New from the Institute for Free Speech
IFS Attorney Ryan Morrison to Testify on IRS Privacy Reform
Institute for Free Speech Attorney Ryan Morrison will testify before the IRS tomorrow morning concerning a proposed rulemaking to protect the personal information of nonprofit donors. Under the rulemaking, most kinds of nonprofits would no longer be required to report the names and addresses of their major donors on annual tax forms.
“The proposed rule will help protect free speech. The IRS should not warehouse sensitive personal information it doesn’t need,” said IFS Attorney Ryan Morrison.
The Institute for Free Speech has long fought for privacy reform at the IRS. The Institute filed two sets of comments in support of the rulemaking.
“When the government compels disclosure of a private organization’s financial supporters, it intrudes on the First Amendment’s protection of free association,” the comments explain…
The hearing will take place on Friday, February 7 at 10 AM in the IRS Auditorium.
To read the Institute’s comments, click here (PDF) and here (PDF).
Hyperbole and charged rhetoric aside, what wasCitizens Unitedactually about? Quite simply, on January 21, 2010, the Supreme Court struck down a law that prohibited corporations and labor unions from independently voicing their support or opposition to federal candidates. That law, the Court correctly said, violated those organizations’ First Amendment rights.
The case came before the Court after the government attempted to prohibit a nonprofit organization from advertising a film criticizing then-candidate Hillary Clinton during the 2008 election. During oral arguments, the government even claimed that it could prohibit the publication of a book containing a single line advocating for or against a candidate, if it was funded by a corporation. Unsurprisingly, the Court ruled that these actions violate the First Amendment right to free speech.
Citizens Unitedset the stage for new ways of speaking about candidates, making it easier for Americans to learn both the good and the bad about the choices on their ballots. Federal campaigns, previously dominated by legacy media outlets and the candidates themselves, now include independent voices. The decision also coincided with an increase in political diversity and volatility, with more political newcomers finding paths to success.
Today, in these prepared remarks, I want to focus first on the facts underlying the case and the constitutional law that rendered the Court’s decision inCitizens Unitedthe only correct outcome. Then, with ten years and five election cycles of hindsight, I will review what we can learn from the effects ofCitizens Unitedon American campaigns. Far from a gift to large corporations and moneyed interests, the Court’s decision was a sweeping victory for the First Amendment, Americans’ political speech rights, electoral competition, and a robust, healthy democracy.
FEC
Wisconsin Public Radio (Audio): How A Federal Elections Watchdog Is Navigating 2020
By Keegan Kyle
The Federal Election Commission doesn’t have enough appointed members to form a quorum, leaving the campaign watchdog incapable of fulfilling certain tasks. We discuss how the agency is navigating quorum-less leadership, the 2020 elections and ongoing investigations of President Trump.
Host: Kate Archer Kent
Guest: Dave Levinthal
ProPublica: How Parnas and Fruman’s Dodgy Donation Was Uncovered by Two People Using Google Translate
By Ilya Marritz, WNYC
[T]he Campaign Legal Center decided to file a complaint with the Federal Election Commission charging that Global Energy Producers was a front for an unnamed donor – which…would violate U.S. election laws…
What became of the complaint to the FEC? The agency isn’t allowed to say what, if anything, it’s doing in response to the complaint (though the FEC would typically step aside when prosecutors file criminal charges that parallel an FEC investigation).
But even if the FEC wanted to take action, it couldn’t. The agency no longer has the minimum number of commissioners legally required to bring an enforcement action, effectively making the agency impotent. And even before that, according to Commissioner Ellen Weintraub, a Democratic appointee, the agency had succumbed to total paralysis. What was once a partisan divide at the agency, she said, had turned into a dispute over whether the very notion of enforcing election laws has merit. It no longer matters, she said, whether the potential target of an investigation is a Republican or a Democrat.
As Weintraub put it: “So Republicans have voted over and over again not to enforce the law, not to investigate, not to pursue allegations against Democrats. And Democratic commissioners have, on the other hand, voted to pursue them. So most, most recently, we had a case alleging a multimillion dollar coordination scheme between a super PAC and the Hillary Clinton campaign. And I voted to pursue the investigation and the Republicans blocked it. And this has happened – this scenario – has happened over and over and over again.” (The two other sitting FEC commissioners, both Republican appointees, declined to be interviewed.)
Independent Groups
The Hill: How to steal an American election
By Ralph Gomory
Despite his late entry into the race, [Michael] Bloomberg has already spent more than $200 million on advertising, and that is just the beginning…
But there is also a downside to this way of campaigning: This way of spending is available to any person or organization with the means and desire to spend on the election, whether or not that person or organization is American…
Here is one way anyone, American or not, can spend anonymously.
First, set up a political action committee (a Super PAC), which can spend unlimited funds as long as it does not coordinate with a candidate or a political party; second, set up a nonprofit 501(c)(3) or 501(c)(4), which does not have to disclose its donors; and third, through the nonprofit donate to the super PAC, giving it all the money it needs…
While Bloomberg has enough money to easily outspend most of his rivals for the Democratic nomination, there are entities outside of the U.S. that can easily outspend Bloomberg…
The technology for doing this anonymously exists and can be learned or bought.
These possibilities become even harder to ignore when we consider the extent and the methods already used by Russia in the 2016 election…
[W]e should realize that we are in a new ball game. There are new levels of money available, and new ways to spend it…
Different methods of foreign intervention call for different defenses. The FEC itself is deeply divided over what, if anything, should be done. So at present we are keeping our eyes tight shut and doing almost nothing.
Free Expression
Washington Post: ‘American Dirt’ critics are censoring the author based on her genetic background
By Kathleen Parker
The recent controversy over “American Dirt,” a book that was first widely acclaimed – before its author became the target of violent threats – reminds us yet again that freedom is fragile and that democratic ideals of tolerance and fairness dangle by a thread.
Author Jeanine Cummins doubtless thought she was acting nobly when she spent five years researching the immigrant crisis along the border…
But… Cummins earned the contempt of critics who considered her unworthy of her topic, not because the book wasn’t quite good enough (as some critics have noted) but because she wasn’t sufficiently Latina…
Once Cummins’s genetic shortcomings caught the attention of social media’s literati, it was off to the bonfires. Not only was she condemned, prompting her to cancel her book tour in fear for her safety, but a petition was circulated asking Oprah Winfrey to remove Cummins’s novel from her book-club list…
This is what the threats essentially aimed to do – censor Cummins based on her genetic background. Merely reading the preceding sentence should send chills up one’s spine. And seeking to silence or shame her with threats of violence is a scene from some other dystopian novel about a country or time not our own…
A high-tech mob can be marshaled in moments… Provocative art and literature are doomed in a censorious society…
The trend of punishing certain folks for expressing unpopular thoughts – or for not meeting standards set by a given special-interest group – has been gaining traction for decades… [W]ariness isn’t enough against threats of violence.
Media
Washington Post: Bloomberg’s Jennifer Jacobs takes brunt of wrongheaded editorial policy
By Erik Wemple
The Trump reelection campaign in December declared that it would decide on a “case-by-case basis” whether it would engage with reporters from Bloomberg News. A “case” arose on Monday, as the campaign encountered Bloomberg News reporter Jennifer Jacobs at a news conference in West Des Moines. She was shown the door.
Erin Perrine, a spokeswoman for the Trump campaign, told the Erik Wemple Blog: “The Bloomberg reporter was not credentialed to our event, per our existing policy. Only credentialed media is permitted access. Until Bloomberg News changes their unfair coverage policy, our policy will remain in place.”
So, is this typical Trump smash-mouth treatment of the media? Is it akin to the White House revoking the press pass of CNN correspondent Jim Acosta? Or suspending the credentials of Playboy correspondent Brian Karem? Or the State Department bumping an NPR reporter from an overseas trip following a contentious interview?
No. For one, campaigns aren’t government agencies for the purposes of the First Amendment. They can boot noisome reporters. “They can close the door,” says Stephen Gillers, Elihu Root professor of law at New York University, noting that the campaign is a private organization.
For another, the Trump people have a legitimate gripe with Bloomberg News, as opposed to their flippant and thin-skinned reaction to Acosta et al.: When Mike Bloomberg announced the launch of his presidential campaign, Bloomberg News declared that it would cover the activities of its founder but would stay away from investigating him or his Democratic rivals…
Meanwhile, Bloomberg Editor in Chief John Micklethwait declared that the outlet would “continue to investigate the Trump administration, as the government of the day.”
Online Speech Platforms
Wired: Iowa Misinformation Spreads Online, Despite New Policies
By Paris Martineau and Louise Matsakis
Since 2016, social media sites including Facebook, Twitter, and YouTube have vowed to crack down on misinformation related to elections. Monday, they faced their first big test, when delayed results from the Iowa Democratic caucus gave rise to partisan infighting, rampant misinformation, and conspiracy theories. Unsurprisingly, things didn’t exactly go according to plan. Twitter struggled to contain viral electoral misinformation and unfounded accusations of vote rigging from Trump allies, while Facebook grappled with disinformation.
As scrutiny over the app Iowa Democrats commissioned to report results from caucuses grew, reporters, political influencers, and other popular Twitter users shared misinformation regarding who was behind the software, helping the inaccuracies go viral. Simultaneously, President Trump’s family and allies took to Twitter to share and amplify unfounded allegations about the legitimacy of the electoral process. Trump campaign manager Brad Parscale, digital director Gary Coby, and sons Eric and Donald Trump Jr., accused Democrats of “rigging” the caucus amid news that results would be delayed…
Twitter’s election integrity policies prohibit people from using the platform “to manipulate or disrupt elections, including through the distribution of false or misleading information about the electoral process or when or how to vote.” In a section detailing examples of content that violates these rules, Twitter lists “misleading claims about voting procedures or techniques which could dissuade voters from participating in an election,” and “misleading claims that polling places are closed, that polling has ended, or other misleading information relating to votes not being counted,” among many others.
Ian Plunkett, the global director of Twitter’s policy communications team, said the tweets did not violate Twitter’s policies “as they do not suppress voter turnout or mislead people about when, where, or how to vote.”
Breitbart: Charlie Spies: Stop the Cancel Culture Against Conservatives on Social Media
By Charlie Spies
[S]ocial media platforms, such as Twitter, are disrupting a functioning marketplace by discriminating against conservative voices on their platforms…
The case study for why this discrimination must be fixed is my client and Florida-based investigative journalist Laura Loomer, who was banned from Twitter as private citizen, and the Twitter corporation has continued to enforce that ban against her campaign for Florida’s 21st congressional district…
When Twitter banned Loomer’s campaign account, it prevented her from raising hundreds of thousands of dollars, and since her Democrat opponent has a Twitter account while Loomer does not, she is cancelled from providing information to potential voters and/or donors, cutting her off from a vital pool of resources.
By blocking Loomer from creating an account, the Twitter corporation is engaging in electoral interference and providing a material and financial advantage to Loomer’s Democratic opponent, Lois Frankel…
The Laura Loomer for Congress campaign is filing a formal complaint against Twitter with the Federal Election Commission, arguing that her campaign’s ban from Twitter because of her conservative viewpoints is effectively an illegal corporate in-kind contribution to her Democratic opponent, Frankel.
Candidates and Campaigns
New York Post: Kirsten Gillibrand campaign spent $57,000 on flowers
By John Levine
Sen. Kirsten Gillibrand dipped into her campaign funds for $57,000 worth of flowers, dozens of parking tickets and multiple transatlantic flights…
Since 2009, [her] campaign paid at least $4,250 to…”DC treasurer” in its [FEC] filings. The payments ranged from $50 to $730 and went to PO Box 2014. That box is used by the DC Department of Motor Vehicles for “parking, photo enforcement, or minor moving violation[s],” a DMV spokesman confirmed…
“There is a prohibition on using campaign funds of a federal candidate committee for personal use purposes,” an FEC spokesman told The Post, saying the charges would only have been kosher if racked up in the service of some official responsibility.
At least 25 such tickets were recorded…
The 53-year-old junior senator dropped at least $57,300 on flowers – including $227 for flower deliveries in France…
The flowers were offered as gifts for supporters and fundraiser hosts, according to the campaign, which declined to provide further details…
In December 2011, the senator dropped $390 on an unknown item from Hermès of Paris. The filing earmarked the purchase as “office expenses.” An additional $435 went to the luxury retailer to buy gifts for supporters. There was also $500 for fine art photography from the Virgin Islands, and a $300 charge to New York’s Playwrights Horizon Theater for “research.”
Gillibrand reps said the Broadway charge was to send a staffer to watch “The True” – a play about Gillibrand’s grandmother.
KJZZ: Mitt Romney’s campaign makes millions of dollars by selling donor data
By Michael Locklear and Michelle Poe
Sen. Mitt Romney’s presidential campaign has made nearly $6 million by selling information about his donors in the seven years since he lost the race.
The figure comes from a 2News analysis of Federal Election Commission filings from 2013 to 2019, which reveal the donor list was rented 133 times.
Romney’s list contains data about more than a million people, including more than 21,000 Utahns. That information could include the amount and date of donation, name, address, age, occupation, gender, and race, according to David Magleby, a political science professor at Brigham Young University.
The practice is not uncommon for those seeking the highest federal offices…
Magleby said [t]here will be a big debate down the road about whether this information should be disclosed…
Sen. Mike Lee recently started selling his donor data and has brought in $19,000 so far, according to FEC filings. Lee said:
“Always, when you have someone profiting off of someone’s personal information, that raises important concerns. This isn’t profiting. This is an exchange of information along ideological lines that legally cannot take place without some exchange of payment.”
New York Daily News: A self-funded candidate is not the answer to Trump
By Donald K. Sherman
One reason self-funded candidates can’t prevent corporate influence in our political system? Their wealth, experience and perspective are usually already colored by corporate interests…
Powerful special interests allow the wealthy to have an outsized influence on our government. This concern is not diminished because a person uses their own money to secure public office. Either way, regular Americans get less of a say in the electoral and policy-making process.
In the 2016 election cycle, Trump funded almost 20% of his campaign expenditures. It is impossible to discount how such an influx of money, or access to it, can tip the balance of an election. Quite apart from their individual merits, ultimately, the argument for self-funded billionaire candidates is an argument against political representation of people without deep pockets…
Self-funded candidates don’t only pose risks to our democratic system if they are elected. Their very presence in the race can undermine the process. The U.S. Supreme Court’s 2010 Citizens United decision solidified the right of special interests to inject unlimited cash in our elections with limited disclosure. But there remain restrictions on their direct contributions to campaigns.
Those restrictions disappear when the interested party is a candidate. In 2020, self-funders have outspent their opponents on advertisements leading some to argue that they are buying their way into critical debates. A candidate running against a self-funded opponent was once able to use public funds to help bridge the spending gap. But, in 2011, the Supreme Court invalidated these balancing programs.
The States
Albany Times Union: State Police had role in lobbying investigation of rape survivor
By Chris Bragg
Last September, a State Police official placed a phone call to the owner and manager of the South Albany Airport, Ted Zabinski. The call concerned a flight from the airstrip in 2018 that passed over the state Capitol, towing a banner asking the state Legislature to pass the Child Victims Act.
The flight had been chartered by Kat Sullivan, an alleged rape victim turned outspoken activist…
While the State Police normally investigate criminal matters, the state Joint Commission on Public Ethics, which investigates civil violations of ethics and lobbying law, requested last September that the State Police contact the airstrip owner, the police said. The call came as JCOPE was ramping up its controversial probe into Sullivan for potential violations of state lobbying law allegedly committed in 2018…
Sullivan says she was grounded once it became clear her banner – stating “Dissolve JCOPE,” with a cat shooting lasers out of its eyes at the words – had a charged political message…
Cameron MacDonald, who is Sullivan’s lawyer in a lawsuit she’s filed against JCOPE, said the call from State Police was meant to intimidate Zabinski.
“I’m not aware of any law authorizing JCOPE to use the State Police in its investigations,” said MacDonald, executive director of the Albany-based Government Justice Center, which is representing Sullivan pro bono.
Al.com: Alabama lawmaker proposes ban on campaign contributions from gambling interests
By Mike Cason
Sen. Jim McClendon, R-Springville, announced at a press conference this morning that he would sponsor a bill to prohibit candidates for governor, lieutenant governor, and the Legislature from receiving contributions from anyone connected to racing, pari-mutuel betting, or any other gambling operation.
The bill would also prohibit those connected to the gambling industry from making contributions to candidates for those offices.
McClendon said his bill is aimed at curbing the influence of the Poarch Band of Creek Indians, which operates three electronic bingo casinos in Alabama.
“The purpose of this legislation is to get things in Alabama back in balance,” McClendon said…
“I am not making claims of undue influence based on monetary contributions, but we must be wary of the appearance of undue influence based on campaign contributions,” McClendon said.
The legislative session begins today. Lottery legislation and other gambling issues are expected to be among key topics for lawmakers.
McClendon said an Alabama law that prohibits utilities from donating to candidates for the Public Service Commission shows that restrictions on campaign contributions from certain sources are not new in the state. He also said other states have restricted campaign contribution from gambling interests.
Springfield News-Leader: Judge again calls Nixa rep’s union rules a ‘farce,’ strikes down law
By Austin Huguelet
The last time a judge ruled on a local lawmaker’s new rules for government employee unions, he said they created the “the epitome of a farce.”
Eleven months after blocking them from taking effect, he hasn’t changed his mind.
St. Louis County Judge Joseph Walsh issued a final ruling Monday saying the majority of a “paycheck protection bill” from Rep. Jered Taylor, R-Nixa, was unconstitutional. The decision leaves the law unenforceable.
Taylor’s bill would have required public-sector unions that don’t primarily represent public safety employees to:
* Ask workers’ permission to spend their dues for political purposes every year
* Hold elections every three years on whether or not a majority of its members want it to continue to exist
* Avoid picketing or striking and allow the government to make its own changes to contracts after they’ve been agreed upon…His effort was championed by Republicans and conservative groups and signed into law by former Gov. Eric Greitens. A previous version was vetoed by Democratic Gov. Jay Nixon in 2016…
In his decision, Walsh sided with seven unions that filed suit. He wrote that the law placed “discriminatory burdens” on non-public safety unions and infringed upon political speech and the right to engage in peaceful informational picketing.
