In the News
Washington Examiner: ‘This was a steal’: Campaign real estate deal that ‘thrilled’ Trump could be illegal
By Steven Nelson
President Trump was “thrilled” that his campaign acquired northern Virginia office space at “bargain basement” rates, a campaign official told the Washington Examiner in an interview in the plush 14th floor offices overlooking the Potomac River from Arlington, Va.
But campaign finance specialists say the “steal” could violate election law, which views below-market rates for rent as an illegal in-kind campaign donation…
Subleases are complicated to judge for the Federal Election Commission, and rental rates can deviate from leases without an election law violation, meaning loss to the leaseholder may not necessarily indicate an illegal in-kind donation.
“You can’t get a good deal that’s not available to anyone else, that’s a contribution,” said Bradley Smith, a former Republican chairman of the Federal Election Commission. Smith added: “Generally, if the accused party has a reasonably plausible basis for their calculation, they are going to be fine. The FEC is not going to be eager to say the amount charged is wrong.”
New from the Institute for Free Speech
Statement on Ruling in Libertarian National Committee v. FEC
The en banc D.C. Circuit Court of Appeals denied the Libertarian Party’s request to accept bequeathed funds in excess of the federal contribution limits. It also upheld the recently enacted “two tier” limits scheme, which allows substantially higher contributions for certain limited purposes.
“The court missed an opportunity to insist that the government marshal real evidence before burdening First Amendment rights. The FEC failed to prove any likelihood that uncoordinated and unrestricted bequests would lead to quid pro quo corruption,” said Institute for Free Speech Legal Director Allen Dickerson.
Two partial dissents were filed in the case. Judge Thomas B. Griffith wrote that “the government has not carried its burden of showing that the two-tiered scheme is closely drawn to serve anticorruption interests.”
Judge Gregory G. Katsas and Judge Karen L. Henderson wrote that the FEC’s analysis was “flawed at every turn” and that its request for a low standard of scrutiny was “radical.” …
The Institute for Free Speech filed an amicus brief in September urging the court to adopt a bright-line standard clarifying where contribution limits apply to bequests. The Institute previously served as co-counsel for the LNC in a separate case concerning a bequest.
“Such a remedy is easily articulated. The Court should find that contribution limits are inappropriate where a bequest is made without any prior coordination with the recipient committee, and where that committee seeks to receive it only after the contributors’ death. That ruling will be easily applicable to, and easily cognizable by, a wide array of actors, obviating the need for future litigation on the subject,” the Institute’s brief read.
To read the court’s ruling, click here.
The Courts
Election Law Blog: D.C. Circuit, Sitting En Banc, Upholds Federal Campaign Contribution Limits Applied to Bequests to Libertarian Party, with 3 Judges Partially Dissenting
By Rick Hasen
Read the opinion in Libertarian National Committee v. FEC. Judge Tatel’s majority opinion begins:
When Joseph Shaber passed away he left over $235,000 to the Libertarian National Committee (LNC). This case is about when and how the LNC can spend that money. The LNC argues that the Federal Election Campaign Act (FECA), which imposes limits on both donors and recipients of political contributions, violates its First Amendment rights in two ways: first, by imposing any limits on the LNC’s ability to accept Shaber’s contribution, given that he is dead; and second, by permitting donors to triple the size of their contributions, but only if the recipient party spends the money on specified categories of expenses. Scrutinizing each provision in turn, we find no constitutional defects and reject the LNC’s challenges.
Bismarck Tribune: Mandan bar files lawsuit over mural
By Blair Emerson
The owners of Lonesome Dove have filed a federal lawsuit against the city of Mandan over a mural city officials ordered removed.
The lawsuit was filed in the U.S. District of North Dakota on Monday. The suit seeks a temporary restraining order and preliminary injunction to allow Lonesome Dove to keep artwork on the bar’s front wind block.
The business at 3929 Memorial Highway received a citation in October from Mandan’s code enforcement office for placing the unpermitted mural depicting a Western scene and the name of the bar.
The bar owners, Brian Berube and August Kersten, previously said they didn’t apply for a permit because they weren’t aware of the requirements.
The Mandan Architectural Review Commission later denied their application, because city guidelines state “no mural may be placed on the front of the building” and “no mural shall convey a commercial message.”
The City Commission voted 4-1 on March 19 to order the mural be removed.
Berube and Kersten then started to work with the Institute for Justice…
Erica Smith, an attorney with the Institute for Justice, said she sent two letters to the city, one on March 29 that said that the city’s enforcement against Lonesome Dove is “unconstitutional,” and asked that the city allow the mural to remain.
Smith said she sent a second letter a couple weeks ago, asking for an extension on the deadline to remove the mural while Mandan Planning and Zoning continues to review possible changes to the city’s mural ordinance.
The city denied the request, and instead told them they had to remove it by Thursday or they could be fined up to $1,000, according to Smith…
“Unfortunately, sign codes are something that municipalities tend to abuse, and we see it over and over again. So we’re hoping this lawsuit will stop Mandan and also serve as an educational tool to other cities,” she said.
KMA (Shenandoah, Iowa): Red Oak man sues Adams County Sheriff’s Office for free speech violation
By Ryan Matheny
The ACLU of Iowa brought the suit in the Southern District of Iowa Tuesday on behalf of Jon Richard Goldsmith and names the Adams County Sheriff’s Office, Deputy Cory Dorsey and Sergeant Paul Hogan as co-defendants. The suit says in July 2018, Goldsmith attended a ceremony in Corning where he observed Dorsey arrest a man her knew. Goldsmith later posted on the sheriff’s office Facebook page, criticizing the handling of the arrest. Goldsmith was then charged with third-degree harassment for the post — a charge that was later dropped. Goldsmith says he is suing because he is concerned with the actions of the sheriff’s department.
“It’s a matter of free speech,” said Goldsmith. “Adams County should be upholding the law, not breaking it. That includes criticizing them, along with the government. I’m bringing this lawsuit because I’m afraid that if they don’t get stopped, they are going to keep charging a lot of people and causing a lot of grief.” …
The suit cites the 1989 Iowa Supreme Court case State v. Fratzke, which protects criticism of law enforcement — even if it includes vulgarities. ACLU of Iowa Legal Director Rita Bettis Austen calls that case and the Goldsmith case nearly identical.
“The motorists in that case, wrote a letter to the state trooper who pulled him over, insulted him and criticized his actions,” said Austen. “The Iowa Supreme Court upheld — appropriately in accordance with the First Amendment and free speech under the Iowa Constitution — that police officers don’t have a right to put people in jail for annoying them.”…
Austen says among other things, the lawsuit seeks damages for Goldsmith from the sheriff’s office and seeks to require the department to undergo First Amendment training.
[Ed. note: A PDF of the complaint is available at the bottom of the linked article.]
Independent Groups
Nonprofit Quarterly: 501c4 Nonprofits’ Image Problem Is a Problem for All of Us
By Nikhil Pillai
In fact, from supporting and protecting the Affordable Care Act, to restoring voting rights for 1.4 million formerly incarcerated people in Florida, to opposing unqualified federal judicial nominees, 501c4 social welfare organizations have often been important leaders in social justice movements on the left…
[W]e need to combat the notion that because 501c4s can engage in some political activities without disclosing their donors, they must be irredeemable “dark money” organizations. While this makes for a catchy talking point, it is incredibly problematic and very misleading. The Federal Election Commission, along with many states, actually does require the disclosure of donors to organizations engaging in political activities who give money specifically for those activities (most frequently independent expenditures). Accordingly, individuals who give money to 501c4s for political purposes are often disclosed. The disclosure of donors beyond this category can harm the advocacy community. 501c4s provide a platform where individuals can come together and speak out in a collective voice, allowing smaller donors to have the ability to have their voices amplified in the face of large corporate spending.
And anonymity is sometimes highly justifiable, as the Earl Warren-led US Supreme Court recognized in the case of the NAACP v. Alabama, in which the Court upheld the right of the NAACP to keep its membership secret. Requiring disclosure of donors, especially for smaller 501c4s that engage in local grassroots advocacy to benefit their communities, can not only disincentivize charitable giving, but in some cases can even serve to stifle dissent…
[W]e should never lose sight of the fact that many of the very organizations that advocate for policies that benefit the most underserved communities and protect the rights we have already fought for are 501c4 organizations themselves.
Washington Post: A conservative activist’s behind-the-scenes campaign to remake the nation’s courts
By Robert O’Harrow Jr. and Shawn Boburg
He is widely known as a confidant to Trump and as executive vice president of the Federalist Society, an influential nonprofit organization for conservative and libertarian lawyers that has close ties to Supreme Court justices. But behind the scenes, Leo is the maestro of a network of interlocking nonprofits working on media campaigns and other initiatives to sway lawmakers by generating public support for conservative judges.
The story of Leo’s rise offers an inside look into the modern machinery of political persuasion. It shows how undisclosed interests outside of government are harnessing the nation’s nonprofit system to influence judicial appointments that will shape the nation for decades…
[Leo] defended the practice of taking money from donors whose identities are not publicly disclosed, comparing his effort to shape the courts to those of abolitionists, suffragists and civil rights activists.
“[They] were all very much fueled by very wealthy people, and oftentimes wealthy people who chose to be anonymous,” Leo said.
But he refused to talk about the money behind his advocacy, saying “I’m not particularly knowledgeable about a lot of it.”
“I have a very simple rule, which is, I’m engaged in the battle of ideas, and I care very deeply about our Constitution and the role of courts in our society,” he said. “And I don’t waste my time on stories that involve money and politics because what I care about is ideas.”
Later, in response to written questions about the interlocking nonprofits, Leo described the network as “an effective and highly successful judicial coalition that’s organized just about the same as the Left’s, except that their coalition is significantly bigger and better funded.”
Internet Speech Regulation
Cato: Why Section 230 Is Unstable
By John Samples
Conservatives say Section 230 demands political neutrality. They are clearly wrong about the statutory language. However, their claim might be interpreted more broadly. Progressives believe some online speech should be suppressed. The companies may do so under Section 230(c)(2). But the Conservative demand for neutrality may be another way of saying our political world is evenly divided between Progressives and Conservatives. What would happen if the platforms tried to suppress a great deal of speech by half of the population?
We need a solution here that recognizes the platforms’ right to moderate content must be carried out absent political animus . For Conservatives, that would mean Alex Jones comes down but Charles Murray stays up, as it were. Conservatives may not have much faith in this solution. They might see a slippery slope whose zenith is Alex Jones and whose nadir is Charles Murray. (That may explain conservatives’ odd embrace of Alex Jones as a conservative). Indeed, it is not unreasonable to think Murray’s treatment at Middlebury might be repeated figuratively online. In that light, government regulation of the platforms seems a reasonable solution to reasonable fears.
But it is not. We have a First Amendment because we do not trust the government to regulate speech. But now our distrust of each other (including distrust of the owners of the platforms) points many people back to government regulation of online speech and of private content moderation. Conservatives are coming around to the idea that the government that cannot be trusted to regulate campaign finance somehow will assure a fair online political debate. Count me skeptical on both points.
Congress
Washington Post: Mitch McConnell and Kevin McCarthy: The House must stand against the toxic BDS movement
By Senate Majority Leader Mitch McConnell (R-Ky.) and House Republican Leader Kevin McCarthy (Calif.)
Both of us are committed champions of the First Amendment and recognize that any state and local action would need to carefully balance individuals’ freedom of speech and expression with the public’s right not to be co-opted into bankrolling an anti-Semitic boycott. This legislation ensures this important process cannot be short-circuited by BDS proponents citing federal supremacy over foreign policies.
Candidates and Campaigns
McClatchy DC: How 2020 Democrat Steve Bullock plans to drive big money out of politics
By Alex Roarty
Bullock said he would issue an order on his administration’s first day to require companies with federal contracts to disclose all political spending, even if the contributions are made to a nonprofit group not legally required to reveal its donors before the end of the campaign. The proposed executive order mirrors action taken by Bullock in Montana last year.
“I’m not going to tell you you can’t spend in our elections, but you do have to disclose every single dollar that you’re spending to influence those elections, either spending or contributing,” Bullock said.
The governor also said he would re-institute an Internal Revenue [Service] rule the Trump administration revoked last year that requires some nonprofit groups to disclose its donors. And he said he would use the Department of Justice to scour the country looking for cases that, if successful in court, could reduce the breadth of the Citizens United decision.
He described such an effort as a counter-weight to efforts by some conservative lawyers who strategically and successfully pushed to further de-regulate campaign finance laws in the aftermath of the Citizens United ruling.
“Why the heck couldn’t you ask your solicitor general to do the same thing, and say, ‘You know what, let’s find the cases out there that are substantially chipping away at the Citizens United decision,'” he said. “And there’s no reason you couldn’t do that.”
Bullock made clear he wouldn’t use the IRS to aggressively pursue nonprofit groups suspected of being primarily focused on political activity, a controversy during President Obama’s administration that conservatives said unfairly targeted them.
“The IRS shouldn’t be picking either winners or losers or choosing who to scrutinize,” Bullock said.
