In the News
Soapbox Cincinnati: Civics Essential: How dark money, negative ads & campaign finance impact Ohioans at the ballot box
By Jim DeBrosse
More Dark Money donors may have to be revealed shortly after a recent federal court ruling on a lawsuit involving another Ohio campaign. The suit was filed after the nonprofit organization known as Crossroads GPS spent $6 million in television ads in Ohio to defeat Democratic Senator Sherrod Brown in the 2012 election. When the Federal Elections Committee deadlocked on whether Crossroads should be forced to identify its donors, Citizens for Responsibility and Ethics in Washington (CREW), a campaign-finance-reform group, filed suit against the FEC and Crossroads…
[A] federal judge in Washington ruled in favor of CREW…
Advocates for disclosure hailed the ruling but were cautious in estimating its impact. The court decision “does not solve all the current disclosure problems, but this is a victory for transparency,” Rick Hasen, a professor of law and political science at the University of California-Irvine, wrote…
Advocates for free speech, on the other hand, fear the disclosure ruling will put a damper on political donations and provide voters with fewer ads and less information. The Institute for Free Speech expressed concern on its website that “the decision may not receive the attention it deserves or, more troublingly, be read broadly to chill independent speech… It is unclear whether definitive answers will emerge in the remaining days in the 2018 election cycle.” …
[A]dvocates of free speech argue that government limits on spending for independent political speech, including attack ads, is a violation of the First Amendment. “The right to free speech, including the right to speak out about who should be elected to public office, is a fundamental American right that is essential to democratic debate,” The Institute for Justice argues on its website. “Similarly, the right of individuals to band together and pool their resources to make their advocacy more effective is another fundamental American right.”
Supreme Court
National Constitution Center: Supreme Court takes public access TV case with bigger implications
By Scott Bomboy
On Friday, the Justices said they would accept Manhattan Community Access Corp. v. Halleck for arguments sometime in 2019. On the surface, the dispute is about the decision made by Manhattan Community Access Corporation (aka the Manhattan Neighborhood Network) to stop showing a video shot by two community producers that criticized MNN…
The two producers sued on First Amendment grounds, claiming the public access channel was a public forum for free speech purposes and the channel was a state actor that censored their content, violating their free speech rights.
The case made its way through the legal system until a divided three-judge Second Circuit Appeals panel ruled in favor of the producers. Although MNN was a privately owned non-profit that operated the TV channel, two judges believed its programming represented a public forum protected by the First Amendment.
“We conclude that the public access TV channels in Manhattan are public forums and that [MNN’s] employees were sufficiently alleged to be state actors taking action barred by the First Amendment,” said Senior Judge Jon O. Newman, holding MNN responsible for its action, but not New York City…
The Supreme Court accepted the case to settle two questions. The first question is if privately owned public access channels are state actors subject to “constitutional liability,” meaning that speakers on the channels have free-speech rights. The second question is if public access television stations are state actors for constitutional purposes when the state doesn’t control the private channel’s board or operations (i.e., its content).
The Courts
Politico: Trump’s Attacks on the Press Are Illegal. We’re Suing.
By Suzanne Nossel
Although the president can launch verbal tirades against the press, he cannot use the powers of his office to suppress or punish speech he doesn’t like. When President Trump proposes government retribution against news outlets and reporters, his statements cross the line. Worse still, in several cases it appears that the bureaucracy he controls has acted on his demands, making other threats he issues to use his governmental powers more credible. Using the force of the presidency to punish or suppress legally protected speech strikes at the heart of the First Amendment, contravening the Constitution. Presidents are free to mock, needle, evade and even demean the press, but not to use the power of government to stifle it.
That is why this week PEN America, an organization of writers that defends free expression, together with the nonprofit organization Protect Democracy and the Yale Law School Media Freedom and Information Clinic, is filing suit in federal court seeking an order directing the president not to use the force of his office to exact reprisals against the press.
While the president’s actions are unprecedented, the law here is established. A 2015 judicial opinion by the Seventh Circuit’s (now-retired) Judge Richard Posner makes clear that “a public official who tries to shut down an avenue of expression of ideas and opinions through actual or threatened imposition of government power or sanction is violating the First Amendment.” Similarly, a 2003 Second Circuit opinion found that the First Amendment was violated when an official’s statements “can reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official’s request.’”
Congress
The Hill: Pelosi: Dems would start with campaign finance reform if they take House
By Tal Axelrod
House Minority Leader Nancy Pelosi (D-Calif.) said if her party takes back the House in the 2018 midterms, they would hit the ground running next year with campaign finance reform legislation.
“People believe you that if you want to reduce the goal of money in politics … then they trust you to do the right thing,” Pelosi told Politico in an interview published Tuesday…
Pelosi made the comments while in Philadelphia to campaign with congressional candidates.
Democrats have targeted campaign finance as an issue as they fight to gain majorities in the House and Senate. A number of candidates are more frequently rejecting money from political action committees and instead relying more on small donations from individuals.
Disclosure
Politico: Donors to dark-money groups mostly hidden despite court ruling
By Maggie Severns
A major disclosure deadline passed Monday with few political nonprofits unveiling any donors, even after a court threw out a years-old regulation that let the groups keep their funding sources private – and after the Federal Election Commission told the organizations to reveal anyone who gave money after the ruling for political spending at the end of September.
“The statute itself is pretty clear, you’re supposed to report all contributors who gave for political purposes. What that means in practice is another question,” said Brendan Fischer, director of federal reform at the good-government group Campaign Legal Center. “Many groups are likely anticipating that the FEC isn’t going to second-guess their assertion that they received no reportable contributions.”
The Campaign Legal Center tracked 18 political nonprofits that spent money on the midterms between the court ruling and the end of September and could thus have donations to disclose. It found that 14 of those groups disclosed no information with the FEC on Monday.
Four groups did disclose donors. But of those four, two revealed donations from other nonprofits…
The two other groups that disclosed, Unite Here Arizona and Working People Rising, are also union-affiliated groups that reported donations from unions and from PACs that disclose the source of their funds. None of the groups named individual donors in their disclosures…
Any efforts to keep donors out of sight were aided by the FEC’s interpretation of the court ruling, which said the groups only needed to report donations received after Aug. 4 that went toward independent expenditures on or after Sept. 18. That meant they did not need to disclose all donations for the 2018 election cycle.
Online Speech Platforms
Reason: Facebook Slams Independent Voices With Latest Political Purge
By J.D. Tuccille
Facebook accused the hundreds of pages it purged of distributing “spam,” though the social media company used a curious definition of the word. Instead of flooding unwilling recipients with unsolicited ads, the company said, the targeted organizations posted “clickbait posts on these Pages to drive people to websites that are entirely separate from Facebook and seem legitimate, but are actually ad farms.”
To the millions of supporters these pages draw, these organizations and the sites they publish almost certainly did “seem legitimate”-and still do…
[I]f earlier concerns were about left-wing bias, the latest purge seems to represent more of a bias in favor of establishment voices. The latest purged pages don’t share an ideology, but they are generally non-mainstream voices critical of government policies and institutions, and of traditional media.
Facebook isn’t answering my questions about the company’s motivations or decision-making. But it looks like the social media giant, under fire for enabling a few Russian government trolls and a lot of free-wheeling (if not always temperate) debate in a politically volatile time, has thrown in with the powers-that-be. The establishment may be battered, but it’s not out, and muzzling anti-establishment voices could well look like a safe bet…
Many of the purged pages have their own websites, and they’re scrambling to find other platforms for disseminating their messages…
But a social media diaspora will only work if the audience follows. Now that Facebook has turned overtly hostile to independent groups “created to stir up political debate,” it’s time to move beyond the old social media giants and explore a broader, more decentralized world in which it will be harder to suppress voices that criticize the establishment.
FEC
Dallas News: Libertarian Senate candidate files FEC complaint against O’Rourke and CNN for $10M over town hall
By Matthew Adams
Libertarian Neal Dikeman filed an FEC complaint against Beto O’Rourke and CNN for $10 million, saying the network’s town hall on Thursday violates campaign contribution laws.
The complaint filed Monday with the Federal Election Commission argues because Sen. Ted Cruz is not taking part, and O’Rourke is the sole participant, CNN cannot claim the event as a debate. Also, he said the hourlong format with O’Rourke is not typical news coverage given to other candidates. Dikeman said the single candidate town hall is an in-kind donation, which is a prohibited campaign contribution…
Dikeman wrote CNN a letter on Oct. 11 requesting to participate in the event but has not heard back from the network.
The $10 million included in the complaint is what Dikeman estimated the one-hour slot on CNN would cost. If the FEC found this to be an in-kind donation to the O’Rourke campaign, he hopes the congressman would pay CNN back.
A CNN representative responded to an email saying the network is aware of the complaint and will respond soon…
Erin Chlopak, senior legal counsel of campaign finance for the Campaign Legal Center, said the lack of members on the FEC makes it hard to see how this complaint can go through. The FEC is normally made up of six commissioners, with no more than three from either political party. However, the commission only has four members, with two seats open.
“You would need a unanimous vote right now,” Chlopak said. “This doesn’t strike me as something that would make it past the first stage.”
Independent Groups
The Hill: Super PACs driving the midterms unsurprisingly
By Jason Harrow
With a little over a month to go before the midterm elections, Super PACs just set a dubious record: with total independent expenditures at $549 million and counting, 2018 has passed 2014 as the midterm election with the most Super PAC spending in history…
Many judges and legal commentators have expressed their displeasure with the post-Citizens United world, but judges who care about the original meaning of the Constitution-like those in the majority in Citizens United-may want to take a second look at their rulings that opened these floodgates. That’s because what Hamilton, Madison, and the founding gang likely would not have thought unlimited donations to Super PACs was a good idea. Encouragingly, those originalist judges will soon have a chance if a case now moving along in Alaska reaches the Supreme Court…
Lower courts have issued decisions permitting donors to give unlimited amounts of money to nominally independent groups because judges interpret Citizens United as saying that campaign finance regulations may prevent only individual corruption-that is, bribery-and therefore no limits may be placed on technically independent groups like Super PACs, because there is no risk of direct bribery without donations made directly to political campaigns.
In the Alaska anti-corruption case, Pulitzer Prize-winning historian Jack Rakove testified in detail last week that ignoring the interest in preventing institutional corruption is ahistorical. With that critical evidence now in the record in Alaska, a court finally has the tools it needs to revisit this string of erroneous decisions and permit the government to combat institutional corruption by limiting the amount of money that Super PACs may receive.
Trump Administration
New York Times: Trump Rule Would Compel Drug Makers to Disclose Prices in TV Commercials
By Robert Pear
Over vehement objections by drug companies, the Trump administration proposed on Monday a new federal regulation that would require them to disclose the list prices of prescription drugs in their television advertisements.
The proposal sets the stage for a battle with the pharmaceutical industry, which said the requirement would be a form of “compelled speech” in violation of the First Amendment…
James C. Stansel, the general counsel for PhRMA, said that any effort by the government to force drug makers to disclose prices in their ads would be subject to legal challenge. “If the government is compelling companies to speak, that violates the First Amendment,” Mr. Stansel said.
Candidates and Campaigns
Washington Post: Trump tops $100 million in fundraising for his own reelection
By Michelle Ye Hee Lee and Anu Narayanswamy
President Trump has topped $100 million in fundraising for his 2020 reelection bid – an enormous haul for a president barely two years into his first term, according to new Federal Election Commission filings.
Trump pulled in $18.1 million last quarter through his campaign committee and two joint fundraising committees with the Republican National Committee, for a total of at least $106 million since January 2017…
No other president dating back to at least Ronald Reagan had raised any money at this point for his own campaign committee, according to the Campaign Finance Institute, a nonpartisan research group. Unlike his predecessors, Trump began fundraising for his reelection shortly after his 2016 win.
Trump continues to be buoyed by an avid small-donor base. FEC filings show 56 percent of the total raised by his committees from July through September came from donations of $200 or less.
Despite his haul, Trump was not the biggest fundraiser last quarter. Rep. Beto O’Rourke, the Democratic challenger to GOP incumbent Sen. Ted Cruz in Texas, reportedly raised more than twice as much, pulling in $38.1 million – a quarterly fundraising record for a Senate campaign.
New York Times: Democrats Surge Ahead of Republicans in Fund-Raising for Key Races
By Kenneth P. Vogel and Rachel Shorey
“You don’t buy your way into office, but this kind of money makes victory possible in scenarios where it otherwise might not have been,” said Bob Biersack, a campaign finance expert who previously worked at the election commission. He predicted that the period covered in the reports filed Monday – from the beginning of July to the end of September – “is probably going to be the largest quarter in the history of midterms,” fueled, he said, by small-dollar donations to Democrats…
Republican super PACs like the Congressional Leadership Fund are using the cash to try to offset the Democratic advantages in campaign fund-raising by spending money on voter mobilization and other tasks traditionally handled by campaigns, instead of the television ads on which such groups traditionally spent the majority of their cash.
“That’s an experiment in process, and the jury is still out on whether that can be successful,” said Michael Toner, a former chairman of the Federal Election Commission who represents Republican campaigns, including the 2016 presidential bid of the former Florida Gov. Jeb Bush. “For outside money to be of equal value to campaign money, they’ve got to be effective at turning people out, because people aren’t watching TV anymore.”
Washington Post: The midterm elections are drowning in money. How worried should that make us?
By Paul Waldman
With three weeks to go before the midterm elections, the American political system is drowning in cash.
Is that a bad thing? Right now the answer is no, but that’s precisely because this situation is so unusual…
O’Rourke’s entire candidacy has gone viral, but he has done it a way that isn’t unfamiliar. A young, good-looking, charismatic, idealistic candidate facing an incumbent who is almost none of those things (well, Ted Cruz is young anyway) is able to capture the imagination of voters not just in the state he’s running in but all over the country…
But since O’Rourke is trailing in the polls by an average of around 7 points, some within the Democratic Party have suggested that he should take part of his massive fundraising haul and give it to other candidates in competitive races, or simply hand it over to the Democratic Senatorial Campaign Committee so it can distribute the money as it sees fit. O’Rourke’s fundraising success is due in part to the fact that all politics are now nationalized, so some would like him to return his funds to other places…
This election has proved beyond a doubt that there isn’t a finite pool of small-donor money available. There are some donors who give in every election, but there are millions of people who will donate only when they feel sufficiently excited – sometimes because they’re inspired and sometimes because they’re mad. Better candidates and an urgent national political situation attract more money…
The paradoxical result of all this money is that who has more money likely won’t make too much of a difference. There’s only so much you can spend, especially on advertising, and once you reach a point of saturation the marginal value of yet another TV ad gets smaller and smaller.
The States
Harvard Law Review Blog: Democracy Reform, One Ballot at a Time
By Joshua A. Douglas
Campaign finance reform is also on the ballot in a few places, including Missouri, South Dakota, Portland, Oregon, and Denver, Colorado. The reforms in Missouri and South Dakota would lower campaign contribution limits and impose other ethics rules. The Portland measure would also impose contribution and spending limits for city elections. The Denver proposal would allow candidates to use public money to fund their campaigns, which can open the door for more people to run for office…
To be sure, this proposed framework still presents difficult interpretative questions and more space would be needed to flesh out all of the benefits, disadvantages, and permutations of this approach. For instance, does a limit on the amount of a campaign contribution expand or restrict electoral participation? Although there are strong arguments on both sides, the whole point of a contribution limitation is to ensure that politicians are not beholden just to their wealthy donors; a contribution limit requires a candidate to seek smaller donations from more people. In this way, a contribution limit, while cutting off the electoral participation of a few at a certain level, will likely encourage participation from a greater number of people…
Courts, when faced with a challenge to a law that expands democratic participation, should defer to the voters who enact these positive changes.
