In the News
Roll Call: Democrats try to meet people where they are: mired in cynicism
By Kate Ackley
While lawmakers may break off discrete proposals with the goal of actual enactment, Sen. Tom Udall, a New Mexico Democrat, is planning to introduce a companion to HR 1 in his chamber in the coming weeks. Senate Majority Leader Mitch McConnell, a Kentucky Republican, plans an offensive against the measure, and he’ll have plenty of outside backing.
David Keating, for example, president of the anti-campaign-finance-regulation group Institute for Free Speech, said the plan, as drafted, raises numerous concerns from his perspective.
“There’s just a whole host of crazy provisions in this legislation that would make criticizing government actions very, very difficult,” he said, referring to new disclosure requirements for political ads and communiques.
Keating is also troubled by the bill’s approach to revising the Federal Election Commission from the often immobilized, 3-3 Democrat-Republican ratio to a five-member panel with a more powerful chairman.
“It’s a toxic mix of enhanced enforcement power with vague provisions” that should worry even Democrats, Keating said.
That may well prove true as the bill becomes better understood, or if it appears on a path toward enactment.
But for now, the package’s power is in its breadth and its potential, and in how it speaks to voters’ alienation and agitation with the system.
Bloomberg Government: Democrats’ Bill Would Offer $5 Million-Per-Candidate Bonanza
By Ken Doyle
House Democrats, who promised to get big money out of politics, are preparing to vote on providing public financing for congressional races, a move that could pump millions of dollars of taxpayer money into those contests.
Public funding for candidates for Congress is included in legislation (H.R. 1.) that Democrats plan to bring to the floor next month. The bill also would revive an existing but little-used public financing program for presidential campaigns.
The legislation would let eligible congressional candidate qualify for nearly $5 million each in federal matching funds, according to a Bloomberg Government analysis. The money would come from direct congressional appropriations…
Public financing programs “may `succeed’ at giving away tax dollars to politicians,” David Keating of the nonprofit Institute for Free Speech, wrote in a recent analysis. “But they fail at just about everything else.” His group opposes campaign finance regulations…
Of all the provisions in the bill, the public financing of campaigns have the potential to be the most costly – provided future Congresses are willing to provide the money.
While public financing would be available to candidates from both parties, Democrats could be especially helped by a system that rewards small-donor fundraising. Smaller contributions – especially to Democratic candidates – skyrocketed in the 2018 midterms, driven largely by opposition to President Donald Trump and facilitated by online giving.
The Courts
Reason: Atlas Brew Works’ Beer Is About To Go Bad Thanks to the Shutdown
By Brian Doherty
Atlas Brew Works, based in Washington, D.C., wants to sell 40 kegs of its “The Precious One” craft beer while it is still fresh, some of them across state lines. The federal government, in a policy that should always have been constitutionally questionable, insists it must pre-approve any beer label that enters interstate commerce under the certificate of label approval (COLA) rule contained in the Federal Alcohol Administration Act.
Thanks to the ongoing federal government shutdown, the Treasury Department’s Alcohol and Tobacco Tax and Trade Bureau (TTB) is not processing or issuing such approvals…
The Atlas Brew Works company is suing in U.S. District Court in the District of Columbia, seeking a temporary restraining order against the government enforcing the COLA rule against it.
As the motion for the restraining order argues, “Americans’ fundamental right to free speech requires no Congressional authorization. The government can shut down free speech regulators. It cannot shut down the First Amendment.”
Its beer labels are “a form of expression protected by the First Amendment” it insists, and cites previous cases in a separate complaint document in the case of Atlas Brew Works v. Whitaker that support this contention.
The filings, from civil rights lawyer Alan Gura who has succeeded in winning various prominent First and Second Amendment cases, say it should be obvious that “the government cannot simply prohibit beer labels as a category of speech…. Atlas and its customers are suffering irreparable harm in that the government violates their First Amendment rights every moment that Atlas is not free to label its products…. The government cannot require Atlas to obtain a license in order to speak-a license aggressively reviewed for content under rules mandating some statements and forbidding others…and then shutter the licensing office indefinitely.”
Congress
Election Law Blog: H.R. 1 and Public Financing
By Nicholas Stephanopoulos
I think H.R. 1 is right not to mandate publicly financed vouchers nationwide. Only one jurisdiction has adopted such vouchers-Seattle-and for only one election to date. More information about how many voters use vouchers, to whom they allocate the funds, and how candidates solicit contributions, would plainly be helpful. I also think the vouchers should be made substantially larger (say $100) and provided automatically to voters (not upon request). Bigger vouchers would do a better job crowding out private campaign funds…
While H.R. 1 seeks more data before imposing vouchers throughout the country, it’s ready to implement small dollar financing at once. But here too, I think some caution would be advisable. Only a few jurisdictions have experimented with multiple-match public financing (most notably, New York City). Small donors may also be preferable as funding sources to very rich individuals or corporations, but they’re far from ideal. They’re older, whiter, wealthier, more ideologically extreme, and more male than the electorate as a whole. They thus threaten to skew policy away from the views of the median voter…
And while I’m on the subject of public financing pilot programs, let me throw out one more idea: providing parties with large grants (say $25 per eligible voter in a state, multiplied by a party’s share of the presidential vote in that state in the last election), which could then be spent directly or distributed to congressional candidates. Giving parties access to public funds on this scale would significantly increase their influence. To the extent that parties are more responsible and moderate than other campaign funders (like individual donors and corporations), this greater clout could be salutary.
Orange County Register: Federal campaign finance reform helps special interests
By Ron Paul
One of the new Democratic House majority’s top priorities is so-called campaign finance reform legislation. Contrary to the claims of its supporters, campaign finance reform legislation does not limit the influence of powerful special interests. Instead, it violates the First Amendment and burdens those seeking real change in government…
America has a long and distinguished tradition of anonymous political speech. Both the Federalist and the Anti-Federalist papers where published anonymously. As Justice John Marshall Harlan wrote in NAACP v. Alabama, where the Supreme Court upheld the NAACP’s right to keep its membership list confidential, “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”
Supporters of groups with “dissident beliefs” have good reason to fear new disclosure laws. In 2014, the IRS had to pay $50,000 dollars to the National Organization for Marriage because an IRS employee leaked donors’ names to the organization’s opponents. Fortunately, the Trump administration has repealed the regulation forcing activist groups to disclose their donors to the IRS. Unfortunately, Congress seems poised to reinstate that rule.
In recent years, we have seen the rise of authoritarian political movements that think harassment and even violence against those with differing views are acceptable tactics. Can anyone doubt that activists in these movements would do all they could to obtain the lists of donors to groups that oppose their agenda? They may be able to obtain the lists either by hacking government databases or by having a sympathetic federal employee “accidentally” leak the names.
Wall Street Journal: Mueller Probe Likely to Restrict Michael Cohen’s Testimony
By Rebecca Ballhaus and Nicole Hong
Mr. Cohen, who is scheduled to speak in an open hearing on Capitol Hill for the first time Feb. 7, won’t be able to talk about topics that he has discussed with special counsel Robert Mueller, according to a person close to Mr. Cohen.
He also may be limited in what he can say about the continuing Manhattan U.S. attorney’s office investigation, which resulted in Mr. Cohen pleading guilty in August to eight felonies-including arranging hush-money payments during the 2016 presidential campaign to stop two women from publicizing alleged affairs with Mr. Trump. Mr. Cohen said Mr. Trump directed him to arrange the payments, which violated campaign-finance laws.
Since Mr. Cohen’s guilty plea, federal prosecutors in New York have continued to investigate the president’s company, the Trump Organization, according to people familiar with the matter…
The House Oversight Committee is still in the process of consulting with Mr. Mueller and New York federal prosecutors on the terms of Mr. Cohen’s testimony, according to a Democratic aide on the committee. The panel also previously expressed interest in Mr. Trump’s failure to report in a 2017 financial disclosure form his debt to Mr. Cohen, whom he reimbursed for a $130,000 payment Mr. Cohen made to a former adult film star in October 2016.
Candidates and Campaigns
Politico: Gillibrand rejects super PAC support
By Elena Schneider and Nick Niedzwiadek
Sen. Kirsten Gillibrand rejected support from an individualized super PAC in her first public comments since joining the 2020 presidential race, staking out a position on campaign finance that’s defining the early stage of the Democratic primary.
The New York Democrat joins a handful of other likely presidential candidates who have made the same commitment, as Democratic activists place increasing importance on how candidates finance their campaigns. Earlier this month, Massachusetts Sen. Elizabeth Warren called on other 2020 candidates to reject super PAC support; Rep. Beto O’Rourke, who’s considering his own presidential run, did the same in his 2018 Texas Senate run. But some candidates are likely to have outside groups backing them in the primary.
Gillibrand, who has addressed questions about financial support from Wall Street throughout her Senate career and said Wednesday that her “values are never for sale,” has already said she would no longer accept corporate PAC or federal lobbying contributions. She has for years had a leadership PAC, Off The Sidelines, that she has used to support female candidates.
“I don’t think we should have individual super PACs, and I don’t want one,” Gillibrand said at a news conference in Troy, N.Y., one day after launching her presidential bid on CBS’ “The Late Show with Stephen Colbert.” “It’s why we need to take on how things work and restore that power to the people.”
The Media
Washington Post: Why Facebook is giving $300 million for local journalism
By Hamza Shaban
Facebook announced on Tuesday it will commit $300 million to journalism projects to help local outlets strengthen their newsgathering operations and build their readership and subscription models.
“We’re going to continue fighting fake news, misinformation, and low quality news on Facebook,” said Campbell Brown, Facebook’s head of news partnerships, in a company blog post. “But we also have an opportunity, and a responsibility, to help local news organizations grow and thrive.” …
Facebook’s financial commitment comes a year after Google pledged the same dollar amount, over the same timeline, to combat misinformation and support journalism, with a focus on boosting subscriptions to local news outlets. The pair’s investments are significant because of the tech giants’ dominance in the market for online advertising, which has exacerbated the decline of American newsrooms…
As The Washington Post’s Margaret Sullivan recently wrote, the decline of local reporting has profound consequences for communities and for self-governance. “One problem with losing local coverage is that we never know what we don’t know. Corruption can flourish, taxes can rise, public officials can indulge their worst impulses,” she said. Local reporting can also help establish a foundation of common information, easing polarization and misinformation, owing to high levels of trust that local outlets have with their audiences, she said.
Facebook said it decided to commit to the journalism initiatives based on feedback from users on what they wanted to see on the platform and from news outlets who told the company how to better boost their audience impact. “We heard one consistent answer: people want more local news, and local newsrooms are looking for more support,” Brown said. Facebook added that, over time, these initiatives can elevate civic engagement, which in turn can boost interest in local news.
The States
Auburn Citizen: Cuomo proposes lower NY campaign contribution limits, public financing
By Robert Harding
If Gov. Andrew Cuomo gets his way, there will lower limits on campaign contributions and public financing of elections in New York…
Cuomo wants to lower the contribution limits for statewide candidates to $25,000, $15,000 for the general election and $10,000 for the primary. State Senate candidates would be subject to a $10,000 limit, with $5,000 each for the primary and general elections. The ceiling for state Assembly candidates would be $6,000 – $3,000 each for the primary and general elections…
Earlier this week, Cuomo called for a ban on corporate contributions. Existing law allows corporations to donate $5,000 to campaigns. And he wants to adopt a public campaign financing system. The program would allow candidates to receive a six-to-one match for small donations, according to the governor’s office.
Cuomo’s goal is to reduce the influence corporations and wealthy individuals have on elections in New York.
“Now is the time to implement real campaign finance reform in New York,” he said. “Let’s overhaul our campaign financing system by incentivizing candidates to focus on small donors, not large corporations, and lowering campaign contribution limits and give the power back to New Yorkers once and for all.”
The campaign finance proposals have a greater chance of passing this year. In past years, state Senate Republicans have opposed certain election reforms. Now that Democrats control the state Assembly and Senate, Cuomo may be able to advance more of his agenda, including campaign finance reform.
Gotham Gazette: The Case Against Public Campaign Financing in New York
By State Senator Catharine M. Young
[A]n honest examination of the system [in New York City] shows it has fallen far short of its laudable goals. In fact, the system has proven to be an additional channel for campaign corruption.
Establishment of the public financing system has allowed ethically challenged candidates and their operatives to cheat the taxpayer-funded program by creating fake donors, called “straw donors,” to receive matching funds. Former comptroller and mayoral candidate John Liu, a newly-elected State Senator, was fined more than $26,000 for a straw-donor scandal that resulted in jail time for an aide and a fund-raiser. He has a lot of company: Bill de Blasio, Malcolm Smith, Anthony Weiner, Dan Halloran, Jesse Hamilton, Albert Alvarez, Al Baldeo, Ron Reale are just a few of many city politicians associated with public campaign finance scandals….
Supporters of publicly financed campaigns also promote the feel-good idea that the system encourages political competition by making it easier for political newcomers and less well-funded outsiders to run for office. A December 2017 Georgetown Public Policy Review found this theory to simply be wishful thinking.
Its examination of incumbent re-election rates for state legislators in states offering taxpayer-funded campaign programs and those without such programs found no statistically significant difference. Incumbency rates for the groups were 89 and 91 percent, respectively.
Similarly, the hoped-for impact on civic engagement also has not been realized. In the first two mayoral elections under public financing in New York City, 1989 and 1993, voter turnout was 60 percent and 57 percent. In 2013 turnout was 26 percent and in 2017, it was 23.9 percent. These decreases have occurred even as the size of the taxpayer-funded match has risen significantly, starting as 1:1 in 1989 rising to 6:1 in the most recent election. It is now moving to 8:1.
Albany Times Union: Legislature passes sweeping electoral reforms
By Rachel Silberstein
The state Legislature on Monday passed a slate of electoral reform bills…
Activists, noting New York’s abysmal voter turnout compared to other states, have long pushed for these reforms, including closing a loophole that allows unfettered donations from limited liability companies…
The closure of the LLC loophole deals a blow to the real estate industry, which has flooded the campaign accounts of state lawmakers for two decades, who in turn have helped block meaningful to reform to New York City’s rent laws.
The loophole is based on a 1996 state Board of Elections ruling that determined every LLC is subject to its own campaign finance limits, even if several LLCs are held by a single owner. This has allowed special interests to circumvent the $5,000 campaign contribution limit for corporations.
The legislation includes a constitutional amendment that requires the disclosure of the identity and proportion of ownership of all direct and indirect owners of the membership interests in the LLC, and may go into effect as soon as 2021.
Madison Capital Times: Assembly Democrats propose ‘fresh start’ agenda including redistricting, campaign finance changes
By Jessie Opoien
Rep. Melissa Sargent, D-Madison, said she will introduce legislation that would undo some changes made to the state’s campaign finance laws by bills passed in 2015.
Sargent’s bill would place limits on contributions made by individuals, campaign committees and political parties, and would end the use of segregated funds for political parties and legislative campaign committees.
“(Voters’) voices are being drowned out by the constant flood of money into our campaigns,” Sargent argued.
Courthouse News Service: NYPD Denied Spy-Like Secrecy in Protest Case
By Adam Klasfeld
Refusing to confirm or deny the existence of records may work for the CIA, but a judge refused Monday to let New York City use the tactic to keep protesters in the dark about police surveillance.
The NYPD used the non-answer – known in Freedom of Information Act cases as a Glomar response – when activists from a Black Lives Matter offshoot requested records on police monitoring of their social media during the demonstration known as Millions March NYC.
Scoffing at the terror-fighting justifications asserted in the case by the NYPD, Manhattan Supreme Court Justice Arlene Bluth found the Glomar response impermissible Monday.
“The petitioners here are protestors, engaging in First Amendment protected activity,” Bluth wrote. “The only connection between protestors and terrorists appears to be that both groups use cell phones. But terrorists and protestors and, for that matter, New York City residents use cell phones and computers and social media and a variety of other technologies. A Glomar response cannot be used in every instance in which a terrorist might use the same technology as a protestor or a New York City resident.” …
New York Civil Liberties Union staff attorney Bobby Hodgson celebrated the ruling.
“Today the court confirmed that the NYPD cannot vastly expand the scope of the Glomar response to deny the public access to basic information regarding the tactics and technologies used by police to monitor First Amendment-protected political activity,” Hodgson said in a statement. “We are pleased that the court agreed that allowing the police to cite very general national security concerns in this case – to avoid transparency and accountability over the surveillance of protesters – would undermine the very purpose of the Freedom of Information Law.”
