In the News
The Center Square: Nonprofit to promote Whitmer’s road bonding plan on TV ads
By Scott McClallen
A new nonprofit reserved television ads to promote Gov. Gretchen Whitmer’s road plan to repair major highways and bridges, according to disclosure forms…
Road to Michigan’s Future (ROMF), a 501(c)(4), reserved ad space days after Whitmer’s State of the State address…
ROMF is designated as a social welfare organization, so it doesn’t have to disclose donors under federal law…
David Keating, president of the Washington D.C.-based Institute for Free Speech, told The Center Square that raising money is a First Amendment issue.
“If you can’t raise money, it’s hard to speak, is basically what it comes down to,” Keating said.
“Like any other right in the First Amendment, if the government were to deny you the ability to raise and spend money, you wouldn’t have much of a right.”
Supreme Court
New York Times: More Money, More Problems for Democracy
By The Editorial Board
The Supreme Court effectively has taken over the work of regulating campaign finance by striking down congressional efforts to restrict money in politics and substituting more permissive standards. The first such decision, Buckley v. Valeo, in 1976, held that election spending is a form of constitutionally protected free speech, although it permitted some restrictions to prevent corruption. Under Chief Justice John Roberts, who was installed in 2005, the court has issued a series of rulings significantly expanding what counts as free speech while simultaneously restricting what can be done to prevent corruption…
In Citizens United, the court struck down restrictions on election spending by corporations and unions, leaving only flimsy prohibitions on giving the money to a candidate or taking instructions from a candidate…
Citizens United is bad law. Limits on corporate political spending are a necessary and legitimate check on the economic power the government grants by letting businesses incorporate. But there is little prospect the court will reverse the decision in the foreseeable future, and proponents of a constitutional amendment have a very long road to travel…
[B]illionaires Michael Bloomberg and Tom Steyer offer a valuable reminder that even limits on individual donations would not entirely suffice, because billionaires still would be able to fund their own candidacies…
The best path forward, therefore, is to limit the influence of wealth by allowing candidates to tap other sources of financial support…
Disclosure is crucial, too: A legal loophole allows political nonprofits to conceal the identities of donors. The Supreme Court has suggested that stronger disclosure requirements would be legal.
The Courts
Reason: Short Circuit: A Roundup of Recent Federal Court Decisions
By John Ross
Arkansas prohibits anyone from donating money to a candidate running for state office more than two years before the election. Does the “blackout period” violate the First Amendment? Eighth Circuit: The preliminary injunction is upheld, and plaintiff can donate money while the case is pending.
And in en banc news, the Fifth Circuit (by an 8-8 vote) will not reconsider its decision allowing a Baton Rouge, La. police officer’s suit to proceed against a protest organizer. (The cert petition remains pending.)
First Amendment
Wall Street Journal: Shut Up, They Advised
By David B. Rivkin Jr. and Andrew M. Grossman
At a time the First Amendment rights of free speech and association are under assault, it’s disheartening to see the judiciary getting in on the act. At issue are the judge-made rules governing judges themselves. A draft advisory opinion circulated last month by the Committee on Codes of Conduct of the U.S. Judicial Conference recommends new restrictions on the First Amendment rights of federal judges as well as their law clerks and staff attorneys. The opinion is unconstitutional, and a sloppy bit of judging to boot.
The committee, made up of 15 jurists, proposes to bar judges and their staffers from membership in the Federalist Society and the liberal American Constitution Society. The opinion reasons that a judge’s impartiality and independence could reasonably be called into question if he belongs to what the committee deems ideological “advocacy groups.” But the committee provides no clear guidance as to which other groups are forbidden. It says only that judges remain free to join the American Bar Association but must avoid the Federalist Society and the ACS.
Federal judges aren’t stripped of their constitutional rights before donning their robes. Yet the opinion takes no account of the First Amendment at all. If it did, its authors would have been obliged to subject their ruling to “heightened scrutiny”-which means, among other things, that the government may impose limits only to achieve a compelling interest. Safeguarding public confidence in the fairness and integrity of the judiciary qualifies-but that’s not the end of the test.
Reason: This Crackdown on a Jury Nullification Activist Violates the First Amendment
By Damon Root
“Leafletting and commenting on matters of public concern are classic forms of speech that lie at the heart of the First Amendment, and speech in public areas is at its most protected on public sidewalks, a prototypical example of a traditional public forum.” So held the U.S. Supreme Court in Schenck v. Pro-Choice Network of Western New York (1997). Unfortunately, the Michigan Court of Appeals has taken a dimmer view of what the First Amendment protects. In Michigan v. Wood (2018), that court upheld the criminal conviction of Keith Eric Wood for handing out pro-jury-nullification pamphlets while standing on the public sidewalk outside his local courthouse…
The Michigan Court of Appeals rendered its judgment on Wood’s fate three years later. Pushing back against the argument that Wood’s conduct was “pure speech” and that “the state has no compelling interest in preventing a person from distributing educational pamphlets to potential jurors in public spaces,” Chief Judge Christopher Murray ruled that his behavior was “precisely the type of speech states have a compelling interest in regulating through validly enacted statutes.”
In a friend of the court brief submitted to the Michigan Supreme Court on Wood’s behalf, Cato Institute legal scholars Clark Neily and Jay Schweikert offer a persuasive diagnosis of that ruling’s constitutional ills. “The State not only lacks a compelling interest in censoring the speech at issue here,” the brief points out, “but rather has no legitimate interest at all in preventing people like Mr. Wood from educating their fellow citizens about the injustice-preventing role that juries have played in our system of government for more than eight centuries.”
Independent Groups
USA Today: Bernie Sanders, answer why your presidential campaign even needs a dark money group
By Editorial Board
[T]he biggest legacy of the Citizens United ruling has been so-called dark money – money raised by independent groups from unknown donors spent on behalf of a candidate, multiple candidates, a party or cause.
And the biggest user of this dark money – at least until this fall when President Donald Trump is expected to release a torrent of it – has been Democrats…
Sen. Bernie Sanders, I-Vt., has created, and is the beneficiary of, a new kind of dark money group called Our Revolution.
What makes Our Revolution different is that it is designed to advance Sanders’ cause against other Democrats in the primaries, rather than against a Republican in a general election.It’s one thing to say you have to play the dark money game because the other side surely will. It is quite another to be first off the mark in bringing its corrosive powers into a new area.
Sanders has long been a big critic of money in politics, often criticizing political action committees and the candidates who benefit from them. To then go out and found a group like Our Revolution is hypocritical.Our Revolution claims to voluntarily report all donors who give more than $250. But it doesn’t file documents with any agency, provide identifying information about individuals or specify how much they gave…
At the very least, Our Revolution needs to reveal all its donors, along with where they live and and how much they give.
USA Today: Our Revolution: Our mission is much more than electing Bernie Sanders
By Paco Fabián
Our movement is under attack. That’s why I want to set the record straight. Our Revolution is an independent political organization that networks 600 local groups and hundreds of thousands of grassroots activists to fight for change in their communities.
Our mission is much more than electing Bernie Sanders. Our members have elected nearly 250 candidates to local office and Congress; we’ve passed over 50 ballot measures and local ordinances to expand affordable housing, voting rights and racial equity; and we’ve amplified the voices of progressives in state and local Democratic parties controlled by corporate interests.
Those who claim that Our Revolution is anything other than independent of the Bernie Sanders 2020 campaign insult our grassroots members who are doing the hard work necessary to transform our broken system.Our adversaries mischaracterize us as a “dark money” group controlled by corporations and the wealthy. That is simply laughable. We are advancing “Medicare for All,” “Green New Deal” and other policies that are the opposite of corporate profiteering.
The truth is that regular people fund us. In 2018, 98.6% of our fundraising came from over 107,000 people whose average gift was $20.04. Organizing people and pooling their resources is the only way to defeat the power and influence of the wealthy in America.
Our Revolution is more transparent than some “good governance” groups like Common Cause. We disclose the names from donations above $250 and do not accept corporate money.
Media
The Hill: Trump campaign removes Bloomberg News reporter from Iowa event
By Tal Axelrod
President Trump’s reelection campaign removed a reporter with Bloomberg News from one of its events in Iowa on Monday, just ahead of the state’s caucuses.
Bloomberg News reporter Jennifer Jacobs was escorted out of a press conference in West Des Moines. A Trump campaign official confirmed to The Hill that the move was in keeping with a policy to bar members of the media outlet from obtaining credentials to cover campaign events.
“It was cordial, but she wasn’t credentialed per our policy,” the campaign official said regarding Jacobs’s expulsion from the event.
The Trump campaign first announced that policy in December, saying it would not grant media credentials for rallies and other campaign events to Bloomberg News journalists. The move came in response to the outlet telling editorial and research staff that the company would not conduct in-depth investigations of Michael Bloomberg or his rivals for the Democratic presidential nomination.
“Since they have declared their bias openly, the Trump campaign will no longer credential representatives of Bloomberg News for rallies or other campaign events,” campaign manager Brad Parscale said in a statement at the time. “We will determine whether to engage with individual reporters or answer inquiries from Bloomberg News on a case-by-case basis. This will remain the policy of the Trump campaign until Bloomberg News publicly rescinds its decision.”
Online Speech Platforms
Washington Post: Conservatives spread false claims on Twitter about electoral fraud as Iowans prepare to caucus
By Isaac Stanley-Becker and Tony Romm
The Iowa Democratic Party, in partnership with national Democratic officials, has labored to make the caucuses more transparent and to fend off the sort of confusion and conspiracy theories that marred the process in 2016…
But their efforts falter when users with massive online audiences push falsehoods, which social media platforms often refuse to remove…
Tom Fitton, president of the conservative activist group Judicial Watch, wrote Sunday morning that “eight Iowa counties have more voter registrations than citizens old enough to register.”
That notion, based on a Judicial Watch report purporting to find similar irregularities in hundreds of counties across the country, is false, according to state officials and a Washington Post review of the most up-to-date data…
“The truth actually gets retweeted almost never, and the things that are the most inflammatory get the most play,” said Ann Ravel, the director of the Digital Deception project at MapLight, which tracks money in politics. She previously served on the Federal Election Commission.
Ravel accused tech companies of failing to grapple with what she says is a form of voter suppression. She said such tweets have the effect of casting doubt on the legitimacy of the political process.
“People do not have trust in institutions anymore,” she said…On Facebook, a similar post from Judicial Watch was referred to the company’s third-party fact-checkers for review, after it had been shared roughly 11,000 times on the site. By late Monday, one fact-checking organization determined it was “false information getting spread around by conservative activists,” and Facebook then began labeling it as such for its viewers.
Axios: YouTube adjusts line on political misinformation
By Margaret Harding McGill and Sara Fischer
YouTube will bar videos that lie about the mechanics of an election, the company announced in a blog post Monday, but indicated it remains reluctant to crack down more broadly on deceptive political speech, as some critics have demanded.
YouTube’s content policies – which are separate from the advertising policies Google outlined in the fall – do not ban political falsehoods…
In new explanations refining its stance, YouTube clarified how its deceptive practices policy applies to election-related content, including deepfakes.
YouTube will remove videos that advance “false claims related to the technical eligibility requirements” of current candidates and officeholders. YouTube offers as an example a claim that a candidate isn’t eligible for office because of false information about citizenship status requirements.
The company also said it would remove content that has been manipulated in a way that misleads users and may pose a risk of “egregious harm.” That includes the altered video of House Speaker Nancy Pelosi that was slowed to make her appear as if she was drunkenly slurring her speech.
YouTube’s efforts also include giving “authoritative voices,” including news sources, higher ranking in search and “watch next” recommendations to combat political and election misinformation.
Washington Post: Tech companies’ scattershot war on disinformation isn’t working
By Editorial Board
More than 29 million Americans may have seen an alarming dispatch on their Facebook feeds last year: “Trump’s grandfather was a pimp and tax evader; his father a member of the KKK.” The accusation, which is at best highly misleading, came from a website that publishes articles in English, written by Americans.
The catch? These writers are paid by an operation based in Iran.
CNN reported last month on American Herald Tribune, a self-professed “genuinely independent online media outlet” that cybersecurity experts have determined is part of a far-reaching Iranian influence campaign. The strategy is simple: create a network of inauthentic news sites, then enlist associated accounts on popular platforms to spread the stories not only here but also in Europe, Latin America and the Middle East.American Herald Tribune’s modus operandi matches what we’ve already learned about online disinformation: Adversaries “launder” their campaigns through sympathetic citizens of target countries, or just citizens they offer money to – from authors on propagandistic or outright deceptive news sites to run-of-the-mill social media users…
But there’s something else: Those cybersecurity researchers identified this influence operation way back in 2018. CNN’s investigation reveals that Facebook removed American Herald Tribune’s page then, along with 651 others in its network, and Google made similar takedowns. Twitter, however, booted American Herald Tribune only this past month. Whatever companies today are doing to coordinate with each other as they fight disinformation, it’s not enough.
Candidates and Campaigns
Washington Post: Their 2018 win was historic. What have these Democrats accomplished?
By Brittany Renee Mayes and Kate Rabinowitz
The historic midterm election of 2018 brought the biggest blue wave to the House of Representatives in over 40 years…
And they have shown their strength in attracting small-dollar donors, which is reshaping how Democrats finance congressional races.
First-term members relied less on corporate donors to fund their races than Democrat incumbents did, and in the first nine months of 2019, they raised half of the money the caucus got from contributions under $200. “There’s been an exponential jump” in smaller donations made online that was significant for occurring “in the off-year of 2018,” said Tim Lim, a political strategist…
Dozens of Democratic challengers…made refusing corporate political action committee money a part of their campaigns.
Rejecting corporate money is not new for Democrats. But it was “nowhere near the critical mass that there is today,” said Sheila Krumholz, executive director of the Center for Responsive Politics, a nonpartisan research group…
To date, 34 freshman Democrats have pledged to refuse corporate PAC donations…The pledge is not airtight: Corporate PACs do donate to the party and its committees, which distribute the funds to candidates.
The real test will be whether freshmen can stick to their guns now that they are running as incumbents, especially for competitive seats. “Rejecting PAC money is not much of a sacrifice for candidates, for challengers and open-seat races,” said Krumholz, “but [it’s] most definitely a significant sacrifice for sitting members of Congress.”
Sludge: ‘No Corporate PAC Money’ Dems Keep Taking Corporate PAC Money
By David Moore
Congressional incumbents who have taken outspoken stances against corporate money in campaigns are devising ways to take funding from corporate PACs like those affiliated with AT&T, Google, and Wal-Mart.
Six House Democrats who pledged last election cycle to reject corporate PAC donations received campaign contributions last year from the Across The Aisle PAC, a vaporous group that is funded almost exclusively by corporate PACs, a Sludge review of Federal Election Commission (FEC) filings found.
These members are continuing a recent trend of candidates using a loophole in the voluntary “no corporate PAC” pledge that allows their campaigns to take corporate PAC money through shell PACs that are not registered to a corporation.
Ironically, two of the six, freshpersons Rep. Max Rose (D-N.Y.) and Rep. Josh Harder (D-Calif.), teamed up to introduce the Ban Corporate PACs Act. The bill, introduced in November 2019, would amend campaign finance laws to prohibit for-profit corporations from operating or funding PACs.
In August of 2018, Rose’s first TV ad featured him saying, “I’ve got a message for the lobbyists and the corporate kingmakers: keep your damn money. Because it’s not you I’m working for.”
Of the 21 House representatives who received funding from the PAC last year, six had signed the no corporate PAC pledge for 2018: Rep. Anthony Brindisi (D-N.Y.), $5,000; Rep. Josh Harder (D-Calif.), $4,500; Rep. Elaine Luria (D-Va.), $2,000; Rep. Max Rose (D-N.Y.), $3,000; Rep. Abigail Spanberger (D-Va.), $3,500; and Rep. Xochitl Torres Small (D-N.M.), $2,500. The pledge was being tracked by the Center for Responsive Politics.
The Hill: Trump: Bloomberg ‘getting the DNC to rig the election’ against Sanders
By Zack Budryk
President Trump in an early morning tweet on Sunday accused 2020 White House hopeful Michael Bloomberg of getting the Democratic National Committee (DNC) to “rig the election” against Sen. Bernie Sanders (I-Vt.).
“Many of the ads you are watching were paid for by Mini Mike Bloomberg. He is going nowhere, just wasting his money, but he is getting the DNC to rig the election against Crazy Bernie, something they wouldn’t do for @CoryBooker and others. They are doing it to Bernie again, 2016,” Trump tweeted.
“Mini Mike is part of the Fake News. They are all working together. In fact, Bloomberg isn’t covering himself (too boring to do), or other Dems. Only Trump. That sounds fair! It’s all the Fake News Media, and that’s why nobody believes in them any more,” Trump said in another tweet…
On Friday, the DNC announced it would remove the fundraising threshold from its debate qualifications, giving Bloomberg a chance to take the stage at the next debate in Nevada…
Jeff Weaver, a senior adviser to Sanders’s campaign, calling it “the definition of a rigged system.”
“The DNC changing its debate criteria to ignore grassroots donations seems tailor-made to get Mike Bloomberg on the debate stage in February. Having Americans willing to invest in your campaign is a key sign of a successful campaign,” entrepreneur Andrew Yang tweeted…
Tom Steyer said…”The Democratic Party should be doing everything possible to ensure a diverse field of candidates. Instead, they are changing the rules for a candidate who is ignoring early states voters and grassroots donors.”
CPR News: Lawmaker Threats Bill Tripped Up Over Punishment, Free Speech Concerns
By Bente Birkeland
The sponsors of a bill that would have increased the penalty for threatening or harassing a state lawmaker have withdrawn it.
Democratic Rep. Kyle Mullica of Thornton said he pulled the plug on HB20-1121 because too many people had concerns about the punishment for a threat to a lawmaker becoming a felony. Right now it’s a misdemeanor.
“I think that people are concerned [about] making sure that we’re not stifling 1st Amendment, our political speech, and obviously that was never the goal of any legislation.”
Mullica’s goal was to prevent the influence of threats over legislation and intimidation of lawmakers. A number of legislators, including Mullica, have faced threats in recent years because of measures they support.
“I think we were willing to take a step back to go try to make sure that we are drafting a policy that obviously accomplished our goals to try to stop that type of behavior,” he said. “But also address the concerns that we were hearing too.”
The Colorado ACLU had come out in opposition to the measure and said there were already adequate laws in place. “Rendering these crimes as felonies versus misdemeanors for this category of individuals will not deter such assaults and threats,” Denise Maes, the ACLU’s public policy director in Colorado told CPR earlier this week. She worried the bill would end up imprisoning people who don’t pose an actual threat.
The Fulcrum: Not from here? Then don’t send political donations, Arizona lawmaker says
By Sara Swann
While more and more states and localities are moving to ban foreigners from influencing their elections, one Arizona lawmaker wants to take it a step further.
Republican state Rep. Bob Thorpe is not as concerned about people from other countries as he is with people from other states. So last week he proposed legislation banning contributions to legislative and ballot initiative campaigns from anybody outside Arizona.
A similar measure in South Dakota has been struck down as an unconstitutional restriction on speech, while a version in Alaska has been tied up in litigation for years.
Thorpe and other Republicans typically extend their hands-off approaches to governmental regulation to include restrictions on campaign financing. But the Tea Party conservative says he’s now more interested in preventing wealthy people from other parts of the country (particularly the liberal coastal elites) from influencing election outcomes that would only affect the people of Arizona.
The Legislature is only narrowly in Republican hands, and prospects for the bill getting through before this year’s session concludes at the end of April are unclear…
Tom Collins, the executive director of the state’s nonpartisan campaign finance regulatory agency, says the proposal is probably unconstitutional.
Thorpe conceded that point to the Arizona Daily Star. But he said he’s pushing the measure anyway in hope of eventually making the Supreme Court decide the issue.
Washington Post: The Constitution says it’s okay to shoot socialists, a GOP legislator in Montana contends
By Katie Mettler
Rep. Rodney Garcia, a state lawmaker in Montana, told a roomful of Republicans he believes the U.S. Constitution says socialists can be jailed or shot simply for being socialists. Garcia initially made the statement at an election event, then he reiterated it to a Billings Gazette reporter.
The Republican Party in Montana swiftly rebuked him…
Billings Gazette reporter Holly Michels later asked Garcia to clarify his remarks, and the lawmaker doubled down.
“So actually in the Constitution of the United States, [if you] are found guilty of being a socialist member you either go to prison or are shot,” Garcia [said]…
Anthony Johnstone, a law professor at the University of Montana, told The Washington Post that “nothing in the Constitution of the United States authorizes the government to punish socialists or anyone else on the basis of their political beliefs.” In fact, the First Amendment prohibits punishing political speech, and the Constitution of Montana “expressly prohibits discrimination on the basis of political beliefs,” Johnstone said. All state lawmakers swear an oath to uphold those doctrines.
People often misunderstand the Treason Clause in Article III of the Constitution, interpreting it to justify punishment of political opponents, Johnstone said. The framers, he said, “were careful to define treason narrowly so it could not be used for merely political purposes.”
Toledo Blade: SLAPPing back at abuse
By The Editorial Board
The Ohio General Assembly needs to pass the Ohio Citizen Participation Act, a measure that would protect citizens’ First Amendment rights against frivolous lawsuits meant to silence them.
The measure, sponsored by state Sen. Matt Huffman (R., Lima), targets actions known as SLAPPs, Strategic Lawsuits Against Public Participation.
It would allow judges to dismiss such lawsuits faster without undermining legitimate claims. There are numerous examples of lawsuit abuse that make the need for such a law in Ohio clear, including:
An Ohio mayor’s defamation suit against a couple for questioning whether he’d kept his campaign promises, and criticizing his tax and spending policies…
The suit faced by the Chagrin Daily Times, a newspaper outside of Cleveland, for covering and editorializing about a citizens group’s complaints against an energy firm. The lawsuit cost the citizens group, the newspaper, and their insurance companies about $300,000, prompting Ohio’s Eighth District Court of Appeals to call for legislation like the reform bill now before the state Senate Judiciary Committee…
Stories like these are why the Ohio Participation Act has attracted a coalition of supporters including the Ohio Domestic Violence Network, the Ohio News Media Association, the ACLU of Ohio, and Common Cause Ohio.
