In the News
Epoch Times: House Democrats Seek Host of New Limits on Political Speech
By Mark Tapscott
“We think that much of this bill is aimed at regulating speech and not the government,” [David Keating, president of the Institute for Free Speech] told The Epoch Times. “We’re sort of adopting the name ‘For The Politicians Act’ rather than the ‘For The People Act.’
“To the extent there are subsidies for speech, it’s for the speech of people running for Congress, and it’s up to nine-to-one in some parts of the year, so if they raise a dollar, they get nine more dollars.”
Keating lauded the fact that campaign-finance-reform advocates have previously focused on limiting total candidate spending, whereas H.R. 1 takes a new approach with the contribution matching, but “it’s such an expensive match, it’s hard to imagine the public swallowing it.”
Keating questioned the bill’s new limits on coordination between candidates and Super PACs because “there are already limits there. These strike me as too much” because it bars the creation of a committee to back a candidate up to four years prior to his or her filing for the office.
“I mean four years prior to someone running, and then you are automatically a ‘coordinated spender?’ That seems to me to be pretty crazy,” Keating said. “It’s an example of overreaching.”
Another red flag for Keating is H.R.1’s restructuring the FEC to a five-member panel with a ruling partisan majority from six members stressing bipartisanship in its decisions.
“It creates a czar instead of a federal election commission that requires bipartisan action to enforce speech restrictions on people,” he said.
Texas Monitor: Seattle “democracy dollars” case that could influence Austin goes to state high court
By Mark Lisheron
In a move that surprised many, including the attorney who brought the case, the Washington Supreme Court has agreed to hear Elster v. Seattle, which argues that Seattle’s Democracy Voucher program forces property taxpayers to support political speech they might not agree with.
As The Texas Monitor reported in February, the Seattle voucher program collects $3 million a year in property taxes and distributes $100 vouchers to registered voters who can donate them to local political candidates of their choice. The Austin plan is modeled on Seattle’s but the details have not been finalized.
The plaintiffs in the case, Mark Elster and Sarah Pynchon, say the Seattle program discriminates against them because, as property owners who live elsewhere, they are forced to help fund a program they cannot vote for or receive any donations from.
A lower court in Seattle dismissed the Elster case. On Dec. 17, however, Washington’s Court of Appeals passed on a review and sent it on to the Supreme Court…
David Keating, president of the Institute for Free Speech, a First Amendment and elections advocacy nonprofit based in Alexandria, Va., said the Washington high court will be hard-pressed to ignore the targeting of a specific group for funding.
Keating, who opposes government funding of campaigns, said the Janus ruling strengthens the hand of those who oppose Seattle-like programs. Programs like those in New York City and Maine have been upheld in the past, but may not survive a challenge after a ruling that says individuals may not be dragooned into political funding systems.
“What you have in these cases is government giving your money to one side or another,” Keating told The Texas Monitor.
New from the Institute for Free Speech
Evaluating Tax-Financing Programs with Outputs, Not Inputs
By David Keating
Editor’s Note: This is the first in a series of posts examining the speech-limiting effects and record of failure of taxpayer-financed campaign programs, specific to provisions include in the so-called “For the People Act,” which House Democrats have introduced as H.R. 1 in the 116th Congress.
Advocates of tax-financed campaign programs frequently claim success in the states and municipalities that implement them. However, these advocates set a very low bar for “success.” In most cases, they merely point to participation in the programs – and the number of dollars doled out – to say tax-financing is working.
This is persuasive only to those who see replacing private donations with tax dollars as an intrinsic good. For the rest of us, it shouldn’t be cause for celebration when the government offers someone money, and they take it. No, when government spends money on goals such as reduced corruption, more responsive government, or increased diversity of elected officials – all of which are frequently cited as reasons for tax-financing programs – we need to evaluate whether those goals were achieved before declaring success or failure.
The Institute for Free Speech has long analyzed tax-financing programs in cities and states. While no state has a program like the one H.R. 1 would implement for Congress and presidential candidates, other versions of tax-financing have consistently failed to meet the lofty rhetoric promised by their supporters. Institute for Free Speech analyses of longstanding programs in Arizona and Maine, and later in Connecticut, find that these schemes fail to reduce special interest influence, fail to reduce the dominance of businessmen and lawyers in politics, fail to increase the number of women elected to legislatures, fail to change legislative voting behavior, fail to make elections more competitive, and fail to increase voter turnout.
We’ve also documented how these programs create new avenues for corruption that power-hungry politicians quickly exploit.
The Courts
Courthouse News Service: Federal Judge Strikes Down Iowa ‘Ag-Gag’ Law
By Rox Laird
Iowa’s so-called “ag-gag” law that makes it a crime for undercover journalists or animal-rights activists to investigate and report on animal abuse in livestock facilities is unconstitutional, a federal judge ruled Wednesday.
U.S. District Judge James Gritzner in Des Moines struck down the 2012 statute passed by the Iowa Legislature aimed at preventing reporters or activists from entering livestock facilities under false pretenses to report animal abuse.
“The law has the effect of criminalizing undercover investigations of certain agricultural facilities” including livestock confinements, egg production facilities, slaughterhouses and puppy mills, Gritzner wrote, ruling that it violated the First Amendment.
Iowa’s law was challenged in 2017 in federal court by the Animal Legal Defense Fund, Center for Food Safety, People for the Ethical Treatment of Animals and two Iowa-based groups represented by lead attorney Rita Bettis Austen, legal director of the American Civil Liberties Union of Iowa…
“Today’s decision is an important victory for free speech in Iowa, because it holds that Iowa’s ag-gag law on its face is a violation of the First Amendment,” Bettis Austen said in a statement…
Iowa argued the statute punished conduct, not speech, and that false statements are not protected by the First Amendment.
The judge disagreed, saying one could not violate the statute without engaging in speech, and even false statements are protected by the First Amendment if they do not cause a “legally cognizable harm” or provide “material gain” to the speaker. False statements criminalized by Iowa’s statute do neither, he wrote.
Just Security: Trump Campaign in Legal Jeopardy Over Manafort’s Sharing Data with Russian Agent
By Paul Seamus Ryan
According to a court filing earlier this week, former 2016 Trump campaign chairman Paul Manafort shared presidential campaign polling data with Konstantin Kilimnik, a Russian citizen with ties to Russian intelligence. If the data Manafort shared with Kilimnik was used to materially guide spending by Russian nationals to influence the 2016 presidential election, then the Trump campaign seemingly received an “in-kind contribution” from the Russian nationals in the form of “coordinated expenditures” in violation of multiple federal campaign finance laws. A key link in the “coordination” here is the revelation of Manafort’s actions.
Fox News: PragerU files new lawsuit against Google in YouTube ‘censorship’ row
By James Rogers
The suit was filed against Google and its YouTube subsidiary with the State of California Tuesday, marking the latest development in PragerU’s ongoing legal tussle with the Mountain View, Calif.-based firm…
Filed in the Superior Court of the State of California, the lawsuit alleges that the tech heavyweights are “continuing to unlawfully restrict and restrain speech and expression on the global social media and video sharing platform known as YouTube.”
The suit claims that Google and YouTube are violating California law in four ways. This includes unlawfully restraining free speech in violation of the state’s constitution and discriminating against PragerU based on political, religious, “or other discriminatory animus” in violation of California’s Unruh Civil Rights Act, according to the filing. PragerU also alleges that Google and YouTube are “engaging in unlawful, misleading, and unfair businesses practices” in violation of California’s Business and Professions Code, as well as violating YouTube’s terms of use…
The lawsuit means that PragerU is now running “two-track litigation” against Google at both state and federal court level…
PragerU initially filed two federal claims against Google – one under the First Amendment and the other for unfair competition and advertising under the Lanham Act. That lawsuit also included five claims under California law, including a free speech claim. Additionally, PragerU filed state law claims for discrimination under the Unruh Act, unfair, unlawful, and fraudulent business practices, and breach of contract.
ALEC: YouTube is Still a Private Platform, Prager University
By Jonathon Hauenschild
If someone names his boat a rose, does the boat become a flower? If the manufacturer of the boat calls it a rose, is the boat a flower? Most people would laugh at the idea of changing something’s character just because that change suits our purpose.
In a recent court filing, though, Prager University tries to do just that. In its ongoing suit against Google and YouTube, the online educational outfit tries to incorporate statements made by Google during a Senate Committee hearing. During those statements, YouTube’s head of Public Policy and Government Relations stated that the platforms believes itself to be a “neutral public forum.”…
YouTube does itself a disservice when it uses a legal term of art to describe itself. A term that allows plaintiffs like Prager University or politicians like Senator Ted Cruz to score points with the public.
Instead of claiming to be a “neutral public forum,” YouTube probably should have stated that it is a “private platform that seeks to be neutral in its decisions” including the decision to monetize, or demonetize, certain content.
Senator Cruz and Prager University may like to refer to a private platform as a “public forum,” but that does not make YouTube a “public forum.” YouTube may like to refer to itself as a “public forum,” but that does not change its fundamental character of a private platform. The Supreme Court has been, and is, clear on this topic. A public forum occurs only when a private enterprise assumes all the attributes of a state-created municipality.
Congress
HuffPost: Tom Udall To Introduce Senate Campaign Finance, Voting Rights And Ethics Reform Bill
By Paul Blumenthal
Sen. Tom Udall (D-N.M.) is leading the effort by Senate Democrats to introduce a companion bill to a major political and electoral reform bill introduced by House Democrats on Jan. 4…
The Senate companion bill will largely mirror the proposed sweeping reforms of the House’s For the People Act on voting rights, campaign finance, disclosure and ethics. The bills will differ slightly on campaign financing proposals for each chamber. The Senate’s public financing system would be based on Sen. Dick Durbin’s Fair Elections Now Act, which provides participating candidates with grants and matching funds for small donations.
Rep. John Sarbanes (D-Md.), the House bill’s chief sponsor, announced on Thursday that the For the People Act has been co-sponsored by 221 Democrats – enough to pass in the House.
The chances of Udall’s bill passing the Senate are slim to none…
“We envision a three-to-five-year battle,” Fred Wertheimer, the president of the campaign finance reform group Democracy 21, said at a press conference where 69 activist groups announced support for the For the People Act on Wednesday.
ACLU: Marco Rubio and His Colleagues Need a Refresher on the First Amendment
By Kate Ruane and Abdullah Hasan
This week, amid a partial government shutdown, senators tried to sneak through a bill that would encourage states to suppress constitutionally protected political boycotts of Israel.
Ultimately, the Combating BDS Act failed to make it to the Senate floor, largely because enough people exercised their First Amendment right to protest the bill and educate senators that they should get their priorities straight. But it seems that’s not the only education that is in order.
The recent spate of bills that seek to penalize Israel boycotts is a bipartisan problem. Many Senate Democrats blocked the Combating BDS Act this week, rightly arguing that Congress should end the government shutdown rather than making this the first order of business of the new session. But four Senate Democrats voted to pass the bill, and many others, including Sens. Chuck Schumer (D-N.Y.) and Ben Cardin (D-Md.), have expressed support for other anti-boycott efforts, even when they have come at the expense of our constitutional rights.
This week, however, Sen. Marco Rubio (R-Fla.) led the charge, and even took to Twitter to spread a number of perplexing and often downright false statements about the First Amendment and the Combating BDS Act.
Here’s what Sen. Rubio got wrong…
Washington Post: Michael Cohen to testify publicly before House panel in early February
By Karoun Demirjian and Matt Zapotosky
President Trump’s former lawyer and fixer Michael Cohen has agreed to testify in a public hearing next month before the House Oversight and Government Reform Committee, panel Democrats announced Thursday.
Cohen agreed to the Feb. 7 appearance voluntarily, committee chairman Rep. Elijah E. Cummings (D-Md.) said.
“I want to make clear that we have no interest in inappropriately interfering with any ongoing criminal investigations, and to that end, we are in the process of consulting with Special Counsel Mueller’s office,” Cummings said in a statement, promising that the panel would announce more information about the hearing in the coming weeks…
Democratic lawmakers have wanted to call Cohen back to Capitol Hill since the special counsel determined Cohen lied during his previous testimony – lies that formed at least part of the foundation of a controversial investigative report that House Intelligecne Committee Republicans released last year, determining there was no evidence of links between Trump’s campaign and Russian officials…
House Intelligence Committee Chairman Rep. Adam B. Schiff (D-Calif.) said in a statement Thursday that he welcomed Cohen’s upcoming public testimony, but added that Cohen would need to speak to lawmakers in a private setting as well.
“Mr. Cohen has expressed an interest in telling his personal story in open session, and we welcome his testimony before the Committee on Oversight and Reform,” he said. “It will be necessary, however, for Mr. Cohen to answer questions pertaining to the Russia investigation, and we hope to schedule a closed session before our committee in the near future.”
FEC
New York Times: Doug Jones Seeks Inquiry Into Misinformation Efforts in Alabama Senate Race
By Alan Blinder
Senator Doug Jones, the Democrat who was an unwitting beneficiary of misinformation tactics during a special election in Alabama in 2017, asked the Federal Election Commission on Wednesday to investigate the episodes.
Mr. Jones made his formal request for an inquiry more than three weeks after The New York Times detailed one of the clandestine efforts in which Democrats employed Russian-style digital deception while Alabama was locked in one of its most competitive campaigns in memory.
“Such deceptive tactics have no place in American politics and must be repudiated by those involved in our political system,” Mr. Jones wrote in a letter to Ellen L. Weintraub, a Democratic member of the commission.
Neither Mr. Jones nor his campaign is believed to have known about, much less approved of, any of the deception. Mr. Jones had quickly pledged to seek an inquiry, but his notarized letter on Wednesday, which also cited reporting by The Washington Post, represented his first formal step in support of an investigation by the commission…
[I]n his letter on Wednesday, Mr. Jones, a former United States attorney in Birmingham, argued that the tactics might have violated the Federal Election Campaign Act. He requested “a thorough investigation” and said the commission should, if any laws were broken, “impose the maximum penalties allowed.”
“It is imperative to send a clear message that these disinformation tactics will not be tolerated and will be punished to the fullest extent of the law,” Mr. Jones wrote.
The States
Pacific Standard: Montana’s Dark Money Detective
By Jimmy Tobias
As the former commissioner of political practices here, [Jonathan Motl] has spent four years serving as the state’s primary campaign finance watchdog. With the backing of Governor Steve Bullock, he has traced the flow of dark money into campaigns for the state legislature and filed dozens of lawsuits against unscrupulous elected officials. He has fought in both state and federal courts to protect the integrity of Montana’s elections and has battled with the state legislature to win and preserve his office. He has become the tenacious scourge of dark money in Montana politics, and, in doing so, has set a bold example for other states across the nation that are also contending with the noxious influence of unaccountable election spending.
In the spring of 2017, Bullock took to the op-ed page of the New York Times to declare that anonymous corporate campaign expenditures are “now illegal in Montana, and we are bringing, and winning, legal actions against the bad actors.” He was talking, at least in part, about Motl’s work.
On this late summer afternoon, that work has dispensed its biggest prize to date: a ruling by the state’s Supreme Court upholding a conviction against a prominent Republican state legislator named Art Wittich for corruption and violation of campaign finance laws. It was Motl’s office that brought the unprecedented lawsuit and labored under a thundercloud of partisan criticism as it pursued that case and others like it over a four-year period. The high court’s ruling was a vindication and a climactic moment in Montana’s anti-corruption efforts.
NJ Spotlight: Murphy-Sweeney Feud Could Lead To Laws Shining More Light On Dark Money
By Colleen O’Dea
The continuing feud between New Jersey’s two most powerful Democrats could lead to the state finally enacting contribution-disclosure laws for dark-money groups that New Jersey’s campaign watchdog and good government activists have been seeking for years.
Sen. President Steve Sweeney (D-Gloucester) on Wednesday announced his support for legislation that would make several changes to campaign finance laws, including a requirement that issue-advocacy 501(c)4 and 527 organizations disclose their donors. These are organizations that advertise and actively support or work against candidates or public ballot questions. Sweeney also wants to further strengthen the measure to include legislation or regulations and make the disclosure rules retroactive to January 1, 2018. Currently, these organizations need not disclose their sources of funds as long as they do not spend more than half their money on election-related communications.
The bill (S-1500) has been pending for almost three years without even a hearing. It has been on the New Jersey Election Law Enforcement’s wish list for longer. But within the past week, an issue-advocacy group with ties to Gov. Phil Murphy has gone back on its word and decided not to voluntarily disclose its donors, as it had promised. The group, New Direction New Jersey, was formed near the beginning of last year and has run two ad campaigns featuring the governor, to the chagrin of some Democratic lawmakers.
