In the News
Texas Scorecard: Texas Scorecard Radio (February 07, 2019)
By 1836 Studios
Eric Wang from the Institute for Free Speech calls in to discuss a devious anti-free speech bill proposed in Washington D.C.
Watchdog.org: Critics: Colorado judge rules against the First Amendment in donor privacy case
By Bethany Blankley
The Taxpayers Foundation and the TABOR Committee sued the City and County of Denver over a municipal campaign finance rule, which they argue, “chills [their] constitutionally protected free speech.” The rule requires that any organizations that spend more than $500 to educate voters, and in particular about a ballot initiative, must disclose their donor lists, register with the city, and also file monthly reports…
The TABOR Committee and CUT sought an injunction and requested the court to declare Denver’s disclosure requirements unconstitutional under the First Amendment. But they lost the first round after District Court Chief Judge Michael A. Martinez dismissed their suit, ruling they didn’t meet the legal requirements for standing. Attorneys for the plaintiffs are preparing an appeal.
In the appeal, the groups will argue the testimony presented by several individuals from both in and out of the state provided enough evidence to meet the two criteria needed for the case to be heard: they suffered an injury-in-fact, and the harm must have been to a legally protected interest…
The nonprofit groups have said they will not change the nature of their organization to meet the Denver rule requirement, which requires them to adhere to specific reporting requirements and disclose their donors’ names and information. Opening their records would violate their donors’ trust, “who demand and expect their donations not to be disclosed to the general public,” [Chairman of the TABOR Committee and former state legislator Penn Pfiffner] said.
They are restricted to spend less than $500 to engage voters about issues central to their mission. The initial amount was $250 but it was increased to $500 after the Institute for Free Speech won a lawsuit against the state.
New from the Institute for Free Speech
President David Keating Testifies Before House Administration Committee on H.R. 1
Institute for Free Speech President David Keating will testify before the Committee on House Administration at a hearing today on H.R. 1, also known as the “For the People Act of 2019.” Keating’s testimony highlights how the bill’s complex and expansive restrictions would harm groups that speak about policy issues.
“Free speech enabled the civil rights movement, LGBTQ rights, tax reform, economic growth, and much more. But before a nonprofit group speaks out, should we make them spend thousands of dollars to hire a lawyer to find out if it’s ok to speak? Should we make them fill out reams of paperwork for the Federal Election Commission? Should we make them declare what candidate they back, even if they don’t back anyone? I say no. That’s not how we do things in America. That’s not ‘For the People.’ Yet all that and more would be required if H.R. 1 became law,” Keating said.
The hearing is scheduled to begin at 8:30 AM, and Keating is scheduled to speak on the second panel around 1:00 PM. To read his full written testimony, click here, or go to: https://www.ifs.org/wp-content/uploads/2019/02/2019-02-14_Keating-Written-Testimony_US_HR-1_House-Administration-Committee.pdf.
Testimony of David Keating Before the U.S. House Committee on House Administration on H.R. 1
By David Keating
The bill would impose onerous and unworkable standards on the ability of Americans and groups of Americans to discuss the policy issues of the day with elected officials and the public.
Other sections of the bill would violate the privacy of advocacy groups and their supporters, stringently regulate political speech on the Internet, and compel speakers to include lengthy government-mandated messages in their communications.
H.R. 1 would radically transform interpretation and enforcement of the labyrinth of laws that regulate political speech, from its historic bipartisan structure to partisan control.
The proposal would also coerce Americans into funding the campaigns of candidates with which they may disagree in a system that research has proven hasn’t worked elsewhere…
At its core, H.R. 1 would greatly increase the already onerous legal and administrative compliance costs, liability risk, and costs to donor and associational privacy for civic groups that speak about policy issues and politicians. Organizations will be further deterred from speaking or will have to divert additional resources away from their advocacy activities to pay for compliance staff and lawyers. Some groups will not be able to afford these costs or will violate the law unwittingly…
One way to understand how H.R. 1 would harm nonprofit civic and advocacy groups is to apply its provisions to common advocacy and operating activities of these organizations. This complex and expansive bill has many provisions that are difficult for even campaign finance attorneys to understand. I will use my testimony to highlight some of these issues and their application to groups engaging in speech about policy issues.
Supreme Court
National Law Journal: Roberts Declares Himself First Amendment’s ‘Most Aggressive Defender’ at SCOTUS
By Tony Mauro
During a public appearance last week, Chief Justice John Roberts Jr. used himself as an example to prove the point that members of the court should not be pigeonholed as liberal or conservative.
Speaking at Belmont University College of Law with its dean, former Attorney General Alberto Gonzales, Roberts said:
“I don’t know where you put conservative or liberal in the First Amendment area, but I think I’m probably the most aggressive defender of the First Amendment on the court now. I think most people might think that doesn’t quite fit with my jurisprudence in other areas.”
It was a remarkable comment: rare for a justice to attach himself to a certain line of jurisprudence, and notable also because of his suggestion that the First Amendment is a cause that most people don’t associate with conservatives.
The days when liberal justices like Hugo Black and William Brennan Jr. were the main champions of the First Amendment faded long ago…
We asked First Amendment scholars and advocates for their reactions to Roberts’ comments. What follows are highlights, edited for length and clarity…
“Only in America would the vile speech of members of the Westboro Baptist Church be protected. And only in America would the legislature be barred, notwithstanding overwhelming public opinion to the contrary, from limiting the expenditure of unlimited sums in political campaigns. Chief Justice Roberts has led in the defense of both sorts of interests and has done so consistently. No one on this court has consistently defended First Amendment rights any more than the chief justice.” – Floyd Abrams, senior counsel at Cahill Gordon & Reindel
Congress
Compliance Week: Legislation demands SEC disclosures for corporate political spending
By Joe Mont
Congressmen Salud Carbajal (D-Calif.) and and Zoe Lofgren (D-Calif.) have reintroduced the Corporate Political Disclosure Act, H.R. 1053. This legislation requires publicly traded corporations to disclose political expenditures through the Securities and Exchange Commission to their shareholders and the general public.
The legislation would complement Congress’ first bill of 2019, the For the People Act (H.R. 1), legislation that also seeks to reform disclosures on corporate donations. H.R. 1 seeks to reform the campaign finance system and expose dark money in politics by upgrading online political ad disclosures and requiring all organizations involved in political activities to disclose their large donors.
LegBranch: Will increasing small dollar donations polarize Congress?
By Misty Knight-Finley and Alex Keena
After big gains in the 2018 midterms, Democrats pledged to advance broad-ranging election reforms. Last month they unveiled an ambitious piece of legislation, the For the People Act of 2019 (HR 1), which, in addition to tackling ethics and voting rights issues, proposes sweeping campaign finance reforms designed to “end the dominance of money in politics”. Specifically, HR 1 includes a public matching program to “increase and multiply the power of small donors” by awarding congressional candidates $6 in public funds for every $1 they raise from small donors.
In principle, there are compelling reasons to believe campaign finance reforms that expand the donor base will diversify the pool of candidates and improve responsiveness in government. However, some evidence suggests that small dollar donors have extremist preferences and may have a polarizing effect on politicians.
In a forthcoming Election Law Journal article, we ask, Do Small Donors Polarize Politicians? We evaluate three competing explanations of the relationship between small dollar donations and legislative polarization in the context of the U.S. Senate. We use campaign finance records and a dynamic measure of roll call voting behavior-Nokken-Poole scores-in the years between 1989 and 2015 to evaluate whether senators who receive more support from small dollar donors tend to be more extreme in their vote positioning. We find that the answer is complicated…
We find a strong correlation between a senator’s positioning before election and the small money raised during the two-year election cycle at the end of their six-year term. Senators who shift to the extremes before Election Day tend to receive a modest boost in small donor money. Indeed, we find moving from a median ideological position to a polar extreme nets an additional $1.2 million in small donor dollars. After Election Day, this effect disappears.
By Dan Mangan
President Donald Trump’s former lawyer, Michael Cohen, will testify before three congressional committees before he enters prison on March 6, his attorney Lanny Davis said Wednesday.
Those panels include the House Oversight and Government Reform Committee, where Cohen’s testimony will be public. Cohen had previously indefinitely postponed his appearance before that committee due to fears for his family’s safety.
Davis told CNBC that the date of that upcoming appearance will be released by the House panel. An Oversight Committee staffer declined to release the date on Wednesday.
Cohen’s testimony to the Senate Select Committee on Intelligence and the House Intelligence Committee will be closed. The date of the Senate panel appearance has not been made public. Davis declined Wednesday to release it, and a panel spokeswoman said the committee has a policy of not commenting on potential witness appearances.
Cohen is scheduled to testify Feb. 28 before the House panel.
IRS
HistPhil: Aprill On Liberal Suppression: Viewing Section 501(C)(3)’S Speech Restrictions In Their Tax Context
By Ellen P. Aprill
Editors’ Note: Ellen P. Aprill reviews Philip Hamburger’s Liberal Suppression: Section 501(c)(3) and the Taxation of Speech. Hamburger introduced his book’s central arguments in a previous HistPhil post.
Philip Hamburger’s Liberal Suppression: Section 501(c)(3) and the Taxation of Speech opposes on constitutional grounds the limitation on lobbying and the prohibition of campaign intervention required of charities, including churches, exempt under the Internal Revenue Code. The book is erudite, thoughtful, and thought-provoking. I learned a great deal from it. I also share a number of the author’s concerns. As a tax professor, naturally enough, I see these issues primarily through a tax lens, and this context leads me to draw conclusions regarding section 501(c)(3) quite different from those Hamburger comes to as a constitutional scholar. Yet I also believe that establishing a common understanding of the provision’s place in the Internal Revenue Code is crucial to any critique of it.
Language from Regan v Taxation with Representation (TWR), the 1983 case to which the book often refers, helps frame the contrast between our points of view. Against constitutional challenge, the Supreme Court in TWR upheld the limitation on substantial lobbying for entities exempt under section 501(c)(3) against constitutional challenge. Professor Hamburger’s book, my earlier work, and that of others have extended its reasoning, in particular its reliance on the principle that Congress has no duty to subsidize political activity, to section 501(c)(3)’s prohibition on campaign intervention as well.
FEC
National Law Review: Federal Election Commission Announces New Contribution Limits For 2019-2020
By Ronnie Miller
The Federal Election Commission periodically reviews federal campaign finance contribution limits and makes adjustments based on inflation.
For 2019-2020, individuals may contribute a maximum of $2,800 per candidate per election, increased from $2,700. Individuals may also contribute a maximum of $35,500 per year to national party committees and a maximum of $106,500 per year per account to additional national party accounts, such as those for the presidential nominating conventions, election recounts and contests, and national party headquarters buildings. The prior annual contribution limits were $33,900 and $101,700 respectively.
The increased contribution limits also apply to non-multicandidate political action committees. Other contribution limits for candidate committees, multicandidate political action committees, and state/district/local/national party committees remain unchanged from 2018.
The commission also changed some provisions for coordinated party expenditures and for bundled contributions by lobbyists.
Talking Points Memo: Manafort-Linked PAC Failed To Report $1 Million And The FEC Wants To Know Why
By Josh Kovensky and Allegra Kirkland
A super PAC closely linked to Paul Manafort is facing FEC scrutiny over why it failed to report a $1 million contribution received just before the 2016 presidential election.
In a Tuesday letter, the Federal Election Commission asked the Rebuilding America Now PAC for more information about the contribution, which the PAC first disclosed in an amended report in November 2018-some two years after the fact.
The FEC letter raises new questions about the murky financial operations of the PAC, which was operated by two Manafort deputies. Special counsel Robert Mueller is reportedly investigating whether Rebuilding America Now illegally received foreign funds and was connected to a scheme that Manafort allegedly lied about while purportedly cooperating with Mueller.
“It’s a significant amount of money,” former Federal Election Commission general counsel Larry Noble told TPM. “Missing $1 million for two years with an ongoing PAC will most likely – or should – end up in enforcement. There should be some penalty attached to the failure to report $1 million.”
Noble added that the PAC would have had to reconcile its bank statements at the end of each year, and it was unclear why that would not have triggered an amended filing to the FEC.
“Please amend your report or provide clarifying information as to why this activity was not disclosed on your original report,” the FEC wrote in the letter to the PAC.
Trump Administration
Daily Beast: Trump’s DHS Guts Task Forces Protecting Elections From Foreign Meddling
By Erin Banco and Betsy Woodruff
Two teams of federal officials assembled to fight foreign election interference are being dramatically downsized, according to three current and former Department of Homeland Security officials. And now, those sources say they fear the department won’t prepare adequately for election threats in 2020.
“The clear assessment from the intelligence community is that 2020 is going to be the perfect storm,” said a DHS official familiar with the teams. “We know Russia is going to be engaged. Other state actors have seen the success of Russia and realize the value of disinformation operations. So it’s very curious why the task forces were demoted in the bureaucracy and the leadership has not committed resources to prepare for the 2020 election.”
The task forces, part of the Cyber Security and Infrastructure Agency (CISA), were assembled in response to Russian meddling in the 2016 presidential election. One focuses in part on securing election infrastructure and the other focuses on foreign influence efforts, including social media disinformation campaigns…
A DHS spokesperson confirmed that some people have been taken off the task forces and moved to other roles in the department. The spokesperson added that the department is bringing on new people to do election security work…
“In the run up to the 2018 elections, DHS staffed the newly created elections task force and countering foreign influence task force by temporarily assigning personnel from across the Department. The work of these task forces continues to this day and is being institutionalized as a permanent effort. While some of the personnel who were brought on to serve on these task forces in temporary assignments have returned to their regular roles, we are also currently hiring new employees into permanent election positions to build out our team and support our efforts for 2020 and beyond,” [said Sara Sendek, the DHS spokesperson].
The States
Albuquerque Journal: Campaign spending disclosure bill passes Senate via 36-6 vote
By Dan Boyd
Groups or individuals spending big money on political advertisements in New Mexico would face more stringent donor disclosure requirements under a bill that passed the Senate on Wednesday.
The Senate voted 36-6 to approve the measure, Senate Bill 3, which is sponsored by Senate Majority Leader Peter Wirth, D-Santa Fe.
While federal court rulings have limited the state’s ability to regulate certain political spending, the bill would “give voters the information they need to know where the money is coming from,” said Wirth, who has also pushed similar proposals in past years.
It’s supported by Secretary of State Maggie Toulouse Oliver, a Democrat who implemented similar requirements through rulemaking in 2017.
That action, which is now facing a court challenge, came after then-Gov. Susana Martinez vetoed a similar campaign finance bill.
“Senate Bill 3 represents a major step forward on transparency and accountability in campaign finance reporting,” Toulouse Oliver said in a statement…
This year’s measure now advances to the state House.
