In the News
Salem News: Conservative group fights donor disclosure rules
By Christian M. Wade
The Massachusetts Fiscal Alliance, founded by Pepperell businessman and GOP congressional candidate Rick Green, has sued Attorney General Maura Healey and the state Office of Campaign and Political Finance over a 2016 law that requires nonprofits to list their top five donors in any political advertising that goes out within 90 days of an election.
Oral arguments in the lawsuit, filed last year, [were] heard by a U.S. District Court judge in Boston on Tuesday.
MassFiscal says it’s not challenging the state’s disclosure and reporting requirements but objects to “being forced to publish irrelevant information about its officers and donors.”
In court filings, the group argues that the requirement violates the privacy rights of its contributors and chills fundraising efforts.
“There are a great many reasons why people prefer not to be identified,” said Brad Smith, chairman of the Institute for Free Speech, a Virginia-based group that is representing MassFiscal in the lawsuit. “And the Supreme Court has long recognized, for 60 or more years, that forcing people to disclose this information can inhibit free speech and freedom of association.”
Besides listing the top five donors, the rules require groups to include a statement from the head of the organization responsible for the mailings and a link to the group’s website.
Disclosure
Washington Post: Campaign finance disclosure should be about voters, not voyeurs
By Paul Sherman
Regarding the Sept. 11 news article “Liberal targeting of Trump donors raises disclosure fears“:
Proponents of strict campaign finance laws fear that the harassment of political donors will lead to a backlash against disclosure. But it is past time that we took a serious look at our disclosure regime.
Disclosure imposes serious compliance costs, particularly on campaigns with a large number of small contributors. It imposes privacy costs on donors, particularly today, when personal data that once resided in paper files and was viewed only by journalists and political operatives is now available to anyone with an Internet connection.
Campaign finance disclosure is supposed to be about keeping tabs on elected officials, not keeping tabs on the political preferences of our fellow citizens. A good first step would be raising the threshold for disclosure from its current level of $200 to an amount of money that voters – rather than voyeurs – might actually care about.
Supreme Court
New York Times: Supreme Court Says Judges Are Above Politics. It May Hear a Case Testing That View.
By Adam Liptak
The debate over the role politics plays in judging is mostly theoretical. But a petition filed this month by Gov. John C. Carney Jr. of Delaware, a Democrat, makes it concrete. It asks the justices to consider whether states may take account of the political affiliations of judges to try to achieve something like ideological balance on their courts.
The court will decide whether to hear the case, Carney v. Adams, No. 19-309, sometime this fall.
Delaware’s Constitution says that judges affiliated with any one political party can make up no more than a “bare majority” on the state’s highest courts, with the remaining seats reserved for judges affiliated with the “other major political party.”
James R. Adams, a retired lawyer and registered independent, challenged the balancing provision, saying it violated the First Amendment…
David L. Finger, a lawyer for Mr. Adams, said the balancing requirement was an insult to judicial independence. “It assumes,” he said, “that judges cannot put aside their political philosophies to decide the cases before them.”
The United States Court of Appeals for the Third Circuit, in Philadelphia, ruled for Mr. Adams, striking down the balancing requirement.
Supreme Court precedents, the appeals court said, have drawn a line. On the one hand, politics may play no role in the hiring and firing of most government workers. On the other, it is perfectly acceptable to consider politics for those in “policymaking positions.”…
Judge Julio M. Fuentes, writing for a unanimous three-member panel of the Third Circuit, said judges were in the first category.
“Judges are not policymakers,” he wrote, “because whatever decisions judges make in any given case relates to the case under review and not to partisan political interests.”
The Courts
Detroit Free Press: Birmingham hires 5 lawyers to fight controversial free-speech lawsuit
By Bill Laitner
[T]he city’s lawyers have maintained, in legal briefs and in their words in U.S. District Court, that commission meetings are modeled after what other courts have called a “limited public forum.”…
Birmingham’s lawyers also have stated, in legal filings and in court, that the city’s contract with its public-access TV channel prohibits political speech, and that the Michigan Campaign Finance Act bans the city from using any public resources -including its public-access TV channel, over which commission meetings are broadcast – to communicate political advocacy. Thus, the city says, it was forced by law either to keep Baller and Bloom from voicing views that officials felt were political, or to turn off the cable-TV cameras while they spoke…
The dispute began with city officials trying to quell Baller’s and Bloom’s dissent over a ballot measure…
At last week’s hearing, Roberts seemed dissatisfied with the city’s arguments. She repeatedly asked attorney James Tamm whether the city intended to shut off cable-TV cameras at future meetings. Tamm said he was unsure, asking for 14 days to clarify his clients’ position…
An hour after the hearing ended, the court sent attorneys for both sides an email from Roberts’ chambers, bluntly asking whether the Birmingham City Commission “(1) will not stop the cable broadcast of Commission meetings if a speaker engages in political advocacy; and (2) will allow speakers to engage in political advocacy.”
The email went on to say that if both sides “enter into a stipulation” – that is, if they agree – to numbers 1 and 2, “there will be no need for the Court to rule” on the scores of pages of legal briefs. In other words, the lawsuit would be settled in favor of the plaintiffs.
The email concluded: “Please submit the stipulation by next Wednesday, September 18, 2019. If you are not able to stipulate, please let the Court know why in writing.”
Wall Street Journal: U.S. Files Suit Against Edward Snowden Over New Book
By Dustin Volz and Byron Tau
The U.S. Justice Department on Tuesday filed a civil lawsuit against Edward Snowden, arguing the former intelligence contractor violated government nondisclosure agreements by publishing a new book about his 2013 leaks of classified surveillance programs.
The government filed suit against Mr. Snowden and his publisher Macmillan over his new book “Permanent Record,” which hit bookstores on Tuesday. The suit was filed in federal court for the Eastern District of Virginia.
The suit doesn’t seek to prevent the distribution or sale of the book-which could run afoul of First Amendment guarantees of freedom of speech. Rather, the government is asking a court to seize the financial proceeds from the sale of “Permanent Record” as well as to enjoin Mr. Snowden, who has lived in Russia since 2013, from giving speeches related to the book…
“This book contains no government secrets that have not been previously published by respected news organizations,” said Ben Wizner, an attorney for Mr. Snowden who runs the American Civil Liberties Union’s speech, privacy and technology project. “Had Mr. Snowden believed that the government would review his book in good faith, he would have submitted it for review. But the government continues to insist that facts that are known and discussed throughout the world are still somehow classified.”…
Typically, government employees and contractors with access to classified information must submit any published works-even works of fiction-to their agency for pre-publication review. That restriction applies even after they leave government service. In its lawsuit, the government alleges that Mr. Snowden failed to do so-violating his contractual obligations to both the CIA and the NSA, where he worked as a contractor.
The lawsuit is the latest effort by the Trump administration to crack down on leaks of classified information to reporters, a stepped-up campaign officials have spoken publicly about. Such efforts expanded greatly under the Obama administration, but the cases have accelerated in recent years.
Washington Post: Alleged leaker says Espionage Act charges violate First Amendment
By Rachel Weiner
A former National Security Agency contractor accused of leaking classified information on drone warfare is arguing that his actions are protected under the First Amendment, in a challenge to the Espionage Act that has implications for WikiLeaks founder Julian Assange.
“No court has ever decided whether or to what extent First Amendment protections exist under the Espionage Act,” his public defenders wrote in a motion filed Monday.
Like Assange, Daniel Hale is accused in Alexandria federal court of sharing government secrets. Jeremy Scahill, a founding editor of the Intercept, published a series and book on drone warfare that included information Hale printed on his work computer in 2014.
Leak prosecutions were rare until President Obama took office. Trump is the first president to prosecute the publisher of classified information along with the leaker, a decision some in the Justice Department opposed on constitutional grounds.
A First Amendment challenge to the Espionage Act was rejected by the Fourth Circuit Court of Appeals in 1988, but Hale argues that a decision made when leak prosecutions were almost nonexistent has no bearing here…
Hale’s lawyers maintain that all five charges against him are unconstitutionally broad because of the “chilling effect” on free speech. But they argue one count, of obtaining the information with reason to believe it “would be obtained, taken, made or disposed of by any person” in violation of the Espionage Act, directly implicates the reporter who received the information.
“Criminalizing communication to a journalist substantially burdens a free press in much the same way as criminalizing publication by a journalist,” they wrote.
Courthouse News Service: Justice Department Says Federal Judge Misinterpreted Indictment Against Russian Company
By Megan Mineiro
A federal prosecutor told U.S. District Judge Dabney Friedrich that an opinion she issued last year – in which she denied a motion from Concord Management and Consulting to dismiss the case – wrongly narrowed in on a failure to report foreign payments made to influence the election.
“I’m baffled this didn’t trigger a motion from the government at the time,” Friedrich said during a status conference Monday.
Assistant U.S. Attorney Jonathan Kravis said the Justice Department also plans to argue that Concord Management, which is owned by Russian oligarch Yevgeny Prigozhin, conspired to conceal information from the U.S. government to undermine its ability to enforce campaign finance laws…
Defense attorney Eric Dubelier, of Reed Smith, said the allegation raised Monday is not in the indictment.
“Even 18 months in we still don’t know what we’re charged with,” Dubelier said.
Earlier in the hearing, Friedrich had said herself that the indictment was “difficult to follow.”
Dubelier informed her that Concord Management now plans to file a second motion to dismiss the charges…
In May, the court ordered the Justice Department to lay out the specific federal statutes the government claims the defendants conspired to undermine, including details on all funds that required disclosure to the Federal Elections Commission and how activities triggered a requirement to register as foreign agents.
Fundraising
Washington Post: The hypocrisy behind some pledges to not take PAC money
By Edward A. Merlis
Regarding Ed Rendell’s Sept. 12 op-ed, “Elizabeth Warren’s hypocrisy“:
Here’s another campaign finance hypocrisy in which our elected leaders engage. Between 1983 and 2006, I managed trade association political action committees for the National Cable Television Association, the Air Transport Association of America and the U.S. Telecom Association. Multiple times I received calls from candidates asking for campaign contributions that did not come from a PAC. I would have to call some of those who regularly contributed to the PAC and ask them to write their checks to the candidate’s campaign rather than to the PAC. These holier-than-thou candidates would then boast about how they did not take PAC contributions, yet they solicited PACs to arrange for contributions from the very same individuals who contributed to the PAC.
My successors tell me this sham continues.
Candidates and Campaigns
Politico: Andrew Yang’s campaign says over 450,000 people have entered debate contest
By Alex Thompson
Andrew Yang’s surprising debate gambit – giving away $120,000 to 10 families over a year to highlight his universal basic income proposal – helped the outsider candidate raise $1 million in the 72 hours since the debate and collect more than 450,000 email addresses from people who entered the online raffle, the presidential campaign told POLITICO.
The campaign said that over 90 percent of the email addresses are new, a huge expansion of the candidate’s email list. He also gained more Twitter followers over the course of the debate than any other candidate…
The campaign’s online raffle has met with deep skepticism from campaign finance experts, but they acknowledge that the Federal Election Commission is unlikely to stop him given that it currently does not have a quorum.
“This campaign stunt is of dubious legality, at best,” said Brendan Fischer, the federal reform legal director at the Campaign Legal Center. “Handing campaign funds to supporters comes awfully close to violating the personal use prohibition. But Yang seems to be going ahead because he knows that the paralyzed FEC can’t tell him ‘no.'”…
The Yang campaign said they “consulted extensively with our counsel” before last Thursday’s announcement. “These expenditures are made to further the goals of the campaign by demonstrating the transformative power of Andrew’s flagship proposal,” the campaign said in a statement. “Since these payments would not be made irrespective of the campaign, they comply with all campaign finance laws.”
The States
Oregonian: Case Closed: In Oregon campaign investigations, ‘I did not’ is all it takes
By Rob Davis
The Oregon State Elections Division, which employs 20 people and maintains a $6.8 million annual budget, doesn’t dig deep.
The latest example came in August, when the division closed an investigation into former Rep. Deborah Boone, D-Cannon Beach. She had previously told The Oregonian/OregonLive that she funneled a campaign contribution to another candidate at a donor’s request, masking the true source of the money. But she told the Elections Division in writing that she didn’t know what the money was for.
Case closed.
Ann Ravel, the former chairwoman of California’s Fair Political Practices Commission and an Obama-era appointee to the Federal Election Commission, said she was stunned by what she described as Oregon’s lackadaisical handling of Boone’s case.
“What is the good of having an enforcement system if there isn’t going to be an actually valid investigation?” Ravel said…
Oregon’s approach to policing campaign money is far more timid than in California and Washington, where a single newspaper story revealing shady spending can prompt regulators to start digging.
In Oregon, regulators investigate only if a registered voter files a signed complaint…
A key feature that sets Oregon apart on the West Coast is that its elections regulators answer directly to the elected secretary of state.
Washington and California both enforce campaign finance laws through independent commissions. The bodies were created by voters and are overseen by appointees.
Both states are more transparent than Oregon, posting the results of investigations online, which Oregon doesn’t.
