Supreme Court
Cato: The First Amendment Protects Independent Journalists
By Thomas A. Berry
Brian Green operates the media channel “Libertys Champion” on YouTube. Since 2013, Green has regularly posted investigative journalism videos to the channel, with a focus on local government and court cases in Pierce County, Washington. The channel has steadily grown to have over 18,000 subscribers.
To produce his videos, Green often interviews local officials and requests documents under Washington’s Public Records Act (PRA). That law generally requires state agencies to produce government records at the request of the public, with exemptions for certain personal records of public employees, like photographs and birthdates. Members of the “news media,” however, may obtain even these exempt records.
When Green requested such exempt records, the local sheriff’s department denied his request on the grounds that “Libertys Champion” did not qualify as news media. Green’s case eventually went up to the Washington Supreme Court, which affirmed that denial. The court held that under Washington law, only corporations can qualify as “news media.”
Now Green has asked the U.S. Supreme Court to take his case, arguing that this discrimination against non‐corporate media violates the First Amendment. Cato, joined by the Reason Foundation, has filed an amicus brief supporting that petition.
[Ed. note: In late October, the Institute for Free Speech petitioned the U.S. Supreme Court to hear Brian Green v. Pierce County and reject the state’s selective adherence to the First Amendment. Our blog post explaining this case and its importance to upholding freedom of the press for all who gather and report on the news is available here.]
Reuters: SCOTUS asked to nix mandatory bar association dues in two petitions
By Dan Wiessner
Lawyers in Texas and Oklahoma are asking the U.S. Supreme Court to reconsider its 1990 decision upholding requirements that lawyers pay dues to state bar associations, saying compulsory dues improperly subsidize political speech.
In two separate petitions filed with the justices last week, lawyers from Jones Day, Consovoy McCarthy and the conservative Goldwater Institute, who represent the plaintiffs, urged the Supreme Court to extend its 2018 ruling in Janus v. AFSCME. That decision limited mandatory public-sector union fees to dues charged by bar associations.
The Supreme Court last year declined to take up a similar challenge to mandatory bar dues in Wisconsin.
Congress
The American Prospect: The Democratic Dilemma on Dark Money
By Rachel M. Cohen
Eleven years ago, in response to the landmark Supreme Court decision in Citizens United, Democrats rallied around a bill they hoped could prevent a new flood of money into elections. The DISCLOSE Act (short for “Democracy Is Strengthened by Casting Light on Spending in Elections”) would have required new reporting prior to Election Day of top donors to political ads sponsored by corporations, unions, and advocacy groups, with the top five donors disclosed in the ads themselves…
Democrats passed the DISCLOSE Act through the House in June 2010, but fell one vote short of breaking a Republican filibuster in the Senate…
A decade later, more than $1 billion in undisclosed spending poured into the 2020 federal election cycle. But the majority of it, around $514 million, went toward electing Democrats, according to an analysis by the watchdog group OpenSecrets, compared to roughly $200 million that helped Republicans. Joe Biden’s presidential bid alone attracted $174 million in anonymous contributions, more than six times as much as Donald’s Trump’s $25 million.
The DISCLOSE Act is now included in H.R. 1, the For the People Act, the Democratic Party’s comprehensive ethics, voting rights, and campaign finance package, which also stands little chance of passage without scrapping the filibuster. But today, Democrats find themselves in a more delicate spot, both backing federal legislation that would restrict the flow of undisclosed spending, while also becoming increasingly dependent on it and the donors who demand it…
Kate Ruane, the senior legislative counsel at the ACLU who has been leading the organization’s opposition, insisted to me that “we cannot lose sight” of how disclosure laws “can be used to suppress marginalized voices” and deter speech. She pointed to Black Lives Matter protests following George Floyd’s death and noted that some opponents tried to figure out who was allegedly funding them. “Presumably that was intended to direct a certain amount of harassment and violence toward the people who were supporting those movements,” she said. “My concern is that H.R. 1 could hurt especially smaller organizations that are just beginning to build their political advocacy, and we want to make sure we are supporting them.”
Politico: Anger sets in among Dems as voting rights push stalls
By Zach Montellaro
[T]he year is winding to a close — and no [voting rights] legislation has made its way to Biden’s desk, sparking complaints from activists and reform advocates who say the president is not putting enough muscle into the fight…
Sens. Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.) have repeatedly said they are unwilling to ax the filibuster, a seemingly insurmountable barrier for election-related legislation that has failed to garner bipartisan backing.
“Everyone knows where I stand on the filibuster, that hasn’t changed,” Sinema said in a mid-November interview with POLITICO…
She also was cool on any filibuster carve-outs for specific subjects…
Some hope that a more sustained and public pressure campaign from the president would move the pair…
[S]ome activists are calling for Biden to more directly confront holdouts who would sustain the filibuster for voting rights…
Senate Majority Leader Chuck Schumer wrote in a “dear colleague” letter in mid-November that he intended to re-raise voting rights before the end of the year, alluding to Republicans’ previous filibusters of a pair of bills and saying his members were discussing alternative paths for the stalled legislation.
“Just because Republicans will not join us doesn’t mean Democrats should stop fighting,” he wrote. “This is too important. Even if it means going at it alone, we will continue to fight for voting rights and work to find an alternative path forward to defend the most fundamental liberty we have as citizens.”
By Henry Rodgers
A group of Senate Republicans sent a letter Wednesday to Secretary of Defense Lloyd Austin demanding answers over the Department of Defense (DoD)’s recently established Countering Extremism Working Group (CEWG). The lawmakers believe it could be used to “target service members who voice opposition to woke, Leftist ideology.”
Florida Sen. Marco Rubio spearheaded the letter, first obtained by the Daily Caller, along with 11 other Senate Republicans.
FEC
By Bryan Metzger
In the last three years, conservatives have lodged a series complaints with the [FEC] in charging social media companies with anti-conservative bias over content moderation that have seemingly affected Republican politicians more than Democrats.
But they’ve been unanimously rebuked each time…
Republican Commissioner Trey Trainor appeared on Glenn Beck’s talk show a few days after the rulings were first reported by the New York Times where he sought to explain his decision in conservative terms.
“If we were to say that the decision to throttle the Hunter Biden story was a violation of campaign finance, then we would have a flood of complaints,” said Trainor, who serves with two other Republican commissioners. “Everybody on the right would’ve gotten a complaint filed against them immediately.” …
Trainor told Beck that it’s understandable for conservatives to be calling on the FEC to help, noting that it’s “easiest to go after.” But, he cautions, federal campaign finance law hasn’t been updated in nearly 20 years.
“They’re trying to apply a statute that deals with technologies that no longer exist, and apply them to technologies where today, people get all of their news,” said Trainor…
Trainor, who is otherwise sympathetic to conservatives when it comes to claims that the 2020 election was illegitimate, underscored that it’s just not the FEC’s job to get involved with how social media platforms are governed.
“We don’t want to be in the business of regulating how businesses are run and what editorial decisions they make,” he told Beck. “It really is the wrong vehicle to go after social media companies.”
Federal News Network: An unresolved question: Can contractors contribute to candidates’ super PACs?
By Tom Temin
The Federal Election Commission on a party-line vote recently decided not to sanction a federal prisons contractor. The company, GEO Group, had made a big contribution to the Donald Trump political action committee in 2016. Where can contractors contribute politically, and where can they not? Bloomberg Government senior editor Ken Doyle has been following this question closely, and joined Federal Drive with Tom Temin to discuss.
Online Speech Platforms
Electronic Frontier Foundation: Facebook’s Secret “Dangerous Organizations and Individuals” List Creates Problems for the Company—and Its Users
By Jillian C. York and David Greene
Along with the trove of “Facebook Papers” recently leaked to press outlets was a document that Facebook has, until now, kept intentionally secret: its list of “Dangerous Organizations and Individuals.” This list comprises supposed terrorist groups, hate groups, criminal groups, and individuals associated with each, and is used to filter and remove speech on the platform. We’re glad to have transparency into the document now, but as The Intercept recently reported, and as Facebook likely expected, seeing the list raises alarm bells for free speech activists and people around the world who are put into difficult, if not impossible, positions when it comes to discussing individuals or organizations that may play major roles in their government, for better or for worse.
While the list included many of the usual suspects, it also contained a number of charities and hospitals, as well as several musical groups, some of whom were likely surprised to find themselves lumped together with state-designated terrorist organizations. The leaked document demonstrated the opaque and seemingly arbitrary nature of Facebook’s rulemaking.
The States
Bismarck Tribune: North Dakota ethics measure group unhappy with draft rules exempting campaign donations
By Jack Dura
Leaders of the 2018 ballot measure that created North Dakota’s Ethics Commission say the voter-approved panel’s draft conflict of interest rules exempting campaign contributions would violate the state constitution.
North Dakotans for Public Integrity on Tuesday said the draft rules “raise important substantive, legal, and procedural concerns.”
The Ethics Commission is taking public comments on the rules, which relate to appearance of bias for state officials undertaking “quasi-judicial” proceedings, such as members of the Industrial Commission and Public Service Commission, which regulate everything from the energy industry to telecommunications to railroads…
North Dakotans for Public Integrity President Dina Butcher said the 2018 measure “was about changing a culture that has gotten out of hand.” …
Ethics Commission Executive Director Dave Thiele said the board has discussed campaign contributions and the state constitution’s section on appearance of bias in “quasi-judicial” proceedings.
“Our assessment was that a blanket prohibition or mandatory recusal would be a violation of the U.S. Constitution First Amendment,” Thiele said. The panel is awaiting an attorney general opinion on that matter.
The board will address the group’s input at its Dec. 15 meeting after all public comments are in.
Butcher and Chaffee acknowledged that they expect state officials to turn down campaign contributions from regulated entities, and those entities to not offer contributions.
By Edward Fitzpatrick
State Treasurer Seth Magaziner on Tuesday said he is disappointed that most of his fellow Democratic candidates for governor aren’t joining him in a “people’s pledge” aimed at limiting outside political groups from dumping money into the 2022 Democratic primary.
But his opponents are accusing Magaziner of hypocrisy, saying he is leading the pack in fund-raising, using the “people’s pledge” issue to raise more money, taking money from corporate lobbyists, and has yet to repay the hundreds of thousands of dollars he previously loaned his campaign…
Magaziner said “dark money Super PACs” have influenced other Rhode Island elections, including the 2014 and 2018 lieutenant governor primaries won by now-Governor Daniel J. McKee…
Michael Trainor, spokesman for McKee’s 2022 gubernatorial campaign, said, “Until he answers the question about the elephant in the room – the $700,000 he loaned his campaign in 2014 – he is the last person who should be talking about transparency.” He questioned where Magaziner received such a large amount of money…
Secretary of State Nellie M. Gorbea was the only candidate to write back to Magaziner about the “people’s pledge.” …
But Gorbea said she told Magaziner that the pledge doesn’t go far enough. “If he really wanted to have a conversation about leveling the playing field, he should agree to eliminating self-funding of campaigns and pay back his personal loan of about $700,000 by Jan. 1,” she said.
Also, Gorbea said she was surprised Magaziner sent out a fundraising email that said no other candidates had taken him up on the pledge.
“He should really return the money he raised from that email to show he is doing the pledge in good faith, not as a gimmick for fundraising and media attention,” she said.
