Supreme Court
SCOTUSblog: Symposium: Unbinding presidential electors could throw the 2020 election into chaos
By Paul Smith and Adav Noti
Less than six months before a hotly contested presidential election, the Supreme Court is poised to decide in Chiafalo v. Washington and Colorado Department of State v. Baca whether a state can require its presidential electors to vote for the presidential candidate who wins the state’s popular vote…
By way of background: When a citizen voting in a presidential election marks a ballot for a candidate, the citizen is not actually voting for that candidate; rather, the citizen is voting for the candidate’s preferred slate of presidential electors – the people who will gather in their state capital about six weeks after Election Day and officially cast the state’s electoral votes for president…
Here’s the scary part: Of the four most important federal anti-corruption laws, not one covers presidential electors.
First, the Federal Election Campaign Act – as strengthened in response to the extensive financial corruption of President Richard Nixon’s 1972 reelection campaign – caps contributions to federal candidates at $2,800 per contributor. FECA also requires campaign contributions of $200 or more to be publicly disclosed, and prohibits candidates from taking contributions from corporations.
FECA does not apply to presidential electors. The law governs “candidates” and “elections” – which are statutorily defined to cover presidential candidates and voting by the general public – but not presidential electors or their own voting process.
In other words, electors can accept unlimited amounts of money in connection with their official duties. And they don’t even need to tell anyone.
The Courts
Campaigns & Elections: AAPC Will Appeal After Losing Suit For PPP Fund Access
By Sean J. Miller
The industry trade group for campaign consultants will continue its legal battle with the Small Business Administration after suffering a setback Tuesday.
Last week, the American Association of Political Consultants (AAPC) filed for a temporary restraining order and preliminary injunction against the SBA to stop it from denying its members access to loans available through the Paycheck Protection Program (PPP) on the basis of their “political or lobbying activities.”
The group’s legal team, which was also acting on behalf of the Denver-based firm Ridder/Braden, Inc., framed its case as a First Amendment issue. But that argument didn’t win the day.
U.S. District Judge Royce C. Lamberth on Tuesday found that the loan program is actually a subsidy and that the government didn’t cause the economic harm resulting from the pandemic…
On Wednesday, the AAPC filed a notice to appeal the case to the United States Court of Appeals for the District of Columbia Circuit…
AAPC President Rose Kapolczynski said that segments of the campaign industry are being acutely hurt by the ongoing pandemic.
“Especially hard hit will be firms that rely heavily on personal contact, including signature gathering, event organizers, door-to-door canvassing, and fundraising,” said Kapolczynski. “Our members are excluded solely because they help clients exercise their First Amendment rights and that’s why we are appealing.”
Bloomberg Law: The Federalist Publisher’s Tweet Was Unlawful: NLRB Judge
By Hassan A. Kanu
The publisher of conservative online magazine The Federalist broke federal labor laws when he tweeted last year that he’d send employees “back to the salt mine” if they tried to unionize, a National Labor Relations Board administrative judge decided.
FDRLST Media chief Ben Domenech’s tweet was an “obvious threat”-not a joke or an expression of opinion shielded by the First Amendment-when viewed in light of workers’ legally protected rights, Judge Kenneth Chu said Wednesday. The timing of the tweet, which came on the same day of a walkout by union employees at Vox Media, supported the conclusion that Domenech was sending a message to employees, the judge held.
“Obviously, the FDRLST employees are not literally being sent back to the salt mines,” Chu wrote. “Idioms have, however, hidden meanings.” …
The decision is one of several recent rulings from the agency finding businesses or executives liable for violating labor laws via Twitter, often by threatening some kind of consequence for employee organizing.
FEC
Salt Lake Tribune: FEC complaint alleges a Utah candidate illegally coordinated with outside group to attack Rep. Chris Stewart
By Thomas Burr
Just days before the Utah Republican Convention, a watchdog group is filing a complaint with the Federal Election Commission alleging a congressional candidate in Utah illegally accepted an in-kind contribution by coordinating with an outside group to attack Rep. Chris Stewart.
Foundation for Accountability & Civic Trust (FACT) says in a letter to the FEC that a person once identified as a campaign manager and spokesman for Republican challenger Mary Burkett’s campaign was behind a mass anti-Stewart text message from a group called Stronger America Fund Inc. Stewart is a fellow Republican.
IRS
Bloomberg Tax: Conservative Watchdog Claims Anti-Trump Group Violated Tax Laws
By Bill Allison
A high-profile progressive organization, known for its fiery ads against President Donald Trump, may have violated its tax-exempt status by blurring the line between nonprofit and political activities, according to a complaint filed Thursday with the Internal Revenue Service by a conservative watchdog group.
The Patriots Foundation, a Republican-leaning ethics organization based in Iowa, says American Bridge 21st Century Foundation, a nonprofit, is primarily a political organization, in violation of tax laws. The group also raises questions about a $2.7 million investment in a for-profit company co-owned by its founder, David Brock, a Democratic operative.
Free Speech
National Coalition Against Censorship: Free Expression During the Coronavirus Pandemic: Timeline
This timeline tracks the free expression concerns raised as governments and private companies enact emergency measures to contain and manage the coronavirus pandemic of 2020. Along with new regulations issued in the interest of public health come concerns about incursions on civil liberties and threats to free expression. Free speech and civil liberties advocates anticipated some of these concerns, but as regulations change and the crisis continues, new and unexpected issues arise.
Media
Daily Beast: How Can Axios Report on Trump Admin-And Take Their Money?
By Lloyd Grove
When Axios co-founder and chief executive Jim VandeHei announced his D.C-centric news site’s good fortune Wednesday-a nearly $5 million low-interest pandemic-related loan from the Trump administration’s Payroll Protection Program-the obvious question was how this supremely well-connected outlet will avoid going soft on the government officials they’re supposed to be holding accountable…
“Everything that we write is in front of the paywall,” VandeHei said, “so people can judge us based on the quality of our work. Do you feel like we’re being aggressive? Do you feel like we’re being fair? Do you feel like we’re being clinical? If so, you’re going to continue to read us…
If you think we’re pulling punches because we got a loan, then you shouldn’t read us.”
He added: “We’re not stupid so we knew that we could, and probably should, get additional scrutiny… The debate is knowing that I’m going to get a question from [a media reporter] about how you’re an institution that covers government, and you’re taking money from the government.”
Daily Beast: Media Union Turns to Republican Lobbyists to Help Save the Industry
By Sam Stein
The top media union in North America is looking to hire a Republican lobbying firm in hopes that bipartisan support on Capitol Hill may save the industry as it faces an existential crisis.
NewsGuild-CWA, which has 30,000-plus members, has met with GOP lobbyists to solicit their help on economic rescue packages coming from Congress in response to the market crash sparked by the coronavirus pandemic. The union, which is an affiliate of the Communications Workers for America, has not yet made a hire. But they are planning to do so, in what would be an act of overt politicking unlike anything the union has done in recent memory.
“We have not engaged in political work like this in decades,” said Jon Schleuss, the president of NewsGuild-CWA. “But it is essential because this looks like an extinction-level event.” …
Though NewsGuild-CWA has yet to hire, it does have suitors. Sam Geduldig, co-CEO of the firm CGCN Group and a former top House Republican aide, said that he had expressed interest in working for the union but that, ultimately, the relationship did not work.
“As a believer in the First Amendment, I believe everybody has a right to petition their government, even journalists,” Geduldig told The Daily Beast.
Courthouse News: Media Watchdog Warns of Rising Threat to Press Freedom
By Erika Williams
The coronavirus pandemic is endangering media freedom worldwide, a global journalism watchdog group reported Tuesday.
Reporters Without Borders evaluated and ranked the situation for journalists in 180 countries in its 2020 World Press Freedom Index. The organization cautioned that governments might use uncertainty surrounding the Covid-19 outbreak to justify unlawful barriers to press freedoms.
“We are entering a decade of multiple crises for journalism, with the coronavirus as an exacerbating factor,” the group tweeted Tuesday…
The United States ranks 45 on list. While the country is up three spots from last year, Reporters Without Borders says the U.S. is “no longer a champion of press freedom.”
Political Parties
Wall Street Journal: 2016 Conventions Might Have Been the Last
By Karl Rove
Conventions have morphed into three or four days and nights of televised proceedings, the culmination of day after day of platform and rules committee meetings and general socializing, fundraising and deliberating…
The coveted speaking spots are in evening prime time, when the hall is packed and the TV audience huge. In July 2016, 34.9 million Americans tuned in to Donald Trump’s acceptance speech the final night of the GOP’s Cleveland convention, and 33 million watched Hillary Clinton’s a week later…
The big question is whether the Republican and Democratic parties can still mount these extravaganzas in a time of social distancing…
Both parties must find ways to nominate their tickets, draft and debate platforms, and consider rule changes. These are, after all, the only full expression of party membership that’s available every four years. But how to do it in a time of pandemic will be a huge challenge.
Online Speech Platforms
Carnegie Endowment for International Peace: With Greater Audience Comes Greater Responsibility
By Jonathan Herrmann
In Western nations, the concept of freedom of speech has been abused as an excuse to dodge any standard. But, much as training for large-vehicle drivers does not undermine the average person’s freedom to drive, why not use an analogous standard for influence? …
On a social network, for example, access to audiences could be regulated at scale based on the number of followers or reach a user might have. If an individual just wants to use social media to talk to friends and family-no problem. That’s what most networks were created to do. So long as they follow the rules of engagement set forth by the platform, a person can use it to communicate. Once a user hits a new threshold, they should enter into a new level of agreement with the platform to access that bigger audience. This process could include having the user take a short online course followed by an interactive test assessing their ability to follow the platform’s rules. A new service agreement might need to be signed. There could be varying degrees of tests over the growth of an audience’s lifespan, with the process for reaching a smaller audience threshold being less in depth, and those for massive audiences being more thorough. While it is likely that many threat actors will pass these steps, this process would create clear-cut reasons to remove someone from the platform when they violate terms of service.
Yahoo News: Twitter to block virus 5G conspiracy theory tweets
By AFP
Twitter is taking down comments inciting “harmful activity,” specifically calls to destroy wireless equipment stemming from a conspiracy theory that linked 5G to the coronavirus.
“We have broadened our guidance on unverified claims that incite people to engage in harmful activity, could lead to the destruction or damage of critical 5G infrastructure, or could lead to widespread panic, social unrest, or large-scale disorder,” the Twitter safety team said on Wednesday.
The move follows social media calls that have resulted in attacks on 5G towers in some European countries.
Twitter’s update is the latest in an effort by social media platforms to curb rampant misinformation about the COVID-19 pandemic.
In a blog post, Twitter said it was refining its policy to deal with the latest incidents.
It will remove “unverified claims” what could lead to the destruction or damage of critical infrastructure, “widespread panic, social unrest, or large-scale disorder,” the statement said.
Candidates and Campaigns
New York Times: Chinese Agents Helped Spread Messages That Sowed Virus Panic in U.S., Officials Say
By Edward Wong, Matthew Rosenberg and Julian E. Barnes
The alarming messages came fast and furious in mid-March, popping up on the cellphone screens and social media feeds of millions of Americans grappling with the onset of the coronavirus pandemic.
Spread the word, the messages said: The Trump administration was about to lock down the entire country…
The messages became so widespread over 48 hours that the White House’s National Security Council issued an announcement via Twitter that they were “FAKE.”
Since that wave of panic, United States intelligence agencies have assessed that Chinese operatives helped push the messages across platforms, according to six American officials, who spoke on the condition of anonymity to publicly discuss intelligence matters. The amplification techniques are alarming to officials because the disinformation showed up as texts on many Americans’ cellphones, a tactic that several of the officials said they had not seen before.
That has spurred agencies to look at new ways in which China, Russia and other nations are using a range of platforms to spread disinformation during the pandemic, they said…
The officials say the Chinese agents also appear to be using texts and encrypted messaging apps as part of their campaigns. It is much harder for researchers and law enforcement officers to track disinformation spread through text messages and encrypted apps than on social media platforms.
NBCLX: Former Politicians Donate ‘Zombie Campaign’ Funds After Investigation
By Noah Pransky
Michele Bachmann, Mark Foley and Ruben Kihuen are among the former members of Congress who have pledged tens of thousands of dollars in donations to nonprofit organizations from dormant campaign accounts after an NBCLX investigation into “zombie campaigns.”
NBCLX is contacting nearly 100 former federal candidates who have no plans to run for office but are still sitting on enormous campaign war chests. The pledged donations, to nonprofits such as food pantries, domestic violence shelters and homeless charities, now surpass $180,000.
The Federal Election Commission (FEC) prohibits former officeholders or candidates from personally benefiting from campaign donations, but the agency doesn’t require politicians to ever close their accounts.
So while some lawmakers give their leftover millions to other political causes or charities when they retire, hundreds of campaign accounts have been dormant for years, with a combined $200 million in cash sitting idle during America’s greatest financial crisis in generations.
The States
OPB: Oregon Supreme Court Rules In Favor Of Campaign Contribution Limits
By Jeff Mapes
The Oregon Supreme Court, reversing its longstanding ban on strict campaign finance limits, on Thursday ruled in favor of a voter-approved Multnomah County law putting a $500 limit on campaign donations.
However, the court ruled against portions of the county charter amendment dealing with expenditure limits.
The court sent the entire case back to the trial court to decide whether the limits violate federal free-speech protections. As a result, the ruling could lead to new campaign finance limits throughout the state.
Oregon voters in 2006 approved a $500 limit on donations to statewide candidates and a $100 limit on other state and local races, but they were never allowed to go into effect.
The court’s new ruling opens the way for supporters to argue for the imposition of those limits. At the same time, the ruling may also leave the last word to Oregon voters.
They will vote on a proposed constitutional amendment this fall that would allow limits on the flow of big money into Oregon political campaigns.
Oregon has been one of only a handful of states in the country with no limits on political donations and spending, leading critics to call it the “wild, wild West” of campaign money.
Portland Tribune: Portland to not immediately enforce campaign contribution limits
By Jim Redden
The City Auditor’s Office does not plan to begin immediately enforcing campaign finance limits on City Council races because of the Oregon Supreme Court ruling that they do not violate the Oregon Constitution.
Portland Elections Officer Deborah Scroggin said the Thursday ruling only applies to a ballot measure that amended the Multnomah County Charter. Another case about a similar measure that sought to amend the City Charter is currently before the Oregon Court of Appeals.
“The city is not a party to this case,” Scroggin said about the April 23 ruling. “It will not be changing how we administer anything in the short term.”
The ruling was issued less than a month before the May 19 primary election.
Supporters of the measure, including Portland attorney and campaign finance reform activist Dan Meek, say Scroggin’s office should immediately begin penalizing candidates who have received contributions above the $500 limit in both measures. They include Mayor Ted Wheeler, mayoral challenger Ozzie Gonzalez, and City Council candidates Jack Kerfoot and Keith Wilson, among others.
Meek said he will send a letter to Scoggin’s office demanding the limits be enforced as soon as Friday, April 24.
“The limits are in effect,” said Meek, who is active with Honest Elections, the advocacy group that wrote both measures.
American Conservative: Duncan Lemp’s Parents Threatened With Jail For Protesting His Killing
By Jim Bovard
It has been six weeks since a SWAT team shot and killed 21-year-old Duncan Lemp in a 4:30 a.m. raid at his family’s home in Potomac, Maryland, an affluent and sedate suburb of Washington, D.C. Montgomery County Police have thus far refused to provide any evidence on how or why they killed Lemp. But a county prosecutor leaped to action on Wednesday, effectively threatening any Lemp family members who attend a protest over his killing with a $5000 fine and a year in jail.
The reason? Maryland’s strict stay-at-home orders, imposed by Republican Gov. Larry Hogan last month.
Lexington Herald-Leader: Kentucky lawyer references assassinated governor in threat against Beshear, police say
By Jeremy Chisenhall
Louisville lawyer James Gregory Troutman, 53, was charged with terroristic threatening on Wednesday after he made multiple statements on Facebook about Gov. Andy Beshear. Troutman’s attorney disputed the charge…
“Maybe some should ask Beshear in a press conference about his thoughts on William Goebel,” Troutman said in the post, according to police. “For those of you who don’t know the history . . . it’s a good read . . . “
Goebel was the 34th governor of Kentucky. He was elected in 1899 but was shot by an assassin the day before he was sworn in. He died four days later…
Police received another report of a separate Facebook comment by Troutman…
“There’s a rally tomorrow in Frankfort and Lansing,” Troutman commented…
“Will the gov be there shooting plates???” An unknown user replied, according to police. The post referenced the governor’s decision to have license plate photos taken of those who attended a church despite social distancing guidelines.
“With any luck the gov will be the one at whom the shooting will be directed,” Troutman replied, according to police…
Troutman’s lawyer, Steve Romines, told WDRB in Louisville that Troutman did not threaten to kill Beshear.
“He didn’t say he was going to kill him,” Romines said. “We like to pretend the First Amendment means something, but it only does if it’s something you agree with.”
