In the News
The Oklahoman: Federal bill raises many free speech concerns
By Editorial Board
Bradley A. Smith, chairman of the Institute for Free Speech, warns [H.R. 1] would “place sweeping new limitations on speech” and “does so in a very complex, vague, and unintuitive manner.”
[David] French and Bradley both warn provisions touted as preventing coordination between candidates and independent political action committees have far greater reach. Bradley warns the PAC restrictions “apply to literally any civic or membership organization” that engages discussion of legislative issues and public affairs.
“For advocacy groups, unions, and trade associations, several of the limits proposed in H.R. 1 would operate as a total ban on speech,” Bradley writes.
He says many routine communications made today by advocacy groups would be illegal even though most “have nothing to do with election campaigns. Rather, groups will be silenced when trying to participate in public debate on important policy issues.”
That silencing would occur, Bradley writes, because the “promote, attack, support, oppose” (PASO) standard mandated in the Democratic bill is overly broad and “a green light for the government and even private litigants to impose huge legal costs on almost any group’s effort to communicate about politics and issues – except through the speech of candidates and parties themselves. It is, furthermore, contrary to Supreme Court precedent limiting the regulation of speech to communications that could have no reasonable meaning other than to advocate the election or defeat of a candidate.”
The Federal Election Commission, which would oversee enforcement of the law, can currently operate only with bipartisan agreement. But the “For the People Act” would reduce FEC membership and allow action to be taken by a bare partisan majority.
Supreme Court
New York Times: Justice Clarence Thomas Calls for Reconsideration of Landmark Libel Ruling
By Adam Liptak
Justice Clarence Thomas on Tuesday called for the Supreme Court to reconsider New York Times v. Sullivan, the landmark 1964 ruling interpreting the First Amendment to make it hard for public officials to prevail in libel suits…
“New York Times and the court’s decisions extending it were policy-driven decisions masquerading as constitutional law,” Justice Thomas wrote.
Justice Thomas, writing only for himself, made his statement in a concurring opinion agreeing that the court had correctly turned down an appeal from Katharine McKee, who has accused Bill Cosby of sexual assault. She sued Mr. Cosby for libel after his lawyer accused her of dishonesty, and she lost based on cases stemming from the 1964 decision.
“I agree with the court’s decision not to take up” Ms. McKee’s case, Justice Thomas wrote. “I write to explain why, in an appropriate case, we should reconsider the precedents that require courts to ask it in the first place.”
“We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified,” Justice Thomas wrote of the Sullivan decision, which placed constitutional limits on what had until then been state-law claims. “The states are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm. We should reconsider our jurisprudence in this area.” …
“There appears to be little historical evidence suggesting that the New York Times actual-malice rule flows from the original understanding of the First or Fourteenth Amendment,” he wrote…
Mr. Trump’s two Supreme Court appointees – Justices Neil M. Gorsuch and Brett M. Kavanaugh – expressed support for broad libel protections in their opinions as appeals court judges.
New York Law Journal: Sen. Whitehouse: There’s a ‘Crisis of Credibility’ at the U.S. Supreme Court
By Sen. Sheldon Whitehouse, D-RI
The court’s campaign finance cases are a prime example of how the Roberts Five put results over doctrine. Four of these 13 cases-FEC v. Wisconsin Right to Life, Davis v. FEC, Citizens United v. FEC, and McCutcheon v. FEC-systemically decimated the Bipartisan Campaign Reform Act of 2002 (also known as McCain-Feingold) and powered up corporate spending in elections. An earlier challenge to McCain-Feingold, McConnell v. FEC, had upheld the law’s restrictions on soft money and issue ads, deferring largely to congressional findings. After that? A Republican rout.
What changed? Not the law or the facts, but the composition of the court: In 2006, Justice Samuel Alito replaced Justice Sandra Day O’Connor (the last Supreme Court justice to have any practical experience in elective politics). Out went the ban on issue ads (Wisconsin Right to Life), disclosure requirements for self-funding candidates (Davis), corporate spending (Citizens United), and aggregate contributions (McCutcheon). Along the way, the court, by bare partisan majorities, also knocked out two sensible state-level campaign finance laws (Arizona Free Enterprise Club v. Bennett and American Tradition Partnership v. Bullock).
Missoula Current: Supreme Court declines arguments, leaves Montana’s disclosure laws intact
The U.S. Supreme Court on Tuesday declined to hear arguments in a challenge to Montana’s disclosure laws…
The decision leaves standing an earlier decision by the Ninth Circuit Court of Appeals that affirmed the right of voters to know who is financing election advertising.
Montana’s 2015 DISCLOSE Act is here to stay, Gov. Steve Bullock said after the high court’s announcement.
“For over 100 years, we have led the way in clean government and transparent elections, despite attempts by out-of-state interests to time and time again overturn the will of the Montana people,” Bullock said. “This is another victory Montanans can claim over the big money that wants to make our decisions for us.”
Montana law requires political groups that spend money swaying voters to disclose basic information about their finances…
“Declining to hear this case protects the ability of state lawmakers across the country to use disclosure laws as a tool to promote transparency in elections,” said Paul Smith, vice president of the Campaign Legal Center. “Many states and municipalities have laws that parallel Montana’s. Disclosure laws like Montana’s are critical because voters deserve to know who is spending money to influence their votes.”
Bullock worked with a bipartisan group of lawmakers to pass the DISCLOSE Act in 2015. The act set a national standard for campaign finance by looking past an organization’s tax status to require the disclosure of funds spent influencing elections.
Congress
CNN: Alexandria Ocasio-Cortez identified the problem. Here’s the solution
By Michael Waldman
US Rep. Alexandria Ocasio-Cortez’s withering viral takedown of just how easily deep-pocketed donors dominate politics was like watching a prosecutor lay into a campaign finance system that has no defense…
But what the viral video leaves out is that the reform bill includes a solution to curb the power of big money in politics: a voluntary public financing system for congressional races.
Here’s how it would work. Small contributions would receive public matching funds, at a ratio of 6-to-1. If you give a candidate $100, for example, that becomes $700. Participating candidates would agree to curb the size of contributions they receive. They could now fund their races by amassing small contributions, rather than those from big donors and special interests. This shift could transform politics and policymaking…
A small donor system doesn’t try to end all private money in politics, a futile goal sought by earlier plans. Rather, it aims to bolster one of the most encouraging trends in political life. In 2018, individuals giving less than $200 gave $381 million to general election federal candidates.
The federal proposal is based on a successful approach used in New York City for three decades. The city’s matching fund system is considered the country’s best set of campaign rules. The vast majority of candidates from both parties participate. It’s led to a far more diverse set of officeholders and has helped ensure that several candidates compete for each seat with enough funds. Above all it has helped curb corruption. Some smaller incidents notwithstanding, compared with recent decades, New York politicians are seldom brought down by campaign finance-related scandals or prosecutions.
Politico: Cummings: 2 Trump attorneys may have lied about Cohen payments
By Andrew Desiderio
House Oversight Committee Chairman Elijah Cummings said on Friday that his panel received new documents showing that two attorneys for President Donald Trump may have lied to government ethics officials about Trump fixer Michael Cohen’s payments to women alleging affairs with the president ahead of the 2016 election.
“It now appears that President Trump’s other attorneys – at the White House and in private practice – may have provided false information about these payments to federal officials,” Cummings (D-Md.) wrote in a letter to White House Counsel Pat Cipollone.
Political Parties
Vox: The Democratic National Committee has voted down a ban on corporate PAC donations
By Ella Nilsen
A small group of committee members thinks the DNC needs to show it’s serious about banning corporate PAC donations, taking the same step as many presidential candidates who have pledged to forgo corporate PAC money. Others in the DNC want every tool possible to defeat President Trump.
The DNC said it would only take money from corporations in line with the organization’s values in 2016. But its Resolutions Committee that met in Washington, DC, this week stopped short of banning for-profit corporate PAC donations altogether. The committee instead chose to study the issue over the next 18 months…
“We haven’t quite come to grips as a party with the fact that people do not trust us. As much as we think that they should, they simply don’t,” said Christine Pelosi, chair of the California Democratic Party women’s caucus…
For all the controversy, the DNC only accepted $144,000 of corporate PAC money in 2018, out of $175 million in total fundraising…
Despite being the party that rails against corporate money influencing politics, the DNC is still taking it. For years, Democrats have positioned themselves as the morally superior to Republicans when it comes to money in politics. But the money is still flowing.
The DNC quietly did away with Obama’s corporate PAC donations ban in 2016, in the middle of a presidential primary where the corrupting influence of politics became a major campaign issue.
And corporate influence could be seen all over the 2016 DNC convention in Philadelphia; even flags on light posts featured logos of corporate sponsors. Corporations hosted numerous events and parties during the convention that politicians and their staff attended, getting facetime with lobbyists – per an account from former Vox reporter Jeff Stein.
Independent Groups
Center for Public Integrity: Inside Donald Trump’s Army Of Super Pacs And MAGA Nonprofits
By Ashley Balcerzak
At the outset of Donald Trump’s bid for the White House, he blasted super PACs on Twitter as “scams” and “unfair” and disavowed such outside help.
Then he changed his tune. By the end of his 2016 campaign, more than a hundred super PACs and similar groups had spent more than $72 million on his behalf, helping him defeat Democrat Hillary Clinton.
Trump’s army of organized support has expanded since then, with a dozen or so major nonprofits and super PACs pushing his policy platform and priming the public for Trump’s 2020 re-election campaign. Many of the groups feature former Trump staffers or campaign aides. Trump and his surrogates frequently appear at events hosted by some of the ventures.
Other pro-Trump groups, however, spent four, five or even six figures paying their own leaders and employees, filling the coffers of their consulting firms instead of spending money to boost Trump’s political future.
The Center for Public Integrity has this month analyzed the activities of each of these organizations. Read on to make sense of what political committees, super PACs and nonprofit groups are actively in orbit around Trump’s own 2020 re-election committee: …
Center for Public Integrity: 9 Things To Know About Bernie Sanders
By Dave Levinthal
In August 2016, shortly after he ended his 2016 presidential bid, Sanders launched Our Revolution, a 501(c)(4) “social welfare” nonprofit organization that says it aims to “revitalize American democracy, empower progressive leaders and elevate the political consciousness.” Our Revolution is overtly political – it’s been openly advocating for Sanders himself to again seek the presidency – and isn’t fully transparent about who funds it. For example, Our Revolution lists the first and last names of its contributors who give $250 or more per year – but that’s it, even for donors who give six figures. It’s difficult to accurately identify donors with only this information. Among Our Revolution’s name-only donors: “Ben Wilson,” “Sarah Brown,” “John Allen” and “Anonymous Anonymous.” Sanders himself has long run his political campaigns on a platform of political transparency. “We actually provide more information on our donors than is legally required,” Our Revolution spokeswoman Diane May told the Center for Public Integrity. “Out of respect for our donors, we do not share the exact contributions and some people do ask to remain anonymous.” …
Our Revolution states that it will not accept donations of more than $5,000 during one year “unless approved by a majority vote of the board of directors.” But the group disclosed accepting five contributions of more than $5,000 in 2017, including one for $100,000, according to its tax return. (It did not identify the donors.) Overall during 2017, Our Revolution spent $335,464 on “political campaign activity,” the disclosure states.
The Media
Washington Post: Trump said he found ‘real Collusion’ – on SNL
By Alex Horton
In yet another Sunday morning tweetstorm, Trump blasted the previous night’s episode of SNL – which opened with Alec Baldwin portraying the commander in chief declaring a national emergency at the southern border – and quickly drew fire from the ACLU and Baldwin himself…
“Nothing funny about tired Saturday Night Live on Fake News NBC! Question is, how do the Networks get away with these total Republican hit jobs without retribution?” Trump said on Twitter. “Likewise for many other shows? Very unfair and should be looked into. This is the real Collusion!”
Four minutes later, he tweeted an old standby: “THE RIGGED AND CORRUPT MEDIA IS THE ENEMY OF THE PEOPLE!” …
In December, when SNL imagined a world in which he did not exist, Trump suggested that the satirical program – which has needled presidents for decades and does not do any newsgathering or reporting – should be “tested in courts.”
The American Civil Liberties Union took to Trump’s favorite medium Sunday to issue a five-word rebuke.
“It’s called the First Amendment,” the group wrote on Twitter…
Trump has frequently targeted the media as “the enemy of the people” and earlier said it would be good to “loosen up” libel laws. The rhetoric has raised concerns that Trump’s words have and will translate into real-world violence. On Monday, a man assaulted a BBC cameraman at a Trump rally in Texas.
And his dismay with SNL appears to have crossed over into the reporting side of the NBC network. During the same Friday news conference, Trump took questions but made it a point to filter out some options.
“Go ahead, ABC – not NBC. I like ABC a little bit more, not much,” he said.
Trump Administration
Politico: Trump denies asking Whitaker to put ally in charge of hush money investigation
By Matthew Choi
President Donald Trump denied asking then-acting Attorney General Matthew Whitaker about putting a sympathetic U.S. attorney in charge of an investigation into pre-election hush payments to women who claimed to have had affairs with him.
Trump responded to a New York Times report that the president asked Whitaker if Geoffrey S. Berman, the U.S. attorney for the Southern District of New York, could oversee the investigation into the payments made during the 2016 campaign. Whitaker knew he could not put Berman in charge of the investigation, from which Berman had already recused himself, the Times reported.
Taking questions from reporters in the Oval Office on Tuesday, Trump flatly denied making any such inquiry.
“No, not at all, I don’t know who gave you that,” Trump told reporters Tuesday, after taking a noticeable pause. “That’s more fake news. There’s a lot of fake news out there.”
Washington Post: Two years in, Trump’s appeals court confirmations at a historic high point
By Ann E. Marimow
President Trump has installed a historic number of federal appeals court judges for this point of a presidency, with 30 confirmed by the Senate after two years of his term…
The immediate effect on the composition of the courts is so far modest – and the rapid pace of change is unlikely to continue given a limited number of remaining open seats.
Trump’s nominees mostly add to conservative majorities on courts already dominated by judges picked by Republicans or narrow the margin on more-liberal-leaning courts such as the San Francisco-based 9th Circuit, according to an analysis by judicial expert Russell Wheeler of the Brookings Institution.
The States
Inside NoVA: Bill to publicize all out-of-state donations to Va. candidates nixed
Out-of-state donors to candidates for state and local elections in Virginia will continue to be treated the same as contributors living in the Old Dominion…
Current Virginia law requires the names and other identifying information of donors to be listed on campaign-finance reports if the aggregate amount donated to a single candidate tops $100. For contributions less than that amount, there is no requirement to report information on donors.
Legislation patroned by Del. David Yancey (R-Newport News) would have required all out-of-state donations to be publicly reported, no matter their size.
The measure passed the House of Delegates on a 58-41 vote…
The measure then moved on to the state Senate, where it died on a tie 7-7 vote in the Committee on Privileges and Elections.
Washington Post: Florida sixth-grader arrested after dispute with teacher over Pledge of Allegiance
By Kristine Phillips
A Florida student is facing misdemeanor charges after a confrontation with his teacher that began with his refusal to recite the Pledge of Allegiance and escalated into what officials described as disruptive behavior.
The student, a sixth-grader at Lawton Chiles Middle Academy in Lakeland, Fla., east of Tampa, refused to stand for the pledge in the Feb. 4 incident, telling the teacher that he thinks the flag and the national anthem are “racist” against black people, according to an affidavit. The teacher then had what appeared to be a contentious exchange with the boy…
Lakeland police said in the news release that the student was not arrested for refusing to recite the Pledge of Allegiance. “This arrest was based on the student’s choice to disrupt the classroom, make threats and resisting the officer’s efforts to leave the classroom,” police said.
The American Civil Liberties Union of Florida issued a rebuke in the wake of the controversy. “This is outrageous. Students do not lose their First Amendment rights when they enter the schoolhouse gates,” the group said on Twitter…
The school district said students are not required to participate in reciting the pledge. In fact, the Supreme Court ruled in 1943 in West Virginia State Board of Education v. Barnette that schools cannot require students to salute the flag or recite the pledge, citing First Amendment rights.
