In the News
NPR: House Democrats Introduce Anti-Corruption Bill As Symbolic 1st Act
By Peter Overby
It isn’t your usual bill, the For The People Act introduced Friday by House Democrats. Also known as HR 1, symbolically their first legislation, it is a 571-page compendium of existing problems and proposed solutions in four political hot zones: voting, political money, redistricting and ethics…
“This is obviously a pretty radical expansion of the regulation of political speech,” said David Keating, president of the conservative Institute for Free Speech. “If this bill had become law now,” he said, anti-Trump groups “would find it very difficult to speak as effectively as they have over the past two years.” …
Campaign finance:
– Provisions from the Disclose Act would expand the prohibition on foreign political money and mandate the disclosure of the big donors behind politically active 501(c)(4) social welfare organizations.
– Digital companies, like Facebook and Google, would have to set up public databases cataloging political ad purchase requests of $500 or more and create new measures to block ad buys by foreign nationals.
– Presidential inaugural committees would have to disclose expenditures, in addition to the existing requirement for donor disclosure. This is a response to reports of unexplained spending by Trump’s inaugural committee.
– A new matching-fund program would support House candidates who agree to raise only small-dollar contributions. (Similar provisions for Senate candidates would have to come from the Senate.) The public financing system for presidential candidates, largely irrelevant since 2012, would be updated.
– The bill would quash “sidecar” superPACs that support individual candidates.
Supreme Court
Washington Post: Supreme Court to decide if trademark protection can be denied to ‘scandalous’ brands
By Robert Barnes
The Supreme Court agreed Friday to review a new front in the battle over free speech and will decide whether trademark protection can be refused to brands the federal government finds vulgar or lewd.
The case involves a decision of the U.S. Patent and Trademark Office to deny trademark registration to a clothing line called FUCT.
The U.S. Court of Appeals for the Federal Circuit struck down the century-old ban on protecting “scandalous” and “immoral” trademarks as a First Amendment violation, and the Department of Justice wants the Supreme Court to reverse the decision.
Artist Erik Brunetti is free to call his clothing line what he wants, Solicitor General Noel J. Francisco told the court in the government’s petition, but the government does not have to provide the trademark protection…
[T]he Supreme Court in 2017 ruled unanimously that another part of the trademark law – one that banned registering trademarks that were considered “disparaging”- violated the First Amendment.
That ruling, Matal v. Tam, came in a case that involved an Asian American rock group called the Slants, which tried to register the band’s name in 2011. The band was turned down by the USPTO because officials said it was likely to offend Asian Americans…
Even though Brunetti won at the appeals court, he agreed the Supreme Court should take the case to clear up questions left from the Tam decision.
He contends there is no way the decision on which trademarks are scandalous can be viewpoint-neutral, as the government contends, and that history shows arbitrary decisions…
The case, Iancu v. Brunetti , will probably be heard at the Supreme Court in April.
The Courts
First Amendment Watch: MD and DC News Organizations Win Challenge To Online Political Ad Law
By Ballard Spahr
The Maryland Online Electioneering Transparency and Accountability Act (the Act), which took effect in July, required newspapers and other organizations that host online campaign and issue ads (1) to publish information about those ads within 48 hours of running them, including proprietary details about audience and ad pricing; (2) to undertake complex and costly new recordkeeping obligations, with the State being able to demand records on 48 hours’ notice; and (3) to face the risk of injunctions and possible civil or criminal sanctions for hosting noncompliant ads, with no guaranteed notice or opportunity to object…
The court found that the Act was likely unconstitutional and granted an injunction to block its enforcement against plaintiffs.
The key legal issue in dispute was how the court should analyze Maryland’s law. The publisher plaintiffs invoked a line of cases holding statutes that compel speech, restrict political speech, or regulate speech because of its content generally must satisfy “strict scrutiny,” such that they must advance a “compelling interest” and be “narrowly tailored to achieve that interest.” Maryland and its amici instead characterized the statute as a routine campaign disclosure regulation that was subject to more relaxed review under a lower standard, called “exacting scrutiny.” Under that standard, which emanates from cases dealing with the funding of political campaigns, such as Buckley v. Valeo and Citizens United v. FEC, the government must show that the law is “substantially related” to an “important” interest.
The court agreed with plaintiffs that strict scrutiny should apply, and found that the Act could not survive that test. For good measure, the court also found that, even if exacting scrutiny applied, the statute would fail that test as well.
Bloomberg: This Man’s Protest Is Free Speech. Courts Called It a Felony.
By Noah Feldman
We go through life thinking the First Amendment is followed in the U.S. In practice, that isn’t always true. A case in point is that of Gunther Glaub, who was convicted and sentenced to five years’ probation for a quirky protest in which he sent the bill for his new Chevrolet Camaro to the U.S. Department of Agriculture – and scribbled on it, “Thank you for paying this debt.”
Astonishingly, prosecutors went after Glaub on the theory that sending the government this invoice and a few other bills, including one for his wife’s student loan and another from his credit union, violated the federal law against submitting false claims to the government. I wrote about the prosecution in 2016, urging the federal district court to throw out the case.
It didn’t. A Colorado jury convicted Glaub of five felony charges of submitting false claims to the government after a trial in which the jury wasn’t told by the judge that his actions might be protected free speech. The prosecutors sought a prison sentence, but the judge imposed the lengthy probation, a fine and community service.
Now, more astonishing still, the U.S. Court of Appeals for the 10th Circuit upheld the conviction in an opinion that is a masterpiece of legal double talk.
What remains for Glaub is only a last ditch try to get the U.S. Supreme Court to take note – a legal maneuver that’s the equivalent of a Hail Mary pass, given that the 10th Circuit didn’t so much make new law as ignore the law as it exists.
Congress
New York Times: Aiming at Trump, Democrats Lay Out Agenda for a Post-Shutdown Congress
By Nicholas Fandos
Though it would take a constitutional amendment to limit the amount of money being spent to influence elections, the legislation would ban contributions by corporations substantially owned or controlled by foreigners, and would require nonprofit organizations – like unions and organizations registered under section 501(c)(4) of the tax code that participate in political activity – to disclose the identity of donors who contribute more than $10,000. It would also require large digital companies to make public who is purchasing political ads, provisions included in the Honest Ads Act during the last Congress.
The legislation would also prohibit coordination between campaigns and outside groups and expand the public financing system for House and presidential candidates…
And to clamp down on ethics violations, it would provide funds to beef up Justice Department enforcement of the Foreign Agents Registration Act, tighten federal lobbying rules and strengthen the authority of the Office of Government Ethics…
The legislation unites veteran Democratic lawmakers with many of the party’s newest elected members who captured Republican seats by promising to clean up the influence of big-money donors and lobbyists in Congress and the White House. It quickly won praise from advocacy groups focused on limiting money and influence-peddling in politics.
But Senator Mitch McConnell of Kentucky, the majority leader, called much of it “probably” unconstitutional.
Politico: How to Fix America’s Broken Political System
By Norman Eisen and Fred Wertheimer
H.R. 1 also responds to Putin’s violations of our campaign finance laws. Russian agents spent money on campaign ads in the United States in 2016 in violation of the ban on foreign governments making expenditures to influence our elections. They have run other ads to foment divisions while hiding their role as the sponsors and funders of the ads. H.R.1 contains new disclosure provisions to ensure the American people know the actual sponsors of the ads. This will also help us prevent illegal campaign expenditures by foreign interests in our elections…
Next, there is the shocking role of big money in American elections. One of the authors is a former ambassador who has often experienced the amazement of foreign leaders at the ways that huge, influence-seeking, secret donations flood our elections and government decisions. To win an election, you need the votes, but you also need the money, for the costs of seeking office have increased dramatically over the past 20 years.
The solution to this problem too is found in H.R 1, which creates new, alternative financing systems for congressional and presidential races that allow candidates to run for office without becoming dependent on and obligated to big money funders. The bill addresses this by creating small-dollar, public matching funds systems for congressional and presidential elections in which contributions of up to $200 are matched with public funds at a 6-1 ratio. This empowers ordinary Americans by making their small contributions much more valuable to candidates. At the same time the systems greatly dilute the power and influence of influence-seeking funders by freeing up candidates from dependency on their money.
Free Speech
Wall Street Journal: Baby, There’s a Chilling Effect Outside
By Peggy Noonan
All the organs of entertainment and art in America, from Broadway to Hollywood, through Netflix , the museums and onward, are entities of the cultural left. They are run and populated by the cultural left.
They have the pertinent power. When conservatives write or speak against limits on free speech, what they say is heard by the left as mere reaction, a cover for intolerance, and so dismissed.
The left will listen only to entities of the left who say: Enough. Art needs air, and that air is freedom.
The turnaround might begin-just one idea-when some powerful cultural entity produces a documentary featuring great figures of entertainment and the arts saying how they feel about limits to artistic expression. What their personal experience with political correctness is, how it has limited what they do, what the implications are. It would require significant cultural figures who are not identified with the right to speak their peace.
And here is the great thing. Most of them do hate it. The producers and network chiefs, the comics, writers and directors-so many of them hate the air of inhibition under which they operate. They hate it with a lovely bitterness, and it is lovely because it is earned. They’ve all been stopped from at least one artistic act by the forces of censorship, in the same way that there is hardly an American the past quarter-century who hasn’t been shamed for saying, doing or thinking the wrong thing.
Online Speech Platforms
New York Times: Democrats Faked Online Push to Outlaw Alcohol in Alabama Race
By Scott Shane and Alan Blinder
In fact, the Dry Alabama campaign, not previously reported, was the stealth creation of progressive Democrats who were out to defeat Mr. Moore – the second such secret effort to be unmasked. In a political bank shot made in the last two weeks of the campaign, they thought associating Mr. Moore with calls for a statewide alcohol ban would hurt him with moderate, business-oriented Republicans and assist the Democrat, Doug Jones, who won the special election by a hair-thin margin.
Matt Osborne, a veteran progressive activist who worked on the project, said he hoped that such deceptive tactics would someday be banned from American politics. But in the meantime, he said, he believes that Republicans are using such trickery and that Democrats cannot unilaterally give it up.
“If you don’t do it, you’re fighting with one hand tied behind your back,” said Mr. Osborne, a writer and consultant who lives outside Florence, Ala. “You have a moral imperative to do this – to do whatever it takes.”
The discovery of Dry Alabama, the second so-called false flag operation by Democrats in the fiercely contested Alabama race, underscores how dirty tricks on social media are creeping into American politics. The New York Times reported last month on a separate project that used its own bogus conservative Facebook page and sent a horde of Russian-looking Twitter accounts to follow Mr. Moore’s to make it appear as if he enjoyed Russian support…
Some political veterans warn that without new laws or regulations explicitly outlawing fraudulent social media tactics, both parties may feel pressure to use them simply to stay competitive.
FEC
Center for Public Integrity: Federal Election Commission Chairwoman: Government Shutdown is ‘Incredibly Wasteful and Unproductive’
By Dave Levinthal
“This is not the time for the FEC to be sidelined,” said Ellen Weintraub, a Democratic commissioner since 2002 who this year is serving a one-year term as chairwoman. “We’re just stuck, and there’s nothing in our building that has anything to do with walls.” …
So long as the FEC is inoperative, the agency cannot investigate complaints or probe political committees suspected of wrongdoing. It cannot penalize political scofflaws. The commission will likely cancel two meetings scheduled for next week. And it isn’t attending to more routine functions, either, such as answering questions from officials at any of the thousands of federally registered political committees required to file regular financial disclosures with the FEC.
“There’s no support for people who are just trying to comply with the law,” Weintraub noted.
Electronic campaign finance filings should continue to automatically appear on the FEC’s website for public consumption, but documents submitted to the FEC on paper, or any public documents the agency would create itself, will not…
Of the four remaining commissioners, all have long overstayed their six-year terms, serving in “holdover status” because Trump, as well as President Barack Obama before him, did not replace them…
The president’s lone FEC nominee – Texas attorney Trey Trainor, who aided Trump’s presidential campaign – has gone more than 15 months without even receiving a confirmation hearing from the U.S. Senate Rules Committee, say nothing of a full Senate confirmation vote…
But on Thursday, the newly seated U.S. Senate returned Trainor’s nomination to Trump, according to congressional records. This means Trump must renominate Trainor or move on to another nominee, if he does at all.
The Media
Common Dreams: The Factual Reporting About Beto by David Sirota That Stirred Epic Freakout
By Katie Halper
Last month, when David Sirota tweeted out a simple fact about a segment of Beto O’Rourke’s donors, he was accused of launching a “seriously” dangerous war on behalf of Trump. “Oh look,” tweeted Neera Tanden, the president and CEO of the liberal(ish) think tank Center for American Progress and a close ally of Barack Obama and Hillary Clinton. “A supporter of Bernie Sanders attacking a Democrat. This is seriously dangerous. We know Trump is in the White House and attacking Dems is doing Trump’s bidding. I hope Senator Sanders repudiates these attacks in 2019.”
As is often the case, the smear began with a blatant distortion covered in a mantle of self-righteous moralism. Why is it risky for a journalist-who writes regularly about campaign finance and the interactions between corporations and politics-to point out that the former Democratic Congressman was “the #2 recipient of oil/gas industry campaign cash in the entire Congress.” How is stating a fact “doing Trump’ s bidding”? Why would Sanders need to condemn a journalist for reporting the truth? …
The attacks on Sirota and his alleged co-conspirators sparked the curiosity of another investigative reporter, Alex Kotch of Sludge. Kotch looked into the story and discovered that Beto had signed a “no fossil fuel money pledge,” which states “a politician and their campaign will adopt a policy to not knowingly accept any contributions over $200” from not only PACs, but also from “executives, or front groups of fossil fuel companies-companies whose primary business is the extraction, processing, distribution, or sale of oil, gas, or coal.” O’Rourke had violated the pledge he signed. As a result of the discovery, his name was removed from the pledge website.
The States
MacIver News Service: No One Held Accountable: Schimel’s Probe Into John Doe Quietly Concludes
By Matt Kittle
The state Department of Justice’s expanded investigation into the bureaucrats behind Wisconsin’s unconstitutional “John Doe II” probe has quietly ended more than a year after a bombshell report suggested a controversial state agency had been weaponized “by partisans in furtherance of political goals.”
Whatever evidence DOJ investigators have uncovered is now sealed in a Brown County Court. Outgoing Attorney General Brad Schimel, it appears, will have no further bombshell reports to issue…
Under the John Doe secrecy order, the public doesn’t get to view the case documents.
Neither does Schimel’s successor, Democrat Josh Kaul, a critic of Schimel’s investigation into the John Doe investigation and at least a tacit endorser of the original political probe into dozens of conservative organizations…
But it appears the prosecutors and the government bureaucrats that made life hell for innocent citizens for so long will never be held accountable for their conduct, sources tell MacIver News Service…
In the report, Schimel said it appeared agents at the Government Accountability Board, the state’s former “nonpartisan” political speech regulator, behaved in a most partisan way and mishandled court-sealed John Doe documents…
The GAB was disbanded by the Republican-controlled Legislature in 2015 following revelations about the agency’s leading role in the abusive John Doe – launched in 2012 by Milwaukee County District Attorney John Chisholm, a Democrat…
“What John Chisholm ran was a professional bullying operation, abusing people under color of law because of their political affiliation,” said Eric O’Keefe, a conservative activist who was targeted in the John Doe probe.
North Andover Eagle-Tribune: Judge advances portion of Jajuga’s defamation lawsuit
By Lisa Kashinsky
Methuen Mayor James Jajuga’s defamation lawsuit against Valley Patriot publisher Thomas Duggan will move forward, at least in part.
Newburyport Superior Court Judge Elizabeth Fahey has denied part of Duggan’s motion to dismiss, allowing Jajuga to proceed with five claims of defamation and intentional infliction of emotional distress over comments in a column Duggan published last March, according to court documents…
Jajuga sued Duggan last year over a column published in the March 2018 edition of the Valley Patriot titled “Paying Attention! With Tom Duggan.” In the lawsuit, Jajuga claimed that Duggan “knowingly and recklessly” published a series of “utterly false” and defamatory statements.
The lawsuit has been mired in legal back-and-forth for months, including a counterclaim and motion to dismiss from Duggan, as well as a judgment that allowed Duggan to redact the identities of his sources but compelled him to turn over information from those sources to Jajuga’s legal team.
Jajuga’s initial lawsuit contested that 12 claims from Duggan’s column were defamatory.
Fahey’s decision allows Jajuga to proceed with five of the 12 statements from Duggan’s column, court documents said.
The judge found issue with the five statements, writing they are “disputed issues of fact regarding their truth or falsity” and that “they do not accurately and fairly reflect previously existing news reports discussing Jajuga.”
As for the seven remaining statements, Fahey ruled they “cannot be read as anything but non-actionable statements of opinion.”
