? Such is the case with campaign finance law, in which the government requires individuals who donate to political campaigns to report the candidates they support, the amount of their donations, their addresses, and their employment information, and then publicizes that information…

Today, forced disclosure of political donations is used less to inform voters than to provide information to silence speakers through threats and shunning.

Perhaps it is time to rethink our attitude toward disclosure. At a minimum, we should substantially raise the thresholds at which public disclosure of donors becomes mandatory – currently $200 at the federal level, and much less in most states. We should certainly not expand forced disclosure beyond contributions to candidate campaigns – disclosure laws should not be broadened to encompass membership in and dues and contributions to trade and professional associations, nonprofit organizations, and think tanks.

Portland Mercury: The County Just Instituted Strict Campaign Reforms

By Doug Brown

It’s now been more than three weeks since proponents and opponents of a voter-approved set of campaign finance reforms faced off in Multnomah County Circuit Judge Eric Bloch’s courtroom on August 15, and days since the reforms kicked in September 1. Though those new restrictions are supposedly in effect, Bloch has yet to rule on whether the campaign contribution and expense caps violate the state constitution. Multnomah County, officials say, is now in a gray area of campaign finance law… 

This summer, an attorney for the Center for Competitive Politics…sought to represent the conservative Taxpayers Association of Oregon in opposition to the measure. They were joined in opposition by the Portland Business Alliance, landlord lobby the Portland Metropolitan Association of Realtors, realtor Alan Mehrwein, and corporate advocacy group Associated Oregon Industry.

Ballot Access News: Libertarian Party Files Brief Attacking Federal Campaign Limit on Bequests

By Richard Winger

On September 5, the Libertarian National Committee filed this 27-page brief in Libertarian National Committee v Federal Election Commission, U.S. District Court, D.C., 1:16cv-121. The issue is whether it is constitutional for the federal government to prevent the party from receiving a bequest of amounts greater than $33,900 in any one year…

This is the second such lawsuit. The first one, when Raymond Burrington died and left the party $217,734, took so long to adjudicate, the money had all been possessed by the party before it was over, so it was declared moot. This case was filed in 2016 and is likely to be quicker, because some of the issues were already settled in the first lawsuit.

This new case is stronger than the last one, because in late 2014, Congress passed a budget bill that said national political parties could receive contributions almost ten times higher, if the money was used for one of three purposes: legal, national convention expenses, or headquarters expenses. The party argues that if such big contributions are now legal if a party wants to use the money just for those purposes, then a general gift to such a party can’t possibly cause corruption.


Former FEC Chair Bob Lenhard Discusses Campaign Finance Law, Foreign Intervention in U.S. Elections

By Joe Albanese

Last Thursday, the McCourt School of Public Policy at Georgetown University hosted a discussion with Robert Lenhard, a former FEC commissioner and a partner at the law firm Covington & Burling LLP, where he focuses on election and political law. A Democrat, Lenhard was appointed to the FEC by President George W. Bush in 2006. The discussion was moderated by Angela Campbell, a professor at Georgetown Law and Co-Director of the Institute for Public Representation.

The event centered on the issue of foreign intervention in American elections, but touched on a number of other issues as well. It provided a valuable opportunity to hear Lenhard’s personal views on campaign finance law and its developments, and for those unfamiliar with the topic to receive a helpful primer on the issue…

Overall, the discussion was a fascinating opportunity to receive both a broad overview of laws relating to foreign intervention in politics, and a detailed inside look at how the system functions in practice.

Fraud or No Fraud, Tax-Financing is Harmful to the Campaign Process

By Alex Baiocco

Most obviously, these dual investigations expose the potential for corruption and abuse under tax-financed campaign programs…

But even if neither candidate is found guilty of fraud, the fact that the investigations are happening at all exposes another damaging effect of such programs. Just like regulations pertaining to private campaign funding, the various rules and requirements for tax-financing programs provide fodder for attacks against opponents that have nothing to do with candidates’ policy positions. Even if they’re ultimately exonerated, the candidates will have expended precious resources defending themselves both legally and in the news…

It is very possible in both instances that campaign volunteers or representatives unknowingly broke the rules. In fact, the accused candidate in Albuquerque and his attorney admit this may have occurred.

This illustrates a core trade-off inherent in campaign finance regulation. Regulators’ impulse to write complex rules and punish violations harshly conflicts with their goal of promoting grassroots participation. If compliance with tax-financing programs is too difficult or costly, taxpayers’ money will most often go to candidates who are already well-connected and highly organized over upstart challengers.

CCP Job Opening: Attorney, First Amendment Litigation

The Center for Competitive Politics is expanding its litigation team. We are looking for an experienced attorney to take a leading, independent role in First Amendment cases brought in federal and state courts.

[Please click on the link above for a detailed description of job responsibilities, requirements, and instructions on how to apply.]

The Courts

Washington Post: Court order restricting online tabloid images that sharply criticized a recently withdrawn presidential nominee

By Eugene Volokh

In the past couple of months, I’ve blogged several times about Brummer v. Wey, a remarkable New York decision in which an appellate court essentially ordered defendants to remove certain images from an online tabloid (TheBlot) that accused a recently withdrawn presidential nominee for the Commodity Futures Trading Commission, Prof. Christopher Brummer, of participating in a figurative “lynching” of two stockbrokers. (Brummer had been one of the arbitrators in the industry self-regulatory proceeding that essentially banned them from participating in the financial industry.) This pretrial order, I think, is a blatant violation of the First Amendment.

I’m delighted to say that our pro bono local counsel Daniel Schmutter (Hartman & Winnicki) – many thanks to him! – submitted an amicus brief in the case on behalf of Reporters Committee for Freedom of the Press and leading First Amendment scholars Martin Redish (Northwestern) and Steve Shiffrin (Cornell). The brief supports the defendants’ motion for leave to reargue the case before the appellate court, or to appeal to the state high court, and is addressed to the appellate court itself; that’s the way appellate procedure works in New York.

Nonprofit Advocacy

Washington Post: A two-decade crusade by conservative charities fueled Trump’s exit from Paris climate accord

By Robert O’Harrow Jr.

For nearly two decades, Ebell has led the Cooler Heads Coalition, an umbrella group of tax-exempt public charities and other nonprofit organizations in the vanguard of efforts to cast doubt on the gravity of climate change and thwart government efforts to address it…

The story behind the coalition illuminates the influential, little-known role that tax-exempt public charities play in modern campaigns to sway lawmakers and shape policy in the nation’s capital, while claiming to be nonpartisan educational organizations…

Under IRS rules, such organizations may not devote a substantial part of their work to lobbying. But the laws are vague and hard to enforce. And the IRS provides little oversight, because it is financially strapped and has too few auditors. Agency officials are also wary of enforcing prohibitions on political activity, after the conservative backlash triggered by the agency’s focus on tea party groups several years ago, according to knowledgeable officials.     

Competitive Enterprise Institute: Response to Washington Post Account of CEI’s Victory on Paris Climate Decision

By Kent Lassman

Although The Washington Post’s story about CEI, Myron Ebell, and the Cooler Heads Coalition correctly identifies the success that CEI and the Cooler Heads organizations have had debunking global warming alarmism and exposing the devastating, regulatory onslaught that comes along with it, the Post fails to show Americans how public policy groups like CEI help cut through the rhetoric and bring people together on the merits of policies rather than short-sighted politics…

The Post spends a lot of space questioning CEI’s nonprofit status and activities, while conveniently ignoring groups 10 times our size. These organizations advocate for radical changes in our national energy policies and rely upon the very same IRS provisions. We can, and should, debate what the climate science shows and the policies we should implement as a result. 

Candidates and Campaigns

Washington Post: Russian firm tied to pro-Kremlin propaganda advertised on Facebook during election

By Carol D. Leonnig, Tom Hamburger and Rosalind S. Helderman

Representatives of Facebook told congressional investigators Wednesday that the social network has discovered that it sold ads during the U.S. presidential campaign to a shadowy Russian company seeking to target voters, according to several people familiar with the company’s findings.

Facebook officials reported that they traced the ad sales, totaling $100,000, to a Russian “troll farm” with a history of pushing pro-Kremlin propaganda, these people said.

A small portion of the ads, which began in the summer of 2015, directly named Republican nominee Donald Trump and Democrat Hillary Clinton, the people said, although they declined to say which candidate the ads favored…

Even though the ad spending from Russia is tiny relative to overall campaign costs, the report from Facebook that a Russian firm was able to target political messages is likely to fuel pointed questions from investigators about whether the Russians received guidance from people in the United States – a question some Democrats have been asking for months.

The States

Priest River Times: Reform campaign finance laws to restore public trust

By Rep. Sage Dixon

While the referendum failed to gain enough signatures to be placed on the ballot, the interest it generated did provoke legislative leadership to act prudently and form an interim working group tasked with examining Idaho’s current campaign finance laws…

One area of concern that has garnered national attention is that of “Dark Money” being injected into campaigns… A suggested solution to this problem is a law stating that an Idaho political committee may not accept any donation over a specified amount, from another political committee unless it is registered in Idaho…

Some campaigns have become full time endeavors and it would seem appropriate that we require more frequent campaign finance disclosures, especially during an election year. Also noted was the disclosure loophole that exists in the final days leading up to an election which allows expenditures to be made by the candidate, or on their behalf, which will not be made public until after the election, effectively protecting the anonymity of the source…

Something completely new that all group members agreed was necessary is requiring campaign finance disclosure for local elections.

Wall Street Journal: NYC Campaign Program Boosts Importance of Small Donors

By Anne Kadet

New York City is unique with this almost insanely generous match, which septuples qualifying donations of up to $175.

Few know the program, launched in 1989, exists…

Bo Dietl, a retired NYPD detective running for mayor as an Independent, says the program-which cost $38 million in the last citywide election-forces taxpayers to subsidize candidates they don’t like. He isn’t participating.

Some note the potential for fraud, while criticizing what they see as unnecessarily burdensome reporting requirements. “It is a major hassle,” says Rob Ryan, a Republican political consultant working for GOP mayoral candidate Nicole Malliotakis…

One of the program’s vocal supporters is Mayor Bill de Blasio, a Democrat who has so far received $2.65 million in public matching funds for his re-election campaign. This may make the program sound like a dubious use of taxpayer dollars, given what looks like his almost certain victory in November.

Governing: To Wipe Out Corruption, Look to Philadelphia

By Alan Greenblatt

Just in the past few years, numerous state legislators, Democratic officials and a congressman from the area have been convicted of crimes committed in their nominal line of duty…

But Williams is the first city official convicted or even charged since 2008. What that shows is that the local culture has started to change. Following a pay-to-play scandal in the early 2000s, Philadelphia created an ethics board that actually has some teeth. In addition, the city inspector general’s office has been strengthened. Most people working in local government now have a firm sense of what’s allowed and what’s not. By and large, they’ve been staying out of trouble…

Things are different at the state level. Legislators can accept gifts as long as they say they won’t influence their decision-making… The result has been a parade of lawmakers, including legislative leadership, who have gone to prison in recent years. In Philadelphia, by contrast, a $99 limit on gifts seems to have curbed most of the worst abuses. A near-decade without city corruption scandals may be more revealing than the fact that Williams got caught.

Alex Baiocco

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