In the News
Wall Street Journal: Wisconsin Political Speech Victory
Editorial
The quashed subpoenas were sent to Friends of Scott Walker, Wisconsin Manufacturers & Commerce Inc., the Wisconsin Club for Growth, and Citizens for a Strong America, as well as their officers and directors. Judge Peterson’s order doesn’t apply to other subpoena targets, but they can presumably get the same result if they file a motion with the judge and have a similar factual basis.
The order is all the more remarkable because it bluntly rejects the prosecutor’s theory of illegal coordination between the groups and the Walker campaign. Wisconsin’s campaign finance statutes ban coordination between independent groups and candidates for a “political purpose.” But a political purpose “requires express advocacy,” the judge wrote, and express advocacy means directly advocating the election or defeat of a candidate.
“There is no evidence of express advocacy” and therefore “the subpoenas fail to show probable cause that a crime was committed,” Judge Peterson wrote. Even “the State is not claiming that any of the independent organizations expressly advocated” for the election of Mr. Walker or his opponent, he added. Instead they did “issue advocacy,” which focuses on specific political issues.
CCP
Protecting Anonymous Speech Used to be ‘Common Sense’
By Luke Wachob
Today we celebrate the anniversary of one of the most important pieces of writing in American history – Thomas Paine’s Common Sense. Originally published 238 years ago on January 10, 1776, the pamphlet is famous as one of the most influential essays in history, credited with convincing large portions of the American colonies that independence from Great Britain was necessary. Without Paine’s work, the American Revolution as we know it may not have happened.
Common Sense is a favorite here at CCP. We’ve been known to give away copies of it at conferences we attend and talk it up as an example of how important free speech is and how ridiculous modern rhetoric surrounding so-called “dark money” has become.
When it was first published in 1776, Common Sense did not credit its author. Its publisher, the wealthy Benjamin Rush, was also anonymous. For many months while the pamphlet was the talk of the colonies, the public didn’t know who wrote or published it. Paine wanted it that way, both because his arguments against British rule would bring government retaliation, and because he shared the Enlightenment belief that ideas were more important than the identity of the speaker expressing them.
Independent Groups
Freedom Works: www.IrsTarget.com
NY Times: A National Strategy Funds State Political Monopolies
By Nicholas Confessore
He had a plan: an 88-page playbook for the 2010 campaign, with detailed, district-by-district budgets and precise voter turnout targets. He had candidates: doctors, lawyers and small-business owners, most of them political novices recruited with an eye toward the anti-establishment fervor roiling the country.
What Mr. Hubbard did not have was enough money. Alabama law barred corporations, deep-pocketed natural allies for state Republicans, from giving more than $500 to candidates and parties — a limit that did not apply to the state’s unions.
So began a nationwide quest for cash that would take Mr. Hubbard, plan in hand, to the Republican Parties in states like Florida and Ohio, to a wealthy Texan who was one of the country’s biggest Republican givers and to a Washington organization that would provide checks from dozens of out-of-state corporations, among them Exxon Mobil, Google, Facebook and Altria.
USA Today: Conservative money groups complicate 2014 Senate fight
By Fredreka Schouten
“If spending $400 million emphasizing economic issues doesn’t win you any elections, it seems to me that to go back to the same playbook doesn’t make any sense,” said former GOP presidential candidate Gary Bauer. He was referring to the Crossroad groups affiliated with GOP strategist Karl Rove that failed to help Republicans take control of the Senate in 2012 elections.
“There is a very strong sense that the country is on a really bad road here and that we need something more than politics as usual,” Bauer said. He helped found a super PAC that advertised during Republican Liz Cheney’s short-lived Senate campaign slamming her 2009 comments opposing a constitutional ban on gay marriage.
SCOTUS/Judiciary
Wall Street Journal: Supreme Court to Hear Case on Political Speech
By Jess Bravin
Ahead of the 2010 midterm elections, an antiabortion group called the Susan B. Anthony List announced plans for a billboard campaign against Rep. Steve Driehaus (D., Ohio) based on his vote for the health care law. They were to read, “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.” But they never were posted after Mr. Driehaus threatened legal action against the billboard company.
The one-term congressman also filed a complaint with the Ohio Elections Commission contending the accusation violated the law banning false statements regarding candidates. After a commission panel found probable cause that the Susan B. Anthony List either knew its claim was false or made it with reckless disregard of its accuracy, the group filed suit in federal district court contending the state law violated the First Amendment’s free-speech guarantee.
Mr. Driehaus lost his race for re-election, however, and dropped his complaint with the elections commission. The district judge then dismissed the Susan B. Anthony List’s lawsuit as moot, among other grounds. The Sixth U.S. Circuit Court of Appeals, in Cincinnati, affirmed that decision in May 2013.
More Soft Money Hard Law: Fundraising and Corruption in the Arguments about McCutcheon
By Bob Bauer
Public Citizen attempts to make the case that the Supreme Court’s pending decision inMcCutcheon could, if wrongly decided, unleash a flood of money with the probable effect of corrupting the political process. The argument is the one heard before in briefs and in oral argument about joint fundraising committees. A donor who gives to a joint fundraising committee can write a check for millions, to be apportioned within the limits among all the joint fundraising participants. Public Citizen warns against “naïveté”: the more “practical” view it urges is that the officeholder who solicits for the joint fundraising committee risks corruptive indebtedness to the donor.
This is a plausible policy argument, but not clearly one best directed to the Supreme Court or sufficient to carry the constitutional position Public Citizen is advocating. Public Citizen is relying on a hypothetical (which is another way of saying that no record exists to suggest that it is realistic) and on a particular understanding of corruption and fundraising that does not capture the complexities of Congress’ treatment of the issue in reform measures over the years.
Three times in recent years, Congress considered the corruptive effects of large sums raised from an individual donor who is otherwise limited in giving to a specific campaign or political committee. With one exception, legislators chose to give officeholders and candidates considerable leeway to ask for substantial amounts—or without limit. In short, in judging the threat of corruption, Congress has not viewed in the same way the amounts given and the amounts raised.
Reuters: U.S. justices agree to hear challenge to Ohio speech law
By LAWRENCE HURLEY
(Reuters) – The U.S. Supreme Court on Friday agreed to hear an appeal by two conservative groups that assert that an Ohio law that imposes penalties for making knowingly false statements about political candidates violates their right to free speech.
The groups, Susan B. Anthony List and the Coalition Opposed to Additional Spending and Taxes, say that the possibility that the Ohio statute would be enforced against them deterred them from issuing statements during the 2010 election campaign criticizing a Democratic congressman for supporting President Barack Obama’s healthcare law.
Brennan Center: Blagojevich Tries to Blow Up Corruption
By Ciara Torres-Spelliscy
Blagojevich’s efforts come at a time when American courts are narrowing what counts as corruption in cases like Skilling v. US — which is awesome if you are a corrupt politician, but is a bane for the rest of us. This matters in money in politics because as the legal definition of corruption shrinks, so, too, does the set of legal justifications for regulating money in politics.
This all dates back to 1976’s Buckley v. Valeo when the Supreme Court reviewed the Federal Election Campaign Act (FECA), the post-Watergate reform to clean up the way federal candidates were elected. The Court declared that preventing corruption and the appearance of corruption justified having campaign finance regulations ranging from disclosure to contribution limits to public financing.
Over the past four decades, the Supremes have embraced a range of conceptions of what counts as corruption. The high watermark for an expansive definition came in 2003 when the Court held in McConnell that increased access to politicians by big political donors was corrupting and justified bans on soft money as well as bans on corporate and union expenditures on certain political ads. As the Court said in Shrink Missouri in 2000, if big donors call the tune in politics, then the general public can loose its faith in the integrity of the American democratic process.
FEC
FEC: Statement of Reason on Crossroads GPS (Republican)
By Lee Goodman, Caroline Hunter, and Matthew Petersen
Under the Commission’s case-by-case approach for determining political committee status j Crossroads GPS’s major purpose was not the nomination or election of a federal candidate. Rather, its public statements, organizational documents, and overall spending history objectively indicate that the organization’s major purpose has been, and continues to be, issue advocacy and grassroots lobbying and organizing.
Accordingly, we voted not to fmd reason to believe that Respondent violated the Act by failing to register and report as a political committee.^ We reject the Office of the General Counsel’s (“OGC”) proposal to expand the universe of communications to be considered, while simultaneously contracting the period for evaluating Respondent’s spending, in analyzing its major purpose.
CPI: Hacking attempt draws congressional investigation of FEC
By Dave Levinthal
“The revelations that FEC IT systems were compromised raises serious concerns,” said Rep. John Mica, R-Fla., chairman of the House Government Operations Subcommittee which oversees federal IT matters. “I am working with my staff and the staff of the full House Oversight and Government Reform Committee to investigate the extent of the breaches, and I intend to conduct a full and thorough review of the vulnerabilities of FEC systems which should raise concerns for all federal elected officials.”
The ranking member of the Committee on House Administration, Rep. Robert Brady, D-Pa., says he, too, wants his committee to conduct an oversight hearing on FEC operations — something he described as “long overdue.”
“I want to know that they have the resources available to protect sensitive information,” Brady said. “More broadly, I want to know that they have the resources and personnel needed to do the job at hand.”
