ICYMI
Statement on Dismissal of Markley and Sampson v. SEEC
The Institute for Free Speech released the following statement in response to a Connecticut court’s decision to dismiss as untimely our clients’ appeal of an administrative ruling that effectively censored candidate campaign ads.
“Today’s ruling lets the government off the hook for stringing along our clients with sham proceedings as it ran out the clock on their appeal. The State Elections Enforcement Commission (SEEC) repeatedly put our clients’ petition on its schedule and notified them that a decision was forthcoming. That decision was made on March 23rd, and our clients filed an appeal within the provided 45-day window. Now the SEEC claims, and the court has unfortunately agreed, that the March 23 hearing was a farce, and that the petition was already dead by virtue of the Commission’s inaction,” said Allen Dickerson, Legal Director of the Institute for Free Speech.
“While we are disappointed by this ruling, we are pleased the court recognized that this case raises ‘significant issues concerning the intersection between the free speech rights of political candidates and the regulation of campaign financing.’ We will continue our efforts to ensure those issues are addressed and that our clients have their day in court,” said Dickerson…
“I’m convinced this decision is wrong, but I’m even more certain that the underlying issue of free speech in a campaign is too important to be dismissed on a technicality,” [said Connecticut State Senator Joe Markley.] …
“Sen. Markley and I are not going away on this, because this simply cannot stand. Political candidates, regardless of party, must be able to rely on the First Amendment. It’s a foundational principle of our country. Shockingly, the SEEC doesn’t seem to understand that,” [said Connecticut State Representative Rob Sampson.]
In the News
Washington Free Beacon: Self-Funding Polis Outraises GOP Challenger
By Todd Shepherd
Jon Caldara, president of the free-market Colorado think tank the Independence Institute, where this correspondent once worked, broke the numbers down further, almost borrowing from the situation Polis himself conjured up when saying a candidate shouldn’t have to spend every night fundraising in a steakhouse.
“A candidate for governor in Colorado can only ask supporters for about $1,100,” Caldara wrote in a recent Denver Post editorial. “So, for every million-dollar check Polis writes himself, Stapleton has to beg over 900 supporters for a maximum contribution.”
“Polis gets to spend all his time campaigning, while Stapleton spends all his time fundraising.”
A request for comment from the Polis campaign was not returned.
Self-funded campaigns are far from a guarantee of success, and some argue they are beneficial.
“Because money does’t buy votes, personal wealth is not a ticket to political success,” analyst Joe Albanese wrote for the Institute for Free Speech earlier this year. “In fact, self-funders have had a hard time winning elections because, by skipping those important fundraising steps, they have fewer opportunities to identify their base and create a relationship with those they intend to represent. Fundraising hones the skills that make candidates effective on the campaign path. Self-funders miss those lessons, and it routinely costs them on Election Day.”
Free Speech
Cato: “Weaponizing the First Amendment”
By John Samples
Politicians have long known that how you frame a policy issue can determine its fate.
Consider how the term “weaponizing the First Amendment” frames the issue of speech on social media. Kara Swisher, a reporter and opinion writer at the New York Times, wrote [Thursday] that “Facebook, as well as Twitter and Google’s YouTube, have become the digital arms dealers of the modern age.” She continues, “They have weaponized social media. They have weaponized the First Amendment. They have weaponized civic discourse. And they have weaponized, most of all, politics.”
Supreme Court Justice Elena Kagan also recently accused a majority of colleagues of “weaponizing the First Amendment.” …
The verb “weaponize” invites readers to see some speech on the internet as something like violence. Once that connection is made, censoring the speech becomes more acceptable, perhaps even required.
Kara Swisher’s column seeks to persuade Mark Zuckerberg, not justices on the Supreme Court. Facebook is not covered by the First Amendment. Swisher is inviting Zuckerberg to see some speech on Facebook as a kind of violence. Framed that way, such speech has no place on Facebook or anywhere, really. Zuckerberg can certainly remove it from Facebook; Congress could act if he does not. After all, Congress has the power to punish violence.
So next time you see the term “weaponize” think about the implications of the word for other people’s speech (it’s always other people’s speech). For those people whose speech is being equated with violence, the implications could be dire.
Supreme Court
CBS News: GOP senators gush over Brett Kavanaugh after private meetings
By Associated Press
Now that Supreme Court nominee Brett Kavanaugh has met privately with almost every Republican senator, it’s becoming increasingly clear President Donald Trump’s pick for the bench is running into little GOP resistance to confirmation this fall…
Since being nominated July 9, Kavanaugh has met with 47 senators – all but one of them Republican – at a rapid clip. The meetings have created growing momentum for Kavanaugh among Republicans that Democrats may be hard-pressed to stop. Even one early skeptic, Sen. Rand Paul of Kentucky, is now a yes vote.
Still, the most challenging meetings for Kavanaugh are yet to come.
Two key Republican senators, Lisa Murkowski of Alaska and Susan Collins of Maine, remain among the holdouts. They plan to meet with the judge this month…
Kavanaugh is also likely to meet with Democrats in mid-August, and they are certain to press the judge on a variety of hot-button issues. Only one Democrat, Joe Manchin of West Virginia, has met with Kavanaugh so far, and a person familiar with that session said Kavanaugh stressed his independence.
The Republicans who have already met with Kavanaugh are leaving the meetings increasingly confident in Trump’s choice.
The Courts
Politico: Judge’s ruling invalidates FEC regulation allowing anonymous donations to ‘dark money’ groups
By Brent D. Griffiths
Judge Beryl A. Howell ruled the FEC’s current regulation of such groups, including 501(c) 4 non-profits, fails to uphold the standard Congress intended when it required the disclosure of politically related spending.
“The challenged regulation facilitates such financial ‘routing,’ blatantly undercuts the congressional goal of fully disclosing the sources of money flowing into federal political campaigns, and thereby suppresses the benefits intended to accrue from disclosure … ,” wrote Howell, an Obama appointee to the D.C district court. The decision is likely to be appealed…
Citizens for Responsibility and Ethics in Washington, a watchdog group that brought the suit against the FEC, hailed the decision as a “major game changer” for political spending.
“This ruling looks like a major game changer,” Citizens for Responsibility and Ethics in Washington (CREW) Executive Director Noah Bookbinder said in a statement. “Based on this ruling , the public should know a whole lot more about who is giving money for the purpose of influencing an election, and it will be much harder for donors to anonymously contribute to groups that advertise in elections.”
CREW sued the FEC after Karl Rove’s Crossroads GPS, a 501(c) 4 offshoot of the former Bush aide’s Crossroads super PAC, failed to disclose the names of contributors behind its $6 million effort to defeat Sen. Sherrod Brown (D-Ohio) in his 2012 race…
The FEC now has 45 days to issue interim regulations that uphold the broader disclosure standards and 30 days to reconsider its original decision to dismiss a complaint about the Crossroads GPS’ spending in the Ohio race.
Independent Groups
Center for Responsive Politics: Report: Secretive nonprofits remain a major player in 2018
By Jordan Muller and Robert Maguire
Dark money groups have accounted for more than half of all outside group spending on broadcast television ads this election cycle, according to a new report by the Wesleyan Media Project in partnership with the Center for Responsive Politics.
The report published [last] week, along with another Wesleyan study in June, shows that while FEC-reported spending by dark money groups appears to be down since 2014, dark money advertising may be on the rise.
Since June 5, dark money groups have been behind about 77 percent of ads purchased by pro-Democrat outside spending organizations in House races, according to the study. In the full election cycle, roughly 68 percent of ads purchased in House races by pro-Democrat organizations have come from dark money groups.
About 62 percent of ads purchased by pro-GOP groups in House races this cycle came from non-disclosing sources, according to the study. That number dropped to roughly 53 percent since June 5.
In Senate races, non-disclosing organizations accounted for about 51 percent of ads purchased by pro-GOP groups this cycle. About 38 percent of the ads purchased by pro-Democrat organizations in Senate races this cycle have come from non-disclosing groups, according to the study…
In the last two months, candidates have outspent outside groups on ads in House, Senate and gubernatorial races.
Candidates have sponsored more than 83 percent of all ads in gubernatorial races, 70 percent of ads in House races and 53 percent of ads in Senate races, according to the study.
Political Parties
Law and Liberty: How the One Percent Improve Democracy
By John O. McGinnis
One of the greatest problems of democracy is the danger that the structure of government and politics will entrench certain ideas, thus impeding civic discussion. For instance, the party apparatus naturally lines up behind the view of its President while in office and promotes a party line. But it is important that even within the President’s party that there be competition between different views, because often the opposition for tactical and ideological reasons will not strongly contest some specific views of the President. The Democrats, for instance, are not strongly opposing Trump’s trade policies.
The tendency of ordinary politics to slight important and coherent political positions is exacerbated by our two-party system-itself a reflection of our first past the post electoral system … Thus, in the United States, it is even more important to have strong mechanisms for ideological contestation within a party and that contest is facilitated by the actions of wealthy individuals who stand outside narrow party discipline. Because such views are not as influenced by electoral calculation, they will often be more principled.
The role of such individuals may be even more important in the Republican party than in the Democratic party. People largely sympathetic to the Democratic party have outsize influence on our universities and media and thus create power centers within its broad coalition that can more easily contest the partisan imperatives that the Democratic party has at any given time…
In hundreds of cases the Supreme Court has teased out the logic of the First Amendment’s underlying plan-that a civic discourse created by individual choice will create a healthier democracy and culture than one that is shaped by institutions privileged by the government. We should be grateful those with resources give effect to make that plan more of a reality in our politics.
Online Speech Platforms
Politico: Facebook, YouTube, Apple give InfoWars’ Alex Jones the boot
By Cristiano Lima
Facebook and YouTube have removed pages belonging to InfoWars’ Alex Jones for violating their community standards, the latest tech platforms to take action against the notorious conspiracy theorist.
The main InfoWars and Alex Jones pages, as well as pages for the Alex Jones Channel and InfoWars Nightly News, have been taken off Facebook “for repeated violations of Community Standards and accumulating too many strikes,” reads a blog post from Facebook’s newsroom. The pages had been glorifying violence and promoting hate speech against transgender people, Muslims and immigrants, Facebook said.
On YouTube, a page for “The Alex Jones Channel” was “terminated” for breaching the Google subsidiary’s own code of conduct.
Asked about the removal, a YouTube spokesperson said today, “When users violate these policies repeatedly, like our policies against hate speech and harassment or our terms prohibiting circumvention of our enforcement measures, we terminate their accounts.”
Apple has also removed Alex Jones podcasts and episodes from iTunes and the Podcast app. Last week, Spotify said it had removed several episodes of a podcast by Jones from its streaming platform “for violating our hate content policy.” …
Twitter is now the last major social network giving Jones and InfoWars an open platform.
Wall Street Journal: A Response To Online Shadow Banning
By Adam Candeub
To this day, mail service, telephones and airlines operate under “common carriage” law and must serve all customers regardless of their political, religious or social views.
These protections have a long history. Precedents from the 17th century outlawed discrimination by docks, ferries and bailors. Common-law courts extended the idea, as technology developed, to railroads and telegraphs, and then eventually to telephones and air travel. Administrative agencies later codified the protections into regulation.
Should the old principle of non-discrimination apply to social-media platforms? The question pits free speech against private property and makes odd friends and adversaries. On one side, social media’s conservative victims have allied with old-school free-speech diehards to argue that open platforms are vital for democratic society. On the other side, conservative defenders of Twitter’s freedom to make its own rules stand alongside liberals and leftists who support censorship to block the spread of views they consider toxic.
Rep. Gaetz announced on July 27 that he filed a complaint against Twitter with the Federal Election Commission. He claims that, by shadow banning him, Twitter “gives his political rivals an unfair advantage” that constitutes an in-kind campaign contribution.
In a recent lawsuit my co-counsels and I filed on behalf Jared Taylor -a self-described “race realist” and “white advocate” whom others consider a white separatist-Twitter claimed the power as a network owner to remove any user for any reason. But on June 14 California Superior Court Judge Harold Kahn rejected Twitter’s claim. The suit, which alleges Twitter failed in its promises to give users a free and open platform, will now proceed.
Candidates and Campaigns
Politico: Corporate America hikes contributions to key Democrats
By Theodoric Meyer
The uptick comes as tensions grow in the party between lawmakers who rake in money from corporate PACs and the activists who decry such contributions as a corrupting influence.
Justice Democrats, an upstart PAC that backed Alexandria Ocasio-Cortez in her surprise primary victory over Rep. Joe Crowley (D-N.Y.) in June, will endorse only candidates who vow to reject corporate PAC money.
Another Democratic PAC, End Citizens United, has encouraged the candidates it’s endorsed to refuse corporate PAC money. A handful of Democratic lawmakers have said recently that they’d no longer accept contributions from corporate PACs.
Contributions from lobbyists and corporate PACs are the lifeblood of Washington fundraising, and many Democratic lawmakers say there’s nothing wrong with accepting such contributions to help retake the House…
In the first half of this year, nine House Democratic ranking members – compared with just three Republican committee chairmen – raised at least 10 percent more from corporate PACs than they did in the same period in 2016, according to a POLITICO analysis of data compiled by the Center for Responsive Politics.
The money is a tiny fraction of the hundreds of millions – if not billions – of dollars that will be spent on the battle for control of the House.
Wall Street Journal: Trump Defends Son’s Meeting With Russian Lawyer
By Reid J. Epstein
President Trump acknowledged Sunday that a meeting his son held with a Russian government lawyer in June 2016 was an attempt “to get information on” Democrat Hillary Clinton but defended the encounter as “totally legal.”
Mr. Trump and his eldest son, Donald Trump Jr. , have repeatedly denied that the president had advance knowledge of the Trump Tower meeting with Natalia Veselnitskaya, a Russian lawyer with links to the Kremlin…
But the meeting has become a prominent focus in Mr. Mueller’s investigation into whether Trump associates colluded with Russia in 2016 and whether the president and his aides sought to obstruct justice by initially asserting that the meeting focused only on adoptions…
It isn’t clear when the president first learned of the meeting, which took place shortly after Mr. Trump became the presumptive 2016 Republican presidential nominee. In the Sunday morning tweet, Mr. Trump wrote that meetings like this were “done all the time in politics” while reiterating: “I did not know about it!”
The Wall Street Journal and others reported last month that Michael Cohen, who at the time served as Mr. Trump’s lawyer, was willing to tell Mr. Mueller that the younger Mr. Trump informed his father of the meeting with the Russians before it took place, according to people familiar with the matter.
Rudy Giuliani, the elder Mr. Trump’s lawyer, accused Mr. Cohen of attempting to negotiate a plea deal by offering testimony to Mr. Mueller.
Mr. Cohen is under investigation for bank fraud and possible campaign-finance violations by federal prosecutors in New York City, and federal investigators are probing his efforts to quash negative publicity for Mr. Trump during the 2016 campaign.
The States
Arizona Republic: Ask Publix, Chic-fil-A and the Mozilla founder why ‘dark money’ needs to stay that way
By Jon Gabriel
Officially known as the “Stop Political Dirty Money Amendment,” if passed, the voter-driven effort will mandate the disclosure of political donors…
The amendment would add 1,500 words to the Arizona Constitution requiring any group attempting to influence a state election to reveal the identities of donors. Any non-profit spending more than $10,000 in a two-year election cycle must disclose every person who contributed at least $2,500.
The language also exposes “chain donations,” where one group gives money to a second group and then perhaps to a third. All the money needs to be traced back to the source, whether it’s a big company pushing an agenda or a publicity-shy retiree quietly helping a cause she believes in…
Though perhaps a well-intentioned drive for transparency, these 1,500 words of legalese do little but make government more intrusive and complex. It also will chill political involvement.
In fact, the terms “dark money” and “dirty money” portray private donations as inherently bad. But in this era of mob justice and personal retribution, privacy is critical for anyone seeking to engage in the political process…
In a 1995 decision on political speech, Supreme Court Justice John Paul Stevens wrote, “anonymity is a shield from the tyranny of the majority.” He was exactly right.
If this amendment were to take effect, it would invite harassment, dilute political dialogue, and chill both free speech and free association.
Ironically, the most prominent link on the Outlaw Dirty Money website is the donate button. If organizers succeed in their effort, Arizonans will be less likely to ever donate at all.
Austin American-Statesman: Commentary: Give Austin a broader voice; vote on democracy dollars
By Erik Moore
The Austin City Council has an opportunity to help the people fight big money when it meets on Aug. 9. On their desk is a proposed charter amendment to empower all Austin voters to be small-dollar contributors in city elections. Seattle recently approved a similar measure and it’s been a huge success.
Currently, Austin’s City Council candidates rely on money from outside their districts to win elections…
On June 12, Austin’s Charter Review Commission presented a proposal to the City Council that could address the disparity – but, so far, the council has failed to approve the reform for a vote of the people.
The reform is known as “democracy dollars.” It’s relatively simple in concept: Each Austin voter would be allowed to donate up to four certificates worth $25 each to eligible mayoral candidates or council candidates in their district. To qualify for these democracy dollars, candidates would have to agree to a lower limit for other contributions – and prove their viability by collecting small-dollar donations…
The City Council should vote to let Austin voters decide on the democracy dollars proposal.
