In the News
WBUR Boston NPR: Question 2 Wants Mass. Voters To Take A Stand Against Citizens United – If Only A Symbolic One
By Quincy Walters
Question 2 asks Massachusetts voters to mandate the creation of a commission that would explore a path to a constitutional amendment that would nullify Citizens United. The ballot measure says the commission would have 15 members. Its goal would be to research how to limit the influence money has in elections, and try to establish that corporations don’t have the same rights as people…
But Bradley Smith disagrees. He’s the founder of the Institute for Free Speech and former FEC chairman.
“We protect corporate rights, because that protects the rights of the individual,” he said.
That includes shareholders, managers and employees, who Smith says benefit from their companies “asserting the rights of the people.”
Smith doesn’t live in Massachusetts, but he’s watching the ballot initiative with concern from Ohio. He believes if it passes, it could send a “dangerous” ripple to the rest of the country.
“Then you’re saying a labor union has no constitutional right to speak on behalf of its members,” Smith said. “You’re saying a corporation has no constitutional right to demand a warrant before police search its premises without reason.”
Ballot Access News: U.S. District Court Judge Enjoins South Dakota Campaign Finance Disclosure Law for Institute for Free Speech
By Richard Winger
On October 16, U.S. District Court Judge Roberto Lange enjoined a South Dakota campaign finance disclosure law as applied to the Institute for Free Speech. The Institute wants to publish an analysis of two South Dakota ballot measures on the Institute’s web page. The Institute does not expect to take a position on the ballot measures, which relate to campaign finance. On October 8 it filed a federal lawsuit to protect itself, because the existing law seems to require the Institute to disclose its top five contributors if it publishes commentary about the ballot issues.
Here is the 13-page order in Institute for Free Speech v Jackley, 3:18cv-3017. The order depends on the fact that the Institute would not be spending any money, or virtually no money, just by posting its own analysis on its own web page. To the extent that the Institute wanted to send out a press release to news outlets mentioning its analysis, the cost for that would be virtually nothing as well. The state had argued that the Institute would not be in violation of the law even if it didn’t disclose, but the law itself seems to say that it would be in possible legal jeopardy, so the Institute received judicial relief.
Boston Herald Radio: Brad Smith Former Federal Election Commission Chair (Audio)
Hosted by Hillary Chabot
Brad Smith, former Federal Election Commission Chair, joins Morning Meeting in studio to talk campaign finance law.
New from the Institute for Free Speech
Advocacy Groups: Made from Love
By Eric Peterson
As the Brett Kavanaugh confirmation process moved to its final stages, President Trump took to Twitter to accuse those protesting Kavanaugh’s confirmation of being “paid professionals.” …
Even more ridiculous is the accusation that protesters’ signs are illegitimate because they were not “made in the basement from love.” …
Sillier still is the idea that money is somehow unnecessary for speech. Even if the signs were made in the basement (from love), it would take money to buy the materials at the store. In order for a sign to be seen, the person would need to get transportation to a place where their sign would be visible. In the case of those protesting Justice Kavanaugh’s confirmation, traveling to the nation’s capital can be an expensive proposition.
But even spending your money might not be enough to make your voice heard.
This is why people from all over the country work together and form groups to amplify their collective voices. These groups raise money from hundreds, if not thousands, of individuals to support the causes and goals they believe in.
Not everyone can afford to take time away from their family, work, or community to participate in rallies or protests. But many can afford a small donation to support those who have the time to demonstrate for a shared goal.
America has a long history of different organizations working to organize and supply their supporters, so they can be more effective at accomplishing their mission. Causes as celebrated as the women’s suffrage movement or the civil rights movement relied on groups to organize and direct their efforts. These movements had many wealthy patrons but were successful because ordinary Americans supported and ultimately agreed with them. Does who funded their speech make their cause any less worthy?
The Courts
Washington Post: Justice Dept. charges Russian woman with interference in midterm elections
By Matt Zapotosky, Rachel Weiner, Ellen Nakashima and Devlin Barrett
The Justice Department on Friday charged a Russian woman for her role in a conspiracy to interfere with the 2018 U.S. election, marking the first criminal case prosecutors have brought against a foreign national for interfering in the upcoming Midterms.
Elena Khusyaynova, 44, was charged with conspiracy to defraud the United States. Prosecutors said she managed the finances of “Project Lakhta,” a foreign influence operation they said was designed “to sow discord in the U.S. political system” by pushing arguments and misinformation online about a whole host of divisive political issues, including immigration, the Confederate flag, gun control, and the NFL national anthem protests.
The charges against Khusyaynova came just as the Office of the Director of National Intelligence warned that it was concerned about “ongoing campaigns” by Russia, China and Iran to interfere with the upcoming Midterm elections and even the 2020 race…
Court papers said Khusyaynova’s operation was funded by Russian oligarch Yeveniy Prigozhin and two companies he controls, Concord Management and Consulting LLC and Concord Catering. A criminal complaint filed against the woman charges that she managed the finances of Project Lakhta, including detailed expenses for activities in the U.S. such as paying for activists, advertisements on social media, registering domain names, the purchase of proxy servers, and promoting news postings on social media.
Massachusetts Lawyers Weekly: Suit targets campaign finance disclosure laws (subscription required)
By State House News Service
A federal lawsuit contends that state campaign finance disclosure laws approved in 2010 and 2014 constitute “intimidation legislation,” violate First Amendment rights through a “compelled speech regime,” and discourage political advertising by adding substantial costs. The Massachusetts Fiscal Alliance lawsuit names the Office of Campaign and Political Finance and Attorney General Maura T. Healey as defendants.
First Amendment
Washington Post: A National Park Service move that’s completely un-American and unconstitutional
By Petula Dvorak
The National Park Service is considering charging demonstrators for use of the Mall, among a menu of other exhaustive restrictions…
The truth is, these events are huge disruptions to the city and a drain on tax dollars. Washington was paralyzed when hundreds of thousands of women and their supporters took over the Mall, the parks, the monuments, the streets during the Women’s March the day after Donald Trump’s inauguration in 2017.
And then there was the fizzled Unite the Right march in August, when taxpayers spent an estimated $2.6 million protecting a baker’s-dozen worth of white nationalists who were escorted on a Metro train, in vans and by a phalanx of police to the front of the White House.
Should we be paying for them?
Yes. Rock solid, 100 percent amen, yes…
The American Civil Liberties Union has been fighting for citizens’ right to protest on this space since the 1960s. And in a detailed letter to the Park Service, Art Spitzer, the head of the local ACLU, reminded officials that many of the proposed restrictions go directly against court rulings that have stood for decades and that “many of the proposed amendments would be unconstitutional if adopted.”
The proposed fees for protest would also include – funny enough – demonstrations held on the broad sidewalks of Pennsylvania Avenue, such as the ones that happen to be outside the Trump International Hotel, said Mara Verheyden-Hilliard, executive director of the Partnership for Civil Justice Fund, which has been working on behalf of protesters in Washington for decades.
Verheyden-Hilliard’s group found the sidewalk item buried in 100 pages of proposed rules, and it vows to take the Park Service to court if it goes through with it.
Corporate Speech
Washington Post: The Energy 202: In what may be a first, Patagonia endorses two Senate candidates
By Dino Grandoni
In what campaign-finance experts say may be a first, outdoor clothing company Patagonia is endorsing two Senate candidates in the western United States, where protecting the public land in which its customers recreate is a key concern.
The Ventura, Calif.-based retailer announced Friday that it is backing two Democrats, incumbent Sen. Jon Tester who is running for reelection in Montana, and Rep. Jacky Rosen as she seeks to unseat Sen. Dean Heller (R) in Nevada…
“Public lands are center stage there, in Montana and Nevada,” Patagonia spokeswoman Corley Kenna said. “And we felt by motivating our community to vote, we could help protect the public lands and waters in those places.” …
“I am not aware of a similar corporate endorsement of a candidate,” said Richard Briffault, a Columbia Law School professor and campaign finance expert, “although I can’t say it never happened before.”
Michael S. Kang, a law professor and campaign-finance expert at Northwestern University, similarly could not recall any other public endorsement of a candidate from a corporations.
“Consumer-facing companies traditionally shy away from taking sides publicly in candidate races, so it would make sense if nothing comparable has happened since Citizens United,” Kang said. “Before Citizens United, a public endorsement of this type would’ve been illegal, so it’s a relatively new opportunity in any event.”
Brenden Quinn, outreach coordinator for the Center for Responsive Politics, added that no one there could “think of any other time a company has explicitly endorsed a candidate” other than endorsements printed in the opinion pages of newspapers.
Online Speech Platforms
New York Times: In Virginia House Race, Anonymous Attack Ads Pop Up on Facebook
By Kevin Roose
A competitive race in Virginia’s 10th Congressional District has an alarming new element: anonymous attack ads on Facebook.
The ads, which appeared on a Facebook page called “Wacky Wexton Not,” were purchased by a critic of Jennifer Wexton, a Democrat trying to unseat Representative Barbara Comstock, a Republican…
The person or group behind the ads is known to Facebook, but a mystery to the public. The funding disclaimer attached to the ads reads, simply, “Paid for by a freedom loving American Citizen exercising my natural law right, protected by the 1st Amendment and protected by the 2nd Amendment.” There is no other identifying information on the page…
Users trying to buy political ads on Facebook are required to verify their identities, including proving that they have a mailing address in the United States. And all political ads are required to carry a “paid for by” disclaimer, detailing which person or organization purchased them.
But the owner of “Wacky Wexton Not” was able to remain anonymous by taking advantage of a loophole in Facebook’s policy. Once authorized to pay for political ads, buyers are able to fill the “paid for by” field with whatever text they want, even if it does not match the name of a Facebook user or page, and even if it is not an organization registered with the Federal Election Commission. Facebook does not reveal the identity of authorized ad buyers, or allow users to get more information about them.
A Facebook spokesman, Andy Stone, said that the ads on “Wacky Wexton Not” were allowed under the company’s current policies, but that the company was working on improving the disclosure feature. He said Facebook did not disclose the identity of the people authorized to buy political ads in order to protect those users’ privacy.
Fundraising
FiveThirtyEight: Election Update: Democrats’ Unprecedented Fundraising Edge Is Scary For Republicans … And Our Model
By Nate Silver
The result is a fundraising disparity of the likes we’ve never seen before – at least not in recent years. (Our data on House fundraising goes back to 1998.) In the average House district, the Democratic candidate has raised 64 percent of the money, or almost two-thirds. Likewise, the Democrat has raised an average of 65 percent of the money in districts rated as competitive by the Cook Political Report. In all previous years in our database, no party had averaged more than 56 percent of the money in these competitive districts.
The fundraising numbers are so good for Democrats – and so bad for Republicans – that it’s a little bit hard to know quite what to make of them. From a modelling standpoint, we’re extrapolating from years in which fundraising was relatively even, or from when one party had a modest edge, into an environment where Democrats suddenly have a 2-1 advantage in fundraising in competitive races. Moreover, this edge comes despite the fact that a large number of these competitive races feature Republican incumbents (incumbents usually have an easier time raising money than challengers) and that most of them are in red terrain…
Maybe, precisely because fundraising has become easier, including winning contributions from out-of-state and out-of-district donors, it’s no longer as meaningful an indicator of candidates’ grassroots appeal or organizational strength.
The States
Raleigh News & Observer: The legislature made unconstitutional changes to the NC elections board, judges rule
By Will Doran
The government board that oversees elections in North Carolina is unconstitutional, a panel of judges ruled on Tuesday – just weeks before Election Day in the 2018 midterms, and only a day before the start of early voting throughout the state.
However, the judges recognized the timing and ruled that the N.C. Board of Elections and Ethics Enforcement can continue operating as-is, until after the elections are over and the votes are counted.
The laws struck down as unconstitutional were put in place by the Republican-led General Assembly in 2017 and 2018 and limited the authority of Democratic Gov. Roy Cooper. The laws were passed to replace previous legislation passed in December 2016, a month after Cooper won the election, that was also struck down as unconstitutional.
Prior to the legislative changes that have now been struck down, the governor’s political party was given a majority on the board…
However, the ruling might not end up meaning anything if voters pass a constitutional amendment on the ballot this November, related to the elections board. In a written statement Wednesday afternoon, two Republican lawmakers urged people to support the constitutional amendment on the ballot.
“The public deserves a bipartisan elections board that implements elections laws and investigates campaign finance violations without favoritism towards any party or political agenda,” said Rep. David Lewis of Harnett County and Sen. Warren Daniel of Burke County. “The people can weigh in starting today by voting on the proposed amendment to make a bipartisan Board of Elections and Ethics Enforcement a part of our state constitution.”
