In the News
More Soft Money Hard Law: Are There Genuine Issue Ads or Just “Sheep’s Wool”?
By Bob Bauer
The Independence Institute, a 501(c)(3) organization, has pressed on this issue with a challenge to the application of the reporting rules to an ad lacking either express advocacy or its functional equivalent-i.e. a “genuine issue ad.” The ad named two Senators, one running for election, in appealing for support of pending legislation on criminal justice reform. A three-judge district court last month rejected the claim that the ad was constitutionally protected. The Court relied on the language of Citizens United. It appeared satisfied that even in the case of a genuine issue ad, a reference to a candidate was sufficient to trigger the electioneering communication disclosure requirements. Independence Institute v. Federal Election Commission, No. 14-cv-1500, 2016 WL656396 (D.D.C. November 3, 2016)…
For tax-exempt and other progressive issue organizations, the case is a significant one with implications of its own for the coming debate over “Trumpism” and the congressional majority’s plan to implement it. In the next election season, much of the discussion will center on the stand members of Congress (and other candidates) have taken, or would propose to take,on elements of this program. Under this decision, issue ads directed to this question would be regulated “electioneering communications.”
Forbes: Thomas More Law Center Victory Over California AG – Big Win For Free Speech Or Dark Money?
By Peter J. Reilly
The Thomas More Law Center is very concerned about donor confidentiality and is quite pleased about its recent win in the Ninth Circuit where it was opposing the California Attorney General. The argument was over whether TMLC should be required to provide the AG with the Schedule B of IRS Form 990 that discloses information about donors who have given $5,000 or more in a year…
TMLC had a victory, but hardly a sweeping one. They won’t have to turn their Schedule B over to the California AG, but almost every other charity that wants to raise money in California still does. Stephen Yosifon of Perlman+Perlman noted in the EO Tax Journal…
“For every other organization registering in California, Schedule B must still be submitted, as determined in Center for Competitive Politics v. Harris, 784 F.3d 1307 (9th Cir. 2015), cert denied.”…
In order to get this exemption, TMLC had to make a strong showing that their donors might be subject to harassment. They managed that…
“It also satisfies the requirement of Center for Competitive Politics that an organization show “a reasonable probability” that the disclosure of TMLC’s donors would subject them to threats or harassment.”
CCP
“Fake News” Debacle Shows That Media Needs to Earn Trust, Not Police Speech
By Joe Albanese
The failure of media organizations to temper or even acknowledge their own presumptions speaks to the need for self-reflection. They should not busy themselves with curating other news sources and banishing the unworthy from public discussion. Responding to individual stories or commentary is one thing, but readers will not categorically reject popular media sources without compelling reasoning. Unfortunately, that requires credibility – and insisting that you are a bastion of objectivity despite evidence to the contrary is not a formula for trustworthiness. Growing skepticism of traditional media has, in many respects, propelled the popularity of dubious sources in the first place.
It is folly for mainstream media outlets to try and objectively police subjective speech – just as it is folly for government to suppress political speech (via excessive campaign finance laws, for example). Debates about free speech should not focus on what outlets can be trusted or what voices are “right,” but should also encompass the broader culture of the free exchange of ideas – which, in the internet age, means adapting to an unprecedented amount of information. This applies even to speech outside media organizations, which is, after all, protected by the same First Amendment.
Free Speech
National Review: Who Is Worse for Free Speech: Campus Snowflakes or Donald Trump?
By Katherine Timpf
No doubt, a lot of people voted for Donald Trump because they wanted to put a stop to the “safe space” culture that’s running rampant on college campuses across the country – I’m just not so sure he’s the man to do it…
After all, Trump is the guy who said, “I think the big problem that this country has is being politically correct,” and who talked about that “big problem” nearly every chance he got.
But ask yourself: When Donald Trump is also flippantly tweeting about taking people’s citizenship away for burning flags, can we really be so sure?
If, as his tweet suggests, Trump really does want to enact the equivalent of “speech codes” for the country – and really does want to send people to jail for violating them – then is he really on the side of free speech at all?…
And it isn’t just the flag thing, either. What about what happened to Mike Pence at Hamilton? No, Trump didn’t demand legal action be taken against the cast, but his claim that the theater is supposed to be a “safe space” for public officials in this country represents a gross misunderstanding of what this country is supposed to be about.
Reason: Donald Trump Is a Greater Threat to Free Speech Than the Campus Left
By Robby Soave
Trump is as thin-skinned and easily-offended as the most delicate leftist student activist-safe spaces and all. But at least the social justice left is largely confined to college campuses. Trump, on the other hand, is in control of the entire federal government.
We know that Trump thinks people who speak out against him or say things he doesn’t like should be punished. He has routinely threatened to jail journalists for doing their jobs. He wants to use the powers of the presidency to make it easier for him to sue his critics out of business…
Trump is an embodiment of the antithesis of free speech: if he does not agree with what you say, he may challenge your right to say it.
Yes, a President Hillary Clinton would have been just as bad on free speech. Yes, Clinton has gone to even greater lengths to prohibit flag burning. Yes, Clinton thinks her political opponents shouldn’t be able to make a movie that criticizes her. She won’t be president, and that’s great. It’s a win for the First Amendment.
But Trump will be president, and that’s still a loss.
Congress
Conservative Review: Cruz and Meadows Introduce Bill to Eliminate Super PACs… The Constitutional Way
By Daniel Horowitz
Like every other unconstitutional federal regulation, “campaign finance reform” wound up exacerbating the very problem it purported to fix. By placing limits on the amount individual donors can contribute to candidates, it created a market distortion whereby donors funneled unlimited money to Super PACs. So instead of the funds going to the individual candidates who could be held accountable for the veracity of their message, Super PACs – which could receive unlimited funds for independent expenditures – began dominating the political scene.
The result of campaign finance restrictions has empowered special interests and have made it almost impossible to defeat an incumbent. By capping individual donations to specific candidates to just $2,700 per election, but allowing unlimited contributions to Super PACs, campaign finance, like every other government intervention, protects the big guys on the block.
To that end, Sen. Ted Cruz, R-Texas (A, 97%) and Rep. Mark Meadows R-N.C. (A, 93%) introduced legislation to abolish the caps on individual spending.
Political Parties
The Hill: Tired Dem donors feel like their money got burned
By Jonathan Easley
Democratic donors stung by Hillary Clinton’s upset loss in the presidential race feel like they just set their money on fire. The sore feelings are a huge problem for the Democratic National Committee (DNC), which is trying to rebuild its image and reinvigorate a defeated party in time for challenging midterm elections in 2018…
Many Democratic donors still feel burned by the party’s 2016 election losses and what they see as dysfunction in the DNC, which will elect a new leader in February.
Adding insult to the injury: The names of many donors were released in the WikiLeaks hack of Democratic emails, believed to have come at the hands of Russian intelligence. It was a mortifying development that has rattled some of the party’s big-money men and women.
Trump Administration
National Review: Why One Trump Opponent Is Not Freaking Out
By David Harsanyi
Joining activists who’ve spent years attacking the First, Second, Fourth, Fifth, and Tenth Amendments – and now the Electoral College – in a newfound veneration of the Emoluments Clause is a bit much. Of course, Trump should be held accountable for his potential conflicts of interest, and one hopes conservatives who value good government will stand up when tangible evidence emerges that they exist. But the critics on the left aren’t serious about the Constitution. They’re serious about the Democratic party.
Who can take journalists seriously who’ve never once uttered a word of concern over the Democratic party’s crusade to empower government to ban political speech by overturning Citizens United when they lose it over a tweet about flag-burning? If it were up to them over the past eight years, Trump would now be imbued with far more power to achieve the things they fear – unilaterally…
That’s not to say there haven’t been things that should upset you. Thankfully, we have a Constitution to protect us from Trump’s attacks on flag-burning, and the liberal attacks on political speech in general.
McClatchy DC: Supporters don’t really care if Trump drains the swamp
By Vera Bergengruen
The swamp is in the eye of the beholder.
As a candidate, Donald Trump promised to “drain the swamp” in Washington. Now that he’s been elected and is embracing part of that very establishment, Democrats and many in the media are slamming him as a typical politician who abandoned a principle as soon as it suited him.
But when McClatchy checked in with several dozen voters in central Pennsylvania – one of the swing states that swung the White House to Trump – to see how they defined the swamp, most didn’t really care. Instead, they said it’s fine with them if he uses the expertise of a DC establishment of lobbyists, donors and special interests to to get his way – and their way.
Candidates and Campaigns
New York Times: Anthony Weiner Fined $65,000 for Campaign Finance Violations
By J. David Goodman
Mr. Weiner, the disgraced former congressman whose lewd text message exchanges with a teenager spurred new federal scrutiny of Hillary Clinton’s emails in the final days of the presidential campaign, was fined $65,000 on Thursday by New York City’s Campaign Finance Board for violations during his failed bid for mayor in 2013.
Mr. Weiner’s campaign, which raised and spent millions stretching back to the 2009 race when he first made a run for mayor, is also required to return its remaining balance of $195,000, which the board said was unspent public matching funds.
The States
Pierre Capital Journal: South Dakota’s new anti-corruption laws, passed by voters, head to court next week
By Bob Mercer
A group of 24 Republican legislators, three of their spouses and one lobbying organization want the judge to issue an injunction permanently blocking the law.
The 1 p.m. CT hearing comes one month after a majority of South Dakota voters approved Initiated Measure 22 in the Nov. 8 statewide elections…
The $100 limit and its application to employment is the thrust of arguments made in the lawsuit by 11 of the legislators and three spouses.
The lawsuit contends that several of the people involved could face immediate criminal prosecution.
IM 22 also creates a system for publicly financing the election campaigns of candidates for statewide office and legislative seats, establishes a state ethics commission and places new limits and reporting requirements on political spending.
One of the arguments made in the lawsuit is IM 22 violates the South Dakota Constitution’s prohibition against laws embracing more than one subject.
Missouri Times: Missouri Ethics Commission looks to provide answers about Amendment 2
By Benjamin Peters
Until 2016, Missouri was just one of a handful of states with no limits on campaign contributions or lobbyist gifts, having abolished donation limits in 2008. But the November passage of the Missouri State and Judicial Campaign Contribution Limits Initiative, also known as Constitutional Amendment 2, put an end to that…
But the passing of the amendment has left many people scratching their heads and searching for answers. They typically turn to the Missouri Ethics Commission, which says they have received several calls in regard to the new amendment.
“People are wanting to understand how aspects of Amendment 2 may impact what they’re doing, especially in the campaign finance world,” James Klahr said. Klahr has served as the executive director for the Missouri Ethics Commission since 2013…
Klahr says that, with every new law, the terms are open to interpretation. That, in turn, means the Missouri Ethics Commission will have to set the precedents for how the law is enacted and enforced.
New York Gotham Gazette: 22 Campaign Finance Bills to Move Through City Council ‘Soon,’ Speaker Says
By Samar Khurshid
Within the next two months, the City Council is expected to vote on a large legislative package that would alter the city’s campaign finance system in a variety of ways and regulate donations to political nonprofits, Council Speaker Melissa Mark-Viverito said this week. Some of the proposals and the timing of their likely passage have raised concerns, though, that the Council is weakening the city’s model campaign finance system, pushing some reforms through after too long a wait and rushing other, newer bills through just in time for the next municipal election.
The Council has before it 22 bills relating to campaign finance law and elections, 14 of which were heard just last week by the Committee on Standards and Ethics. It was the first hearing on legislation for the committee under this Council, which took office in January 2014, owing to the fact that the main bill in that bundle deals with conflicts of interest. The 13 others relate to the campaign finance system.
New York Daily News: Exclusive: City Council bill would make it easier for crooked pols to steal public money, Manhattan DA Cy Vance warns
By Jennifer Fermino
The bill, which could pass as early as next week, would allow candidates for office to “correct” or “complete” contribution cards donors are required to fill out.
Those cards are required for cash donations and money orders, and must be submitted to the Campaign Finance Board in order to recieve public money.
The CFB matches donations under $175 six to one.
Allowing the candidates to fill out the forms themselves would make it much easier to forge or alter cards to try and get public funds they aren’t eligible for, Vance said.
“If this bill were to pass, it would become extraordinarily difficult for such conduct to be detected,” Vance said in a letter to the Council.
