In the News
The Larry O’Connor Show: David Keating – 04.07.21
Larry O’Connor speaks with David Keating, President of the Institute for Free Speech, [about H.R. 1/S.1.]
NC Spin: Former federal election official delivers dire warning about H.R. 1
By Mitch Kokai
When it comes to defending free speech against attacks from the political left, the fight against H.R. 1 amounts to “a hill to die on.” That’s the assessment a former Federal Election Commission chairman offered recently to an audience in North Carolina.
[H.R. 1] would nationalize much of the election process…
But that’s not what’s attracting the most attention from Bradley Smith. Chairman of the FEC back in 2004, Smith also founded and now chairs the Institute for Free Speech.
“Getting ignored in all of the attention on the federalization of elections and all the bad practices that would be mandated are equally important First Amendment issues,” Smith said during a March 15 online presentation for the John Locke Foundation. “This bill — it could be said — is nothing less than a blatant attempt to silence political dissent.”
Smith offered specifics. “H.R. 1 would unconstitutionally regulate any speech that mentions a federal candidate or elected official at any time, under the vague standard of whether the speech promotes, attacks, supports, or opposes the candidate or official,” he said. “This standard is all but impossible to understand and would likely regulate any mention of an elected official who hasn’t yet announced their retirement.”
Mainstream media outlets would enjoy an exemption from new restrictions. H.R. 1 would give those outlets “an ever greater control over public discourse and messaging,” Smith warns. “As we saw in the last several years, the media has pretty much abandoned all pretense of objectivity in reporting on public affairs.”
Cato: H.R. 1: When Is It OK for Partisans To Control An Elections Panel?
By Walter Olson
H.R. 1 would replace the existing structure of the FEC — six evenly divided members, four votes needed for action — with a new five‐member structure including one independent, and in which action could be taken by simple majority rule. The effect of the current structure is that in for the FEC to take many major actions requires convincing at least one member of the “out” party. The effect of the new structure is that so long as a president nominates a co‐operative independent, decisions can be rammed through by 3–2 votes over minority party objections.
Nine former members of the FEC, representing a combined six decades of experience at the commission, wrote a letter to Congressional leadership expressing grave alarm at these provisions, which “would transform the FEC from a bipartisan, six‐member body to a five‐member body subject to, and indeed designed for, partisan control.” Other parts of the bill point in the same direction, as with provisions drastically expanding the powers of the commission chair, a presidentially appointed partisan, to take steps such as firing the agency’s staff director and its general counsel without so much as majority support. The Institute for Free Speech has more.
Events
Federalist Society: Resolved: That Congress Should Pass H.R. 1, the For the People Act
El Paso Lawyers Chapter – Online Event
Thursday, April 8, at 2pm EDT/12pm MDT
Featuring:
- Bradley A Smith, Chairman and Founder, Institute for Free Speech
- Daniel I. Weiner, Deputy Director, Election Reform Program, Brennan Center for Justice, NYU Law
Supreme Court
New York Times: Official Censorship Should Have No Place in the Digital Public Square
By Jameel Jaffer and Katie Fallow
With Donald Trump gone from the White House and banned from the major social media platforms, the Supreme Court on Monday finally brought an end to the long-running litigation over the former president’s practice of blocking critics from his Twitter account, declaring the case to be moot…
But the case will have lasting effects, even if the appeals court decision holding that Mr. Trump acted unconstitutionally has now been vacated. The case has broad implications for other officials and for platforms other than Twitter, and it will shape the digital public sphere — in valuable ways — for a long time to come.
Washington Post: Justice Breyer warns proponents of packing Supreme Court to ‘think long and hard’ about the risks
By Robert Barnes and Ann E. Marimow
Justice Stephen G. Breyer said this week that advocates of expanding the Supreme Court to dilute the power of its conservative majority should “think long and hard” about the risk of making justices appear more political and eroding public confidence in the court.
Breyer, one of the court’s three liberals, defended its independence by pointing to a decision to resist President Donald Trump’s attempts to draw the court into lawsuits seeking to overturn Trump’s election defeat.
In a speech at Harvard Law School on Tuesday, Breyer said that the court’s authority depends on “a trust that the court is guided by legal principle, not politics.”
He added, “Structural alteration motivated by the perception of political influence can only feed that latter perception, further eroding that trust.”
President Biden has said he is “not a fan of court-packing,” although he has pledged to create a bipartisan commission to study possible changes to the court. Nevertheless, some Democrats and liberal activists say that adding seats to the court is the only way to blunt the court’s conservative majority.
Congress
New York Times: Yet Again, Mitch McConnell Digs In Against Campaign Law Changes
By Carl Hulse
Senator Mitch McConnell has long been a pre-eminent defender of a role in politics for corporate America, welcoming its participation and, most importantly, its money. So it astounded many this week when he cried foul over Major League Baseball and companies like Coca-Cola and Delta Air Lines jumping into the fray against Georgia’s new voting restrictions.
“If I were running a major corporation, I’d stay out of politics,” Mr. McConnell, the Kentucky Republican and minority leader, said while warning of “consequences” for the private sector if it sided with Democrats and “far-left mobs” opposing new limits to ballot access.
Democrats quickly roasted Mr. McConnell, noting that he has personally flourished by virtue of undisclosed, unlimited corporate donations to Republican political efforts.
“He has no problem with all of them weighing in in support of the Trump tax cuts,” said Senator Chris Van Hollen, Democrat of Maryland, who has long battled Mr. McConnell over disclosure of donations. “He has no problem with them weighing in with laws to discourage unions. When they weigh in on behalf of voters, that crosses a line.”
On Wednesday, Mr. McConnell conceded a failure to communicate.
“I didn’t say that very artfully yesterday,” he said at an event in Paducah, Ky., where he insisted that corporate critics were misinformed and acting on distorted portrayals of the Georgia law provided by no less a figure than President Biden. “They are certainly entitled to be involved in politics,” he said. “So my complaint about the C.E.O.s: Read the damn bill.”
The Atlantic: The Man Who Waited 50 Years for This Moment
By George Packer
[Fred] Wertheimer is a principal author of the For the People Act, a bill recently passed by the House along strictly partisan lines and now before the Senate Rules Committee. H.R. 1/S. 1 is the most sweeping piece of election-reform legislation in decades, if not ever…
The parts of the For the People Act getting less attention are among the most important…
Campaign-finance reform is popular among Americans of all persuasions, but it is maddeningly elusive. Power and money are on one side, and ordinary citizens—their voices amplified by advocates like Wertheimer—are on the other. No wonder the game is so long. The last major campaign-finance reform before the Watergate-era law was the Federal Corrupt Practices Act of 1925. If you include McCain-Feingold, that’s just three major pieces of legislation in almost a century. Americans know the extent of political corruption, and they hate it, but voters seldom pay close attention to the complexities of what is essentially a process issue framed in technical language. Almost everyone is for reform, but hardly anyone cares enough to vote on that basis.
Politicians care. Campaign finance is more personal for them than any other issue. “If I go in there to lobby about climate change or a dam in a state, the member is being lobbied on matters that affect his or her constituents,” Wertheimer said. “If we’re lobbying about campaign finance, we’re lobbying about matters that affect the member directly.” It isn’t surprising that some congressional Democrats are reportedly unhappy with parts of the bill.
Bloomberg: Firebrands Get Path to Campaign Cash in Democratic Election Bill
By Bill Allison
Democrats in Congress are trying to increase the clout of small donors, yet a provision in their voting-rights legislation risks favoring candidates from either party who hold polarizing views and widening ideological divisions on Capitol Hill.
As part of the sweeping voting-rights bill, House candidates who opt into public financing would get a 600% match for individual contributions of as much as $200, a move intended to lessen the power of deep-pocketed backers. Small-dollar donors, however, tend to give more to candidates who draw national attention as firebrands — meaning the provision could end up rewarding partisanship.
U.S. House members like Georgia Republican Marjorie Taylor Greene, with her viral videos, and New York Democrat Alexandria Ocasio-Cortez, with 12.6 million Twitter followers, are each backed by an army of small-dollar donors from outside their districts who cheer their take-no-prisoners approach to politics. Each would benefit from the provision, according to a Bloomberg analysis of their donations…
Less outspoken members of Congress, on the other hand, don’t attract as much support from small-dollar donors. Members of the Problem Solvers Caucus, a bipartisan group of lawmakers who try to craft balanced policy, raised just 9.5% of their re-election funds from contributors giving less than $200…
“Polarization, notoriety and extremism generate the most attention and the internet donations that follow,” said Rick Pildes, a constitutional-law professor at New York University who has written about small-dollar donors and their effect on candidates.
Fundraising
Politico: MTG’s eye-popping fundraising haul
By Olivia Beavers and Melanie Zanona
Freshman Rep. Marjorie Taylor Greene (R-Ga.), the controversial MAGA firebrand, raised over $3.2 million in the first three months of this year, according to a source close to her campaign. That eye-popping haul came from over 100,000 individual donors, for an average donation of $32. Greene did not self-fund this quarter, the source added.
That is a staggering sum of money for a House member, especially for a freshman who is more than a year out from her next election. For context, Rep. Alexandria Ocasio-Cortez (D-N.Y.), then a freshman, raked in $728,000 in the first quarter of 2019.
Greene appears to have actually benefited from all the controversies that have consumed her first few months in office. She directly fundraised off of Democrats’ decision to kick her off her committees for past incendiary rhetoric and warned her supporters that Democrats are trying to expel her from Congress…
We’re starting to get a clearer picture of the post-Jan. 6 fundraising landscape. While there was speculation that Republicans would take a big hit, since many corporations froze their donations to lawmakers who challenged the election results, it looks like there was also energy on the right — especially among small donors — to rally around some Republicans under fire.
Washington Post: NRCC warns donors Trump will find out if they opt out of monthly donations
By Colby Itkowitz
The National Republican Congressional Committee threatened donors that it will tell former president Donald Trump that they are defectors if they opt out of giving recurring monthly funds to the campaign arm for the House GOP.
After donating to the NRCC, donors are shown a yellow box with a small pre-checked box that warns: “If you UNCHECK this box, we will have to tell Trump you’re a DEFECTOR.” Left checked and the supporter will be agreeing to contribute every month.
The tactic, roundly criticized by campaign finance experts as deceptive, was also employed by the Trump campaign from September until the 2020 election to shore up its dwindling coffers.
Many Trump supporters who intended to donate only once were unwittingly enrolled to give weekly because they didn’t read the fine print requiring them to uncheck a box, a New York Times investigation found, resulting in credit card complaints, overdrafts and the Trump campaign refunding tens of millions of dollars to its supporters…
Craig Holman, a lobbyist on good-government issues at Public Citizen, said requests for recurring donations are common but should always offer clear instructions and don’t threaten repercussions if a donor opts out.
The Republicans’ tactic, he said, is “extortion,” “akin to blackmail” and “highly unethical,” but it is not illegal. Political donors who feel duped or coerced don’t have a lot of legal recourse under campaign finance or consumer protection laws.
FEC
Courthouse News: Book Marketing Puts Senator Cruz in Campaign Finance Pickle
By Samantha Hawkins
Saying that Senator Ted Cruz illegally used campaign donor funds to promote his book and then received royalties on the book sales, the Campaign Legal Center brought two complaints Wednesday with the Federal Election Commission and Senate Select Committee on Ethics.
Free Speech
Wall Street Journal: When Will Liberals Reclaim Free Speech?
By Jonathan Zimmerman
“Professor, why are you so conservative about free speech?” Several students have asked me versions of this question recently, which speaks volumes about universities right now. I’m a liberal and a Democrat: I’m pro-choice, pro-ObamaCare and vehemently anti-Trump. But I’m also a strong supporter of free speech, which marks me as a right-winger on campus.
That’s because my fellow liberals have largely abandoned free speech to conservatives. Turn on Fox News, and you’ll see “cancel culture” decried in bright lights. But in the liberal press—and most of all in the liberal academy—free speech has become a rhetorical third rail. Sure, we’ll invoke it when Republican state lawmakers try to ban critical race theory. But in our own house, free speech is seen increasingly as a tool of repression rather than liberation.
Here’s how the argument usually goes: White people love free speech, because it lets them say any hateful thing they want. But the real burden of it falls on racial minorities, who are forced to absorb constant slights and slurs against their very existence. That’s why we need to police racist speech: to protect its victims…
The best response to hateful speech is to raise your own voice against it, not to ban it…
It’s also hardly clear that this censorship will help the minorities it purports to protect.
The Media
Reason: Why Hasn’t the Mainstream Media Pilloried 60 Minutes for Spreading Misinformation?
By Robby Soave
Earlier this week, 60 Minutes dropped a bombshell: Florida Gov. Ron DeSantis, a Republican, had granted Publix a vaccination contract as a kickback for a $100,000 campaign donation, according to a report by journalist Sharyn Alfonsi.
Then the story swiftly fell apart. Publix was neither the first nor the only vaccine distributor in Florida; the idea to use a grocery chain with more than 800 locations across the state was a good one, and did not originate with the governor; moreover, DeSantis explained all of this to Alfonsi, but his quotes were edited in a misleading way for the version that appeared in the 60 Minutes segment.
Bafflingly, CBS News is standing by this atrocious hit job. “For over 50 years, the facts reported by 60 Minutes have often stirred debate and prompted strong reactions,” said the network in a statement released Tuesday. “Our story Sunday night speaks for itself.”
This story should be a source of deep embarrassment for the network: Alfonsi made incendiary claims that she utterly failed to prove, and the report actively concealed from viewers the more plausible explanation offered by countless government leaders involved in the decision, including DeSantis himself. (Florida’s director of emergency management, as well as the mayor of Palm Beach County—both of them Democrats—have subsequently released statements blasting CBS’s distortions.)
It should have also drawn a thorough debunking, as well as outright condemnation, from other corners of the mainstream media. An accusation of corruption leveled by a major television network against a likely 2024 contender is a big story. It’s perhaps an even bigger story when it turns out the network got it completely wrong.
The States
Chicago Sun-Times: No limit? Republican Gary Rabine ups the ante in high-stakes governor’s race
By Andrew Sullender
Four years after the Illinois race for governor broke national records for self-financing candidates, next year’s contest is shaping up to be another duel of the deep pockets.
Millionaire businessman Gary Rabine notified state election officials over the weekend that he had donated enough of his own cash to his newly minted gubernatorial campaign to lift all fundraising caps on the race.
The $250,390.04 the suburban Republican has kicked in pales in comparison to the $35 million that Democratic Gov. J.B. Pritzker pumped into his own war chest last month.
But under Illinois’ arcane campaign finance laws, Rabine’s contributions triggered the lifting of the caps, because they were made within a year of the 2022 primary. Pritzker’s fell just outside that window…
The caps were part of a series of reforms enacted after former Gov. Rod Blagojevich was impeached and removed from office.
So that others in the race can fairly compete against uber-wealthy self-financing candidates, state law says once any gubernatorial hopeful kicks in more than $250,000, all candidates in the race — including the wealthy one — can accept donations of any amount.
Mooney calls the reforms a “paper tiger” and said the caps “are some of the loosest in the country, and that is by design.”
“The caps that do exist are easy to break, and then candidates can just loan their own campaign whatever the limit is for that particular office, and they break the cap, and then they can get as much money from big donors as they want,” he said.
