In the News
Wall Street Journal: Political Spending Double-Cross
EditorialAccording to an analysis by the Center for Competitive Politics, in 2014 35.8% of companies whose disclosure scores were in the top quarter of the 2013 Wharton-Zicklin index received proxies, compared to 22.6% of companies whose disclosure scores were ranked in the lowest quarter. The same pattern held in the previous year.Companies in Wharton-Zicklin’s highest category for disclosure practices also got hit with additional demands, including more proposals focused on lobbying and trade association disclosures.According to the CCP analysis, 16.9% of the companies in 2013’s top echelon also got above-and-beyond the normal political disclosure demands, such as proposals to end all political spending, compared to 1.8% of companies that disclosed less.
The Objective Standard: Colorado Judge: Today’s “Tom Paine’s Pamphlet” Is Protected Speech
By Ari ArmstrongA consequence of the laws is that many people who might otherwise speak out about political matters choose not to do so. I personally have declined to pursue ideas for producing and distributing political flyers because of the onerous burdens of the campaign laws. And those who do choose to proceed with their political speech face the burdens listed above and are legally forbidden to speak anonymously.Kane ruled that “CSG falls outside the scope of ballot issue-committees to which Colorado’s campaign finance disclosure laws may constitutionally apply.” Further, Kane awarded attorney fees to CSG, warning “state lawmakers that the Secretary will be on the hook for fees every time a group, like CSG, . . . has to sue to vindicate its First Amendment rights.”Although Kane’s ruling is a great victory for CSG and for free-speech rights in Colorado, it is unfortunately very limited in its scope. Consistent with previous court rulings, Kane allows that the government’s “informational interest” in requiring campaign reports permits government to restrict freedom of speech in other cases, particularly when groups speak out about a candidate rather than a ballot measure.
The Hill: Dark money threatens democracy
By Robert MaguireThe Center for Competitive Politics’ Luke Wachob recently wrote in The Hill’s Congress blog arguing that the increasing amount of money spent in U.S. elections by organizations that do not disclose their donors is being exaggerated. Wachob argues that, despite all the hoopla, this “dark money” spending only makes up a small percentage of hundreds of millions of dollars sloshing around in elections. The truth, however, is quite different.
CCP
Judge rules Colorado disclosure law unconstitutional
Judge Kane also castigated state lawmakers for failing to bring Colorado’s laws into conformance with the First Amendment. He awarded legal fees to CSG’s counsel and warned “state lawmakers that the Secretary [of State] will be on the hook for fees every time a group, like CSG, falls under the $200 trigger for issue committee status and has to sue to vindicate its First Amendment rights.”CSG was represented by the Center for Competitive Politics (CCP) legal team, led by Legal Director Allen Dickerson. “We are pleased by this timely decision allowing our client to speak freely as provided by the First Amendment,” said Dickerson. “Judge Kane’s ringing opinion strikes a powerful blow for a common sense approach to political disclosure laws.”Diana Hsieh (pronounced “Shay”) organized the non-profit CSG and found it nearly impossible to carry out the activities of a small non-profit group without fear of running afoul of Colorado’s complex campaign finance laws. Hsieh said “I’m thrilled our group can focus on educating Coloradans without being hampered by the Colorado campaign finance system. Our experiences with Colorado’s system have been confusing and dispiriting, but this ruling clears the way for more speech. We shouldn’t have to register and file these meaningless reports with the State to speak on moral and political topics of public concern.”
From the opinion:The Secretary’s point is perplexing: Is he suggesting that the effectiveness of political speech — the fact it resonates, generates interest, and is downloaded from the internet by individuals wanting to read it – somehow elevates or enervates the public’s informational interest in its disclosure? The more vibrant the public discourse the more justified the burdening of the speech is? Surely not. It must be remembered by those older than Ms. Hsieh that the internet is the new soapbox; it is the new town square. CSG’s “personhood” paper is Tom Paine’s pamphlet. It is the quintessence of political speech.
Read opinion here…
Dark, Scary Money (Video)
So what happens is if the chamber of commerce buys an ad and the chamber of commerce doesn’t reveal everyone that donors and members they call that “dark scary money.” Now in fact I don’t think that’s a real problem to know who’s funding the chamber of commerce or what their issue is and even if we take that rather expansive definition we should recognize that it was about four percent of the money spent four and a half percent in 2012 and about 3.7 percent in this cycle through early September. I don’t know where the number 25 percent comes up from.
Disclosure, Privacy, and Future Targeting (Video)
What we know is the Supreme Court has consistently upheld the privacy interest of people. Of course you vote secretly and there’s all kinds of things in life that you get to do secretly, your taxes are not made public and the court has recognized that hard fought, hard won cases by civil libertarians over the years that invasions of privacy can be very dangerous.
Independent Groups
ELB: “Ads Paid for by Secret Money Flood the Midterm Elections”
By Justin LevittSome of the discrepancy is due to the denominator: the Times piece is counting 55% of broadcast ads by outside groups, and the CCP piece counted candidate and party spending as well as other outside spending. But on the same denominator, I think that still leaves CCP with “dark money” tallied at $75 million of the $357 million (21%) of spending by those who aren’t parties or candidates. Has there been that much general election spending by outside groups this cycle beyond broadcast ads? And if not, any ideas about what accounts for the difference?
Wisconsin
Wall Street Journal: Criminalizing Political Speech in Wisconsin
By David B. Rivkin JR. And Andrew GrossmanThe criminalization of politics is bad enough—just ask Texas Gov. Rick Perry —but a new turn to target citizens as well threatens to permanently warp our political discourse. Like it or not, federal courts will have to intervene to uphold Americans’ First Amendment rights against win-at-any-cost politics.Wisconsin is ground zero of this phenomenon. A partisan elected district attorney, John Chisholm, reportedly goaded on by his union-steward wife, Colleen, decided to take aim at Republican Gov. Scott Walker after his 2011 “Budget Repair Bill” cut back on public-sector collective bargaining within the state. But Mr. Chisholm didn’t stop there: After an aggressive criminal investigation failed to knock Mr. Walker out of office, the district attorney set his sights on the governor’s philosophical allies, an assortment of conservative citizen groups that supported Walker’s reforms.The claim was that these groups illegally “coordinated” their speech on the issues with Gov. Walker’s campaign, thereby circumventing campaign-finance regulations. The evidence? Intercepted emails and phone records showing that some of the groups communicated with Gov. Walker’s campaign, mostly on policy issues. That wasn’t enough to bring charges, but it did allow Mr. Chisholm to launch an aggressive criminal investigation targeting Gov. Walker’s supporters, complete with home raids and everything-but-the-kitchen sink subpoenas.
Candidates, Politicians, Campaigns, and Parties
The Hill: In the Senate, campaign finance is the new flag burning
By Gayle TrotterThe First Amendment’s free speech and press clauses safeguard political expression in particular above all other forms of expression.This was the key to the 1989 flag-burning decision. The case began 30 years ago, outside the 1984 Republican National Convention. A member of the Revolutionary Communist Youth Brigade publicly burned an American flag, for which he faced a year in prison and a $2,000 fine. The Supreme Court overturned the conviction on First Amendment grounds and invalidated the laws of the 48 states that had banned flag burning.“It is poignant,” the Court observed, “that the flag protects those who hold it in contempt.” But the First Amendment protects nothing if not political expression, and flag burning is nothing if not political expression.
FEC
More Soft Money Hard Law: A Functioning Agency and the Sources of Dysfunction
By Bob BauerThe Federal Election Commission approved rulemakings to conform its regulations to the Supreme Court’s decisions in Citizens United and McCutcheon. This was not accomplished in a hurry, more than four years having passed sinceCU was decided. That it happened at all was generally received well, but with dissents, which are worth noting as the sources of agency functioning or dysfunction are analyzed.Reform organizations, joined by Commissioners Weintraub and Walther, are dissatisfied with a mere updating of the regulations to reflect changes in constitutional law. They had wanted the rulemaking to address also what they take—not unreasonably—to be weaknesses in the Commission’s disclosure requirements. For this reason, they oppose any revision in the rules to satisfy newly decided constitutional requirements. They evidently feel that the Republican Commissioners got what they wanted—a house-cleaning of the rulebook—and that other Commissioners (two Democrats and an Independent) should have held out for a more substantive revision of the rules. Commissioner Ann Ravel came to a different conclusion that now, in these circumstances, the house-cleaning rulemaking was a sensible compromise—a first step that could be followed by others—and she crossed over to vote with the Republican Commissioners.
