New from the Institute for Free Speech
First Amendment Concerns Regarding Oklahoma Ethics Commission Amendment 2019-02
By Zac Morgan
This surfeit of unconstitutional provisions counsels strongly against the adoption of either Option. That said, each of the two Options also contain significant constitutional issues of their own. A brief example from each is instructive.
For example, Option 1’s media exemption only applies to “working members of the press, radio, or television and the publication or dissemination thereof by a newspaper, book publisher, regularly published periodical, radio station, or television station.” What constitutes a “working member of the press” is inherently uncertain, which is quite bad enough. But by tethering the definition with a conjunctive to “the publication or dissemination thereof by” non-online sources, all Internet-based reporting is arguably excluded from the exemption…
Option 2’s definition of “indirect lobbying” poses a different quandary. It seeks to protect membership communications, such as messages from a labor union to its dues-paying members. Thus, “internal communications made by an organization with its members indicating the organization’s position on legislation” do not constitute indirect lobbying “so long as the communications do not encourage its members to advocate for or against pending legislation.”
While well-meaning, the caveat related to “encourag[ment]” throws up a constitutional minefield. Both the Supreme Court and other federal courts have found that the phrase “influencing” raises constitutional vagueness issues in the First Amendment space] “Encouraging” is unlikely to fare better. If a labor union informs its members that “enactment of this bill will destroy unions in Oklahoma,” has it encouraged “its members to advocate for or against” the pending legislation? What if it encourages its members to “let your friends know about the bad things happening in Oklahoma City?”
Congress
The Week: Marco Rubio’s Israel anti-boycott law is an attack on free speech
By Joel Mathis
These are divisive times. But Americans should be able to agree on at least one issue: Sen. Marco Rubio (R-Fla.) shouldn’t be the arbiter of what political expression is or isn’t allowed in America.
Rubio is leading the effort to pass the “Combating BDS Act,” a law that would give the federal imprimatur to state and local governments that pass laws against giving government contracts to individuals and companies that boycott the State of Israel in opposition to its policies regarding the Palestinian territories.
That act – part of a larger package of measures regarding Middle East policy – suffered a setback this week, thanks to a Democratic filibuster. But Rubio and the anti-boycott movement aren’t done.
“Opposition to our bill isn’t about free speech,” Rubio tweeted Tuesday. “Companies are FREE to boycott Israel. But local & state governments should be FREE to end contracts with companies that do.”
A good rule in politics: If you have to say a proposed law isn’t about free speech, it’s probably about free speech.
HuffPost: States And Cities Have Already Shown Democrats’ Election Reforms Will Work
By Paul Blumenthal
“Within the last five or six years, you just got more and more of these solutions happening at the state and local level,” said Rep. John Sarbanes (D-Md.), the bill’s chief sponsor. “It’s not a unicorn. It’s not like we’re talking about something that exists in the atmosphere of Jupiter. This is happening in America.” …
The bill’s campaign finance provisions on public election financing, dark money disclosure and democracy vouchers have all been field tested…
“California’s Disclose Act is great but limited,” said former Federal Election Commission Chairwoman Ann Ravel…
Ravel believes that the $50,000 threshold for disclosure could be lower – which is something the House Democrats’ bill does…
A little-noticed provision in Democrats’ big reform bill would create a pilot program for “democracy vouchers” – a proposal to provide every citizen with vouchers that can be used as small-dollar political donations…
The pilot program in the Democrats’ bill would be implemented in three randomly selected states to test how it works for congressional elections…
The For the People Act’s main campaign finance reform is the creation of a small-donor matching system to publicly finance congressional elections. It is based on the decades-old public financing program run for New York City elections.
New York adopted a small-donor matching system to publicly finance its elections in 1988 in response to a series of corruption scandals throughout city government. At the time, the system provided a 1-to-1 match…
Currently, the system provides an 8-to-1 match for contributions up to $175. That means a $175 contribution actually counts as a $1,575 contribution after the public funds are added in. Democrats’ For the People Act uses a 6-to-1 match, a rate used by the New York City system from 2009 through 2018, for contributions up to $200.
Center for Responsive Politics: Ocasio-Cortez, Romney, Omar among prominent freshmen to launch leadership PACs
By Karl Evers-Hillstrom and Raymond Arke
Much of the money donated to members’ leadership PACs often comes from corporate PACs, trade associations and labor unions…
Already the most well-known freshmen member of the House, Ocasio-Cortez was one of many newly-elected Democrats to reject money from corporate PACs. She recently launched a leadership PAC titled Courage to Change on Nov. 29.
According to a source close to the Ocasio-Cortez campaign, the leadership PAC will follow the standards set out during her campaign, meaning it won’t accept corporate or lobbyist money…
Omar, another prominent new progressive member and no-PAC pledger, formed Inspiring Leadership Has A Name PAC three days after election day. The leadership PAC accepted one $5,000 contribution from American Crystal Sugar Company, a major agricultural cooperative and political player with several Minnesota locations. The cooperative reported nearly $1.3 billion in revenue in 2016.
In a statement to The Center for Responsive Politics, a spokesperson for Congresswoman Omar’s campaign said the PAC does not accept corporate PAC contributions, stating that the contribution is from “an agricultural cooperative, not a corporate PAC.” …
Leadership PACs have their share of controversies. According to a report from Issue One, a cross-partisan political reform group, “a minority of leadership PAC spending – only 45 percent between January 2013 and mid-2018 – actually goes toward contributions to other candidates and political groups.” Much of the spending instead is used for “stays at luxury hotels, meals at prime restaurants and tickets for highly coveted events, often under the guise of fundraising activities,” the report found.
By Matt Vespa
Rep. Abigail Spanberger (D-VA), who booted incumbent Republican David Brat in 2018, brought up campaign finance yesterday at the National Press Club. Reversing Citizens United is one of the many issues that jack up the progressive Left. At the event, Spanberger brought up Virginia’s campaign finance laws, the remarks voters said to her about corporate PAC money, and what her mother told her every time she got into trouble for whatever her younger sisters had done.
When she tried to explain, her mother would say, “her perception is her reality.” She circled that back to the long-standing feeling that there’s a lack of trust in government.
“When a voter believes that a $5,000 check is enough to vote in a way that is somehow against their interest, I don’t think that’s true in many cases, but if that’s their perception, that goes back to this whole conversation about trust,” she said. “And for me to say, you know, I want to sit down with this company, I’m going to sit down with this company, I’m going to maybe vote in a way that this voter may not like, but you will know that I didn’t do it because of a campaign contribution.”
Oh, I forgot, she isn’t offended by the concept of corporate PAC money existing. Spanberger added that her refusal to accept such money isn’t anti-business, but a way for her to speak with any company that could potentially create economic activity in her district.
Free Speech
Jacobin: Free Speech Is a Left-Wing Value
By Chip Gibbons
On June 16, 1918, Eugene Debs stood up before an audience in Canton, Ohio…
The perennial Socialist Party presidential candidate told the picnicking audience that “[t]he master class has always declared the wars; the subject class has always fought the battles.” Faced with yet another ruling-class war, Debs countered, “If war is right let it be declared by the people. You who have your lives to lose, you certainly above all others have the right to decide the momentous issue of war or peace.”
Clyde Miller, a journalist with the Cleveland Plain Dealer, tipped off federal authorities about the content of Debs’s speech, and the socialist leader was charged under the Espionage Act, a statute used to criminalize opposition to the war and silence radical voices. Arguing that Debs’s antiwar speech was intended to incite insubordination within the military and obstruct the draft, the government tried, convicted, and sentenced Debs to ten years in prison…
Debs was not the only opponent of World War I prosecuted under the Espionage Act – such prosecutions destroyed a number of vibrant radical movements – but he quickly became and remains a stand-in for an entire era of repression and the fight for civil liberties it inspired.
As celebrated as Debs’s saga is, it enjoys a key distinction from many other free speech fights. Famed civil liberties battles like the right of students to wear black armbands and the right of unions to assemble in public parks were primarily legal struggles in which the Supreme Court ultimately affirmed free speech rights. In Debs’s case, the Supreme Court was on the other side: it unanimously upheld his conviction.
FEC
Mother Jones: Documents Show NRA and Republican Candidates Coordinated Ads in Key Senate Races
By Christopher Hooks and Mike Spies
The National Rifle Association appears to have illegally coordinated its political advertising with Republican candidates in at least three recent high-profile US Senate races, according to Federal Communications Commission records. In Senate races in Missouri and Montana in 2018 and North Carolina in 2016, the gun group’s advertising blitzes on behalf of GOP candidates Josh Hawley, Matt Rosendale, and Richard Burr were authorized by the very same media consultant that the candidates themselves used-an apparent violation of laws designed to prevent independent groups from synchronizing their efforts with political campaigns.
In December, the Trace and Mother Jones reported on a similar pattern of coordination between the NRA and Donald Trump’s 2016 presidential campaign…
While it is not illegal for independent groups and campaigns to use the same vendors, the Federal Election Commission requires consultants to prevent staffers from sharing information, usually through the creation of internal “firewalls.”
“All evidence points to coordination,” said Larry Noble, the general counsel of the FEC from 1987 to 2000…
The NRA’s use of National Media and its affiliates to coordinate with the Trump and Hawley campaigns is currently the focus of two complaints before the FEC by the Campaign Legal Center and the Giffords Law Center to Prevent Gun Violence…
Ann Ravel, who served on the commission from 2013 to 2017, says the straightforward manner in which the NRA and Senate campaigns aligned ads in these cases “goes to show how weak the campaign finance system is.”
Candidates and Campaigns
Washington Post: Why Democrats’ old contributions will haunt them in 2020
By Paul Waldman
At a news conference Thursday about legislation Democrats are offering to lower prescription drug prices, Sen. Cory Booker (D-N.J.) got a question about his own history of receiving contributions from drug companies, and according to David Wright of CNN, he answered by noting that he has taken a pledge to no longer accept money from any corporate political action committee…
[I]t’s now expected that any Democrat running for president will refuse to accept donations from corporate PACs…
Even a campaign finance purist will have to ask themselves how they feel about personal donations as opposed to PAC or super PAC donations, since that’s likely to come up in 2020. Beto O’Rourke, who took no PAC money for his Senate race last year and raised a stunning $79 million in mostly small contributions, got criticized by some on the left for taking lots of money from people in the oil and gas industry. His supporters countered that he’s from Texas and there are thousands of Texan liberals who just happen to work for an oil company, but that doesn’t mean O’Rourke is beholden to Exxon; then everyone yelled at everyone else on Twitter.
That’s a preview of what we’re going to see in 2020: a lot of sniping back and forth about which candidates are the most bought and why. But there’s no perfect answer to how one should judge those individual contributions, since a donation “from” a corporation could be (and often is) to influence policy, but it could also be just because someone who works there likes the candidate. For instance, people in the electronics manufacturing and equipment industry gave Sanders $1.9 million in 2016. Does that mean Bernie is in the pocket of Big Transistor? Probably not.
The States
Associated Press: Split court: Local initiatives subject to disclosure rule
By Gene Johnson
A split Washington Supreme Court ruled Thursday that the attorney general’s office can pursue a campaign finance disclosure case against the conservative Evergreen Freedom Foundation.
The 5-4 majority rejected the group’s assertion that the disclosure requirements did not apply to local initiatives before they’re placed on the ballot.
The Freedom Foundation had provided free legal services to citizens in Sequim, Shelton and Chelan who gathered signatures for measures that would make collective bargaining sessions with public employee unions open to the public.
Officials in the cities declined to accept the measures for the ballot, however, and the initiative promoters sued – with the Freedom Foundation’s help – in an effort to force public votes on the measures.
In 2015, Washington Attorney General Bob Ferguson sued, saying the Freedom Foundation should have reported the legal help to the Public Disclosure Commission as a campaign contribution. A Thurston County Superior Court judge threw out the lawsuit, saying state law was vague on whether the contributions needed to be reported, but an appeals court overturned that decision…
The Freedom Foundation argued that it wasn’t required to report its contributions because the local measures hadn’t yet been approved for the ballot.
The majority disagreed…
The dissent, authored by Justice Sheryl Gordon McCloud, insisted that the law did not clearly require the Freedom Foundation to report the expenses, and that because the organization’s First Amendment rights were involved, the burden should have been on the government to prove that the reporting was required.
In a written statement, the Freedom Foundation said it would appeal to the U.S. Supreme Court.
Danbury News Times: Watchdogs want tighter campaign-finance rules
By Ken Dixon
[T]he SEEC, which released the latest campaign filings on Thursday, has proposed eight major pieces of legislation aimed at increasing public disclosure, and even providing additional money for candidates who become targets of PACs.
“We’re making every effort to try to strength the (Citizens’ Election Program) and look toward better disclosure for the public,” said Michael J. Brandi, executive director and chief counsel of the SEEC, noting that the agency awarded 335 grants for the 2018 election cycle. “Lot of effort was spent this year in trying to ferret out dark money and make sure were getting the proper disclosure the public is entitled to.”
“I think we need to make the disclosure requirements that we do have much more robust,” said Cheri Quickmire, executive director of Common Cause in Connecticut. “We need to know who’s spending on campaigns, and if someone does self-financing but is getting support from outside organizations that is clearly not self-financed.” She said that there needs to be a “brighter line” between so-called independent spending, and possible coordination between a PAC and a candidate…
Quickmire said that while millionaires ran for the governor’s spot, the state’s 10-year-old public-financing system for the General Assembly proved that candidates did not have to be wealthy.
“If look down-ticket, more than 85 percent of people running for office used the program,” Quickmire said of the 10-year-old Citizens’ Election Program…
Brandi, in a phone interview on Friday, said the agency would also like to revisit a law approved last year that limits SEEC investigations to one year. He wants to amend the law to allow more time to evaluate, investigate and resolve cases.
By Nina Burleigh
“If we want to address all the other big issues in our electoral system and our political system,” Bullock told Iowa State Fair visitors last summer, “if we really want to address income inequality, if we want to address health care…you’re not going to be able to do it until you’ve also addressed the way that money is corrupting our system.” …
As Montana attorney general, Bullock defended the state’s ban on corporate campaign spending against a challenge from American Tradition Partnership-a conservative advocacy group with a history of concealing its donors-all the way to the Supreme Court in 2012. More recently, in 2015, as governor, he persuaded Montana Republicans to support a bipartisan campaign finance reform bill that required all groups spending money on elections to disclose their donors. Last summer, he sued the Internal Revenue Service and the Department of the Treasury over a decision to no longer require politically active nonprofits to identify their major donors to the government. The case is pending in federal district court in Montana…
Despite Bullock’s efforts, the Supreme Court struck down Montana’s ban on corporate campaign spending in a 5-4 decision in 2012 without hearing oral arguments. But the governor believes the legal battle was productive because it created a factual record of the patterns and effects of corporate spending that did not exist when the court issued its Citizens United ruling in 2010.
