The Courts
Courthouse News Service: Sixth Circuit Upholds Kentucky Campaign-Finance Limits
By Kevin Koeninger
Upholding several of Kentucky’s campaign-finance restrictions and ethics laws, the Sixth Circuit overturned a ruling Thursday that found the limits placed an unconstitutional burden on politicians.
Republican State Senator John Schickel and Libertarian candidate David Watson challenged Kentucky’s lobbyist contribution and gift bans in a 2015 federal lawsuit, claiming the prohibitions were unconstitutional.
U.S. District Judge William Bertelsman ruled in 2017 that several of the provisions “burdened ‘core political speech’ and curtailed freedom of association,” but the appeals court panel found otherwise…
Vacating Bertelsman’s decision, the Cincinnati-based appeals court found Schickel and Watson lack standing to bring their claims.
“The legislators offer no affidavit from a lobbyist or his employer regarding these restrictions, and they fail to provide evidence that a specific lobbyist, his employer, or a PAC attempted to help in ways proscribed by the provisions … but was turned away due to the lobbying restrictions,” Senior U.S. Circuit Judge Deborah Cook wrote for the court. “The lack of such evidence dooms their claims.” …
Cook, a George W. Bush appointee, cited the 2013 U.S. Supreme Court case Clapper v. Amnesty International and wrote that “the legislators cannot manufacture standing by ‘inflicting harm on themselves based on their fear of hypothetical future harm that is not certainly impending.'” …
With its unanimous decision, the panel remanded the case to the district court and vacated an injunction that had stayed enforcement of the statutes.
The Hill: Texas said he couldn’t wear a MAGA cap to vote – now he’s suing to protect his rights
By Wen Fa
Voters face many important choices when they cast their ballots on Election Day. But one choice they shouldn’t have to make is between their right to free speech and their right to vote.
Yet voters in Texas face exactly that choice, thanks to a state law that gives election workers the power to stop you from voting if they don’t like the attire you’re wearing.
Take the example of Tony Ortiz, a suburban Dallas resident who showed up to vote wearing a cap bearing President Trump’s trademark slogan “Make America Great Again.” One election worker blocked him from voting. When Ortiz responded by pointing out that Trump wasn’t on the ballot, another poll worker threatened him with arrest.
Texas law makes it a crime for voters to wear attire related to a candidate, issue or political party. But exactly what is the standard to determine how “related” a shirt or hat is to a given ballot issue? And who decides?
Those questions have plagued Texans for over a decade. One voter was challenged for wearing a souvenir shirt she bought during an excursion to Alaska. The t-shirt said “Seward, Alaska,” and “Outdoor Enthusiast,” but an election worker feared it would be interpreted as support for former vice presidential candidate Sarah Palin. Another election worker forced a woman to cover up a “Vote the Bible” t-shirt because it might be offensive to some. In a particularly extreme case, one Texan spent a night in jail for the criminal offense of wearing a “Deplorables” t-shirt.
Now Texans are fighting back to protect their constitutional rights. Pacific Legal Foundation (PLF) is representing Ortiz in a civil rights case filed in federal court…
There’s precedent to support Ortiz’s case. Last year, PLF secured an important free-speech victory for voters in Minnesota. In Minnesota Voters Alliance v. Mansky, the Supreme Court held that restrictions on “passive” political expression at the polling place must be guided by objective, workable standards.
Congress
Vanity Fair: A.O.C. And Ted Cruz’s Viral Twitter Exchange Shows Bipartisanship Isn’t Totally Dead
By Alison Durkee
The improbable partnership got started after Ocasio-Cortez shared a Public Citizen article on Twitter discussing the large percentage of former members of Congress who had already turned to lobbying. “If you are a member of Congress + leave, you shouldn’t be allowed to turn right around&leverage your service for a lobbyist check,” Ocasio-Cortez tweeted. “I don’t think it should be legal at ALL to become a corporate lobbyist if you’ve served in Congress.” Cruz chimed in, saying, “Here’s something I don’t say often: on this point, I AGREE with @AOC.” “Indeed, I have long called for a LIFETIME BAN on former Members of Congress becoming lobbyists,” the Texas senator continued. “The Swamp would hate it, but perhaps a chance for some bipartisan cooperation?”
That got the ball rolling, as Ocasio-Cortez said she would co-lead a bill with Cruz that proposed a “straight, clean ban on members of Congress becoming paid lobbyists,” as long as there were “no partisan snuck-in clauses” and “no poison pills.” To which Cruz responded: “You’re on.” From there, the lawmakers’ plan for a lobbying ban gathered support from both sides of the aisle: Democratic Sen. Brian Schatz simply responded, “IN.”, while Republican Rep. Chip Roy signaled his interest and said his staff was reaching out to Ocasio-Cortez’s office. Ocasio-Cortez pointed out on Twitter that the issue now had at least one bipartisan team in both the House and Senate. “And that’s just in a few hours-there will surely be more from both parties to sign on,” she continued. “Nice.” …
Democratic Sens. Elizabeth Warren, Jon Tester, and Michael Bennet, and Republican Sen. Cory Gardner have all proposed lobbying bans in past congressional sessions, and lobbying bans have already been introduced this session by Republicans Sens. Rick Scott and Mike Braun and Rep. Trey Hollingsworth. A bill that passed the House in March, the For the People Act, would limit lobbying activities by defining “strategic consulting” as lobbying. Yet none of these past bills have managed to gain much traction, and adversaries have raised constitutional issues with the ban, since the First Amendment gives U.S. citizens the right to petition the government.
National Review: The Ocasio-Cortez-Cruz Bill Would Almost Certainly Be Unconstitutional
By Charles C. W. Cooke
I’m agnostic on whether this is a good idea on the merits. But, in truth, I don’t especially care given that it’s almost certainly unconstitutional on its face. The right to petition is explicitly protected by the First Amendment, and there is no exception within its text for former government employees – employees who, after they have left office, enjoy precisely the same relationship with their government as does any other citizen. Were Ocasio-Cortez, Cruz, and co. proposing to prohibit former federal legislators from engaging professionally in other First Amendment-protected behavior – say, from becoming paid writers or paid speakers or paid clergymen – it would be extremely obvious to us that their idea was unconstitutional. It should be obvious here, too. This isn’t a time-and-place restriction, or even a temporary regulation, it’s a permanent prohibition that applies to an entire class of people. That something weird and visceral happens to the modern American mind when the word “lobbyist” is introduced into the conversation does not change that fact.
I have seen some advocates of the idea suggest that Congress can get around this limitation contractually. In the private sector, this argument runs, employees sign all sorts of agreements by which they consent to limit their future behavior in exchange for being given a particular job now. So why not in Congress? This idea is problematic per se, given that the government is not a private entity, and that it is thus bound by the Bill of Rights in a way that, say, Goldman Sachs is not. But it’s also unconstitutional on its own terms per current Supreme Court precedent. In Thornton v. U.S. Term Limits, the Court ruled that the qualifications the Constitution outlines for membership in Congress are exhaustive and cannot be added to. Any attempt to render congressional eligibility contingent upon a contract that contained extraneous terms would, as a result, be illegal.
FEC
Tampa Bay Times: FEC to Mitt Romney, Michele Bachmann and 48 more zombie campaigns: Why are you still here?
By Christopher O’Donnell, Eli Murray, Connie Humburg and Noah Pransky
The federal agency that oversees elections demanded explanations on Wednesday from about 50 politicians who are operating zombie campaigns – political committees that keep spending contributions long after the campaign has ended.
The Federal Election Commission sent letters to the campaigns Wednesday asking why their campaign accounts were still open. It flagged specific expenses by at least 17 campaigns and asked them to justify the spending.
It is the first action taken by the agency since it announced in April 2018 that it would start scrutinizing the spending of what it called “dormant” campaigns.
That new policy was triggered by a 2018 Tampa Bay Times/10News WTSPinvestigation, which revealed candidates spending campaign money for years or decades after leaving office. Federal law does not allow campaign money to be spent improving politicians’ personal lives…
The letters gave the campaigns 35 days to respond. After that, the federal agency could launch an enforcement action that could result in fines, said Adav Noti, a former attorney for the agency who is now a senior director for the Campaign Legal Center, a Washington D.C. watchdog group that filed a petition challenging the spending.
“There have been many reports in recent years about the FEC failing to enforce the law,” he said. “It’s a breath of fresh air for the agency to respond to the Tampa Bay Times reports and our legal filings by taking steps, even in a preliminary way, to address the problem.”
Candidates and Campaigns
New York Times: New Democratic Debate Rules Will Distort Priorities, Some Campaigns Say
By Shane Goldmacher and Lisa Lerer
[C]ampaign after campaign said the party’s donor requirements are skewing the way they allocate resources, forcing them to choose between investing in staff or pouring more money into ads on sites like Facebook…
Democratic digital strategists said the unprecedented chase for small donors was encouraging poor habits aimed at simply stirring up internet interest or spamming existing email lists unsustainably, while also driving up the price of finding donors for down-ballot Democrats.
Ryan Alexander, a Democratic digital strategist, mocked the new rules on Twitter. “Let the irresponsible email acquisition and direct-to-donate spending continue!” he wrote. “Build national email lists while drowning out U.S. Senate and House campaigns!”
Senator Michael Bennet of Colorado, a lower-profile contender and one of the Democrats to enter the race most recently, called the new threshold “completely arbitrary.”
“When you have people competing for donations by creating viral moments that have nothing to do with governing our country or ideas that will move us forward, I think that’s challenging for our democracy,” Mr. Bennet said Wednesday in New Hampshire…
“For second- or third-tier candidates, they have to choose: They can either spend their money achieving these metrics, or invest in programs on the ground in Iowa, New Hampshire and South Carolina,” said Betsy Hoover, a Democratic digital strategist who served as director of digital organizing for the Obama campaign in 2012. “Very few are going to be able to do both.”
Ms. Hoover said campaigns currently pay digital firms rates starting at $25 to acquire a new donor, who is asked to give as little as $1. The price per new donor, she said, could soar as high as $75.
“You’re caught in this hamster wheel that I wouldn’t say is ideal for democracy,” she said.
Online Speech Platforms
Real Clear Politics: Banding Together Against Big Tech
By Harmeet Dhillon & Matthew Peterson
It’s time to band together to protect digital speech from the tech monopolies before it’s too late. This isn’t about fringe outliers anymore. This is about whether or not Republicans ever win another major election in America. It’s about whether all Americans can freely argue their politics in public. Ultimately, it’s a battle over who will control the digital lens through which human beings now see the world.
Leading minds and voices on all sides know the stakes are high. Yet many argue Big Tech can be trusted not to misuse its powers, or that if it does, competitors will inevitably arise to erode the current monopolies. But anyone who believes legacy technology companies are not already crossing red lines is living in denial…
The idiotic rejoinder from many “intellectuals” on the right is some version of “Start your own Google!” — as if the only answer to the abuses and bad service of large multinational corporations is more of the same corporate competition. This isn’t just glib and impractical. It’s dangerously foolish. There will be shattering consequences to our shared political lives if we continue to ignore the clear ideological pattern of such incidents.
The freedom and regulation of social media and Big Tech presents complex challenges and policy questions that will require sustained debate and political action. But whether or not online access is a civil right, in the absence of proper application of existing government checks on consumer exploitation, a first and obvious step is to band together to create a consumer watchdog – a kind of consumer union that can assist all those affected by the overreach of Big Tech, by legal means if necessary.
National Review: Declaring Facebook a Utility Wouldn’t Assuage Users’ Concerns
By Jim Geraghty
Every cry to treat Facebook like a utility is a vote of no confidence in how Zuckerberg and the company’s leadership have handled the issues of fairness, accuracy, and openness so far. But declaring a particular social-media platform – even a hugely popular one such as Facebook – a utility creates confusion about just what it is. Entities that are currently regulated as utilities are actual utilities: They deliver services that you as a consumer literally can’t find anywhere else: your electricity, water, sewage, natural gas. Your utility companies, often in partnership with government, built and maintain the physical infrastructure that allows these services to reach your home. Because they are the only game in town, so to speak, the government is obligated to regulate their pricing, their delivery of services, and the safety and efficiency of their infrastructure.
Facebook has little physical infrastructure; it didn’t build special Facebook wires connecting your home, laptop, or phone to the rest of its network. More to the point, consumers have the option of not using Facebook and using other social networks…
Making Facebook a utility that requires government approval for changes would force it to stop innovating at the speed of Silicon Valley and start innovating at the speed of Washington bureaucracy, which is to say, extraordinarily slowly. Imagine the Federal Energy Regulatory Commission’s process to approve natural-gas pipelines applied to new apps and features.
Facebook has a lot of flaws, and it’s earned much of the criticism it’s received. But there’s little reason to think that some sort of federal Facebook Utility Commission would fix what really has people upset with the platform, and every reason to think such a commission would worsen the things people like about it.
Independent Groups
Politico: Democrats roll out $90 million super PAC aimed at swing states
By Marc Caputo
The nation’s largest super PAC devoted to grassroots Democratic turnout is launching its organizing efforts earlier than ever in seven swing states with a new campaign director and its largest budget to date: $80 million to $90 million.
For Our Future announced Friday that it’s hiring former President Barack Obama’s onetime Florida campaign chair, Ashley Walker, to coordinate its swing-state operations with the goal of identifying and turning out Democratic-leaning 2020 voters, namely people of color and so-called “sporadic voters” who don’t frequently cast ballots.
The committee, which was started in 2016 and historically has been funded by labor unions and billionaire climate change activist Tom Steyer, plans to build a network of 4,000 paid staff and an army of volunteers in Florida, Michigan, Nevada, Ohio, Pennsylvania, Virginia and Wisconsin, states where it operated in 2018 and 2017…
For Our Future operates in tandem with a “dark money” political nonprofit called For Our Future Action Fund that doesn’t have to disclose donors.
With a mission of having person-to-person interactions with voters, For Our Future differs from most other super PACs, which are devoted to running TV and digital ads to turn out voters. While For Our Future utilizes digital ads and mailers, its mission revolves around on-the-ground staffers and grassroots volunteers meeting voters personally at their homes. The group says it knocked on 10.2 million doors in 2018.
DOJ
Tampa Bay Times: Federal subpoena demands records on Andrew Gillum and his campaign for governor
By Steve Contorno
Andrew Gillum is a focal point of a recently issued federal grand jury subpoena that demands information on the former Democratic candidate for governor, his campaign, his political committee, a wealthy donor, a charity he worked for and a former employer…
The newer subpoena is more focused on Gillum’s 2018 campaign and people and organizations with clear ties to him, but with less obvious connections to Tallahassee City Hall.
The Media
By Joe Pompeo
On Sunday, May 19, New York Times finance editor David Enrich got a request from a producer at MSNBC to appear on Rachel Maddow’s show…
Enrich said yes, but after mentioning the planned appearance to the Times’s communications department, he was told he would have to retroactively decline. The reason? The Times was wary of how viewers might perceive a down-the-middle journalist like Enrich talking politics with a mega-ideological host like Maddow…
The Times has come to “prefer,” as sources put it, that its reporters steer clear of any cable-news shows that the masthead perceives as too partisan, and managers have lately been advising people not to go on what they see as highly opinionated programs. It’s not clear how many shows fall under that umbrella in the eyes of Times brass, but two others that definitely do are Lawrence O’Donnell’s and Don Lemon’s, according to people familiar with management’s thinking. Hannity’s or Tucker Carlson’s shows would likewise make the cut, but it’s not like Times reporters ever do those anyway. I’m told that over the past couple of months, executive editor Dean Baquet has felt that opinionated cable-news show are getting, well, even more opinionated. Baquet and other managers have become increasingly concerned that if a Times reporter were to go on one of these shows, his or her appearance could be perceived as being aligned with that show’s political leanings…
It’s not so much a new policy as a reinforcement of an old one. Reached for comment, a Times spokeswoman pointed me to the section of the Times’s “Ethical Journalism” handbook that covers broadcast media appearances: “In deciding whether to make a radio, television or Internet appearance, a staff member should consider its probable tone and content to make sure they are consistent with Times standards. Staff members should avoid strident, theatrical forums that emphasize punditry and reckless opinion-mongering.”
The States
The Oregonian: Campaign finance bill clears hurdle, with loopholes intact
By Rob Davis
An Oregon House committee on Thursday advanced a bill to limit political campaign donations, pushing aside withering criticism from advocates who said the legislation contained loopholes that could render it nearly useless.
House Bill 2714 would cap contributions to House and Senate candidates at $1,000 and $1,500, and statewide candidates at $2,800. (For general election candidates the limits would effectively be twice as high, with a donor able to give once in the primary and again in the general election.) Today, Oregon is one of just five states with no limits at all.
While the bill introduces limits, it creates a Byzantine system of rules that leaves potential avenues for donors to game the system.
“It provides a multiplicity of conduits for funneling money in ways that are not designed to be easily understood,” Sen. Jeff Golden, D-Ashland, testified at a hearing Tuesday. “Enacting this bill will prompt Oregonians to believe that we moved boxes around and changed their labels, but didn’t go to the heart of taming the undue power of concentrated money in our politics.”
The controls would take effect if either voters or the Oregon Supreme Court decide to allow regulation of campaign contributions under the state’s constitution. Voters could get their shot at the ballot box in November 2020. Lawmakers are developing a planned ballot referral to ask Oregonians whether they want to make limits constitutional…
Oregon’s proposal also provides a way for membership organizations such as unions or single-issue groups to keep making large donations. The bill creates “small donor committees,” to which membership organizations could contribute up to 40 percent of annual membership dues capped at $250 per member. In turn, a small donor committee could give unlimited amounts to a candidate.
