In the News

Republican National Lawyers Association: Supreme Court Grants Cert re Minnesota’s Ban on Political Apparel at the Polls

By Lisa Dixon

[T]he Supreme Court granted a writ of certiorari in Minnesota Voters Alliance v. Mansky to decide whether “Minnesota statute Section 211B.11, which broadly bans all political apparel at the polling place, is facially overbroad under the First Amendment” …

[V]oters do not abandon their rights of free speech at the polling place door, and broad bans on anything “political” clearly infringe on a voter’s free speech rights. Even more disturbingly, a vague prohibition such as Minnesota’s allows a low-ranking government official, often a poll worker hired just for the day, to determine the limits of a voter’s right of free speech by defining “political” (which, in our current culture, has been expanded to embrace almost everything) according to the government official’s opinions. This is the type of tyranny, petty though it may seem, that the First Amendment was designed to combat.

Of note, prominent free speech advocates and election integrity supporters have already filed amici briefs in support of Minnesota Voters Alliance’s challenge to the law: Cato Institute, Rutherford Institute, Reason Foundation, and Individual Rights Foundation; Center for Competitive Politics (now called Institute for Free Speech); and American Civil Rights Union and Association for Government Accountability.

Supreme Court

CNN: Supreme Court to consider political apparel at the polling place

By Ariane de Vogue

The Supreme Court on Monday agreed to take up a case concerning a Minnesota law that bans voters from wearing political badges, buttons or other political insignia at the polling place.

The case is brought by Andy Cilek, a Minnesota voter and executive director of the Minnesota Voters Alliance, who was temporarily blocked from voting because he was wearing a T-shirt that stated “Don’t Tread on Me” at a polling place.

Lawyers for Cilek say that nine other states have nearly identical political apparel bans.

“Although this Court has permitted campaign-free zones that prohibit campaign materials and active solicitation, it has never endorsed a ban on all political speech,” lawyers for the conservative Pacific Legal Foundation who are representing Cilek, argued in court papers.

Washington Post: Supreme Court agrees to hear three new First Amendment cases

By Eugene Volokh

Minnesota Voters Alliance v. Mansky, which will decide the extent to which states may limit clothing with ideological messages in polling places. The court has upheld limits on electioneering not just in polling places but even on public streets near polling places; but the issue is whether this principle also extends to all ideological messages that may be related to issues in the campaign, such as “Material promoting a group with recognizable political views” (in this case, the tea party). 

Huffington Post: You Can Be Fined For Wearing A Political T-Shirt To The Polls. SCOTUS Could Change That.

By Sam Levine

“Burson plainly does not endorse a categorical ban on all types of ‘political’ speech,” the plaintiffs wrote in their petition for review to the Supreme Court. “The decision below departs from this Court’s precedent on First Amendment overbreadth and effectively chills the free speech rights of millions of voters across the country by threatening criminal prosecution or civil penalties for voters who wear logoed t-shirts, caps, jackets, buttons, and other apparel in state-declared speech-free zones.”

Wen Fa, an attorney representing the plaintiffs, said Minnesota’s restrictions are too broad.

“The state’s restrictions on voter apparel apply to any clothing that reflects personal values, even clothing with a message that is unrelated to anyone’s campaign,” he said in a statement. “Such a limitless ban on personal expression is unconstitutional.”

Rick Hasen, a law professor and election law expert at the University of California, Irvine, said the court’s decision in the case could lend clarity to other areas of election law.

“This is the kind of knotty First Amendment question that the Court has shown an interest in taking in recent years,” Hasen wrote Monday in a blog post. “The result of the case could be relevant not only to speech at polling places, but also to the line between election advocacy and issue advocacy which affects the scope of campaign finance laws.”  

Internet Speech Regulation

TechCrunch: Senate Democrats press FEC to expand disclosure requirements to online political advertising

By Jonathan Shieber

A group of 15 top Democratic senators are pushing the Federal Election Commission to expand disclosure requirements on political ads to include commercials distributed online.

After months of investigations on Capitol Hill, politicians on both sides of the aisle are focusing their questioning on the role that online advertising distributed by Facebook, Twitter and Google played in Russia’s attempts to influence the 2016 presidential election.

In a letter today sent to the FEC on the last day of a month-long public comment period regarding the issue, Senate Democrats argued that FEC exemptions of online political advertising from including disclaimers about the organizations responsible for the ads played a role in the Russian disinformation efforts…

They called on the FEC to take immediate action to ensure that future online advertising would require disclaimers on the organizations or individuals that purchased the commercials.

“The lack of transparency of digital ads is a threat to our national security,” the senators wrote. “Without change, the misuse of online advertisements during the 2016 election will serve as a template for other foreign powers who wish to influence our elections. Failure to act threatens the very foundation of our democracy.”

The Hill: Facebook wants ‘flexibility’ in political advertising regs

By Ali Breland

The company explained in comments it sent to the Federal Election Commission (FEC) that new regulations should give “advertisers flexibility to meet their disclaimer obligations in innovative ways that take full advantage of the technological advance.”

The firm explained that by “technological advances,” it means instead of firm rules requiring specific text to show up on political ads on its platform, Facebook would instead like to see provision that allow the company the freedom in how it shows users who is buying ads.

“For example, allowing ads to include an icon or other obvious indicator that more information about an ad is available via quick navigation (like a single click) would give clear guidance on how to include disclaimers in new technologies as they are developed,” Facebook offered as a potential solution.

The social media giant’s proposal, if taken up by the FEC, would allow Facebook to meet transparency requirements but still control the design and appearance of how ads are displayed on its website.

Facebook also touted its self-regulation work to the agency, detailing the transparency features it is building that let users know who is funding ads as the company attempts to preempt federal regulation of political ads on digital platforms like its own.

The Media

Daily Signal: Biden ‘Sunday Night Football’ Interview Shows Campaign Finance ‘Reform’ Would Benefit Media, Not All People

By John York

Proponents of campaign finance reform claim that by severely capping-or completely eliminating-the contributions of private citizens, corporations, and interest groups, electoral competitions will be won and lost on the basis of policy and candidate quality, not money raised and donors wooed.

They contend that such restrictions would also ensure that candidates would be beholden primarily to voters, rather than donors, once they assume office.

However, campaign finance reform does not attenuate every voice or constrain every corporation. Curtailing campaign contributions would radically amplify the volume of media companies by muffling all the other voices in the public square.

Without being able to raise and spend money freely, politicians would be beholden to the media corporations that own the airwaves and inkwells.

In effect, campaign finance reform would take an imperfect situation that accords outsized voice to wealthy citizens and corporations who can afford to offer large donations and makes it much worse by concentrating power among the much smaller number of wealthy citizens and corporations that own major media outlets.

Candidates and Campaigns

Wall Street Journal: Hillary Clinton, the DNC and the Law

By Cleta Mitchell and Hans von Spakovsky

There are strict statutory limits on what a party committee can contribute to any candidate and what a party can spend in coordination with its candidates. We don’t like limits on the ability of parties to support their candidates. But campaign-finance zealots, egged on by media outlets (which are not subject to any limits), made certain that the McCain-Feingold law of 2002 stringently limited coordination between candidates and political parties. Although the Supreme Court struck down parts of McCain-Feingold in the 2010 Citizens United case, the coordination limits still apply. The FEC and the Justice Department should investigate the Clinton-DNC arrangement.

Candidate Clinton railed against Citizens United-a case that involved a documentary film critical of her-arguing that “big money” and “secret spending” are ruining our politics. Is it too much to ask that those who loudly demand greater regulation of political speech and spending themselves abide by the laws already on the books?

Law & Crime: Legal Expert: Trump Jr.’s Correspondence with WikiLeaks Is Probably Not Illegal

By Alberto Luperon

Law&Crime reached out to Paul S. Ryan for his take on whether The Atlantic report described criminal activity. He’s the Vice President of Policy & Litigation at Common Cause, a watchdog group.

Ryan approached these revelations from a campaign finance law perspective. When reading The Atlantic piece, he said he kept an eye out for evidence that Trump Jr. asked for something of value from a foreign national, receiving something of value from a foreign national, or advised WikiLeaks on how they could spend resources.

“I didn’t see strong evidence of any of that going on,” he said. Ryan even downplayed the detail that WikiLeaks DM’d Trump Jr. the website password for a yet-to-premiere anti-Trump PAC. He argued that this password “doesn’t scream to me that it is of obvious or significant value,” and he pointed out that there are no reports of the campaign doing anything with this.

All in all, he called this “small potatoes” in terms of campaign finance law, at least when compared to another Trump Jr. controversy: the June 2016 meeting with a Russian lawyer to get dirt on Hillary Clinton. Ryan said that this did strike him as “illicit” because Jr., a campaign surrogate from Trump Sr., sought out a thing of value from a foreign national.