ICYMI
Testimony of David Keating Before the U.S. House Committee on House Administration on H.R. 1
By David Keating
The bill would impose onerous and unworkable standards on the ability of Americans and groups of Americans to discuss the policy issues of the day with elected officials and the public.
Other sections of the bill would violate the privacy of advocacy groups and their supporters, stringently regulate political speech on the Internet, and compel speakers to include lengthy government-mandated messages in their communications.
H.R. 1 would radically transform interpretation and enforcement of the labyrinth of laws that regulate political speech, from its historic bipartisan structure to partisan control.
The proposal would also coerce Americans into funding the campaigns of candidates with which they may disagree in a system that research has proven hasn’t worked elsewhere…
At its core, H.R. 1 would greatly increase the already onerous legal and administrative compliance costs, liability risk, and costs to donor and associational privacy for civic groups that speak about policy issues and politicians. Organizations will be further deterred from speaking or will have to divert additional resources away from their advocacy activities to pay for compliance staff and lawyers. Some groups will not be able to afford these costs or will violate the law unwittingly…
One way to understand how H.R. 1 would harm nonprofit civic and advocacy groups is to apply its provisions to common advocacy and operating activities of these organizations. This complex and expansive bill has many provisions that are difficult for even campaign finance attorneys to understand. I will use my testimony to highlight some of these issues and their application to groups engaging in speech about policy issues.
Supreme Court
Wall Street Journal: Janus Barely Dents Public-Sector Union Membership
By Daniel DiSalvo
Justice Elena Kagan warned of “large scale consequences . . . involving millions of employees” in her dissent last year from the Supreme Court’s ruling in Janus v. Afscme. Yet according to the Bureau of Labor Statistics, unions in state and local government only lost 54,000 members, falling from 6.244 million to 6.19 million in 2018-a decline of less than 1%.
So much for Justice Kagan’s claim that unions couldn’t survive as effective bargaining partners without collecting mandatory “agency fees”…
Even before the court’s 5-4 ruling against Afscme, eight of the 22 affected states passed laws to shield unions from the full impact of the court’s decision…
In New York, where nearly 70% of public employees are covered by union contracts, Gov. Andrew Cuomo began with an executive order to prevent public entities from sharing their employees’ contact information with groups seeking to inform public workers of their newly recognized rights under Janus…
Laws in New York and California now give unions access to employees’ contact information. They also require new hires to meet with union representatives for up to an hour so they can pitch membership. Similar laws have also been passed in New Jersey, Maryland and Washington…
California law now states that a public employer “shall not deter or discourage public employees from becoming or remaining members of an employee organization.” Such language may imply that government employers can’t even tell workers how to opt out of union membership. New Jersey requires public employers to reimburse unions for lost dues if they are found to have violated a similar provision.
These measures encourage union communication with public employees, but make it less likely that workers will hear about their rights under the law-or other outside perspectives on the merits of public-union membership.
The Courts
Courthouse News Service: Landlords Claim Twin Cities’ Voter Law Violates Their Free Speech
By Dionne Cordell-Whitney
Under the threat of criminal prosecution, landlords say they are forced to be the carriers of the government’s “ideological” message in violation of their protected free speech.
A group of landlords say they will be criminally prosecuted if they do not comply with city policies by providing information to their tenants on where and how to register to vote.
Minnesota Voters Alliance sued the cities of St. Paul and Minneapolis in federal court on Wednesday. They claimed city codes requiring them to provide voter registration information to their tenants violate their First Amendment right to free speech…
Minnesota Voters Alliance also supported the voter photo ID amendment proposal that was defeated in 2012 by voters. The nonprofit group, however, won a U.S. Supreme Court case this last summer striking down Minnesota’s vague ban of wearing political apparel in polling places.
R & J Real Estate, Well Maintained Apartments, Garfield Court Partnership, along with landlords Marissa Skaja and Charles Halverson-both members of the Minnesota Voters Alliance-are also named plaintiffs in the lawsuit.
According to the complaint, St. Paul and Minneapolis both enforce city codes that require landlords to, at the time of signing a lease, provide information to all tenants over the age of 18 of their right to vote and how to register to vote.
If a landlord fails to provide this information to a tenant, he or she will be subject to criminal prosecution. In St. Paul, the landlord can be charged with a petty misdemeanor and in Minneapolis a landlord can be subject to condemnation, written violation orders, warnings or criminal charges.
Congress
By Noah Berlatsky
Many on the left believe that lobbying is in fact largely a bribery scheme. Thus, David Klion, a Jewish journalist, tweeted, “If the Palestinians could outbid AIPAC, then [Republican House Minority leader Kevin] McCarthy would be a BDS supporter, as would his entire caucus. This isn’t complicated.”
This line of reasoning suggests representatives in Congress simply sell their votes to the highest bidder. They don’t support BDS (a pro-Palestinian boycott movement) because no one pays them to do so.
Political scientists, though, have been a lot more skeptical about the direct influence of money on politics. A 2003 survey of literature in the Journal of Economic Perspectives found that “Legislators’ votes depend almost entirely on their own beliefs and the preferences of their voters and their party. Contributions explain a minuscule fraction of the variation in voting behavior in the U.S. Congress.”
The paper was titled “Why is There so Little Money in U.S. Politics?” It pointed out that given the billions and billions of dollars at stake in public policy decisions, campaign contributions by interest groups are tiny…
But despite their reputation and conventional wisdom, campaign contributions don’t generally translate directly into policy changes, according to Clare Brock, a professor of government at Texas Woman’s University who studies lobbying. “Most political scientists do not think about lobbying as vote buying, though sometimes the general public does think of it this way,” she told me. “In fact, most of the time lobbying does not seem to actually change votes.”
Paul Waldman at the American Prospect, for example, compared NRA spending and election results from 2004 through 2010. What he found was that “The NRA has virtually no impact on congressional elections.”
Candidates and Campaigns
Washington Monthly: Candidate Pledges to Reject Corporate PAC Money Don’t Mean Much
By Nancy LeTourneau
Sen. Elizabeth Warren recently made a promise about her campaign and issued a challenge to the rest of the field…
These days, voters seem to want to hear these kinds of pledges from candidates, perhaps because they think it diminishes the role of big money in politics. Unfortunately, that is not really the case.
In order to understand why rejecting corporate PAC money isn’t that consequential, it is important to know that corporations cannot donate directly to a campaign. In addition, campaign finance laws limit the amount PACs can donate directly to a candidate to $5,000 during a primary and another $5,000 in a general election (individuals-including registered lobbyists-are limited to $2,700 each part of the cycle)…
If you’ll notice, Sen. Warren pledged to reject all PAC money, while the rest of the candidates have said that they won’t accept corporate PAC money…
[A]ny Democrat who swears off all PAC money also forgoes the most critical way that labor unions (as well as other issue-related PACs) provide their financial support.
I’m not sure what Warren meant when she said that she wasn’t taking applications from billionaires who want to run a super PAC on her behalf, but it’s also important to know what campaign finance law says about them. There are no limits on how much an individual can contribute to a super PAC, but they can’t donate directly to a campaign and are barred from coordinating with them. I suspect that Warren’s comment was meant to be lighthearted, but what she suggested she wouldn’t do is already illegal under current campaign finance laws.
The truth is that candidates can discourage super PACs from engaging in activities to support their campaigns (i.e. running TV ads), but they don’t have any leverage to stop them from doing so.
The States
Yahoo Finance: New Los Angeles law says contractors must disclose NRA ties
By Alexis Keenan
The Los Angeles City Council may have picked a Constitutional battle Tuesday, passing a new ordinance requiring prospective city contractors to disclose whether they do business with the National Rifle Association.
The measure passed unanimously, with 14-0 vote, and also requires potential contractors, including individuals, entities, and associations, to disclose any sponsorships they offer to NRA members, such as discounted fees, goods or services.
“Disclosure, generally, is not something that the Constitution prohibits,” Robert Peck, president and founder of the Center for Constitutional Litigation said…
What does raise Constitutional issues is when compulsory disclosures are likely to cause retribution against those who are required to disclose…
As justification for LA’s new law, the ordinance points to the city’s interest in promoting and legislating gun safety. Its preamble cites national U.S. statistics on mass shootings, firearm homicides, deaths and injuries, and accuses the NRA of ignoring the will of its own members…
Essentially, Peck said, a court would weigh the public policy interest of safety against the ability of the mandated disclosure law to achieve the policy goal. A court would also consider whether the rights of private contractors have been compromised. For example, does the new law actually addresses public policy, or simply permit the government to carry out animus toward a political position? …
The Supreme Court held Shelton v. Tucker that despite a state’s interest in the quality of its school teachers, the interest did not justify a requirement that teachers disclose organizations with which they were affiliated. According to Peck, the teachers in Shelton can be distinguished from the contractors who now fall under the LA ordinance because they were employees.
Los Alamos Daily Post: Secretary Of State Maggie Toulouse Oliver On Passage Of Campaign Finance Bill By New Mexico State Senate
Wednesday, the New Mexico State Senate passed an important bill on the Senate floor that will improve transparency in our campaign finance system.
Senate Bill 3 passed the Senate today 36-6 and, if it becomes law, will create clearer and more robust reporting requirements for money spent trying to influence our elections in New Mexico.
“In the post-Citizens United era when bigger and bigger amounts of money are being spent to influence our elections, New Mexicans deserve the strongest and most transparent campaign finance system possible. Senate Bill 3 represents a major step forward on transparency and accountability in campaign finance reporting. I’m proud to have worked with Senate Majority Leader Peter Wirth on this version of the bill and I want to thank him for his tireless, multi-year effort to improve our campaign finance system,” Secretary of State Maggie Toulouse Oliver said.
The bill is sponsored by Senate Majority Leader Peter Wirth and is a priority for Secretary Toulouse Oliver in this legislative session. It now moves on to the New Mexico House of Representatives for consideration.
Senate Bill 3 revises the Campaign Reporting Act (CRA) to provide clear guidance to individuals and entities who report campaign finance expenditures to the Secretary of State’s Office, in addition to fixing an unconstitutional provision in the CRA and defining terms like “independent expenditures.” Senator Wirth has sponsored similar versions of this bill in previous legislative sessions, most recently in 2017 when his Senate Bill 96 passed the Senate 36-6, passed the House 41-24, and was vetoed by then-Governor Susana Martinez.
Complete Colorado: Split decision on campaign finance complaints: One moves forward, one headed to appeals
By Sherrie Peif
A complaint against state senators Faith Winter from Adams County and Tammy Story from Jefferson County has been dismissed, while one against progressive organizations Colorado Rising and ProgressNow Colorado was ruled it would move into the initial investigation phase.
That complaint was filed by Charles Heatherly, former policy director for the State Senate Republicans, and claims the two organizations conspired to act as a conduit to fund proponents of Proposition 112 in the 2018 election on behalf of the Sergey Brin Foundation. Brin is the co-founder of Google.
The complaint also asks that newly sworn in Secretary of State, Democrat Jena Griswold, who ran her campaign on ridding Colorado elections of dark money, recuse herself and her office from the investigation.
“The elections division finds that complainant alleged potential violations of Colorado finance law and allege sufficient facts to support a legal and factual basis for the complaint,” the ruling reads.
The elections division now has 30 days to conduct an initial review to determine whether to file a complaint with a hearing officer…
However, the complaint against Winter and Story, which was filed by Matt Arnold, director of Campaign Integrity Watchdog, was dismissed following its 30-day review. It alleged the campaigns accepted out of state money from the Sister District Project (SDP), which acted as a conduit for donors in violation of the Colorado Constitution.
Detroit News: Editorial: Make campaign finance violations sting
By Editorial Board
A group that actively campaigned for Gov. Gretchen Whitmer has gotten its hand slapped and must now pay a fine for its clear violations of the Michigan Campaign Finance Act. That law exists for a reason, and the state must do more to ensure it’s getting enforced…
Build a Better Michigan, the group that’s faced sanctions, spent more than $2.4 million in 2018 and ran pro-Whitmer television ads which it argued was a form of “issue advocacy” despite mentioning in the ads that Whitmer was a candidate for governor.
Under Michigan law, there should have been no coordination between Whitmer’s campaign and Build a Better Michigan. Yet the commercials feature the governor speaking directly into the camera with Hollywood quality production.
Many called foul, including former Secretary of State Ruth Johnson, who launched an investigation into the campaign, after complaints were lodged by the Michigan GOP and Michigan Freedom Fund. New Secretary of State Jocelyn Benson followed through with the investigation.
The strong appearance of coordination between the group and the campaign, in addition to the other findings of wrongdoing, mandated some sort of penalty.
Benson got the group to agree to pay a settlement of $37,500, less than 2 percent of what they spent during the campaign…
Benson, who has already sided with Democrats on a recent redistricting deal, continues to show her partisan colors by stating that Build a Better Michigan did illegally spend over $2 million during the midterm election. Yet she then gave the group what Tony Daunt, executive director of the Michigan Freedom Fund, calls a “feather tickle on the wrist.”
“This conciliation agreement is incredibly partisan and corrupt,” Daunt says.
Maryland Matters: In Debate on Campaign Finance Reform, It’s Reformer vs. Reformer
By Josh Kurtz
At issue is a resolution sponsored by Sen. Paul G Pinsky (D-Prince George’s) that would enable Maryland to call on Congress to establish a constitutional convention…
Pinsky said he introduced the resolution because there simply isn’t a better way to begin chipping away at Citizens United…
“A constitutional convention is a dangerous and irresponsible path,” said Damon Effingham, executive director of the watchdog group Common Cause Maryland…
At one point during the hearing on Pinsky’s resolution, Sen. Clarence Lam (D-Howard and Baltimore County) noted that Wolf-PAC, a national political action committee seeking a constitutional convention on political spending, has spent money in Maryland political races and in one case targeted a former state Sen. Barbara A. Robinson (D-Baltimore City) in the 2018 Democratic primary. Lam asked how a group dedicated to reducing the influence of money in politics could justify spending money on political races.
“We’re going to use all tools in the current system that are available to us,” said Michael Monetta, Wolf-Pac’s national director. Robinson had abstained during a committee vote on the constitutional convention call in a previous legislative session.
But some of the reform groups opposing the constitutional convention have begun attacking Wolf-Pac’s fundraising and political activity.
Meanwhile, an attorney for Wolf-Pac noted that it is nearly impossible to determine who Common Cause’s top donors are. Common Cause is a national nonprofit group and does not endorse candidates in political races. Like all nonprofit groups, Common Cause must make certain financial information public, but does not list every contributor.
Annapolis Capital Gazette: Pittman gets push back from House on campaign finance law
By Selene San Felice
Anne Arundel County Executive Steuart Pittman was met with questions on his campaign finance bill Friday, with House members citing concerns about effects on small businesses, first amendment violations and County Council involvement.
Pittman presented his bill – a plan based on Prince George’s County legislation that would ban developers with pending county applications and their agents from giving directly to politicians- to the Anne Arundel County delegation on Friday…
Del. Brian Chisholm, R-Severna Park, said he’s worried about the impact this law would have on small business owners, despite the bill being targeted toward large development agencies…
Del. Mary Lehman called the bill a smart proactive decision considering what she saw while serving on Prince George’s County Council in 2011 when its law was passed. But she’s concerned about taking away the right to a contribution as speech, which would violate the first amendment. The Prince George’s Democrat recommended doing what Prince George’s did, which was to bar the county executive and members of County Council from voting on projects involving developers they took donations from in a three year period…
Maryland Building Industry Association spokeswoman Angelica Bailey spoke out in opposition of the bill. She said development applications are checked through several different agencies beyond votes from county politicians to ensure the development is good for the county and its residents and complies with the law.
“We do feel like we’re being singled out. Many industries give contributions to the county council and they are free to do so, but we are being targeted,” Bailey said. “Our industry contributes to a healthy economy. We contribute jobs. We contribute to the tax base. The implication that a contribution could turn a vote in a way it shouldn’t go is a little confusing to us.”
