In the News
Detroit Free Press: Lame-duck bill would restrict state policing of fraudulent charities
By Paul Egan
Under current law, the books of [501c3] charities, including the identities of charity members and donors, are open to inspection by the Attorney General’s Office…
Under Senate Bill 1176, introduced by incoming Senate Majority Leader Mike Shirkey, R-Clarklake, such information could only be disclosed pursuant to a court-ordered warrant, or a civil subpoena after the requesting party has demonstrated a “compelling need” for the information and agreed to a protecting order barring disclosure of the information to a third party.
“That is exactly the intent,” Shirkey told the Free Press Wednesday after the Senate Committee on Michigan Competitiveness, which he chairs, voted 4-1 to send the bill on to the full Senate, during the Legislature’s lame-duck session.
Officials from the Attorney General’s Office would be able to look at a charity’s books if they have enough information to get a court order, so legitimate investigations would not be hampered, Shirkey said. But under his bill, “they can’t just do it because they want to.” …
The bill affecting charities and nonprofits would bar [Attorney General-elect Dana] Nessel, as well as Secretary of State-elect Jocelyn Benson, from requiring 501c4 nonprofits to disclose to their agencies – let alone to the public – the identities of financial donors, members, supporters or volunteers…
Proponents of the legislation say it will protect supporters of unpopular causes from potential intimidation and harassment…
Zac Morgan, staff attorney for the Virginia-based Institute for Free Speech, told the committee the bill is “a victory for First Amendment freedoms.” It will protect backers of unpopular positions from harassment and intimidation, prevent government enforcement actions against charities based on who their donors are, and avoid situations in which donor identities become public as a result of hacking of a government website, Morgan said.
New from the Institute for Free Speech
Volunteers Are Lobbyists, Rules Eighth Circuit
Today, an Eighth Circuit Court of Appeals panel ruled, 2-1, that unpaid citizen activists can be forced to comply with the same registration, reporting, and disclosure requirements as professional lobbyists…
Ron Calzone is a citizen activist from Dixon, Missouri, who has for years traveled to the State Capitol to share his ideas on public policy with legislators. No one gives him any money to share his ideas, and other than his opinions and information, he does not give legislators anything of value. Nonetheless, Missouri’s law requires Calzone to register as a lobbyist and to file fourteen reports with the state each year, twelve of which must be filed under penalty of perjury.
In Calzone v. Summers, the majority concluded that the First Amendment does not shield citizen activists from these requirements or the penalties for noncompliance. This represents the first time that any federal appellate court has held that a general governmental interest “in knowing who is pressuring and attempting to influence legislators” – even where no one is giving or receiving anything of value – can justify burdening citizens’ political speech…
In his fight, Calzone is represented by lawyers from the Institute for Free Speech and the Freedom Center of Missouri…
Dissenting from the majority opinion, Judge David Stras wrote that the challenged law regulates political speech at the core of the First Amendment, and appears to apply to all sorts of citizens who might attempt to influence lawmakers, such as by attending “Lobby Days” at the Missouri Capitol. In the context of unpaid citizen activists such as Calzone, Stras wrote that neither the government nor the majority explained “why compiling a list of people who are engaging in core political speech is ‘important'” to the state.
To read the Eighth Circuit’s opinion, click here. To read more about the case, click here.
Supreme Court
By Amy Howe
The question before the justices today, however, was not whether the forfeiture of the Land Rover was constitutional, but instead whether the Eighth Amendment’s prohibition of excessive fines applies to the states at all. State and local governments are watching the case closely, because fines and forfeitures have become a key source of revenue – bringing in hundreds of millions of dollars each year. By the time oral argument ended this morning, the justices seemed ready to say that the excessive fines clause does apply to the states, even if they don’t say much more than that…
Although the only question before the justices in Timbs’ case was whether the Eighth Amendment’s excessive fines clause applies to the states, the justices spent very little time on that question, because there appeared to be broad agreement on the court that it does. Justice Neil Gorsuch seemed to summarize the feeling on the bench in a question for Thomas Fisher, the Indiana solicitor general who argued on behalf of the state. Gorsuch asked, almost rhetorically: The excessive fines clause “applies to the states, right?” Gorsuch observed that most of the Supreme Court’s cases interpreting the Bill of Rights to apply to the states “took place in like the 1940s.” Somewhat incredulously, Gorsuch continued, “here we are in 2018 still litigating incorporation of the Bill of Rights. Really? Come on.”…
At one point during Fisher’s time at the lectern, Kagan noted that, when the Supreme Court decides that a provision of the Bill of Rights applies to the states, “there are always going to be questions about the scope of the right” that applies. But when the justices “have decided whether to flip the switch” and decide whether a right applies, it hasn’t decided those questions, instead leaving them “for another day,” she explained.
Given the near consensus on the Supreme Court that the excessive fines clause applies to the states, the justices are likely to say so, but without much more.
Washington Post: Free speech violation or a simple arrest? Supreme Court faces a familiar problem.
By Robert Barnes
Alaska Assistant Attorney General Dario Borghesan was representing a state trooper being sued for a 2014 arrest made at a festival called Arctic Man. (Chief Justice John G. Roberts Jr. described the scene as “10,000 mostly drunk people in the middle of nowhere and you’ve got eight police officers.”)
Borghesan said the rule about dismissing a suit when there were reasonable grounds for the arrest is the only workable rule.
He was supported by the Department of Justice. Claims of retaliatory arrest are “easy to allege and difficult and expensive to defend against,” said Deputy Solicitor General Jeffrey B. Wall.
But the justices weren’t so sure.
Justice Elena Kagan imagined the police officer who “decides to arrest for jaywalking somebody wearing a Black Lives Matter T-shirt or, alternatively, a Make America Great Again cap.” There are lots of laws police do not actively enforce, she said.
“It makes no difference to the First Amendment that there might have been probable cause for an arrest if, in fact, the arrest occurred as a result of retaliation for protected speech,” she said.
But as in the past, the justices bogged down in trying do decide exactly how a judge should know which cases should be nipped in the bud and which should proceed to a trial…
The Supreme Court ruled 8 to 1 [in Lozman v. City of Riviera Beach] that a plaintiff can bring a retaliatory arrest claim if he can prove the arrest was the result of an official municipal policy of intimidation.
The court ruled in 2006 that a person pursing a retaliatory prosecution case has to prove the absence of probable cause. But the question of retaliatory arrest has proved harder to decide.
The Courts
Associated Press: Appeals court ruling mixed on Alaska campaign finance laws (updated)
By Becky Bohrer
A divided federal appeals court panel ruled Tuesday that Alaska’s cap on total contributions that candidates can receive from nonresidents is unconstitutional.
However, the three-judge panel of the 9th U.S. Circuit Court of Appeals unanimously upheld other campaign contribution limits that it said were tailored to prevent corruption or the appearance of corruption…
The majority found the aggregate limit on what candidates can get from nonresidents violates the First Amendment. The panel reversed the lower court on that issue.
Citing U.S. Supreme Court rulings, including the Citizens United case, the opinion says states cannot simply go after “undue influence” in politics but must show that any contribution limits fight potential corruption…
State law bars candidates from soliciting or accepting contributions from individuals who are not residents unless those contributions fall within certain limits. Candidates for state representative, for example, cannot accept more than $3,000 total in a calendar year from nonresidents.
A plaintiff in the case, David Thompson, is a brother-in-law of former state Rep. Wes Keller. The ruling said Thompson sent Keller $100 for his campaign in 2015 but had his check returned because Keller’s campaign reached its $3,000 limit. Thompson is from Wisconsin.
“Alaska fails to show why an out-of-state individual’s early contribution is not corrupting, whereas a later individual’s contribution – i.e., a contribution made after the candidate has already amassed $3,000 in out-of-state funds – is corrupting,” the opinion states.
Election Law Blog: Ninth Circuit, on 2-1 Vote, Rejects Limits on Non-Resident Contributions to Alaska Elections, Upholds Other Alaska Campaign Finance Limits
By Rick Hasen
You can find the opinion in Thompson v. Hebdon at this link.
The court majority (Callahan, Bea) held that the part of the Alaska law limiting out-of-state residents from contributing more than $3,000 per year to Alaska elections violated the First Amendment. I expected such a holding under Supreme Court precedent, though the Court has never addressed the issue. Chief Judge Thomas dissented on this question, analogizing the ban to the foreign spending ban upheld in Bluman v. FEC. I wonder if the Chief will seek to take this case en banc to the Supreme Court.
Speaking of en banc, there is another notable aspect of this case. The court unanimously upholds Alaska’s $500 individual contribution limit and two other contribution limits relying upon existing Ninth Circuit authority. There was a huge fight at the Ninth Circuit a few months ago over whether that Ninth Circuit authority should be overturned (so as to make it easier to strike down campaign finance laws) in light of recent Supreme Court developments. The Ninth Circuit refused to take the case en banc, and both Judge Callahan and Judge Bea dissented from the denial of en banc rehearing.
We are currently waiting to see if the Supreme Court takes that earlier Ninth Circuit case.
FEC
Detroit News: Group tried to punish Kid Rock for faux campaign
By Stephen Klein
Kid Rock launched a website and sold merchandise including t-shirts, yard signs and bumper stickers emblazoned with “Kid Rock for U.S. Senate.” …
However, from the outset of the gimmick, Rock’s website made it clear that he was only exploring a “possible campaign” and, more importantly, that all of the money raised from selling this merchandise would go strictly to voter registration efforts. Common Cause, one of many campaign finance groups in D.C., was well aware of this, but filed a complaint against Rock with the Federal Election Commission (FEC) and another with the Department of Justice.
Campaign finance law is primarily about transparency, but is rightfully limited to tracking actual campaign funds. Kid told everyone where the money was going, and spending on voter registration in this fashion is not campaign funding, because registration is open to everyone, whether they support Republicans, Democrats, or any candidate of any persuasion. If Common Cause had bothered to do a little effort beyond searching the internet, it would have noticed voter registration efforts occurring at Rock’s concerts in Indiana, Michigan, and Tennessee.
Another problem with the complaint is that it didn’t even pass the free speech smell test. Groups like Common Cause claim to fight corruption, but there is nothing pure about filing a complaint with the Feds based on selective quotes that, even if true, were nothing more than someone simply saying he was running for office. Common Cause’s complaint reveals the downside that political opponents can use these kinds of law to punish citizens. This is hardly an isolated incident: most campaign finance complaints are politically motivated.
Thousands of pages of laws, regulations, and agency opinions are no way to increase political participation or get money out: at best, the money just goes to the lawyers and accountants.
Online Speech Platforms
The Hill: Conservative commentator back on Twitter after controversial suspension
By Megan Keller
Conservative commentator Jesse Kelly is back on Twitter after his account’s suspension for unclear reasons triggered outrage among conservatives…
When asked about the decision to suspend and then restore Kelly’s account a Twitter spokesperson told the Hill, “The account was temporarily suspended for violating the Twitter Rules and has been reinstated.”
“We have communicated directly with the account owner,” the spokesperson added.
Kelly did not immediately respond to The Hill’s requests for comment.
Previously, Kelly said that Twitter told him his account was permanently suspended for “multiple or repeat violations of the Twitter rules.”
Twitter’s “range of enforcement options” states that users should be told if their accounts have been permanently suspended.
“When we permanently suspend an account, we notify people that they have been suspended for abuse violations, and explain which policy or policies they have violated and which content was in violation,” according to Twitter.
Kelly’s suspension elicited a wave of backlash from conservatives, including lawmakers such as Sen. Ben Sasse (R-Neb.) and Sen.-elect Josh Hawley (R-Mo.). The suspension comes amid an ongoing debate over whether social media platforms are biased against conservatives.
The States
Casper Star-Tribune: Wyoming Promise falls short of signature goal
Advocacy group Wyoming Promise didn’t collect enough signatures to put a campaign finance reform initiative on the 2020 ballot, but some believe the effort could still be successful during this year’s legislative session.
Wyoming Promise, an extension of American Promise, wants to make Wyoming the 20th state asking Congress to ban corporations and unions from political spending.
This would require a constitutional amendment overturning Citizens United v. FEC…
If lawmakers passed a resolution in support of “free and fair elections,” there would be no need to bring the measure before voters, said Ken Chestek, Wyoming Promise chairman.
Advocates tried to pass a similar resolution during the 2016 Legislature, but decided to take the initiative straight to voters after it failed.
Eugene Register-Guard: Gov. Brown’s budget focuses on education, campaign finance reform
By Associated Press
Gov. Kate Brown has unveiled her budget and policy proposals for the next biennium, saying she wants to boost education funding, push campaign finance reform…
Jackson Hole News&Guide: Despite smaller budgets, Dems sweep elections
By Cody Cottier
Republican candidates consistently raised and spent more money than their Democratic rivals, yet none of them won.
James King, a political science professor at the University of Wyoming, said that shows money isn’t everything in elections.
“It’s not going to make a Republican the winner in a Democratic constituency,” he said. “The general leaning of the constituency is much more important than what the candidate spends.”
