The Courts

Politico: Koch group won’t get broader appeals court review in donor secrecy fight

By Josh Gerstein

[The Americans for Prosperity Foundation] will not get a larger judicial panel to review its complaint that California is infringing the group’s First Amendment rights by demanding a list of large donors.

But the Friday ruling from the 9th Circuit Court of Appeals came over the protest of five of the court’s judges…

In 2016, a federal judge in Los Angeles blocked the requirement, saying it put the donors in peril and that California has done a poor job of keeping the information private. However, last September, a three-judge panel of the 9th Circuit reversed that decision, calling it “clearly erroneous.” On Friday, the same appeals court declined to offer an “en banc” – or 11 judge – review of the case, even though five judges joined a spirited dissent warning that the state appears to be running roughshod over the conservative group’s First Amendment rights.

In the dissent, Judge Sandra Ikuta wrote that the threat to Americans for Prosperity members’ rights was real and imminent.

“People publicly affiliated with the Foundation have often faced harassment, hostility, and violence, as shown by the evidence adduced at trial in this case,” Ikuta wrote. “At a rally in Michigan, several hundred protestors wielding knives and boxcutters surrounded the Foundation’s tent and sawed at the tent ropes until they were severed.” …

Ikuta called the earlier decision from her colleagues “contrary to the reasoning and spirit of decades of Supreme Court jurisprudence.” She emphasized that the two groups that sued over the California donor-filing requirement are organized as charities, not as groups taking part in election-related advocacy…

Americans for Prosperity or the Thomas More Center could ask the Supreme Court to review the case.

BuzzFeed News: Ted Cruz Is Suing To Get Rid Of Limits On How Much He Can Reimburse Himself For His Campaign Against Beto O’Rourke

By Zoe Tillman

Sen. Ted Cruz is suing the Federal Election Commission over rules that limit how much money he can reimburse himself for his 2018 race against Democrat Beto O’Rourke. Cruz put $260,000 of his own money into his successful Senate reelection campaign and is now fighting a law that says his campaign can only raise up to $250,000 to reimburse him.

In a lawsuit filed Monday in federal court in Washington, DC, Cruz is arguing that the $250,000 cap on post-election fundraising to repay candidates for personal loans violates the First Amendment. The Texas Republican contends that the restrictions undercut the rights of candidates and donors to express themselves by financing political speech.

“The First Amendment commands that ‘Congress shall make no law . . . abridging
the freedom of speech.’ This bedrock liberty was designed to ensure the full and free political debate that is the hallmark of our democratic form of government,” Cruz’s lawsuit begins. “At its core, it protects the rights of citizens to engage in political speech.”

The section of the Bipartisan Campaign Reform Act that Cruz is challenging is known as one of the so-called “millionaire provisions” of the law – rules aimed at limiting the advantages of wealthy candidates in an election cycle. It says that campaigns cannot use more than $250,000 in funds raised after an election to repay a candidate for personal loans to their campaign.

Rapid City Journal: SD ACLU files First Amendment lawsuit against KXL protest bill

By Arielle Zionts

The ACLU of South Dakota filed a federal First Amendment lawsuit Thursday in Rapid City against Gov. Kristi Noem’s bill aimed at potential protests against the Keystone XL oil pipeline.

“No one should have to fear the government coming after them for exercising their First Amendment rights,” Courtney Bowie, ACLU-SD legal director, said in a news release. “That is exactly what the constitution protects against, and why we’re taking these laws to court. Whatever one’s views on the pipeline, the laws threaten the First Amendment rights of South Dakotans on every side of the issue.” …

The lawsuit targets Senate Bill 189, which Noem signed into law Wednesday. The law establishes a legal avenue and funding source for the state to pursue out-of-state sources that “riot boost,” or, according to Noem, fund violent protests that aim to shut down pipeline construction. Those found guilty of breaking the law can be sent to prison for up to 25 years.

In its complaint, the ACLU cites quotes by Noem and her allies that say the bill isn’t just aimed at violent protesters and rioting but also people and activity that disrupts or delays construction of the pipeline.

“Preventing anti-pipeline protests that seek to end or slow the construction of the pipeline is not a valid government interest,” the complaint says.

Because SB 189 creates a “riot boosting fund” paid by those who break the law, the law also “incentivizes” South Dakota to sue protesters and those who back them in order to compensate for security costs, the complaint says.

Online Speech Platforms 

Washington Post: Mark Zuckerberg: The Internet needs new rules. Let’s start in these four areas.

By Mark Zuckerberg

From what I’ve learned, I believe we need new regulation in four areas: harmful content, election integrity, privacy and data portability.

First, harmful content. Facebook gives everyone a way to use their voice, and that creates real benefits – from sharing experiences to growing movements. As part of this, we have a responsibility to keep people safe on our services. That means deciding what counts as terrorist propaganda, hate speech and more…

Lawmakers often tell me we have too much power over speech, and frankly I agree. I’ve come to believe that we shouldn’t make so many important decisions about speech on our own. So we’re creating an independent body so people can appeal our decisions. We’re also working with governments, including French officials, on ensuring the effectiveness of content review systems…

Regulation could set baselines for what’s prohibited and require companies to build systems for keeping harmful content to a bare minimum…

Second, legislation is important for protecting elections. Facebook has already made significant changes around political ads: Advertisers in many countries must verify their identities before purchasing political ads. We built a searchable archive that shows who pays for ads, what other ads they ran and what audiences saw the ads. However, deciding whether an ad is political isn’t always straightforward. Our systems would be more effective if regulation created common standards for verifying political actors.

Online political advertising laws primarily focus on candidates and elections, rather than divisive political issues where we’ve seen more attempted interference. Some laws only apply during elections, although information campaigns are nonstop. And there are also important questions about how political campaigns use data and targeting. We believe legislation should be updated to reflect the reality of the threats and set standards for the whole industry.

Wall Street Journal: Zuckerberg for Regulation

By Editorial Board

Sooner or later you knew it would happen: Big tech would invite government regulation to deflect even greater intervention such as an antitrust breakup.

Facebook CEO Mark Zuckerberg is the latest to welcome governments to play a “more active role” in governing the internet, presumably including his company. In an op-ed Saturday in the Irish Independent and Washington Post, Mr. Zuckerberg invited European-style privacy rules for the U.S. and called on regulators to set clearer rules on “harmful content, election integrity, privacy and data portability.”

This plea for big government to regulate big business will go down well in liberal precincts, where the tech giants have lost the political immunity they had during the Obama years. Politicians like nothing better than to claim to be taming unpopular businesses, and Mr. Zuckerberg may think he’s buying some protection from calls to break up the company.

The rest of us should be wary of CEOs bearing government gifts. The costs of regulation, such as privacy rules, are easier for bigger businesses to bear and they can create higher barriers to entry for competitors. And forgive us if we’re wary of letting politicians on the right or left dictate content decisions. Before he invites the protection of the political class, Mr. Zuckerberg should have Facebook fix Facebook.

Congress

The Hill: After Mueller investigation, are we any closer to stopping foreign interference?

By Trevor Potter

The Russian government also used paid advertising to purchase thousands of political ads on Facebook, which reached 126 million users. And this is the area where Congress has failed in its oversight role and the Federal Election Commission (FEC) has failed in its enforcement role. The problem increases every election cycle. Dark money nonprofits have reported over $1 billion in political spending, but because their donors aren’t reported, we can’t know how much of that money came from foreign sources.

Now that the Mueller investigation is over, we should be asking whether our leaders in Washington will strengthen our election laws to prevent this from happening again, whether the next actors are Russian or other actors wishing our country’s democracy ill. Efforts to hold online election ads to the same standards of transparency as television ads have stalled. These efforts sought to close the very loopholes exploited by Russia in the 2016 election. But there is still hope.

If 87 percent of Americans polled by CNN agree that Mueller’s findings should be transparent, than we should find consensus on transparency measures that would shine a light on foreign money pouring into U.S. elections.

The House recently passed the “For the People Act,” which would strengthen the ban on foreign money. Passing this in the Senate – and having President Trump sign it into law – wouldn’t solve all the issues stemming from the 2016 election, but it would help give Americans confidence that their government is committed to increasing transparency in elections. Americans would assess a political ad differently if they knew Russia bought it.

Our country’s longstanding concerns about foreign interference are rooted in democratic self-governance and national sovereignty. Requiring disclaimers on online political ads helps journalists, watchdog groups, and law enforcement officials uncover foreign influence efforts. 

Fundraising

New York Times: 2020 Democrats Love Small Donors. But Some Really Love Big Donors, Too.

By Shane Goldmacher and Jonathan Martin

The race for cash in the 2020 Democratic presidential primary is reaching a frenetic peak this weekend with a dozen fund-raisers on both coasts, as presidential hopefuls rush to vacuum up $2,800 checks – the maximum amount individuals can give for the primary by law – before the first quarterly fund-raising deadline of the campaign at midnight on Sunday.

But the candidates don’t want to discuss any of this.

They are instead trying to pull off a delicate balancing act. Publicly, the 2020 hopefuls are all about attracting low-dollar donors, trying to prove their grass-roots appeal and populist bona fides by touting large numbers of small donations – an ascendant force in Democratic politics. But privately, most Democrats also badly need the big checks and are still going behind closed doors to woo the wealthy, whose money is critical to pay for campaign staff, travel and advertising.

As a result, a traditional part of presidential races early on – candidates trumpeting big-money and well-connected contributors as a show of political strength – has gone virtually underground, the invisible primary turning truly invisible. The jockeying for major donors remains as intense as ever, but the usual campaign announcements of powerhouse finance committees and boldfaced bundler lists have all but disappeared. Even some online R.S.V.P. pages for fund-raisers don’t identify the wealthy backers anymore.

Amy Dacey, the former chief executive officer of the Democratic National Committee, said the donor dynamics this cycle are “fundamentally different” than before.

“Candidates talk more about how many different donors they have and how many states they’re in,” she said. “It’s more about the donor amounts than the dollar amounts.” But, Ms. Dacey added of big donors, “They still need them.”

The Media

Hollywood Reorter: Meet Trump’s Least Favorite Lawyers Defending CNN, BuzzFeed’s Dossier and Media Rights

By Eriq Gardner

Davis Wright Tremaine is hardly universally known, but as media finds itself increasingly under attack in the Trump age, this firm has become its best line of defense. Its fingerprints are present across the media spectrum. Jokes told by late-night comedians? Often vetted by its lawyers. #MeToo stories published over the past 18 months? Quite frequently, a DWT attorney responds to threatening letters from the alleged perpetrators. And in court, the firm is tackling huge First Amendment cases, representing the likes of CNN, The New York Times and The Washington Post in everything from defending defamation claims to securing access to critical documents and regaining access after being exiled from the White House. Simply put: This Seattle-based firm has outsize influence on media at a particularly critical moment.

Candidates and Campaigns 

Sludge: Where the 2020 Candidates Stand on Campaign Finance

By Alex Kotch

As we enter the 2020 presidential race, Sludge is tracking the various campaign finance pledges and promises made by the many candidates, as well as any broken promises that may ensue. We will continue to update this page throughout the race.

Many Democrats have already announced they’ll be rejecting corporate PAC money. Some have signed the No Fossil Fuel Money pledge, a promise to reject all campaign donations from the PACs of fossil fuel companies as well as donations of over $200 from fossil fuel executives.

Outside support from super PACs-independent political groups that are allowed to accept and spend unlimited amounts of money from individuals, corporations, and unions-is an issue that candidates have spoken less about, but it’s emerging as something Democrats will need to address.

The Supreme Court’s 2010 Citizens United v. Federal Election Commission ruling and another subsequent lower court decision enabled unlimited corporate donations in politics. Many Democratic candidates say they want to overturn Citizens United.

Sludge reached out to the current 2020 contenders with a campaign finance questionnaire. We haven’t heard back from most candidates yet, so we are relying on existing statements, social media posts, and news reports to fill in the gaps. The chart below indicates promises they have made with a check mark. An “X” indicates a policy the candidate has explicitly broken or rejected, and blanks indicate policies that candidates haven’t yet addressed directly.

The promises apply to the primary election only, as the victorious candidate may alter their policies for the general election.

The States

New York Times: New York State Budget Deal Brings Congestion Pricing, Plastic Bag Ban and Mansion Tax

By Jesse McKinley and Vivian Wang

Mr. Cuomo, who has been criticized for sponsoring big-money fund-raisers, also announced a commission to develop a plan to provide up to $100 million annually in public financing for campaigns for legislative and statewide offices, including his own. The commission’s recommendations, due in December, would be legally binding unless the Legislature convened specifically to overrule them.

A small-donor matching program was a central demand of many of the new legislators who won seats last year by defeating better-financed incumbents.

Under such programs, candidates can collect government assistance for their campaigns as long as they meet certain criteria. Such programs are usually intended to encourage small contributions, and don’t offer a match for large ones.

And while the inclusion of public financing in Sunday’s budget seemed like a victory for proponents, many remained unsatisfied, noting that many details, such as the ratio of matching funds and contribution limits, remained undetermined. That has led some activists to worry that the commission’s recommendations would be weak. Asked why he had chosen to form a commission rather than allowing public hearings and a legislative solution, Mr. Cuomo said that the issue was “too complicated” to be taken up by the state’s 213 elected lawmakers.

Still, if New York adopts a 6-to-1 matching system modeled after New York City’s, it would become the first state in the nation to match small donors’ contributions by a ratio of more than 1 to 1, according to Lawrence Norden, deputy director of the democracy program at New York University’s Brennan Center for Justice. (Hawaii matches donations 1 to 1.)

Albany Times Union: Campaign finance a final hurdle in budget talks

By Rachel Silberstein

Activists are concerned that the language on the table does not include enough parameters for the commission, such as mandating a 6-to-1 dollar matching ratio, or identifying an oversight body.

It’s also not clear whether the public matching system would be joined by lowered contribution limits, as Cuomo’s executive proposal required.

Dave Palmer, campaign manager for Fair Elections NY, warned that a “bad deal” was in the works on Twitter Saturday night.

Fordham Law Professor Zephyr Teachout, who in recent years has launched progressive campaigns for governor and attorney general of New York, also sounded the alarm, urging lawmaker not to “settle for terrible.”

“If the bad #fairelections deal goes through we could end up with something called public financing but is useless in combatting corruption: a 2 to 1 match (not incentivizing different behavior), outrageously high limits, only applied to some offices, and no independent enforcer,” she tweeted.

The Assembly Democrats supported the public matching system in past years, when a Republican-controlled Senate prevented any campaign finance reforms from advancing in the Legislature.

ABC 7 News WJLA: Exclusive: Omar facing campaign finance probe

By James Rosen, Sinclair Investigative Reporter

Rep. Ilhan Omar, D-Minn., the controversial freshman House Democrat, is soon to learn the results of a probe into her campaign spending as a state lawmaker in Minnesota, Sinclair has learned, with authorities there having recently completed their investigation and preparing to issue rulings in a pair of complaints Omar faces.

The complaints were filed last year, while Omar cruised to election to the House of Representatives, by a Republican state lawmaker, Rep. Steve Drazkowski. In referring Omar to the Minnesota Campaign Finance Board, Drazkowski alleged that Omar improperly spent close to $6,000 in campaign funds for personal use, including payments to her divorce attorney and for travel to Boston and Estonia. Drazkowski’s filing of the two complaints followed an earlier episode in which Omar repaid $2,500 for honoraria she received for speeches at colleges that receive state funding, a violation of ethics rules for Minnesota lawmakers.