In the News
Hour Detroit: Top Election-law Conservative Brad A. Smith on Campaign Spending Limits
By Steve Friess
One of the most controversial Supreme Court decisions of recent times is Citizens United v. Federal Election Commission, a landmark 2010 ruling that struck down any political spending limits for outside groups, such as companies, advocacy organizations, or unions. The case kicked off an era of dizzying campaign spending that critics say provides the rich and powerful even more influence over the political process.
Yet to Brad A. Smith, a Downriver native and former chair of the Federal Election Commission, the case was a career-capping triumph. For decades, Smith, 63, laid the intellectual groundwork for it in such works as a 1996 Yale Law Journal essay in which he asserted that limits on donations and spending violate the First Amendment.
Smith, a professor at Capital University Law School in Ohio and founder of the D.C.-based nonprofit Institute for Free Speech, got his start in politics right out of Kalamazoo College as a legislative aide for the Small Business Association of Michigan. In 2000, he was confirmed to a seat on the FEC, where he would serve as chair in 2004.
With the 2020 election still somehow in the news and with the 2022 cycle revving up, Smith spoke to Hour Detroit about his path to the apex of American conservative thought, what’s wrong with the FEC, and why Citizens United should be expanded.
Texas Tribune: Ted Cruz has never recouped more than $500,000 he loaned his first campaign. He’s working to overturn the law that’s blocked him.
By James Pollard
Locked in an expensive Republican primary for U.S. senator against a wealthy, better-known opponent, Texas Tribune: Ted Cruz loaned his campaign over $1 million in 2012…
Cruz recouped a good chunk of that 2012 loan from money received before Election Day. But when Cruz’s campaign determined that the loans could not be fully repaid due to the [FEC] regulations, it began exploring ways to challenge the law, according to a May 2020 deposition of Cabell Hobbs, Ted Cruz Victory Committee treasurer.
Next month, his campaign’s lawsuit against the FEC will reach the Supreme Court. Cruz’s campaign lawyers are expected to argue the limit is unconstitutional, arbitrarily limits political speech and deters candidates from loaning money to their campaigns.
“The federal government’s restrictions on a candidate’s ability to loan his own money to his own campaign violate the First Amendment,” a Cruz spokesperson told The Texas Tribune in an email. “Senator Cruz seeks to vindicate his rights under the First Amendment and the rights of all those who would seek election to federal office.” …
[C]onservatives have long argued in court that campaign contributions amount to political speech, which shouldn’t be restricted.
In an amicus curiae brief filed in August, the nonprofit Institute for Free Speech argued that the limit hinders political speech by disincentivizing candidates from loaning money to their campaigns.
“Contributions to a political campaign promote more expenditures by that campaign, which results in more political speech,” wrote Donald A. Daugherty for the Institute for Free Speech.
New from the Institute for Free Speech
New Jersey Senate Race Shows Money Doesn’t Buy Elections… Again
By Tiffany Donnelly
New Jersey Senate President Steve Sweeney is the second most powerful politician in the state. A “top officer in the international Ironworkers union whose influence rivals that of governors,” according to Politico, Sweeney has led the state’s upper legislative chamber for over a decade. But now, thanks to political newcomer Edward Durr, it’s time for Sweeney to update his resume.
In a stunning upset, Durr, a truck driver who campaigned on a shoestring budget, defeated Sweeney in the 3rd Legislative District contest for New Jersey Senate. Sweeney conceded to the underdog six days after the Associated Press called the race. Durr spent less than $2,200 on his campaign, according to New Jersey Election Law Enforcement Commission (ELEC) records.
Interestingly, Sweeney won his last election in 2017, in what ELEC claimed at the time “appears to be the most expensive legislative campaign in American history.”
Durr’s astonishing victory is the latest illustration that money doesn’t buy elections. New Jersey’s largest teachers union knows this from experience. Four years ago, the New Jersey Education Association spent more than $5 million to defeat Sweeney, yet he still won by 18 points. That’s over $4,997,800 more than Durr spent to defeat the powerful Senate president.
Congress
Politico: Senate Dems launch last-ditch effort to change the rules of the chamber
By Laura Barrón-López and Marianne Levine
. . . Democrats are once again trying to find an answer to their filibuster dilemma in the hopes of passing voting rights legislation before it’s too late.
The latest attempt is taking place among a group of Senate Democrats who have gone back to the drawing board. Rather than the draconian step of tossing out the filibuster, they’re debating other possible rule changes to the chamber that could pave the way for election reform bills that are viewed by Democrats as paramount to combatting restrictive new voting laws and preserving democracy.
Sen. Tim Kaine (D-Va.), who is a member of the group drafting the reforms, said it would be “premature” to share specifics of the possible rule changes at this stage because “there’s no handshake deal yet.” But he did express a level of cautious optimism, stressing that abolishing the filibuster, which requires 60 Senate votes to advance legislation, is not under consideration this time…
Kaine said the group is “analyzing potential rule reforms” by “putting the shoe on the other foot” and asking “If we’re in the minority, how would we feel about this? Can we live under this? Would this make the Senate work better for either party under a president of either party?” …
The effort is expected to come to a head as early as January, according to multiple senators involved. The White House is aware of the discussions Kaine and others are having.
Short of abolishing the filibuster, there are limited options for Democrats to change rules that would provide a clear pathway to pass voting rights and election reform legislation. And Senate Democrats declined to specify what adjustments they’re discussing.
Ideas being floated, however, include changes to the amendment process and how the Senate debates legislation and nominations.
The Courts
Courthouse News: Pittsburgh Port Authority fights to reinstate ban on Black Lives Matter masks
By Emilee Larkin
Defending its refusal to let uniformed employees display a political or social protest message, the Allegheny County Port Authority told the Third Circuit on Tuesday that it could open a can of worms for other messages if it allows face masks proclaiming Black Lives Matter.
“What happens when someone wants to wear a Confederate flag mask,” asked Greg Krock, representing the Port Authority. “We’ve had an employee threaten to wear a ‘White Lives Matter’ mask.”
The policy took effect in July 2020 during the Covid-19 pandemic and a time of nationwide social unrest over the murder of George Floyd at the hands of a Minneapolis police officer. Since employees had to wear masks, a few began sporting ones that read Black Lives Matter, or the abbreviation BLM…
In January, a federal judge granted the employees a preliminary injunction, finding that, though well intentioned, the policy improperly restricted speech.
With the Port Authority now seeking a reversal, Krock told the panel Tuesday that it’s as simple as requiring employees to confine their support of Black Lives Matter to when they are off the clock…
U.S. Circuit Judge Patty Shwartz pressed Krock on an issue she felt undermined his argument.
“The Port Authority embraced the Black Lives Matter movement,” said Schwartz, an Obama appointee. “How is it OK for the employer to support this view but it’s not OK for the employees?”
Politico: Judge declines to unseal records about raid on Project Veritas founder
By Josh Gerstein
A federal magistrate judge in Manhattan has turned down a bid by a journalism advocacy group to make public details about the legal basis for an FBI raid last month on the home of a conservative activist and hidden-camera video producer.
The FBI seized cellphones in the early-morning, Nov. 6 raid on the apartment of Project Veritas founder James O’Keefe in Mamaroneck., N.Y., as part of an investigation that appears to center on the alleged theft of a diary belonging to President Joe Biden’s daughter, Ashley Biden.
The use of a search warrant to seize O’Keefe’s records raised the hackles of some First Amendment advocates, who said O’Keefe’s activities likely qualify for protection for members of the news media under federal law and Justice Department regulations. O’Keefe’s critics say his deceptive tactics and evident partisan bias disqualify him from any claim to being a journalist.
The Reporters Committee for Freedom of the Press formally asked the court to unseal the search warrant materials, including the application that federal prosecutors and the FBI submitted when seeking permission for the search. However, Magistrate Judge Sarah Cave ruled Tuesday that the records should remain under seal for now.
Cave cited Ashley Biden’s privacy interests as one factor justifying continued secrecy for the court files.
Fundraising
Reuters: Trump SPAC is masterclass in political workarounds
By John Foley
Donald Trump already blurred the line between entertainment and politics. A merger between a blank-check firm and his new media venture adds finance to the mix. If the plan comes to fruition, his backers may have a new way to support the former president’s agenda – and advance the prospects of political candidates he favors – without the usual campaign finance strictures, and with the prospect of making a profit to boot.
Trump Media & Technology said on Saturday that it had raised $1 billion from an unnamed group of investors, on top of the $250 million it will get from merging with Digital World Acquisition (DWAC.O), a special-purpose acquisition company. Trump’s company plans to use this haul to bankroll a social media venture called Truth Social, billed as a network that doesn’t discriminate based on political ideology.
Strictly speaking, Trump Media is not a campaign vehicle. Indeed, as a for-profit company incorporated in Delaware, it will be obliged to serve shareholders. But there’s no mistaking that Truth Social’s world view will be close to Trump’s own.
The States
OPB: Good government groups are pushing campaign finance limits in Oregon. They might have competition.
By Dirk VanderHart
After months of negotiations over what a system of campaign finance limits might look like for Oregon, a collection of left-leaning groups came to an impasse last week.
Now some participants in those negotiations are going it alone.
A coalition of good governance groups filed three potential ballot measures with the state on Monday that would shake up Oregon’s permissive system of funding campaigns. The group says it will decide on one to put forward to voters in 2022, once polling shows which is most popular.
While complex and differing in their specifics, each of the proposals would create new limits on what individuals, advocacy groups, labor organizations, corporations and political parties can contribute to candidates and causes.
The proposals also include requirements that political advertisements prominently display top donors, and that so-called “dark money” groups disclose their funding sources if they engage in campaigning.
One of the proposals would implement a system of public campaign financing, allowing candidates to accept small donations from individual donors and have that money multiplied by matching public funds. With public funding of up to $8 million a cycle for gubernatorial candidates — and far lower amounts for other offices —– the system is designed to allow candidates to run competitive campaigns without focusing solely on big donors.
“I think they’re all transformative for Oregon,” said Jason Kafoury, a longtime advocate of campaign finance limits with the group Honest Elections Oregon, and a chief petitioner in the efforts.
ABC15 Arizona (Video): Valley man sues Town of Gilbert over removed political signs
A Valley man is suing the Town of Gilbert and is trying to get an election voided all because of removed political signs.
