In the News
Washington Post: Danica Roem’s win proves it: We don’t need to restrict campaign contributions
By Luke Wachob
Roem outraised Marshall 3-to-1 thanks in part to large donations from lesbian, gay, bisexual and transgender advocates across the country. This was possible because Virginia is one of just a handful of states that impose no limits on who can contribute, or how much, to a political candidate…
If new political movements are to gain traction, states need to make it easy for candidates to organize, raise funds and speak to voters. The harder it is to campaign, the more the advantages shift to incumbents and well-connected political operatives.
Roem’s success shows how outsiders can benefit from a lighter touch…
Without extensive regulation of the political process, many argue, government is doomed to be dominated by the economically powerful – typically understood as old, white men.
Good news: Reality is not so bleak. Virginia’s freedom for candidates and donors allowed Roem to harness the power of the national LGBT movement. As the Old Dominion welcomes its new delegate, maybe other states should consider adopting its methods.
Let the candidates campaign. Let the donors donate. Let the voters vote. Simple as that.
Center for Public Integrity: The players who have shaped campaign finance over the decades
By Ashley Balcerzak and John Dunbar
David Keating, then-executive director of the conservative Club for Growth, founded SpeechNow.org to “call out” politicians he saw as trampling on the public’s First Amendment rights in the wake of the 2002 McCain-Feingold campaign finance legislation, he said…
[I]n February 2008, SpeechNow.org sued the Federal Election Commission, arguing large donations to fund independent political activity are protected under the First Amendment. The District of Columbia Circuit Court decision in the SpeechNow case – predicated on the Supreme Court’s decision in Citizens United v. FEC – led to the creation of super PACs…
Keating is now the president of the conservative Institute for Free Speech, formerly known as the Center for Competitive Politics, a group that is currently bringing at least five cases dealing with First Amendment infringement…
The Center for Competitive Politics, now called the Institute for Free Speech, describes itself as the “the nation’s largest organization dedicated solely to protecting First Amendment political speech rights.” It was founded in 2005 by Bradley Smith, former chairman of the Federal Election Commission. Smith is the chairman. The organization is a prolific litigator and advocates for limited regulation of money in politics. It fights regularly to preserve donor anonymity.
Center for Public Integrity: Kochs key among small group quietly funding legal assault on campaign finance regulation
By Lateshia Beachum
The [Institute for Free Speech] has waged war against the FEC as litigators, and it has represented others when political free speech is under attack.
David Keating, president of the [Institute for Free Speech], said the organization is simply honoring the guarantees of the First Amendment more so than political ideology or deregulation…
“Our country didn’t have campaign contribution limits until the 1970s,” he said. “I don’t see there’s any evidence that it’s made people we’re electing better than they were before the 1970s.”
Keating said government should make it easier for average citizens to become politically involved and, therefore, it should rethink contribution laws.
While the [Institute for Free Speech] has not objected to disclosure by candidates and PACs, it is not in favor of pushing for more disclosure. Doing so, said Keating, would result in more difficult fundraising for groups and misleading disclosure information.
“Disclosure is where a lot of the action is right now,” he said. “That’s going to be in the courts and we may well be the ones representing the plaintiffs.”
Supreme Court
Bloomberg: Free Speech Is Starting to Dominate the U.S. Supreme Court’s Agenda
By Greg Stohr
The court on Monday granted three new speech cases. . . The nine-month term now features six cases, out of 44 total, that turn on the reach of the Constitution’s free speech guarantee…
The free speech clause has had a special resonance with the court’s conservative wing under Chief Justice John Roberts. The court invoked the First Amendment in the landmark 2010 Citizens United decision, which said corporations could spend unlimited sums on political causes. Writing for the five-justice majority, Kennedy equated federal spending restrictions with using “censorship to control thought.”…
Eugene Volokh, a First Amendment scholar at UCLA School of Law, says the latest issues are mostly variations on topics the justices have been debating for decades.
“I’ve heard the argument that somehow the First Amendment is straying into new areas,” Volokh said. “I just don’t see evidence for it, certainly not in this term’s cases.” …
The justices also said Monday they will use a Minnesota case to consider guaranteeing people the right to wear political apparel when they go to the polls to vote. The final case involves a man who says he was arrested in retaliation for suing and politically criticizing his local government.
Reason: Are You Allowed to Vote While Wearing a ‘Don’t Tread on Me’ T-Shirt? SCOTUS Will Soon Decide
By Damon Root
Does the Constitution permit state governments to create “speech-free zones” that ban political attire within 100 feet of a polling place on election day, even if that attire does not mention a candidate, a campaign, or even a political party? Or does the First Amendment protect the citizenry’s right to wear such attire while casting a ballot?
The U.S. Supreme Court will tackle those questions later this term when it hears oral arguments in Minnesota Voters Alliance v. Mansky…
At issue is a Minnesota statute declaring that “a political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day.” The ban applies to all apparel “designed to influence and impact voting” or “promoting a group with recognizable political views.”
Andrew Cilek, the executive director of the conservative group Minnesota Voters Alliance, ran afoul of the law in 2010 when he tried to vote wearing a t-shirt adorned with an image of the Gadsen Flag, the phrase “Don’t Tread on Me,” and a Tea Party Patriots logo. Cilek was also wearing a “Please I.D. Me” button from the conservative group Election Integrity Watch.
Cilek and the Minnesota Voters Alliance, represented by the lawyers at the Pacific Legal Foundation, are now asking the Supreme Court to strike down the Minnesota law.
The Courts
Electronic Frontier Foundation: Appeals Court’s Disturbing Ruling Jeopardizes Protections for Anonymous Speakers
By Aaron Mackey and Sophia Cope
The Ninth Circuit’s decision in U.S. v. Glassdoor, Inc. is a significant setback for the First Amendment. The ability to speak anonymously online without fear of being identified is essential because it allows people to express controversial or unpopular views. Strong legal protections for anonymous speakers are needed so that they are not harassed, ridiculed, or silenced merely for expressing their opinions.
In Glassdoor, the court’s ruling ensures that any grand jury subpoena seeking the identities of anonymous speakers will be valid virtually every time. The decision is a recipe for disaster precisely because it provides little to no legal protections for anonymous speakers…
The Supreme Court has repeatedly ruled that the First Amendment protects anonymous speakers, often by emphasizing the historic importance of anonymity in our social and political discourse. For example, many of our founders spoke anonymously while debating the provisions of our Constitution…
The risk of being identified as a Glassdoor user is a legitimate one that courts should recognize as analogous to the risks of civil rights groups or unions being compelled to identify their members. Disclosure in both instances chills individuals’ abilities to explore their own experiences, attitudes, and beliefs.
Wall Street Journal: The ABA Jumps the Shark
By William McGurn
The object of the ABA’s attention is Leonard Steven Grasz, a former Nebraska chief deputy attorney general who’s been nominated for a seat on the Eighth U.S. Circuit Court of Appeals. The ABA has slapped Mr. Grasz with a “not qualified” rating, saying he’s too biased and too rude to be a judge…
Yet even without an official role, the ABA ratings still exert undue influence on nominations…
The best revenge, of course, is getting this man confirmed notwithstanding his ABA rating.But the day after the attacks on Mr. Grasz at his hearing, Mr. Sasse delivered an impassioned speech on the Senate floor, raising an even larger question: Since when did the Senate accept the idea that its members should outsource to a third party their constitutional responsibility to evaluate the fitness of the president’s nominees to the federal bench?
“There’s nothing wrong with a liberal organization such as the ABA using its First Amendment rights to push its political agenda,” says Mr. Sasse. “What’s wrong is to allow it to masquerade as fair and impartial arbiter-and give it a special role in the process.”
Internet Speech Regulation
Washington Post: After Russian meddling, Google and Facebook shift their stance on a crucial issue for voters
By Hamza Shaban
Facebook and Google told federal election officials they are open to greater oversight over the lucrative business of online political advertising…
Google even took a step further than its rivals telling regulators that they should create a broad rule that would ban foreign entities from buying any kind of political ad aimed at influencing voters, not just the ones that mention candidates. Russian operatives generated and published “issue” ads on Facebook far more frequently than those that explicitly promoted candidates…
Facebook did not offer a position on issue-based ads to election officials, despite its admission that 90 percent of the Russian-bought content that ran on its network did not mention Clinton or Trump.
The comments were submitted to the Federal Election Commission before a Monday night deadline as the agency considers new disclosure requirements for online advertisements. The discussion process at the FEC comes as lawmakers on Capitol Hill are pushing their own proposal to boost the transparency of digital ads, and as Silicon Valley faces heightened scrutiny in Washington…
Twitter also expressed openness to greater regulation of political ads, but asked officials to consider “the limited and valuable space available for political advertisements” on its platform.
Political Parties
Think Progress: The Republican party has a female representation problem – and the solution starts at the top
By Noah Berlatsky
So, what can be done to increase the number of female officeholders? Preece co-authored a March 2017 study in the American Journal of Political Science with fellow BYU researchers that found that the answer lies with party leaders – they simply have to say they want more women in political office…
While the most recent elections in Virginia, Minnesota, and Washington saw Democratic victories – particularly for women of color, as well as queer and transgender people – the party has a long way to go. Michelle Jett, chief of staff for Illinois State Representative Carol Ammons (D), said structural issues make it difficult for women to run for office.
“To get any type of diversity in Democratic candidates, money has to be taken out of the electoral process. It’s such a hurdle for anyone who is not well-connected, upper middle class white male. The thought of how much money you have to raise and whether people are going to be willing to give it to you is generally the first thing that stops people from running,” she told ThinkProgress. “So significant campaign finance reform would have to happen before the Democratic Party is going to see a wave of diversity in its candidates.”
Candidates and Campaigns
The Atlantic: Did Donald Trump Jr. Cross the Line With WikiLeaks?
By Matt Ford
“I certainly didn’t see anything that looks like a smoking gun in the descriptions that we were given,” Rick Hasen, a University of California, Irvine, law professor who specializes in election law, told me…
Most of the public discussion about the Russia investigation centers on the question of collusion between Moscow and the Trump campaign to undermine Clinton. But “collusion” isn’t a specific crime under federal law. Instead, legal experts have questioned whether any Trump campaign officials may have violated a campaign-finance statute that bars foreigners from donating money or any other “thing of value” to a campaign. That same provision also forbids campaign officials from soliciting such a donation…
“Assange is or could be considered a journalist, and we might have different rules for foreign-news media,” Hasen explained. “Certainly that’s how domestic campaign-finance law works, where we treat media differently than others.” And while he believes that a “thing of value” under the statute can include opposition research or stolen emails, that view isn’t unanimous among legal experts. He cited arguments made in July by Eugene Volokh, a UCLA law professor, that such a broad interpretation of the term could run afoul of the First Amendment.
Greensboro News & Record: NRA is not buying politicians’ support
By Walter Sperko
I don’t dispute the facts: The NRA has contributed generously to Sens. Burr and Tillis.
The editorial’s conclusion – that that money “bought” their votes – is just plain wrong; that’s not how it works.
I contribute to Burr’s and Tillis’ campaigns because, among other reasons, they support pro-gun causes.
I don’t contribute to Chuck Schumer or Nancy Pelosi because they support gun control.
People contribute to politicians who support issues that the contributors favor. In a parallel manner, the NRA, a gun-owner membership organization, contributes to politicians who support pro-gun legislation.
To claim that the NRA “buys” politicians who already support pro-gun policies is ludicrous; the NRA and its members contribute to politicians who are pro-gun just as those who support gun control contribute to politicians who support gun control.
If the NRA contributed $4.4 million to Nancy Pelosi, would that change her position on guns? Never.
Your advocacy of campaign finance laws as a “fix” is self-serving; they limit speech of others, giving media free rein to mold public opinion.
The States
Gotham Gazette: ‘Democracy Vouchers’ May Come to New York City
By Ben Max
As for drawbacks to a democracy voucher program, one is that there is very limited data on its effectiveness since the Seattle program just got going. Others include the potential cost in public dollars, which could exceed the money the city currently puts toward its program — the CFB paid out “$17,694,046 to 103 qualifying candidates for the 2017 election cycle,” according to a recent press release — and whether an accompanying reduction in maximum individual contributions would push more money into independent expenditures.
Before introducing democracy voucher legislation or the CFB post-election report, however, Kallos is looking to see one of his currently-pending campaign finance reform bills passed in the waning days of this legislative session. Co-sponsored by 29 members in the 51-seat Council, the Kallos bill would increase the public matching threshold…
A de Blasio spokesperson also expressed some vague support for exploring the ideas of democracy vouchers and lowering contribution limits, when asked by Gotham Gazette. “The Mayor supports moving towards full public financing of elections and reversing Citizens United,” said spokesperson Seth Stein, in a statement. “We are reviewing other proposals and City Council legislation that will help us end the influence of money in our elections.”
