New from the Institute for Free Speech
Connecticut State Agency Defends Fines for Mentioning the Governor. IFS Defends the First Amendment.
By Alex Baiocco
[W]hen former Connecticut State Senator Joe Markley and current State Senator (and then-Representative) Rob Sampson sent campaign mailers highlighting their efforts to oppose the governor’s agenda back in 2014, they thought they were sharing information highly relevant to potential voters. As they found out after Sampson’s opponent filed a complaint with the State Elections Enforcement Commission (SEEC), simply mentioning the governor’s policies violated Connecticut law.
The candidates were fined thousands of dollars as a consequence of their speech. Although the mailers clearly communicated Markley and Sampson’s policy views and their actions in support of those views, the SEEC ruled they were illegal expenditures on behalf of a gubernatorial candidate challenging then-Governor Dannel Malloy. No opponent of the governor was mentioned in any of the communications.
Other candidates accused of the same violation chose the much simpler path of settling with the Commission. As Markley explained in 2016, “Who wants to go through a legal dispute with the state?” While most individuals wouldn’t, he and Sampson decided to take a stand for the First Amendment. Represented by the Institute for Free Speech, they filed a lawsuit challenging the constitutionality of the fines and Connecticut’s ban on any mention of a candidate that is not a direct opponent.
The complaint against Markley and Sampson was filed in 2014, but only last month was the Superior Court of the Judicial District of New Britain finally able to hear the merits of their First Amendment challenge. The excessively drawn-out administrative and legal battles with the SEEC just to get to this point illustrate Markley’s prescient 2016 reference to the inherent disincentives against challenging state authorities.
Supreme Court
By Rick Hasen
The Supreme Court upheld the constitutionality of the ban on corporate contribution limits in the 2003 case, FEC v. Beaumont. And in Buckley v. Valeo, the Supreme Court noted that there is still a risk of corruption when contributions are made between family members. And the Court has at least 3 times turned down cert. petitions seeking to get the Supreme Court to overturn the ban on corporate contributions in light of opinions written after Beaumont as the Court has become more hostile to campaign finance regulation.
But this cert petition is sure to get the Justices’ attention and could well merit a cert grant, and the case could pave the way to overturning that corporate ban. (h/t John Doe)
First, the petition comes from leading Supreme Court litigator Kannon Shanmugam. That alone will get the petition a close look. Second, it involves a criminal prosecution against a leading Kentucky Democrat, the father of former Kentucky Secretary of State Alison Lundergan Grimes. And it adopts the same camel’s nose-in-the-tent approach of the Citizens United and Bluman case: it presents a specific set of sympathetic facts (here, the corporation is closely held, and the money went from the corporation controlled by the father to the candidate daughter) to make a much larger hole in campaign finance laws (to blow up the contribution limits applicable to corporations generally). This is catnip for some of the more anti-regulatory Justices…
Watch this case.
Congress
Washington Examiner: Democrats’ ‘foreign influence’ elections bill is subterfuge for silencing companies
By Eric Wang
House Democrats recently reintroduced the Get Foreign Money Out of U.S. Elections Act, which purports to ban political spending by “foreign-influenced” corporations. The bill’s “America First” pretense is as disingenuous as it is ironic, considering Democrats’ furious opposition to former President Donald Trump’s “America First” agenda. The legislation is not targeted at foreign influence. Rather, its real intent is to steamroll American businesses by preventing them from defending themselves against Democrats’ anti-business agenda.
As the bill’s lead sponsor, Maryland Democrat Rep. Jamie Raskin, notes , the measure is similar to a law that Seattle adopted at the beginning of 2020. Seattle’s experience is quite instructive…
The effect of measures such as the Seattle ordinance and the Raskin bill is that Democrats can ram through whatever anti-business legislation they like, and the business community is forced to sit on its hands and remain silent. Level-headed members of the Democratic House leadership recognize this radical result: When a version of the Raskin bill was tucked into Democrats’ leviathan H.R. 1 elections bill in 2019, a “manager’s amendment” summarily stripped out the provision before the bill could reach a vote. Democratic leaders also omitted the provision in the 2021 version of H.R. 1.
Two other important factors give the lie to the pretense that Raskin’s bill is actually intended to address foreign influence in American elections…
Wall Street Journal: Government Can’t Censor the Truth About Judges
By Thomas Berry
Can the government censor you for tweeting happy birthday to a judge? The Senate Judiciary Committee recently voted 21-0 to advance a bill that would allow exactly that. If it is enacted, every American could face mandatory take-down orders for posting basic facts online about federal judges, including birth dates, spouses’ jobs and the colleges attended by their children. Because the bill stifles access to relevant information about public officials and arbitrarily limits its restrictions to the internet but not other media, it would violate the First Amendment.
The impetus for the proposed legislation was a tragic event: the murder last year of Daniel Anderl, son of Judge Esther Salas, at their home. Here’s how the Daniel Anderl Judicial Security and Privacy Act would work. If you post “covered information” about a federal judge online, that judge (or a designated federal official) can send you a written request to take it down. If you don’t comply within 72 hours, the judge can sue you. If you lose, you have to take down the information and pay the judge’s legal fees and court costs.
The Media
New York Times: Judge Says New York Times Can Retain Project Veritas Memos, for Now
By Michael M. Grynbaum
A New York State appeals court on Tuesday temporarily lifted a judicial order requiring The New York Times to turn over or destroy copies of legal memos prepared for the conservative group Project Veritas, in a case that has drawn the focus of First Amendment and journalism advocates.
The stay, issued by the Appellate Division of New York State Supreme Court, followed objections by The Times to an order issued late last week in an escalating legal dispute between the newspaper and Project Veritas, which is suing The Times for defamation.
But one major component of that order, issued by a trial judge, Justice Charles D. Wood of State Supreme Court in Westchester County, will stay in place: The Times remains temporarily barred from publishing the Project Veritas documents. The newspaper said it had not sought an immediate lifting of that element of the order but instead had asked for an expedited hearing.
The States
The Center Square: Conservatives blast SOS Benson’s ruling to grant Gov. Whitmer a pass on campaign fund irregularities
By Bruce Walker
Conservative groups are up in arms over Secretary of State Jocelyn Benson’s ruling on Tuesday that Gov. Gretchen Whitmer did not violate Michigan campaign finance law in two separate instances.
The Michigan Freedom Fund filed a formal campaign finance complaint against the governor last summer after she raised in excess of $3.4 million. Michigan Campaign Finance law limits individual donations to $7,150, but allows an exemption to accept unlimited contributions if a governor is facing a recall attempt…
Michigan Rising Action, another conservative group, filed a complaint with Benson against Whitmer last July…
