In the News
St. Louis Public Radio: Full Federal Appeals Court To Decide Whether Unpaid Lobbyists In Missouri Must Register
By Rachel Lippmann
A federal appeals court will hear arguments in St. Louis on Friday in a case that challenges the idea that unpaid lobbyists have to register with the Missouri Ethics Commission.
A divided panel of the 8th Circuit Court of Appeals ruled in November that Ron Calzone, a conservative activist, had to fill out the required forms and pay a fine for failing to do so. In a rare move, all 12 judges of the court will reconsider the case…
“The very basis of our system of government is that citizens who are passionate about certain ideas go and share those ideas with the people in power, also known as petitioning them for redress of grievances, and hopefully they can get their ideas adopted as law in the state,” said Dave Roland, the litigation director at the Freedom Center of Missouri, which is representing Calzone. “That’s what Ron is not being allowed to do under the Ethics Commission rule.” …
Roland and his co-counsel, Allen Dickerson at the Institute for Free Speech, agree that paid lobbyists should have to register. In fact, said Dickerson, that’s the precedent the U.S. Supreme Court set back in 1954.
“There, the court was pretty clear that the reach of the government’s interest in lobbying is about, and this is a quote, ‘who’s putting up the money and how much,'” Dickerson said.
The ruling in Calzone’s case, he said, casts the net too broadly.
“It’s not reasonable to assume that every volunteer for a Sierra Club or a Boy Scout troop that goes up to the Capitol is on notice that they have to go and do all of these various things that we would expect of professionals,” he said…
It’s rare for all the judges on a federal appeals court to review a ruling by a panel – out of the thousands of cases decided by smaller panels, Roland said the full 8th Circuit hears just a handful. Dickerson said the decision to review the case en banc shows the 8th Circuit understands the implications of the earlier opinion.
Sioux Falls Argus Leader: Second lawsuit challenging ban on out-of-state ballot question contributions
By Lisa Kaczke
Several organizations are attempting to overturn a ban on out-of-state contributions to South Dakota ballot question committees.
A lawsuit was filed against Secretary of State Steve Barnett and Attorney General Jason Ravnsborg in federal court on Wednesday. It’s challenging the constitutionality of Initiated Measure 24, which the voters passed in November by a 56-44 percent margin and will go into effect on July 1.
The ban prohibits groups from “exercising their First Amendment freedoms and discriminates against their economic activity,” according to the lawsuit.
The lawsuit was filed by South Dakota’s Newspaper Association, Retailers Association, Broadcasters Association, Chamber Ballot Action Committee, Americans for Prosperity and former South Dakota resident Thomas Barnett Jr., who has been involved in previous ballot question campaigns.
IM 24 would prohibit groups such as AFP from donating to South Dakota ballot measures, and groups such as the newspaper, retailers and broadcasters associations would face civil penalties if they accept financial contributions from groups such as AFP, according to the lawsuit. The ban would also impact South Dakota Chamber of Commerce members who have out-of-state headquarters by preventing them from contributing to ballot question campaigns even if it directly affects their business, according to the lawsuit.
“There is no valid state interest for the ban under any type of applicable First Amendment scrutiny. Additionally, it is not narrowly tailored to pass constitutional muster,” according to the lawsuit.
KELOLAND News: Jackley involved in lawsuit against South Dakota’s new attorney general
South Dakota’s former attorney general is involved in a lawsuit against South Dakota’s current attorney general.
Marty Jackley and his law firm are representing the South Dakota Broadcasters Association, Newspaper Association and other groups. They’ve filed a federal lawsuit against South Dakota Secretary of State Steve Barnett and Attorney General Jason Ravnborg.
The groups claim Initiated Measure 24 violates the constitution and violates their first amendment rights. The measure bans out of state donations to ballot question committees. Voters approved I.M. 24 in November, and it’s supposed to take effect on July first.
The organizations involved in the lawsuit represent newspapers and televisions stations across the state, including KELOLAND Media Group.
New from the Institute for Free Speech
Lawsuit Challenges South Dakota Ban on Out-of-State Contributors to Ballot Measures
A coalition of South Dakota media associations, trade associations, a nonprofit advocacy group, and a former South Dakota resident yesterday filed a lawsuit in federal court challenging a South Dakota law that will ban Americans from other states from contributing to ballot measure campaigns. The groups are represented by the Institute for Free Speech and former South Dakota Attorney General Marty J. Jackley.
“The ban is an affront to the First Amendment,” said Institute for Free Speech Legal Director Allen Dickerson. “States cannot prevent speech simply because it is funded in part by Americans who live in other states. This law denies South Dakotans the right to hear messages from their fellow Americans.”
Plaintiffs in the case are the South Dakota Newspaper Association, the South Dakota Retailers Association, the South Dakota Broadcasters Association, the South Dakota Chamber Ballot Action Committee, Thomas Barnett, Jr., and Americans for Prosperity.
The lawsuit says contributions in support or opposition to ballot measures are an important form of free speech protected by the First Amendment. Courts have long recognized that contributions to ballot measure campaigns promote robust debate about public issues. This is no less true for contributions from Americans from other states, the lawsuit explains.
Many state issues have national or regional implications, and voters may wish to hear from non-state residents or businesses who will be affected by state policy. Voters may also wish to hear from national organizations with expertise in specific policy areas…
The case, South Dakota Newspaper Association v. Barnett, is before the United States District Court for the District of South Dakota, Central Division. To read the complaint, click here. To read more about the case, click here.
Case Page: South Dakota Newspaper Association, et al. v. Barnett, et al.
Case Summary:
Americans have the right to support or oppose state ballot measures, even if they are not residents of the state. This is the issue at the heart of South Dakota Newspaper Association, et al. v. Barnett, et al.
On behalf of our clients, the Institute for Free Speech, in conjunction with former South Dakota Attorney General Marty J. Jackley, has filed a federal lawsuit to defend this important First Amendment right.
This case began when South Dakota passed Initiated Measure 24 in 2018. That measure, as codified by the South Dakota Legislature, would ban “any contribution to a statewide ballot question committee by a person who is not a resident of the state at the time of the contribution, a political committee that is organized outside South Dakota, or an entity that is not filed as an entity with the secretary of state for the four years preceding such contribution is prohibited.”
Such a ban on out-of-state contributions is detrimental to the First Amendment. Courts have long recognized that contributions to ballot measure campaigns promote robust debate about public issues. They, therefore, receive significant First Amendment protections. This is no less true for contributions from residents of other states.
The plaintiffs in this case are four trade associations who wish to spend funds to speak about ballot measures in South Dakota, and one national nonprofit and one former South Dakota resident who wish to donate funds to groups that speak about South Dakota ballot issues. All six would be prevented from exercising their First Amendment rights because of the ban.
Complaint (PDF): South Dakota Newspaper Association, et al. v. Barnett, et al.
In this case, it is impossible for the Ban to survive closely drawn scrutiny.
The Ban applies to non-residents and non-South Dakota political committee contributions to South Dakota ballot question committees-not a political candidate or officeholder. See S.D.C.L. § 12-27-18.2.
The Out-of-State Plaintiffs’ contributions to the South Dakota Plaintiffs have no risk of giving them control over an officeholder’s official duties and, therefore, do not give rise to quid pro quo corruption. Free & Fair Election Fund, 903 F.3d at 763.
There is also no risk that the Out-of-State Plaintiffs’ contributions to the South Dakota Plaintiffs will help them gamer influence over or access to elected officials or political parties either in fact or in appearance. Id.
Fundamentally, “there is no significant state or public interest in curtailing debate and discussion of a ballot measure.” Citizens Against Rent Control, 454 U.S. at 299.
A donor cannot exchange a contribution for a quid pro quo favor from a ballot measure or even gain influence with a statute by contributing to its enactment…
Regulating quid pro quo corruption is the only “legitimate state interest in restricting campaign finances.” Free & Fair Election Fund, 903 F.3d at 763.
Because the Ban restricts contributions to ballot question committees and not candidates or office holders to prevent quid pro quo corruption, there are no set of circumstances that the law can be valid. Id. Consequently, tailoring analysis is unnecessary. Id.
Therefore, the Ban is facially unconstitutional under the First and Fourteenth Amendments. Id.
Eighth Circuit to Hear First Amendment Petition Rights Case Friday
This Friday morning, Institute for Free Speech Legal Director Allen Dickerson will argue before all eleven judges of the Eighth Circuit Court of Appeals on behalf of Ron Calzone’s appeal in a First Amendment challenge to Missouri’s lobbying law. The case asks whether the state can force citizens who speak to legislators to register as lobbyists and file regular reports detailing their advocacy.
The hearing will take place in the Thomas F. Eagleton U.S. Courthouse at 111 S. 10th Street, St. Louis, Missouri, in the En Banc Courtroom on the 28th floor. The session begins at 8:30 AM CT, and one other case will be heard first. Calzone’s appeal is likely to be heard at approximately 9 AM CT.
As Calzone has said, “Citizens have a responsibility to engage with their elected officials, sharing ideas about how the people should be governed, and urging lawmakers to use their power in a responsible, constitutional manner.”
A three-judge panel of the Eighth Circuit sided with the state in a 2-1 ruling on November 28th, 2018. Judge David Stras dissented from that decision, noting, “The [Missouri] law seemingly sweeps up all unpaid political advocacy by anyone who acts on behalf of someone else, no matter how often it occurs and regardless of its purpose.”
An appeal was filed, and the Eighth Circuit agreed on January 28th to rehear the case en banc. The panel’s ruling has been vacated. Calzone is represented by attorneys from the Institute for Free Speech and David Roland of the Freedom Center of Missouri. To read more about the case, click here.
Congress’ Growing Desire to Regulate Silicon Valley Threatens the First Amendment
By Luke Wachob
Last week, hearings in both the House and Senate saw politicians of both parties beat up Big Tech leaders for their supposed sins. According to members of Congress, the social media giants ban too much speech, too little speech, and the wrong kinds of speech.
Republicans portrayed the companies as opponents of conservative speech and allies to liberal causes. Democrats portrayed them as self-interested businesses asleep at the wheel as dangerous groups exploit their platforms to stoke bigotry and misinformation. Both agreed that social media companies are too big, too powerful, and harm American politics.
Few suggested that free and unfettered speech, while messy and chaotic, serves the Internet and American democracy better than government regulation. The old consensus that the Internet improves politics by allowing more people to speak at lower cost finds fewer and fewer advocates…
However little Americans may trust companies like Google, Facebook, and Twitter – and that skepticism is surely warranted – it would be immensely dangerous to empower politicians to decide what speech is acceptable online. Congress has demonstrated time and again that it does not understand the Internet, and its members display motivations for regulating social media that vacillate between ignorance and partisanship. As governments across the world crack down on online speech, and major Internet companies cow to their demands, users who care about free speech must take it upon themselves to advocate for a free and open Internet – or else the only remaining questions are who will actually kill it, when, and how.
Round-Up: First Amendment Commentary on the Julian Assange Indictment
By Alex Baiocco
The Institute for Free Speech has been tracking discussion in the media on the potential First Amendment implications of the Justice Department’s recent indictment of WikiLeaks founder Julian Assange. Below is a round-up of notable commentary on the indictment and what it means for press freedom.
CNN Business: Julian Assange’s arrest could end as a test for press freedom, By Brian Stelter and Hadas Gold (including thoughts from Floyd Abrams)
The Intercept: The U.S. Government’s Indictment of Julian Assange Poses Grave Threats to Press Freedom, By Glenn Greenwald and Micah Lee
Just Security: Assange Indictment Is Shot Across the Bow of Press Freedom, By Jameel Jaffer and Ben Wizner
The New York Times: Is Assange’s Arrest a Threat to the Free Press?, By Michelle Goldberg
The Washington Post: Traditional journalists may abandon WikiLeaks’ Assange at their own peril, By Margaret Sullivan
The Hill: Alan Dershowitz: Is Julian Assange another Pentagon Papers case?, By Alan M. Dershowitz
The Hill: Pentagon Papers lawyer: The indictment of Assange is a snare and a delusion, By James C. Goodale
Reason: The Assange Exception to the First Amendment, By Jacob Sullum
DOJ
The Hill: Ten post-Mueller questions that could turn the tables on Russia collusion investigators
By John Solomon
Soon, the dust will settle from special counsel Robert Mueller’s report, and Americans will have a fuller understanding of why prosecutors concluded there wasn’t evidence to establish that Donald Trump and Russia colluded to hijack the 2016 election…
But a very important second phase of this drama is about to begin, as Attorney General William Barr, Department of Justice (DOJ) Inspector General Michael Horowitz and Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.) put the Russia collusion investigators under investigation.
Their work will be, and must be, far more than just a political boomerang.
It must answer, in balanced terms, whether the FBI was warranted in using the most awesome powers in the U.S. intelligence arsenal to spy on Republican presidential nominee Donald Trump’s campaign at the end of the 2016 election.
Investigators must determine, with neutrality, whether the bureau improperly colluded with paid agents of Democratic rival Hillary Clinton’s campaign – Fusion GPS and its British operative, Christopher Steele – and then tried to hide those political ties and other evidence from the nation’s secret intelligence court…
My sources agree these 10 questions are the most important to be answered in the forthcoming probes: …
Center for Responsive Politics: Why Mueller didn’t bring campaign finance charges over the Trump Tower meeting
By Karl Evers-Hillstrom and Raymond Arke
“Political campaigns frequently conduct and pay for opposition research,” Mueller notes in his report. “A foreign entity that engaged in such research and provided resulting information to a campaign could exert a greater effect on an election, and a greater tendency to ingratiate the donor to the candidate, than a gift of money or tangible things of value.”
Though Mueller noted that such information could be more important to a campaign than money, he pointed out that courts have not defined uncompensated opposition research as a “thing of value” that could amount to a contribution under campaign finance law.
Moreover, the investigation would have trouble proving that the value of the promised Clinton “dirt” would surpass the $2,000 threshold for a criminal charge or $25,000 for felony charges – numbers commonly used to establish the value of non-monetary contributions. Mueller noted that while opposition research often is very valuable to a campaign, “it appears that the information ultimately delivered in the meeting was not valuable.”
Mueller added he did not pursue charges against members of the Trump team at the meeting in part because the investigation did not find evidence that they acted with “general knowledge of the illegality of their conduct.”
The report noted that the prosecution has to establish a defendant knew their conduct was illegal to charge an individual. Mueller found that “the investigation has not developed evidence that the participants in the meeting were familiar with the foreign-contribution ban.”
Mueller explained “later efforts to prevent disclosure of the nature of the June 9 meeting” mostly came from people that did not attend the meeting and has more to do with “avoid[ing] political consequences rather than any prior knowledge of illegality.”
Later in the report, Mueller began to explain why the First Amendment “could pose constraints on a prosecution,” but any further explanation, described as information that could harm an ongoing matter, is redacted.
Slate: All the Mistakes Mueller Made in Declining to Prosecute Donald Trump Jr.
By Richard L. Hasen
Robert Mueller let Donald Trump Jr. off the hook too easily for potential campaign finance violations that arose from the June 2016 meeting in Trump Tower with Russian operatives…
Mueller said that a Trump Jr. prosecution would have raised “First Amendment questions” and “could have implications beyond the foreign-source ban.” To begin with, a First Amendment defense of Trump Jr. is bogus. As I explained in Slate, the main First Amendment argument is that a ban on soliciting foreign political contributions is overly broad and could apply any time a foreign individual gives any information to a political campaign.
But Trump Jr. was a major campaign official meeting with representatives from a foreign government that were offering “dirt” on the campaign’s opponent. As I wrote, “To let someone off the hook who solicited ‘very high level and sensitive information’ from a hostile government because there may be cases in which information from a foreign source does not raise the same danger to our national security and right of self-government is to turn the First Amendment into a tool to kill American democracy.”
Further, even if Mueller believed there were First Amendment questions in play, he should have left that for the courts to decide given the strong national security interests at stake here. Mueller offered no First Amendment argument in his report. He merely flagged the issue and never provided any analysis to back up the First Amendment claim.
I’m afraid that this flagging of the issue does more harm than good. Mueller has now given campaigns credible reason to believe they can accept help from foreign governments because they may have a constitutional right to do so.
Independent Groups
Fox News: ‘Shadowy’ dark money network behind left-wing causes exposed in new report
By Adam Shaw
The report, by conservative watchdog Capital Research Center, describes a band of nonprofits operating under the banner of Washington-based philanthropy company Arabella Advisors. Those “pop up groups” are housed in four Arabella-controlled “sister” nonprofits, according to the report: the New Venture Fund, Sixteen Thirty Fund, Hopewell Fund and Windward Fund…
“The size and scope of the Arabella network of funds demonstrates far more ‘dark money’ exists on the left side of the political spectrum than has been previously admitted,” the report says…
Democrats and left-wing activists — including Rep. Alexandria Ocasio-Cortez, D-N.Y. — have been increasingly vocal in their calls to clamp down and regulate “dark money” in U.S. political activities.
But dark money has had bipartisan beneficiaries.
A January report from Issue One, a bipartisan advocacy group, shows that liberal groups spent over half of the $150 million of dark money in the latest election. Conservative groups spent a third of the figure, while nonpartisan groups spent just 15 percent.
And Sen. Sheldon Whitehouse, D-R.I., recently said that dark money is a problem “on both sides of the aisle,” though he said it “occurs mostly on the Republican side.”
The Capital Research Center report warns: “Before left-of-center activists and politicians demand laws to increase transparency in the funding of campaigns and public policy advocacy, they may first wish to consider voluntarily disclosing their own funding sources.”
Fundraising
Washington Post: The Trump and Harris campaigns’ sketchy boasts about small-dollar contributions
By Salvador Rizzo
By focusing on contributions under $200 or $100, rather than small-dollar contributions as a share of total fundraising, Harris and Trump are inviting several questions.
The same person could donate less than $200 to the same candidate or committee multiple times. After a certain point, that donor would cease to be a small-dollar type. But the numbers from Trump and Harris don’t include a caveat explaining this…
These numbers and news releases might be technically accurate, but they won’t help the lay reader trying to figure out what kind of donors are funding Harris and Trump. Instead, they give a distorted view that small-dollar donors overwhelmingly are funding these campaigns when that is simply not the case…
Harris and Trump are talking about small-dollar donations without saying how many came from repeat donors. Remember, those donors could have blown past the $200 threshold and still be included in the small-dollar figures being offered up by these two campaigns.
