In the News

Washington Post: D.C.’s Fair Elections Act would give more power to the already powerful

By David Keating and Thomas Wheatley

Not only is Mayor Muriel E. Bowser (D) right in calling it a waste of money, but also the measure is nothing more than a grand experiment likely to turbocharge the power of special-interest groups and incentivize fraud by candidates.

For starters, the proposal is biased in favor of a new form of political entity called a “Fair Elections Committee.” The fine print allows for contributions from “membership organizations” (labor unions) to count as small-dollar donations. Candidates who receive financial support from a “membership organization” may still receive public financing, but a candidate who gets a similar donation from, say, a small business won’t. The provision was so blatantly discriminatory that the ACLU of the District of Columbia rightly opposed that provision, saying, “Labor unions do not have greater First Amendment rights than other kinds of organizations.” …

In addition, the measure is obviously an exercise in incumbency protection. An incumbent with an established donor base and prior familiarity with D.C.’s political machinery would have a clear advantage over a political newcomer. The Fair Elections Act exacerbates that advantage by affording incumbents the chance to raise tax-matched donations earlier than challengers who emerge later in the election cycle.

New from the Institute for Free Speech

Defendant’s Opposition to Cross-Motion in FEC v. Swallow

In the end, this Court must grant judgment against the Federal Election Commission’s Amended Complaint unless the FEC can win on all of the following four points: (1) the plain text of the statute must be ambiguous, despite the FEC’s reliance on cases holding that the statute unambiguously reaches only the true sources of financial contributions; (2) the FEC must establish that the Supreme Court’s holding in Central Bank of Denver does not apply; (3) the FEC’s regulation must be a reasonable construction of 52 U.S.C. § 30122; and (4) the FEC must either survive strict scrutiny, or explain why and how its regulation survives a lower standard of scrutiny.

As discussed below, the FEC has failed to meet its burden on any of these points, much less all four, such that judgment in favor of Mr. Swallow is proper and the regulation should be vacated or held invalid. For the same reasons, the Commission’s cross-motion should be denied.

Objections to Motion to Restrict Public Access in Holland v. Williams

The Institute and Volokh would each like to publicly discuss any eventual decision on the motion for summary judgment in this case. As with most court decisions, that decision could only be sensibly evaluated based on the evidence that the parties offer to this Court. This evidence includes the settlement agreements between movant Campaign Integrity Watchdog LLC (CIW) and speakers against which it has filed complaints. Indeed, the agreements are especially important evidence: Plaintiff Holland argues that the Colorado campaign finance law gravely burdens Coloradans’ free speech rights, precisely because it involves private enforcement. Plaintiff’s Motion to Compel Discovery from Non-Party Campaign Integrity Watchdog LLC, ECF No. 86, at 10-12. Evidence of how such enforcement has played out in concrete cases-what the private enforcers are doing, what they can pressure people to do as part of settlements, and what they offer those people in exchange-is thus likely to be particularly relevant to understanding this Court’s ultimate decision…

Indeed, federal circuit courts have recognized a First Amendment right of access to documents as well as a common-law right of access, including First Amendment and common-law rights of access to documents filed in support of a motion for summary judgment.

The Courts

Bloomberg BNA: Watchdog Sues FEC Again for Not Enforcing Campaign Disclosures

By Kenneth P. Doyle

The suit, involving a conservative nonprofit called New Models, was filed Jan. 12 in the U.S. District Court for the District of Columbia by Citizens for Responsibility and Ethics in Washington (CREW).

The case joins other lawsuits by CREW and other pro-disclosure groups frustrated by deadlocked FEC votes, which have resulted in dismissal of enforcement complaints. In one pending case, known as John Doe v. FEC, the tables are turned and unidentified donors are suing the FEC to keep their names secret following settlement of an enforcement matter.

In the latest lawsuit, CREW noted that FEC staff attorneys in the general counsel’s office recommended an investigation of New Models, which sponsored campaign ads helping Republican candidates but failed to disclose its donors. The FEC commissioners deadlocked 2-2 in a vote on whether to follow the staff recommendation.

Congress

Roll Call: House Panel to Consider Stronger Foreign Lobbying Rules

By Kate Ackley

The House Judiciary Committee plans to take up a bill on Wednesday that would overhaul the 1938 law governing foreign lobbying disclosures, but the measure’s fate in the Senate remains unclear.

The bipartisan bill could have broad implications not only for lobbyists and other U.S. representatives of foreign governments and political parties but also for those working on behalf of foreign corporations and nonprofit organizations…

The House and Senate measures would give the Justice Department’s FARA unit additional authority, including subpoena-like powers. But some lobbyists and lawyers who specialize in compliance with the foreign-lobbying law say they have concerns about the bills as currently written…

Lawyer Joshua Rosenstein, who specializes in lobbying disclosure compliance matters, said the changes, especially those that relate to undoing the exemption for those registered to lobby with Congress, were causing concern on K Street.

“It’s not because industry is opposed to increased disclosure but because of the logistical burden it will place on industry,” he said.

Minnesota Star Tribune: Appropriations bill would bar SEC from requiring political spending disclosure

By Jim Spencer

The appropriations bill that the Senate and House must pass by Friday to avoid a government shutdown forbids the Securities and Exchange Commission from making publicly traded companies disclose their political spending to shareholders…

The chamber argues that “efforts to advance social or political goals through SEC-mandated corporate disclosures risk eroding investor confidence in the integrity of securities regulation.”

Corporate boards have a legal responsibility to shareholders that supersedes the SEC, critics of mandated disclosure argue.

“If shareholders own the corporation,” said University of Minnesota business professor Ian Maitland, “they have a right not to have information exposed if exposure exposes the company to lawsuits and harassment … Businesses want to keep a low profile.” …

Any move to limit disclosure of corporate political spending “undermines the very campaign finance system envisioned by the [Supreme] Court,” said a letter from 40 Democratic senators that urged Senate leadership to cut the SEC rule prohibition from the 2018 appropriations bill.

Trump Administration

The Intercept: The Justice Department helped a county prosecutor in Washington state target the Facebook records of anti-pipeline activists

By Simon Davis-Cohen

The DOJ’s intervention in the case makes it the latest example of the Trump administration’s direct involvement in law enforcement actions against protesters who allege they are being targeted for protected First Amendment activity: On the other side of the country, the DOJ is pursuing decades of prison time for protesters, journalists, medics, and legal advocates arrested during the anti-Trump “J20” demonstrations on Inauguration Day. In that case, too, the prosecution secured warrants for the Facebook page and website used to organize the protests. Now, Standing Rock-inspired activists in Whatcom County find themselves on the front lines of the battle over Americans’ right to anonymously organize with political groups.

The States

Lake Chelan Mirror: Lawmakers say DISCLOSE Act would bring campaign donations out of the shadows

By  Alex Visser, WNPA Olympia News Bureau

Senate Bill 5991 calls for the creation of the Washington State DISCLOSE Act – “democracy is strengthened by casting light on spending in elections” – to shine a light on nonprofit organizations’ largest donors. The bill has received the support of 27 senators from both sides of the aisle, and passed committee Friday morning.

SB 5991 would force nonprofits to file a statement with the Public Disclosure Commission if the organization spent at least $10,000 on political campaigns in a calendar year…

But Paul Guppy, the Washington Policy Center’s vice president for research, said the bill would target every nonprofit organization in the state and would discourage private donations. Guppy said that free speech is not a loophole and private donors should not be subjected to public harassment because they want to donate to a cause.

American Civil Liberties Union of Washington Legislative Director Elisabeth Smith said her organization refuses to support the bill because it chills political activity. Smith said a larger problem is that people would get lumped in with causes they might not even support.

Smith said the ACLU’s largest donors might support the organization for various reasons, but if the ACLU uses resources to support a specific cause, those donors’ names would be revealed even if they were opposed to that cause.

Richmond Times-Dispatch: Senate committee kills bill to ban campaign donations from public-service corporations

By Patrick Wilson

Senate Bill 10 from Sen. Chap Petersen, D-Fairfax, went down on a 12-2 vote in the Senate Privileges and Elections Committee…

Virginia has no limit on campaign donations from individuals or corporations. Gov. Ralph Northam campaigned on a ban on all corporate campaign contributions, but did not mention that in his inaugural address Saturday or in a policy address to the General Assembly on Monday evening.

“It’s a four-year term and that’s something he intends to work on with the General Assembly,” Northam spokesman Brian Coy said Tuesday, declining to be more specific…

Sen. Adam Ebbin, D-Alexandria, said he was voting against Petersen’s bill because it wasn’t fair to single out public service corporations.

“I can’t support singling out one industry,” he said.

Florida Politics: Campaign finance reforms advance with bipartisan support

By Ana Ceballos

Both the Florida House and Senate prohibit members from accepting contributions during a regular, extended, or special legislative session. The proposal would add the same restrictions to statewide elected officials.

The proposal would make it a misdemeanor to accept a single political contribution and a felony if an individual solicits or accept two contributions during session.

In the vein of reforming the campaign finance system, state Rep. Frank White, who is running for state Attorney General, championed a proposal that would repeal a 30-year-old state public campaign financing system…

The measure cleared the House Oversight, Transparency & Administration Subcommittee, which would eliminate a system that gives statewide candidates taxpayer-funding matching dollars if they agree to limit their expenditures…

“Our system dolls our millions of tax dollars to incumbents and other experienced politicians,” White said.

Speaker Richard Corcoran has pushed to abolish the system with the Constitution Revision Commission, which meets once every 20 years to propose changes to the constitution. Corcoran has called the public campaign financing system a “gross waste of taxpayer money” and “welfare for politicians.”

Watertown Public Opinion: House committee splits on ballot-measure fixes

By Bob Mercer

Reforms of South Dakota campaign-finance laws for ballot-measure groups cleared the first hurdle Wednesday from a legislative panel…

Committee members voted unanimously to recommend the full House of Representatives approve the campaign-finance changes…

Rep. Julie Bartling, D-Gregory, explained the revisions suggested by the Legislature’s government accountability task force with support from Secretary of State Shantel Krebs.

One section clarifies that “knowingly” misrepresenting campaign finances would be a class-two misdemeanor.

The goal is to make campaign finance laws “more straight forward,” said Ellie Bailey, the deputy legal counsel for Gov. Dennis Daugaard. She supported its passage.

The measure heads to the full House for debate possibly Thursday afternoon.

East Bay Times: East Bay city to lift the lid on local campaign spending

By Denis Cuff

Taken off guard by the financial muscle of a political action committee that reshaped the City Council in the last election, Livermore is set to abolish any limit on how much money candidates can collect.

City Council members said the move is in response to the Friends of Livermore Committee, which spent $213,999 in the November 2016 election, about five times more that what six candidates combined reported spending, according to campaign disclosure statements filed with the city. Candidates faced a $250 limit on individual contributions to their campaigns…

“We have a political machine in our small town,” said Mayor John Marchand. “We want to provide a more level playing field. By lifting the contribution limits, we give candidates a better chance to get their message out and be heard over the big money.”…

The spending inequity in campaign spending stems from a series of U.S. court rulings holding that political action committees face no limit on donations if the group acts independently of individual candidates in races. Friends of Livermore organized as an independent committee.