In the News
Wall Street Journal: The Free Speech States
By The Editorial Board
America’s media are obsessed with Washington, but in our federal system much of the law-writing takes place in the 50 states. This is one reason to welcome a new index detailing how well each state protects the First Amendment right to engage in political speech.
The Institute for Free Speech this week will release its first Free Speech Index, which is a report card on how every state treats political contributions. The ranking is based on the limits a state places on a person or group’s right to donate to political candidates. The scores rank from 0% to 100% and compare contribution limits based on factors such as population.
The results confound the normal blue-red divide. The top five finishers, all with a 100% score, are: Alabama, Nebraska, Oregon, Utah and Virginia. All “permit individuals, political parties, and PACs to contribute unlimited sums to the candidates, parties, and causes of their choice,” and ditto for unions and corporations. This should be a clue that allowing people to donate money in politics is not a fast lane to rule by Republicans…
The least free are another odd assembly: Maryland, Colorado, Alaska, West Virginia and Kentucky. Alaska’s limits are so stringent that they’re caught up in federal court. In Colorado, individuals can donate a mere $200 to a state legislature seat. Only Montana’s limit is lower.
The Hill: Feds prohibit candidates from commenting on Trump, despite constitutional questions
By Eric Wang
As the midterm congressional elections unfold, candidates are also running in 36 states for governor and competing for more than 6,000 state legislative seats. How many of these state candidates do you think will say something good or bad about President Trump? Probably more than you can count. When they do, they will break an obscure federal law…
The Federal Election Commission recently released two enforcement matters concerning the federal gag on state candidates. In one matter, Washington State Gov. Jay Inslee’s 2016 reelection campaign ran a TV ad tying his Republican opponent to Trump. The ad concluded, “Bill Bryant and Donald Trump, Wrong for Washington [State].” Hillary Clinton and Inslee went on to clobber their opponents in that state. Going in the opposite direction, gubernatorial candidate Eric Greitens sent a mailer urging Missouri voters to turn out for Trump and Greitens. Trump went on to win a conversely large margin in that state, while Greitens won by a narrower margin.
The Inslee and Greitens ads seem rather typical for political campaigns, but they were actually outlawed by Congress in 2002 as part of the Bipartisan Campaign Reform Act (BCRA).
New from the Institute for Free Speech
New Free Speech Index Measures Limits on Political Giving
The Institute for Free Speech (IFS) today published its first ever Free Speech Index, grading states on their contribution limit laws for candidates, political parties, and political action committees. Contributing to candidates and groups with shared political beliefs is one of the most common and effective ways Americans exercise political free speech rights. The Free Speech Index offers the most comprehensive overview to date of how states limit political giving.
“Unfortunately, most states do a poor job of protecting First Amendment rights to support candidates and groups,” said Institute For Free Speech President David Keating. “Fewer than half the states have scores over 50%, and just 12 states receive ‘A’ or ‘B’ grades. Despite the overall lackluster performance, most states do shine in at least one category. For example, 31 states place no limits on donations from individuals to either parties, candidates, or political committees.”
Each state receives scores in five different components of political giving, as well as one overall score that accounts for the entire range of contribution limits in a state. The five components are Individual Freedom, Party Freedom, PAC Freedom, Corporations and Unions, and Inflation Indexing.
The overall scores are translated into letter grades for each state. 11 states receive an ‘A’ or higher, while another 11 states receive an ‘F’. Even states with similar overall scores often achieve them in radically different ways.
Free Speech Index – Grading the 50 States on Political Giving Freedom
The First Amendment to the United States Constitution states that “Congress shall make no law… abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
Unfortunately, Congress and the states have passed too many laws limiting these rights. Federal campaign finance laws and regulations contain over 376,000 words, but this statistic only scratches the surface. Each of the 50 states has its own collection of campaign finance laws and regulations limiting the freedoms of speech, assembly, and petition. Many of these state laws are poorly written, complex, or both. Despite the advances made in constitutional protections for speech over the last decade, our politics, and campaign finance in particular, remains more highly regulated than at any time prior to the 1970s, and in some important ways more highly regulated than ever. Far from a “wild west” with no rules, arcane campaign finance rules govern the minutiae not only of almost every campaign, but of what ordinary citizens and the groups they belong to can say, and how and when they can say it.
The Supreme Court has long recognized that political speech strikes at the core of the First Amendment, yet today the Court gives less protection to that core political speech than it does to topless dancing, flag burning, or tobacco advertisements.
To assess the impact of such speech regulation, we created the Free Speech Index.
SpeechNow.org v. Federal Election Commission: Protecting the First Amendment Rights of Americans
By Luke Wachob
If one person can speak about a candidate without limit, can Congress ban two, three, or hundreds of people from joining together to do the same? That was the simple question presented in the case SpeechNow.org v. Federal Election Commission. Fortunately, a unanimous 2010 D.C. Circuit Court of Appeals decision said no, such a limit would violate the First Amendment. Americans can now form independent expenditure groups to raise and spend money on campaign speech without limits.
SpeechNow extended First Amendment rights already protected for individuals to groups of people who pool their resources to speak. The case legalized what is now known as the super PAC, leading to an increase in speech about candidates and elections. SpeechNow is a pillar of modern free speech rights, and attempts to overturn the decision constitute a major threat to First Amendment political freedoms. This Issue Brief discusses three key facts about the D.C. Circuit Court of Appeals decision in SpeechNow.org v. FEC.
The Courts
Politico: Judge turns down secrecy bid from Super PAC donor
By Josh Gerstein
In a ruling on Friday, U.S. District Court Judge Amy Berman Jackson dismissed a lawsuit filed last December aimed at blocking disclosure of information in Federal Election Commission records about the activities of the Now or Never PAC, which spent a total of about $8 million backing candidates such as Todd Akin, a Senate nominee in Missouri.
A trust and trustee involved in funneling $1.7 million to the PAC argued in the suit that disclosure of their identities would invade their privacy. It appears that they are legally distinct from the original source of the funds, but it’s possible that naming the trust and trustee could effectively identify the donor.
Jackson, an appointee of President Barack Obama, said in her 23-page decision that the FEC was not legally barred from disclosing the identities of the trust and trustee. However, she also held that the agency was not legally obligated to release the information under a statute that the agency’s lawyers cited.
Under those circumstances, the FEC’s decision to disclose the information was reasonable, the judge wrote…
The judge also said those who brought the suit – named in public court papers as John Doe 1 and 2 – hadn’t shown any impact on their right to make political donations.
Milwaukee Journal Sentinel: Federal appeals court upholds dismissal of MacIver suit over John Doe II probe
By Bruce Vielmetti
A federal appeals court has upheld the dismissal of a conservative group’s lawsuit over how prosecutors obtained the group’s electronic records during an investigation into possible election law violations during the Gov. Scott Walker campaign.
The U.S. 7th Circuit Court of Appeals agreed with U.S. District Judge William Conley that the prosecutors properly obtained a search warrant from the original John Doe II judge before obtaining the records from the John K. MacIver Institute for Public Policy, Inc.’s internet service provider without notice to MacIver.
The records were obtained pursuant to the federal Stored Communications Act, and the act’s good-faith defense, as well as qualified immunity, protects the prosecutors from MacIver’s claims, Chief Judge Diane Wood wrote for a three-judge panel.
MacIver argued that the John Doe judge wasn’t a court of lawful jurisdiction as defined under the SCA. The defendants argued that SCA requires only that the search warrant for stored records be valid under state law.
Public Policy Legal Institute: D.C. Circuit Says You May Continue Using Your Smartphone
By Barnaby Zall
Under the Telephone Consumer Protection Act of 1991, it is a violation of federal law to use a “robo-dialer” (technically an “automatic telephone dialing system” or ATDS) to call a cellphone number except in a few limited circumstances. 47 U.S.C. § 227(b)(1)(A). A robo-dialer is defined as “equipment which has the capacity-(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). The Federal Communications Commission decided that, in an effort to be sure that telemarketers could not call cellphones, any equipment with those two capabilities would be considered a robo-dialer, even if the equipment wasn’t being used as a robo-dialer.
Have you looked at your smartphone recently? I bet it has a “contacts” function which stores numbers and can dial them.
So did you, some time in the past and probably without knowing, actually use a “robo-dialer” ATDS to call or text a cellphone? The FCC thinks you probably did.
Fortunately, a three-judge panel of the D.C. Circuit, led by Judge Sri Srinivasan, widely-thought to have been a top contender for a Supreme Court seat in a Hillary Clinton administration, said: “Wut?”
Internet Speech
Forbes: AI Already Controls What We See Online, Should It Also Control What We Say?
By Kalev Leetaru
In his Q&A with Wired earlier this week, Mark Zuckerberg once again raised the question of whether AI tools should be used to proactively govern online platforms, automatically deleting anything that “might be offensive content or violate some rules” before it is ever seen. This follows a call from Twitter for academic research proposals to assess and improve the “conversational health” of its platform and Instagram’s call for “cleaning up” the web, while even Apple has begun emphasizing the need to “infuse technology with humanity.” In parallel, the concept of human-curated “safe spaces” is generating interest, in which editors create curated safe environments free of the toxic weight of the rest of the internet. This raises the question of whether in the future we will have two informational worlds, one a raw toxic cesspool of trolls, hate speech and violence, fed by myriad firehoses of content designed by unblinking algorithms profiling us and trying to turn us into mindless clicking addicts that sell ads and a premium internet above the clouds where we pay digital Sherpas (human or machine) to spend their time wading through the material and finding the material most useful to us. Most importantly, it raises the question of whether this is the future we want and just how much control we will have over those guides that control what we say and do online.
FEC
Washington Examiner: Stormy Daniels 60 Minutes interview: Hush money could be 6-figure campaign finance violation for Trump’s lawyer
By Kyle Feldscher
A former chairman of the Federal Election Commission believes the payment President Trump’s attorney made to adult film star Stormy Daniels to cover up the illicit affair between the president and the porn star is a six-figure campaign finance violation.
Trevor Potter, who served as chair of the FEC during President George H.W. Bush’s administration, told CBS’ “60 Minutes” the $130,000 payment Cohen made to Daniels, whose real name is Stephanie Clifford, would be an in-kind contribution to Trump’s campaign. It would be about $126,500 more than is legally allowed.
Cohen has admitted to making the payment in October 2016, just weeks before his long-time client won the presidential election. The payment was meant to enforce a non-disclosure agreement that would keep Daniels from speaking about the affair.
“It’s a $130,000 in-kind contribution by Cohen to the Trump campaign, which is about $126,500 above what he’s allowed to give,” Potter said. “And if he does this on behalf of his client, the candidate, that is a coordinated, illegal, in kind contribution by Cohen for the purpose of influencing the election, of benefiting the candidate by keeping this secret.”
The States
Everett Daily Herald: Bill aims to curb the filing of campaign finance complaints
By Jerry Cornfield
Lawmakers passed a bill overhauling how Washington enforces its campaign finance laws but the state’s top lawyer and largest daily newspapers contend it goes too far and want the governor to veto it.
The legislation aims to make navigating the maze of reporting rules clearer so people can avoid making mistakes that incite election complaints against them for violations.
It would require every complaint go through the Public Disclosure Commission, whose staff would have greater discretion to resolve minor errors, the ability to investigate serious violations that could affect the outcome of an election, and authority to refer large and complex cases to Attorney General Bob Ferguson.
And, under the bill, one would no longer be able to file complaints directly with Ferguson’s office. Likewise, he could no longer pursue alleged wrongdoing on his own but would instead have to wait for the commission’s go-ahead.
House Bill 2938 represents the most far-reaching reform of a process created by a voter-approved initiative in 1972. It comes amid a surge in complaints against elected officials – including many state lawmakers – most of which involve blunders of administrative process rather than intentional failure to disclose contributions and expenditures.
Los Angeles Times: California campaign watchdog panel divided over proposed dramatic oversight changes
By Summer Ballentine and Jim Salter
At the request of California Gov. Jerry Brown, the state’s political watchdog panel on Thursday delayed action on a controversial plan that could transfer power from its full-time chairwoman to give other, part-time commissioners a greater say in key decisions.
The state’s five-member Fair Political Practices Commission is locked in a power struggle in which some part-time members, with support from attorneys representing candidates and elected officials, are proposing that Chairwoman Jodi Remke be required to share oversight power on budgets, court cases, hiring and policy changes.
Peter A. Krause, the governor’s legal affairs secretary, wrote to the panel on behalf of the governor that he appreciates that Commissioners Allison Hayward and Brian Hatch want the part-time panelists to have a bigger role in the agency’s operations…
“Given the importance of the commission’s work, particularly during an election year, it is vital to provide the regulated community and the public more time to better understand how these governance principles will work in practice and to provide input into the revision process,” Krause added, asking for a one-month delay.
U.S. News & World Report: St. Louis Prosecutors Seek to Disqualify Greitens’ Attorneys
By Summer Ballentine and Jim Salter
Separately, [Missouri Attorney General Josh] Hawley said his office has asked for information from 15 sources as part of an investigation into a charity founded by Greitens.
Hawley said civil investigative demands, which under Missouri law operate as an administrative subpoena, went to the charity, The Mission Continues, as well as Greitens’ campaign and the Greitens Group. The office also issued civil investigative demands to staffers or former staffers at those entities, but Hawley wouldn’t say specifically who…
Hawley announced the inquiry into the veterans charity earlier this month after The Associated Press reported that Greitens had used a Mission Continues email to send meeting invitations to political consultants as he was preparing to run for office in 2015.
Greitens, who was on the board of directors of The Mission Continues at the time, sent meeting invitations from the charity’s email address to three political consultants, according to records obtained by AP.
Federal tax law prohibits 501(c)(3) charities such as The Mission Continues from participating in any political campaign on behalf of a candidate for public office, with penalties ranging up to the loss of their tax-exempt status. The legal consequences for individual charity directors are less clear.
Denver Post: Denver grand jury investigates Colorado secretary of state for handling of campaign finance complaints
By Jon Murray
Colorado Secretary of State Wayne Williams is under investigation by a grand jury for how his office handled several campaign finance complaints, the Denver District Attorney’s Office has confirmed.
In an election year, the investigation is unavoidably tinged with political appearances, as the Republican state official seeking re-election in November reacted with disappointment to the continuing investigation by a Democratic district attorney. The official misconduct complaint was initiated last summer by a conservative campaign finance watchdog who has tangled frequently with Williams’ office.
Matt Arnold, who operates under the name Campaign Integrity Watchdog, alleged that Williams’ office failed to pursue the collection of a $9,650 judgment against a Colorado Springs political committee. It had failed to register with the state and failed to file financial disclosure reports.
Arnold also alleged that it was improper for Williams’ office to intervene in legal proceedings in support of a half-dozen groups facing campaign finance complaints, costing taxpayers more than $25,000 in legal fees. And he argued Williams was aiding political cronies involved in those groups.
