New from the Institute for Free Speech
By Alex Cordell
The sponsor of the Fair Elections Act, David Grosso, boasted that it would give the people of D.C. a “greater voice” in government. But it seems odd to categorize a program that compels taxpayers to financially support candidates they may or may not agree with, or who otherwise may even purposefully abstain from participating in politics altogether, as giving anyone but the politicians collecting your tax dollars a “greater voice.”
Elections are better when Americans are able to voluntarily choose to support candidates whose platforms and ideas resonate with them. Many choose to show their support through yard-signs, bumper stickers, or Facebook posts, while others choose to make a campaign contribution, and many others choose to donate their time by door-knocking or making phone calls on behalf of their preferred candidate. All of these activities are vital ways for voters to voice their support for candidates, but the ability of other Americans to choose not to participate in politics at all is just as important. Tax-financing programs, like what’s being proposed in D.C., undermine both freedoms.
Decrying “Out-of-State” Spending Only Further Divides Americans
By Joe Albanese
It’s possible that greater coordination between like-minded voters and groups nationwide contributes to political polarization, but it can be no other way in a free and open democracy. The instinct to demonize out-of-state donors – even ideological ones – unnecessarily estranges Americans from each other simply on the basis of their geography. While locally-run elections primarily focus on the interests of residents of a particular area (and indeed, local voters still make the final decision no matter how much money is given or spent), such races can directly impact the policies of the entire country (especially in federal elections). A voter in Massachusetts can look at an election in Alabama and rightfully judge that their own interests are at stake as well.
It’s impractical to think the government can keep out individuals or groups who are motivated to get involved – but the relative power of ideological donors and activists can be reduced by lifting limits on giving to and coordination between parties and their candidates, allowing them to exercise more power over candidate selection.
Free Speech
Wall Street Journal: No, Trump’s Censorship Bluster Is Truly Worrying
By Floyd Abrams
Your editorial “Book Banning Bunkum” (Jan. 8) is far too serene in dismissing as routine Trumpish “feckless bluster” in his efforts to pressure Michael Wolff’s publisher into abandoning publication of his book. Of course, you are right to recall other such threats by the president which weren’t followed up by actual litigation, including one to this newspaper. But not all publications and journalists can so easily shrug off such threats of financially crippling litigation.
Some of the threats of Mr. Trump, in his pre-presidential days, have been followed by meritless but expensive litigations. In one, he sued the Chicago Tribune and its architecture critic for mocking as “one of the silliest things anyone could inflict on New York or any other city” his announced plan to build the world’s largest building in Manhattan. In another, he sued journalist Timothy O’Brien for writing in his book “TrumpNation” that Trump was only worth between $150-$250 million. Both cases were dismissed. After the latter ruling, Mr. Trump stated that “I did it to make [O’Brien’s] life miserable, which I’m happy about.”
I suggest two governing principles. Presidents should not authorize their lawyers to send “cease and desist” letters designed to chill authors and publishers from criticizing them. And journalists should be the first to take seriously and condemn vigorously any president who does so.
Trump Administration
Politico: Trump calls current libel laws a ‘sham’
By Aubree Eliza Weaver
President Donald Trump called current libel laws a “sham and a disgrace” on Wednesday ahead of a meeting with Cabinet members, adding that the laws fail to represent American values.
“We are going to take a strong look at our country’s libel laws so that when somebody says something that is false and defamatory about someone, that person will have meaningful recourse in our courts,” Trump said. “And if somebody says something that’s totally false and knowingly false, that the person that has been abused, defamed, libeled, will have meaningful recourse.”
“We want fairness,” he said. “You can’t say things that are false, knowingly false and be able to smile as money pours into your bank account.”…
At a 2016 campaign rally in Texas, Trump said that as president, he would “open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.”
Wall Street Journal: Trump Says Administration Will Take ‘Strong Look’ at Libel Laws
By Rebecca Ballhaus and Jess Bravin
There are many obstacles to the White House’s ability to alter libel laws, including that they are in nearly every instance a matter of state law and must comply with free-speech safeguards elaborated by generations of Supreme Court precedent…
It was not immediately clear what impact the changes Mr. Trump envisions might have on lawsuits or potential actions in which he is involved, either as a plaintiff or defendant. The White House didn’t respond to a question about whether Mr. Trump would drop his own efforts to block people from suing him for defamation.
Mr. Trump has long been a critic of the nation’s libel laws. During his presidential campaign, he vowed to “open up” libel laws to make it easier to sue news outlets.
In a March 2016 interview with the Washington Post, Mr. Trump called for news outlets to undergo a trial if they declined to print a retraction for a story he believed to be false.
“If a paper writes something wrong … I think that they can do a retraction if they’re wrong. They should at least try to get it right,” Mr. Trump said. “And if they don’t do a retraction, they should, they should you know have a form of a trial.”
Wall Street Journal: More Libel Law Bluster
By Editorial Board
Our contributor Floyd Abrams takes us to task nearby for being too nonchalant about Mr. Trump’s libel rants, and we respect Mr. Abrams as much as anyone on First Amendment law.
But on Mr. Trump’s comments, we associate ourselves, to our astonishment, with Brian Hauss, an attorney with the American Civil Liberties Union, who issued the following statement Wednesday: “President Trump’s threat to revise our country’s libel laws is, frankly, not credible. There is no federal libel law, and the president does not have the authority to change state libel laws. Furthermore, the First Amendment provides strong protections against libel liability, particularly with respect to statements about public figures or matters of public concern. Whatever President Trump might think, he has no power to override these constitutional protections.”
Exactly right. Worry about genuine threats, not more feckless bluster.
FEC
MapLight: FEC’s New Facebook Ruling Requires Ad Sharing Info Yet Gives Reformers Little to Like
By Margaret Sessa-Hawkins
Last month, the five members of the commission ruled that election ads on Facebook must contain disclaimers revealing who paid for them…
But the new rule may not mean much in practice since it won’t apply to digital political advertisements on other websites. Eli Kaplan, founding partner of the Washington, D.C.-based digital advertising firm Rising Tide Interactive, said that requiring disclaimers on all online election ads still would fall short of full transparency for digital ads.
“Don’t get me wrong, it’s great to have disclaimers on ads,” said Kaplan, whose firm has created material for Planned Parenthood, the Democratic Governors Association and 2016 Democratic presidential nominee Hillary Clinton. “But it’s not easy to see what’s swirling around on the internet, so the odds of somebody taking a screenshot of that ad with that disclaimer and somehow figuring out this group is spending this amount of money is incredibly unlikely.” …
The FEC is considering a regulation that would require disclaimers for all online advertisements. Commissioners voted at a Sept. 14 meeting to give the public more time to comment on the proposal.
The Courts
ABC News: Iowa State’s push to ban marijuana shirt ends in big payouts
By Ryan J. Foley, AP
The State Appeal Board voted to pay $150,000 in damages to two leaders of the university chapter of the National Organization for the Reform of Marijuana Laws whose free-speech rights were violated by campus administrators. The board also approved a $193,000 payment to two law firms that represented the group for their efforts to defend against the university’s unsuccessful appeals, and additional legal fees for their trial work in an amount to be decided by a judge.
The costs stem from what federal judges found were the university’s politically motivated, illegal attempts to ban T-shirt designs that featured the Iowa State mascot and a small cannabis leaf – and its yearslong, unsuccessful defense of those efforts in court. The payouts will come from the state’s general budget.
“It is an unambiguous win for our clients and for the First Amendment and for an understanding that violating people’s rights isn’t free,” said the plaintiffs’ lead attorney, Robert Corn-Revere…
The costs do not include work by the taxpayer-funded Iowa Attorney General’s office, which represented former ISU President Steven Leath and three other administrators who were found responsible for the constitutional violations…
The 8th U.S. Circuit Court of Appeals ruled 2-1 in June that Iowa State’s actions amounted to viewpoint discrimination, saying NORML ISU was singled out for “unique scrutiny” because the university opposed its political message.
The States
WAMU D.C.: Public Financing Of Campaigns Gets Unanimous Approval From D.C. Council, But Bowser Is Opposed
By Martin Austermuhle
Some critics said the money the program would cost – anywhere from $5 to $18 million, depending on the election cycle and the number of citywide offices up for grabs – could better be spent on other pressing needs…
“I cannot help think about all the other pressing funding priorities that could be wholly or partially met,” said Council member Anita Bonds (D-At Large), who despite her worries voted for the bill…
As members of the Council took turns lauding the bill, Mary Cheh (D-Ward 3) sounded one note of caution, saying that while the program could help candidates run campaigns without big-dollar contributions from businesses, it was only one step in chipping away at the public’s concern that money talks in the Wilson Building.
“This is not a bill that of itself addresses corruption. It is not a bill that of itself addresses pay to play politics,” she said. “It will allow us to take a step along the way, but it’s not a panacea in expanding our democratic politics. The efforts at reform can’t stop here.”
Bangor Daily News: Maine Clean Election Fund needs another $1.7 million to ensure solvency in 2018
By Mike Memoli
The Maine Ethics Commission has asked the Legislature for an additional $1.7 million to cover the cost of this year’s taxpayer-funded elections, which it expects could cost up to $11 million.
LD 1780, which was unveiled in Tuesday’s House of Representatives calendar on behalf of the commission, is straightforward: It requests a transfer from unappropriated surplus funds to the Maine Clean Election Fund “in order to ensure that adequate funds are available to candidates participating in the Maine Clean Election Act.”…
The Maine Clean Election Act was implemented in 1996 by citizen referendum. Candidates for the Legislature and governor have the option of using the taxpayer-funded system in lieu of relying on private donations. It was designed to keep special interest money out of elections, and the majority of legislative candidates use it – though it has never been without controversy.
The potential 2018 field of gubernatorial candidates could bankrupt the system. Of the 25 gubernatorial candidates who are listed as active on the Maine Ethics Commission’s website, nine are attempting to qualify for public funding.
Kansas City Star: Free meals, free booze, free travel: Is this the year Missouri bans lobbyist gifts?
By Jason Hancock
A Missouri House committee unanimously approved legislation Monday afternoon that would prohibit lobbyists from giving gifts to lawmakers directly but would allow gifts to groups, such as the entire General Assembly.
The House plans to pass the bill Thursday and send it to the Senate, where its fate remains unclear…
“The General Assembly as a whole has shown it has no interest in reforming itself and shutting down the lobbyist gift culture,” said Sean Nicholson, executive director of Clean Missouri, which is supporting a ballot measure that, among several items, would ban any gift to lawmakers worth more than $5.
“If you’re not going to address the group gifts,” he added, “it’s a half measure.”
Democrats offered an amendment to Alferman’s bill that would have taken out the group gift exemption. It was defeated.
California Capitol Weekly: California eyes federal ‘Super PACs’
By J.T. Stepleton
As more federal Super PACs target down-ballot races, states find themselves ill equipped to ensure full disclosure of all independent spending.
Federal agencies are not designed to serve as disclosure vehicles for state-level political spending, which makes it impossible to identify the donors and any independent spending in a given state…
At least one state has forged ahead to address this issue: California established a separate classification for federal Super PACs to better facilitate disclosure of activities in state elections. Once a Super PAC raises $2,000 or more to influence a race for state office, it must file reports with the state that clearly identify both the funding behind the activity as well as detailed information about the specific political activity, including target and position.
WAMU D.C.: Democrats Look To Leverage Recent Gains As Virginia General Assembly Opens
By Patrick Madden
Some of the freshman Democratic lawmakers who upset incumbents say they want to place limits on campaign contributions, especially those from big corporations and public utilities such as Dominion Power. The commonwealth is one of only six states that allow unlimited campaign contributions.
“It’s really the Wild Wild West,” said Carter Lee, an incoming Democrat from Manassas, Virginia. Lee is one of four members of the newly-formed People’s Caucus, which will press during the general assembly for laws restricting money-in-politics.
“There’s an understanding that in Virginia, the largest corporations get their way 99 percent of the time,” Lee said. “There’s a tremendous appetite to change that.”
