In the News
WBUR Boston NPR: HR 1 ‘Respects The Voters, Gives Them Their Voices Back,’ Rep. Sarbanes Says
The first big-ticket legislation from House Democrats heads to the floor this week…
Rep. Sarbanes and David Keating, president of the Institute for Free Speech, discussed…
Keating: “Free speech for all – that’s the goal of the First Amendment to our Constitution. That’s part of what makes America the best country in the world and free speech was vital for the civil rights movement. It was vital for LGBTQ rights, tax reform, much more. But this bill, the way it’s structured, before a nonprofit group speaks out on government, they’re going to have to spend thousands of dollars to hire a lawyer to find out if it’s OK to speak, and in many cases they’re going to have to fill out reams of paperwork for the Federal Election Commission. They’re going to have to declare in a government form what candidate they back with their speech, even though they’re not backing a candidate at all.
“And then there are all kinds of new disclaimer rules in the bill including disclaimers that are going to be 18 seconds long for a podcast or radio ad. So this is not really how we should be doing things in America. It’s not for the people to subsidize the speech of politicians and to limit the speech of the citizens. And that’s what HR 1 would do. And it’s not just us that says this. I think the two leading groups that work on free speech in the country are our group and the ACLU, and the ACLU put out a 13-page letter going point by point on the ways this bill would limit the speech of groups trying to change government policies.”
By Gregg Re
Former FEC Associate General Counsel for Policy Adav Noti, who currently directs the Campaign Legal Center, told Fox News that it was a “total mystery” to him why Chakrabarti had established an LLC seemingly to take money from the PAC, rather than simply create a “normal venture,” like a consulting business, to provide services for candidates on the books.
“Certainly, it’s not permissible to use an LLC or any other kind of intermediary to conceal the recipient or purpose of a PAC’s spending,” Noti said. “The law requires the PAC to report who it disburses money to. You can’t try to evade that by routing it through an LLC or corporation or anyone else.” …
Added former FEC chairman Bradley A. Smith, in an interview with The Washington Examiner: “It’s a really weird situation. I see almost no way that you can do that without it being at least a reporting violation, quite likely a violation of the contribution limits. You might say from a campaign finance angle that the LLC was essentially operating as an unregistered committee.” …
Noti said that Brand New Congress could be facing fines if it followed bad legal advice and made reporting errors. But civil or even criminal fraud statutes, as opposed to campaign finance laws, would potentially kick in if it were determined that Chakrabarti had intentionally tried to hide the money to use for illicit expenses.
Meanwhile, former FEC commissioner Brad Smith told the Daily Caller News Foundation’s investigative unit that, because Ocasio-Cortez may have held legal control of the Justice Democrats PAC while the PAC was supporting her campaign, the two committees were likely acting as affiliated committees — and therefore share an individual contribution limit of $2,700 that might have been improperly and repeatedly exceeded.
ICYMI
Ed. Note: This page includes a compendium of resources from IFS and our allies, highlighting the First Amendment problems with H.R. 1.
H.R. 1
Office of U.S. Senate Majority Leader Mitch McConnell: Democrat Politician Protection Act Would Yield a Partisan Takeover of the FEC
Back in 1976, Senator Alan Cranston – a California Democrat – warned about this. He said: ‘The FEC has such a potential for abuse in our democratic society that the President should not be given power over the Commission.’ As recently as two years ago, an outgoing Democrat FEC Commissioner – one of the most active and liberal regulators in the Commission’s history – said, quote, ‘I don’t have a problem with the 3-3 split at the commission… it was established that way in order to ensure that there was not going to be a partisan effort to use investigations against one political party or another.’ But now, Democrats want to scrap the neutrality and bring on the partisan takeover…
What’s more, the Democrat Politician Protection Act would give the sitting president the chance to name the Chairperson of the FEC, abandoning the current practice of rotating chairpersons.
“And this chairperson would get broad new powers — like the sole authority to issue subpoenas and compel testimony and the ability to hire and fire the general counsel with just two more votes from just one party.
“Democrats claim this is necessary because the current structure is dysfunctional. Well, let’s look at some current dysfunction and where it’s coming from. Let’s look at the Democrat who currently serves as the FEC Chair. She’s been a commissioner for over 16 years. In fact, her term ended 11 years ago, but she’s been held-over ever since. And now, this seasoned veteran of the left’s anti-speech crusade has announced she will bar the FEC’s attorneys from defending the Commission when liberal watchdogs come after it in court…
Democrats aren’t after an FEC that enforces the law. They want an FEC that advances their ideology. These current antics prove it. And the Democrat Politician Protection Act would make it much, much worse.
ACLU: Congress, Let’s Fix the Problems in H.R. 1 So We Can Enact the Bill’s Much-Needed Reforms
By Kate Ruane and Sonia Gill
[A]s we detail in a recent letter to Congress, there are provisions within the bill that, while well-intended, are overly broad and vague. If enacted, they would violate the First Amendment rights of American citizens and public interest organizations. Unless those provisions are fixed, we will oppose H.R. 1 and recommend that members of Congress vote against it…
The DISCLOSE Act and Stand by Every Ad Act together will have one of two pernicious effects on affected organizations. First, donors could choose not to give to organizations, even if they support their messages, or could be forced to give less than they otherwise might. Second, labor unions and advocacy groups like Planned Parenthood may choose to self-censor out of fear of crossing the DISCLOSE Act’s vaguely-defined line between what constitutes “campaign-related” communications and pure issue advocacy that refers to candidates for office.
If organizations do choose to speak, they may find themselves subject to onerous and intrusive disclosure requirements, including publishing the names and addresses of donors regardless of whether that donor supported or even knew about the communications that triggered the publication of their name. This could be especially burdensome for small organizations that cannot afford the compliance costs.
Other organizations may simply refuse to breach the trust that donors expecting anonymity have placed in them. Under either of these results, our public discourse is less vibrant, less diverse, and less informed. In short, the First Amendment loses.
There are other provisions that raise First Amendment concerns as well, and we detail them in the letter we sent to the House Rules Committee.
National Review: What Left-Wing Populism Looks Like
By Ilya Shapiro and Nathan Harvey
One of the most worrisome “reforms” is tucked away in the bill’s Federal Election Commission provisions. After Watergate, Congress created the FEC as a six-member, politically independent body so that neither party could use its regulatory power to punish political opponents. H.R. 1 abandons this longstanding structure, refashioning the FEC into a five-member commission that allows a simple majority to investigate and prosecute…
On the campaign-finance front, H.R. 1 represents a blatant assault on the First Amendment. Even the American Civil Liberties Union has said that the bill goes too far by trying to silence necessary voices that would otherwise speak out on public issues. In a recent letter to the House Rules Committee, the ACLU pointed to numerous provisions that would impinge on individuals’ and public-interest organizations’ freedom of speech.
For one thing, certain politically active organizations, including tax-exempt 501(c)(4) charitable groups and unions, would be compelled to disclose donors who have contributed more than a certain amount. Digital-ad companies, like Facebook, would be required to create an online database disclosing all political-ad purchases totaling more than $500. These provisions would impose considerable compliance costs and chill political speech – which is, of course, the goal of most campaign-finance “reformers.”
H.R. 1 also asks taxpayers to subsidize congressional campaigns. The bill’s “small-dollar financing” program provides a six-to-one match for private contributions up to $200. In practice, a $200 private donation would trigger a $1200 taxpayer donation, which could have up to a $9.6 billion price tag in the 2020 election alone. Under the guise of public financing, Americans of all political stripes would be forced to financially support candidates whose views they abhor.
New York Times: House Democrats Will Vote on Sweeping Anti-Corruption Legislation. Here’s What’s in It.
By Catie Edmondson
The House will vote on Friday on the Democrats’ signature piece of legislation…
“This is about instilling the confidence of the American people in the political process, in what happens in government, that it is the people’s interests that are being served,” Speaker Nancy Pelosi said.
But Republicans arguably have spent more time trying to define the bill – called the For the People Act or H.R. 1, to underscore its primacy – and tear it down than Democrats have spent trying to promote it. Senator Mitch McConnell of Kentucky, the majority leader, has branded it the “Democrat Politician Protection Act” in weekly speeches. The House Republican leader, Representative Kevin McCarthy of California, produced his own video to define the bill…
Some of the most debated provisions are intended to disclose who is paying for online political ads and financing so-called dark-money groups…
Some of those provisions, however, have drawn criticism from both conservative and liberal groups that argue the language is overly broad and would infringe on First Amendment rights.
Representative Steve Scalise of Louisiana, the minority whip, said the legislation would turn the Federal Election Commission “into a ‘speech czar’ with the power to enforce Democrats’ vague definition of ‘campaign-related speech.'” The American Civil Liberties Union has urged members to oppose the legislation.
“Communications that refer to a candidate in the context of an important public policy issue may have nothing to do with supporting or opposing that candidate’s election, and yet that speech would trigger disclosure,” the organization said in a 13-page letter laying out its concerns.
The Hill: H.R. 1 is for the politicians, not the people
By Rep. Rodney Davis (R-Ill.)
H.R. 1 creates public subsidies for campaigns through a six-to-one taxpayer match on small-donor campaign contributions of up to $200. For every $200, the federal government will pay $1,200 of taxpayer dollars to a congressional or presidential campaign. Meaning regardless of whether you support my bid for reelection, $1 million in public funds would have been to get me reelected last cycle had H.R. 1 been enacted…
Violating your First Amendment rights isn’t “for the people.” The American Civil Liberties Union (ACLU), an organization typically in support of the policies advanced by the Democratic Party, opposes this bill because of the many provisions in H.R. 1 that would “unconstitutionally impinge on the free speech rights of American citizens and public interest organizations. They will have the effect of harming our public discourse by silencing necessary voices that would otherwise speak out about the public issues of the day.”
First Amendment
NBC News: U.S. officials made list of reporters, lawyers, activists to question at border
By Julia Ainsley
Customs and Border Protection has compiled a list of 59 mostly American reporters, attorneys and activists who are to be stopped for questioning by border agents when crossing the U.S.-Mexican border at San Diego-area checkpoints, and agents have questioned or arrested at least 21 of them, according to documents obtained by NBC station KNSD-TV and interviews with people on the list.
Several people on the list confirmed to NBC News that they had been pulled aside at the border after the date the list was compiled and were told they were being questioned as part of a “national security investigation.”
CBP told NBC News the names on the list are people who were present during violence that broke out at the border with Tijuana in November and they were being questioned so that the agency could learn more about what started it.
In a statement, the ACLU’s Esha Bandhari said the rights group is “exploring all options in response.”
“This is an outrageous violation of the First Amendment,” said Bhandari, staff attorney with the ACLU’s Speech, Privacy and Technology Project. “The government cannot use the pretext of the border to target activists critical of its policies, lawyers providing legal representation, or journalists simply doing their jobs.”
The list, dated Jan. 9, 2019, is titled “San Diego Sector Foreign Operations Branch: Migrant Caravan FY-2019 Suspected Organizers, Coordinators, Instigators, and Media” and includes pictures of the 59 individuals who are to be stopped.
FEC
NJ Today: Lawmakers want to tighten ad spending disclosures
23 Democratic senators are asking the Federal Election Commission (FEC) to finalize a rule for online political ad disclaimers…
“Americans know the dangerous effects associated with a failure to identify the purchasers of online political ads. In 2016, ads purchased by Russian operatives were used to attack our democracy. A foreign adversary took advantage of weak online disclaimer and disclosure rules, which prevented voters from seeing the ads for what they were: deliberate attempts by a hostile foreign power to misguide and divide the American public,” the senators wrote…
The letter is signed by Senators Amy Klobuchar (D-MN), Dick Durbin (D-IL), Dianne Feinstein (D-CA), Tom Udall (D-NM), Mark Warner (D-VA), Richard Blumenthal (D-CT), Cory Booker (D-NJ), Chris Coons (D-DE), Kirsten Gillibrand (D-NY), Maggie Hassan (D-NH), Martin Heinrich (D-NM), Mazie Hirono (D-HI), Tim Kaine (D-VA), Angus King (I-ME), Ed Markey (D-MA), Jeff Merkley (D-OR), Jack Reed (D-RI), Jeanne Shaheen (D-NH), Tina Smith (D-MN), Jon Tester (D-MT), Chris Van Hollen (D-MD), Sheldon Whitehouse (D-RI), and Ron Wyden (D-OR).
The full text of the letter can be found below: …
“We understand that you share our frustration and that you only recently took over as Chair of the Commission. As you begin your term as Chair, we ask you to provide answers to the following questions:
1.When does the Commission expect to issue a final rule on disclaimer requirements?
2. What is the primary cause for delay in issuing a final rule?
3. Under existing laws and regulations, as applied by the Commission, what disclaimers are required for political advertisements published online?”
Candidates and Campaigns
USA Today: Why Alexandria Ocasio-Cortez should support eliminating limits on campaign contributions
By Trevor Burrus and Patrick Moran
Rep. Alexandria Ocasio-Cortez, one of the strongest advocates for reducing the influence of dark money of undisclosed origin on political campaigns, is under fire after her chief of staff, Saikat Chakrabarti, allegedly funneled more than $1 million from two political action committees into two of his companies, possibly in violation of campaign finance laws.
At this point, it is unclear whether this was unintentional or a purposeful attempt to break the law. Either way, the allegations underscore the reality of U.S. campaign finance laws: They are often overreaching, difficult to understand and overly burdensome for candidates.
Moreover, by making fundraising more difficult, they harm “outsider” candidates more than established incumbents. Whether this was an innocent mistake by a first-time candidate or done on purpose, these allegations show just how difficult it is to work within such a highly restrictive system.
Campaign finance laws benefit powerful incumbents while hurting candidates with fewer resources.
Notoriously complex and seldom understood, compliance with campaign finance regulations is both costly and difficult. It is no surprise that grassroots campaigns like the one Ocasio-Cortez ran can seldom afford to retain one of the few experts in the field or keep track of the thousands of pages of campaign finance regulations. Compliance alone is a tremendous barrier to entry for lesser-known candidates who nonetheless want to run for public office…
Grassroots candidates should likewise be concerned about draconian limits on campaign contributions that even Ocasio-Cortez has supported. As campaigns gain traction, they need resources to keep going, and both individuals and political action committees are extremely limited in how much they can contribute to candidates.
Associated Press: Inslee says he welcomes super PAC help in presidential bid
By Alexandra Jaffe and Brian Slodysko
Washington Gov. Jay Inslee said Tuesday that he welcomed the support of a super PAC even as many fellow 2020 Democratic presidential candidates have rejected them…
The group Act Now on Climate was formed last month specifically to back Inslee’s eventual presidential bid, a detail he glided past at an Iowa campaign stop as he explained why he welcomed them.
“They want to defeat climate change, and this is something I’ve been very passionate about for decades,” Inslee said. “So, no, I won’t be condemning any organization that’s trying to defeat climate change.”
The remarks come after the liberal group End Citizens United called on Inslee to disavow the group…
A host of candidates including Sens. Kirsten Gillibrand of New York and Elizabeth Warren of Massachusetts have urged other Democratic presidential contenders to reject super PACs. New Jersey Sen. Cory Booker is backed by one that was founded by a longtime supporter, but he has said he doesn’t want the support.
However, as a little-known governor, Inslee may not have many other options to get his message out in the crowded primary field.
The States
Idaho Press-Tribune: Campaign finance reform bill held until Friday
By Savannah Cardon
The House State Affairs Committee voted Thursday to hold S1113 in committee until Friday morning to allow more time for discussion…
Rep. Randy Armstrong, R-Inkom, expressed concern with more frequent reporting and the potential fines being imposed.
“That seems really excessive to me,” Armstrong said. “Why so many reports in such a short period of time when the election’s so far away?” ” … There’s a lot of reports and a lot of possibility that even though they’re filling a report and they’re not doing anything and it’s easy to do, we still have that fine attached if we happen to overlook it?”
Rep. Julianne Young, R-Blackfoot, was concerned with the bill’s language defining a “political committee,” stating that it could be broad enough to apply to a group of private citizens who choose to get involved in the political process, but aren’t directly tied to a candidate…
“I think it’s important to acknowledge that we actually have two competing principles here and we often do in government, and those competing principles would be transparency on one hand and privacy and free speech on the other hand – we have a responsibility to be balanced in terms of protecting both of those things,” Young said. “I’m entirely supportive or regulating political candidates and ensuring that they are transparent, I am not supportive of regulating private citizens and their involvement in the political process.” …
The other reform bill is currently being amended. It includes new rules for electioneering communications, lengthens the reporting time and sets a standard for donors that must be reported based on the amount given, and was held in the Senate State Affairs Committee amid nonprofits’ concerns over ‘donor privacy.’
High Country News: South Dakota pushes bills to prosecute ‘riot-boosting’ ahead of pipeline construction
By Elena Saavedra Buckley
On Thursday, the South Dakota Legislature passed SB 189 and SB 190, the riot-boosting and funding bills in question. The votes were largely partisan, with Democrats making up most of the opposition. The bills are now headed to Gov. Kristi Noem’s desk to sign in the coming days. Due to the bills’ emergency clauses, once signed, they will immediately become law…
Anti-protest laws exist in other states – bills were passed in North Dakota after the 2016 #NoDAPL demonstrations – but the South Dakota package, introduced in the legislative session’s final days, casts a much larger net over who can be legally pursued by authorities. It creates financial punishments for “riot-boosting,” a new term defining the actions both of protesters who participate in “riots” as well as anyone who “does not personally participate in any riot but directs, advises, encourages, or solicits other persons participating in the riot to acts of force or violence.” The legislation would also establish a fund – with the acronym “PEACE” – to address extraordinary expenses for the state and its counties from the pipeline, including protests, with the funds collected from “riot-boosters.” …
Opponents insist that the laws would effectively snuff out constitutional protests such as those at Standing Rock.
The riot-boosting bill “has the capacity to make a criminal of any citizen, not just big donors or supporters,” said Crow Creek Chairman Lester Thompson, Jr. “In a world of social media, how do you determine who is a riot-booster or just a concerned citizen?”
