In the News
Cato: Judge Blocks Maryland Law On Political Ads
By Walter Olson
Last year, amid the outcry over Russian online operations during the 2016 election, the Maryland legislature reacted by passing a law imposing disclosure and compliance burdens on social media providers and newspapers that accept online advertising…
Among those testifying for the bill, the Campaign Legal Center declared the bill a “well-crafted and constitutional” way to advance “greater accountability for online platforms” and said it “should serve as a model for other states.” The Brennan Center said “voluntary efforts are not enough” and favored provisions even tougher than those of the draft bill.
By contrast, Eric Wang of the Institute for Free Speech called the public file rule “likely unconstitutional” and pointed out that the U.S. Court of Appeals for the Ninth Circuit had found a Nevada law with some similar provisions to be improperly overbroad. And Gov. Larry Hogan, citing constitutional problems as well as protests from the state’s newspaper association, declined to sign the bill, which became law anyway.
Major newspapers in the state promptly sued and on January 3 federal judge Paul W. Grimm granted them a preliminary injunction barring the state from enforcing the provisions, ruling against the state on almost every point…
Maryland’s rule, the judge wrote, would fail whether examined under either strict scrutiny or the somewhat more relaxed alternative known as exacting scrutiny. The provisions were decidedly overbroad in controlling activity unrelated to the law’s aims, nor were they the least restrictive means of attempting to get foreigners seeking to sway U.S. elections to identify themselves. Significantly, the provisions did not just mandate speech in the form of obligatory disclosures, but directly impinged on press freedoms themselves, with unpredictable effects…
Social media trickery is bad. Chipping away at First Amendment liberties to stop it is worse.
Republican National Lawyers Association: House Democrats’ First Bill Is For . . . House Democrats
By Michael Thielen
The Institute for Free Speech has a brilliant analysis written by Eric Wang on the speech component of the monstrosity that is HR 1. But first as a lawyers’ group, we must note that this is good for two groups: incumbent Democrats and lawyers. As Mr. Wang writes:
H.R. 1’s substance further underscores how the bill would help politicians and campaign finance attorneys more than it would benefit the public. The bill would greatly increase the already onerous legal and administrative compliance costs, liability risk, and costs to donor and associational privacy for civic groups that speak about policy issues and politicians. Organizations will be further deterred from speaking or will have to divert additional resources away from their advocacy activities to pay for compliance staff and lawyers. Some groups will not be able to afford these costs or will violate the law unwittingly. Less speech by private citizens and organizations means politicians will be able to act with less accountability to public opinion and criticism.
Fortunately Senate Leader Mitch McConnell has spoken out against this legislation and it is likely to go nowhere. However, if it were to somehow pass, Mr. Wang points out that it would run afoul of the First Amendment and the Constitution. HR 1 would:
Unconstitutionally regulate speech that mentions a federal candidate or elected official at any time under a severely vague, subjective, and broad standard that asks whether the speech “promotes,” “attacks,” “opposes,” or “supports” (“PASO”) the candidate or official.
It is not just political or issue groups that would be hurt by HR 1. As Mr. Wang points out, HR 1 would:
Expand the universe of regulated online political speech (by Americans) beyond paid advertising to include, apparently, communications on groups’ or individuals’ own websites and e-mail messages.
The Courts
Associated Press: Judge lets Arkansas law against Israeli boycotts stand
By Andrew DeMillo
A federal judge on Wednesday let stand an Arkansas law requiring state contractors to pledge not to boycott Israel, ruling that such a boycott is not protected by the First Amendment.
U.S. District Judge Brian Miller dismissed the lawsuit the Arkansas Times had filed challenging the 2017 law. The newspaper had asked the judge to block the law, which requires contractors with the state to reduce their fees by 20 percent if they don’t sign the pledge.
The Times’ lawsuit said the University of Arkansas Pulaski Technical College refused to contract for advertising with the newspaper unless the Arkansas Times signed the pledge. The paper isn’t engaged in a boycott against Israel.
Miller wrote that refusing to purchase items isn’t protected speech. He noted that the Times wouldn’t be barred from other protected forms of speech, including writing or picketing against Israel policies.
“It may even call upon others to boycott Israel, write in support of such boycotts, and engage in picketing and pamphleteering to that effect. This does not mean, however, that its decision to refuse to deal, or to refrain from purchasing certain goods, is protected by the First Amendment,” Miller wrote.
Arkansas’ law is similar to restrictions enacted in other states that have been challenged. The measures are aimed at a movement protesting Israel’s policies toward Palestinians. A federal judge in September blocked Arizona from enforcing a similar measure. A federal judge also blocked Kansas from enforcing its anti-boycott measure, but lawmakers rewrote the measure so that it no longer applied to individuals and nonprofits and only applied to state contracts worth $100,000 or more. Arkansas’ law applies to contracts worth $1,000 or more.
“We disagree with the district court’s decision, which contradicts two recent federal court decisions and which would radically limit the First Amendment right to boycott,” said Holly Dickson, legal director for the American Civil Liberties Union of Arkansas, which represented the Times.
Washington Post: Longtime Trump adviser Roger Stone indicted by special counsel in Russia investigation
By Devlin Barrett, Rosalind S. Helderma , John Wagner and Manuel Roig-Franzia
Roger J. Stone Jr., a longtime friend of President Trump, was arrested Friday by the FBI in Florida on charges that he lied and tried to tamper with a witness to hide his efforts to learn about releases of Democrats’ hacked emails during the 2016 presidential campaign.
Stone was charged by special counsel Robert S. Mueller III with seven counts, including one count of obstruction of an official proceeding, five counts of false statements and one count of witness tampering…
The indictment charges Stone sought to gather information about hacked Democratic emails at the direction of an unidentified senior Trump campaign official, and then engaged in extensive efforts to keep secret the details of those efforts…
The indictment does not identify the senior Trump campaign official, nor does it say who directed the senior campaign official to contact Stone. The indictment also does not accuse Stone of conspiring with Assange or Russian officials…
Stone’s case was assigned to U.S. District Judge Amy Berman Jackson of the District of Columbia, the same judge hearing the case of former Trump campaign chairman Paul Manafort…
With Stone’s indictment, the special counsel investigation has now led to charges against 34 people and guilty pleas by six Trump associates and advisers, including Manafort, former deputy campaign manager Rick Gates, former national security adviser Michael Flynn, former Trump attorney Michael Cohen and former campaign adviser George Papadopoulos.
None of those previous charges included allegations that Trump associates conspired with Russia to interfere in the election – one of the main thrusts of Mueller’s probe.
Slate: Roger Stone’s Indictment Could Be Good News for Donald Trump Jr.
By Richard L. Hasen
To Common Cause’s Paul S. Ryan, the indictment, if true, is enough to show Stone and the Trump campaign in a conspiracy to violate federal law against soliciting contributions from a foreign national. Federal law makes it a potential crime for any person to “solicit” (that is, expressly or impliedly ask for) the contribution of “anything of value” from a foreign citizen. And as Ryan points out, opposition research is valuable and can count as a campaign contribution…
So why did Mueller not charge Stone with violating campaign finance laws along with the other charges in the indictment? We don’t know for sure, but there are a few possibilities.
One possibility is that because WikiLeaks might count as a “news organization,” different campaign finance rules should apply. For example, one can imagine a presidential campaign official seeking out information with reporters from a foreign newspaper like the Guardian. We treat journalists differently for a number of campaign finance purposes, and it might be that WikiLeaks is shielded in a way that other foreign entities are not. Indeed, Glenn Greenwald and Trevor Timm, writing at The Intercept, attacked the DNC for suing WikiLeaks over the hack of DNC emails, arguing that such a suit interferes with the press’s freedom to cover leaked information…
Another, broader possibility is that opposition research or information supplied by foreign nationals with their own agendas should be protected by the First Amendment, and not subject to a campaign finance suit. Eugene Volokh advanced this argument in connection with the Trump Tower meeting, and I’ve explained in Slate why I think this view is bogus. But Mueller’s team might not think it’s bogus, which could explain why the Russians that his office has indicted were not charged directly with campaign finance violations.
Just Security: The Withering of the Giuliani Defense of “No Crime of Collusion” in Wake of Roger Stone’s Indictment
By Bob Bauer
The Stone indictment now shows that over a number of months the Trump campaign used Stone as an intermediary-more precisely, its agent- to solicit information from WikiLeaks, a partner of Russia in a conspiracy to influence a federal election…
The information that the campaign thirsted to acquire with Stone’s help was central to the design of its attack on Hillary Clinton. The new indictment shows that this was a priority in the higher echelons of the campaign: that someone “directed” a senior campaign official to urge Stone in the summer of 2016 to find out what he could about future WikiLeaks releases.
We can add to this active use of a direct, covert contact to the facts already unearthed about the Trump campaign’s solicitation and encouragement of the support from the Russian government, with WikiLeaks (also a foreign national) acting as a full partner in this political “mutual aid” pact. The federal campaign finance laws prohibit foreign nationals from influencing elections – – and Americans from substantially assisting them in that illegal endeavor. The American participation is also subject to prosecution as a conspiracy to defraud the United States, which was a statutory basis for the special counsel’s indictment of Russian parties. Under these laws, the Trump campaign is clearly exposed, as an entity, along with those of its personnel who directed these activities…
Now the campaign is preparing to argue that so long as the information had already been stolen, it was perfectly free to conduct a strategic communications with a foreign government and its agents to acquire information about the emails or to influence the timing of the release. The campaign lawyers will likely say that the material was nothing of “value” for campaign finance law purposes, and that in any event, the First Amendment protects its receipt and use of the information.
Congress
Politico: Freshmen Democrats push for ethics reform with eyes on 2020
By Zach Montellaro
Freshman House Democrats are pushing individual pieces of ethics and campaign reform that track closely with their omnibus government reform bill, with an eye on 2020…
House Democrats’ first big (non-shutdown) push was H.R. 1 (116), a sprawling piece of legislation that would make extensive changes to campaign finance, voting and ethics rules. It got red-carpet treatment from the caucus, but the bill cannot advance beyond the House right now – Senate Majority Leader Mitch McConnell has condemned it.
So freshman Democrats plan on taking several more bites at the apple, with an eye both on keeping their 2018 campaign promises and their looming reelection campaigns. “H.R. 1 is a bold opening salvo, but it ain’t enough,” Rep. Max Rose (D-N.Y.) said in an interview with Score. “We’re just getting started.”
They have begun to introduce legislation that mirrors or complements aspects of the larger package. Rose will today introduce his own Lobbyist Loophole Closure Act, which would make individuals who give “strategic advice” register as lobbyists.
IRS
Detroit News: IRS complaint: Pro-Whitmer group ducking donor disclosure
By Jonathan Oosting
A mysterious group that helped finance election-season ads for Democratic Gov. Gretchen Whitmer failed to disclose its donors and is “trying to elude” legal requirements to do so, a watchdog group says in a federal complaint.
Citizens for Responsibility and Ethics in Washington filed the complaint Wednesday with the Internal Revenue Service and requested an aggressive investigation by the agency, which oversees political groups organized under Section 527 of the IRS code.
Progress Advocacy Trust donated more than $2 million to other political groups that ran television ads featuring Whitmer or attacking Republican Michigan gubernatorial nominee Bill Schuette.
A spokesman previously identified the group as a 527 organization, but it never filed paperwork with the IRS or disclosed any donors, according to records available online. In contribution records from other groups, Progressive Advocacy Trust is described as an “administrative account” of the Ingham County Democratic Party, a claim CREW argues is dubious.
“The principle behind section 527’s registration and disclosure requirements is that groups that spend most of their time and money on politics must disclose their activities and donors to inform voters about who is trying to influence them and to deter corruption,” CREW Executive Director Noah Bookbinder said in the IRS complaint.
Progressive Advocacy Trust appears to be “erroneously invoking exemptions designed to avoid duplicative reporting in an attempt to escape any disclosure at all,” Bookinder added.
The States
Oklahoma Council of Public Affairs: Victory for free speech
By Trent England
Free speech won a victory today when the Oklahoma Ethics Commission declined to move forward with its plan to regulate private political speech. After hearing public comment on the proposal for a third straight meeting, no commissioner made a motion to approve it. This means it is dead, at least for the remainder of 2019.
This is the result of many organizations that provided expert testimony on the flaws of this proposed regulation. But it is thanks most of all to the thousands of Oklahomans who signed the OCPA petition and the hundreds who contacted the Ethics Commission directly. This is exactly the kind of citizen activism that we were protecting. And we won!
Oregon Public Broadcasting: Oregon Supreme Court Could Beat Gov. Brown To Campaign Finance Change
By Dirk VanderHart
In an exceedingly rare move, the Oregon Supreme Court this week agreed to fast-track a case that proponents hope will let the state limit campaign contributions. The move means the matter will skip over the Oregon Court of Appeals, where cases can languish for years and will be heard by Oregon Supreme Court justices later this year.
“I would think they’ll make a decision within months to a year,” said Jason Kafoury, a Portland attorney who is part of a coalition that’s been pushing for campaign finance limits for years.
At issue is a set of campaign finance changes enacted resoundingly by Multnomah County voters three years ago. The new rules placed a $500 ceiling on the checks individual donors or political action committees could give to candidates for county office, and they required disclosures of top donors for political advertisements, among other things.
Backers of those limits knew they were likely to be ruled unconstitutional because of a 1997 Oregon Supreme Court ruling that found the state’s free speech protections don’t allow limits on campaign contributions. They hoped to force the issue before the state high court in a bid to get justices to reconsider the earlier ruling.
Now they have a shot…
The Supreme Court is scheduled to hear oral arguments in the case in September.
Insider NJ: Major Political Disclosure Bill Hopefully is Poised for Passage
By Jeffrey Brindle
On January 17, 2019, the Senate Budget and Appropriations Committee unanimously approved Senate Bill 1500, readying it for a floor vote in the State Senate…
The bill requires registration and disclosure by independent, outside groups, whose activities range from elections to issue advocacy, or grassroots lobbying.
While requiring disclosure by nonprofit 501(c)4s, super political action committees and other similar groups, the bill included an important amendment by raising the donor disclosure threshold from $300 to $10,000.
Lifting this threshold to $10,000 is critical because it should avoid capturing most donations made solely as membership dues to various organizations while ensuring that voters know major sources of money behind these groups…
A companion bill, A-1524, whose prime sponsor is Assemblyman Andrew Zwicker (D-16th district) has been awaiting action in the Assembly. This bill was introduced in early 2018.
While the main focus of the Senate and Assembly bills is to require disclosure by 501c4, 527 political organization and other independent groups, the legislation is important in another way as well.
It represents a first step toward strengthening political parties and candidates in relation to independent groups by raising limits on contributions to parties and candidates and ending an archaic rule that bans county parties from giving to each other during the primary election…
Though the board list has yet to be released, the next Senate voting session is set for January 31. The Assembly meets the same day but, as of yet, the legislation has not been listed in the lower house, either, for a committee hearing or floor vote.
Virginia Mercury: ‘Virginia’s the wild wild west:’ Northam’s campaign finance reform effort dies in House subcommittee
By Mechelle Hankerson
Efforts to limit certain campaign contributions, including several endorsed by Gov. Ralph Northam, were left in a House subcommittee Thursday because of concerns that the rules would make it more difficult to trace donations to their origin and inadvertently remove some people from the political process.
Dels. David Toscano, D-Charlottesville, and Elizabeth Guzman, D-Prince William, filed bills that would curb the ability of certain corporations and other businesses entities to donate to political campaigns…
“Virginia’s the Wild Wild West, anybody can give any amount they want,” Toscano said while presenting one of his bills.
He specifically wanted to limit the amount of money that electric utility companies -like Appalachian Power and Dominion Energy – could give in election cycle to $500 per candidate…
Guzman’s bill, which was filed on behalf of the governor, cast a wider net and would have banned any direct contributions from corporations or business entities to campaigns. Employees could still donate as individuals…
Toscano said there are voters who feel like elections are bought, not won. He sponsored another bill that would put a $10,000 cap on any campaign contribution…
A bill by Sen. Chap Petersen, D-Fairfax City, that would prohibit candidates from accepting donations from a public service corporation is still alive in the Senate, along with another measure that would prohibit individuals from making any “single contribution, or any combination of contributions” over $10,000 to a single state candidate.
Auburn Citizen: Cuomo signs ‘transformative’ early voting bill, other NY election reforms
By Robert Harding
Cuomo also closed the LLC loophole, which allowed wealthy individuals to create unlimited numbers of limited liability companies to circumvent the state’s campaign contribution limits. Under the new law, LLCs will be subject to same $5,000 contribution limit as corporations. However, there won’t be a limit on how many LLCs an individuals can form. But there is a disclosure requirement to reveal who is behind the LLCs.
