Holmes v. FEC
Amicus Curiae Brief of the Institute for Justice in Support of Holmes
This case provides an important opportunity for this Court to clarify the role that social-science evidence should play in campaign-finance jurisprudence. As discussed in Section I, although this Court has previously held that speculation and conjecture are never enough to carry a First Amendment burden, Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 392 (2000), when it comes to determining the constitutionality of campaign contribution limits, lower courts routinely rely on little else. Even worse, however, lower courts have consistently ignored the growing and unrebutted body of scholarly literature – summarized below – showing that contribution limits have no meaningful effect on public trust in government or perceptions of corruption.
This cavalier attitude towards social-science evidence is an unfortunate symptom of this Court’s intermediate scrutiny jurisprudence, which – as discussed in Section I – has created a host of conflicting and indeterminate standards. As a result, whether a First Amendment litigant will have his case decided on the basis of meaningful evidence turns largely on the judge before which he finds himself. This, in turn, has resulted in courts reaching conflicting rulings when faced with similar, or even identical, facts.
This Court should grant the petition and use this case to send a message to lower courts that “exacting scrutiny” – no less than any other form of intermediate scrutiny – is a rigorous level of review that demands the government produce actual evidence to justify restrictions on core First Amendment activity.
In the News
Fox News: NBC walks back report that feds wiretapped Cohen’s calls (Video)
Sources tell Fox News that at least one of Michael Cohen’s phones was monitored with a device that records phone numbers dialed; reaction to wiretap report and Stormy Daniels settlement payment on ‘The Ingraham Angle.’
[Ed. Note: Institute for Free Speech Chairman and Founder Bradley A. Smith joins the panel to discuss the campaign finance law implications of the payment to Stormy Daniels.]
Internet Speech Regulation
Savannah Morning News: Lawmakers must act on campaign ads
By Editorial Board
A bipartisan trio of senators introduced the Honest Ads Act last fall. The legislation would, among other things, require each ad to carry a disclaimer, such as “This ad was brought to you by Vladimir Putin,” and force digital platforms such as Facebook, Twitter and Google to create a public record of political ads.
Given the stakes this fall – control of both houses of Congress is in play, as are governorships of 36 states – the bill must become law sooner rather than later. Many of the internet titans, including Facebook and Twitter, support the legislation and are already implementing safeguards.
Facebook’s Mark Zuckerberg told attendees at this week’s Off the Record conference that his company intends to spend more money policing political ads this year than they make off of them. “We’re essentially going to be losing money on running political ads,” Zuckerberg said…
The Honest Ads Act won’t eliminate meddling. The proposed law has a $500 spending threshold, and would-be influencers could limit their ad purchases to less than that amount to avoid disclosure. Additionally, he U.S. Supreme Court’s 2010 Citizens United ruling allows for political action committees and other groups to accept unlimited contributions from undisclosed donors.
But the Honest Ads Act would mandate scrutiny and ads from questionable sources would stand out.
Google Blog: Supporting election integrity through greater advertising transparency
By Kent Walker
As a first step, we’ll now require additional verification for anyone who wants to purchase an election ad on Google in the U.S. and require that advertisers confirm they are a U.S. citizen or lawful permanent resident, as required by law. That means advertisers will have to provide a government-issued ID and other key information. To help people better understand who is paying for an election ad, we’re also requiring that ads incorporate a clear disclosure of who is paying for it.
There’s more to come. This summer, we’ll also release a new Transparency Report specifically focused on election ads. This Report will describe who is buying election-related ads on our platforms and how much money is being spent. We’re also building a searchable library for election ads, where anyone can find election ads purchased on Google and who paid for them.
As we learn from these changes and our continued engagement with leaders and experts in the field, we’ll work to improve transparency of political issue ads and expand our coverage to a wider range of elections…
We are also supporting the “Disinfo Lab” at the Kennedy School’s Shorenstein Center, which will employ journalists to leverage computational tools to monitor misinformation in the run-up to and during elections.
Congress
USA Today: John McCain’s warning about dark money is real. Stop campaign finance corruption.
By Tim Roemer and Zach Wamp
According to Sen. John McCain, R-Ariz., a secretive, corrupting campaign finance system is at the root of political dysfunction dividing Americans across the country – and he says Congress better fix it.
He candidly writes in his forthcoming memoir, The Restless Wave, that non-profit social welfare organizations – the 501(c)(4)s that hide their donors and fight to keep them secret – “are often financed by one or two of several billionaires” who yield enormous influence…
Moreover, looking into our crystal ball, we will take the senator’s comments one step further and point out that, according to intelligence reports, in 2018 we are likely to continue to face something even more diabolical: Foreign disinformation campaigns from anonymously funded governments, inflicting attacks on American national security. Congress has refused to hold a hearing on potential legislative solutions, like the bipartisan, bicameral Honest Ads Act. Our 20th century laws are greatly overmatched by the 21st century reality of zombie armies, bot farms, cyber weapons and foreign governments…
Congress must do its constitutional duty and protect our country. Many Republicans and Democrats on Capitol Hill are taking bold, important steps. More than a dozen members on both sides of the aisle joined the bipartisan Congressional Reformers Caucus, who seek to address the influence of money in politics and dysfunction on Capitol Hill. Additionally, legislation to overhaul the Federal Election Commission has growing bipartisan support. The Honest Ads Act is gaining momentum too.
Candidates and Campaigns
NBC News: How the Trump-Stormy Daniels-Michael Cohen money triangle could violate campaign finance law
By Stephen Spaulding
Americans have a right to know who is spending money to influence our elections – whether it’s the hundreds of millions of dollars from unknown sources that has flooded into federal elections since the Citizens United Supreme Court decision or the $130,000 in hush money paid to a porn star days before the 2016 presidential election…
Transparency is key to accountability in a democracy like ours. And it’s a core pillar of our campaign finance laws, along with contribution limits that curb corruption and its appearance. Voters should be able to follow the money and decide for themselves who can best represent their community in elected office. The past few weeks have raised several new red flags regarding the Trump campaign’s finances – red flags that need to be investigated.
As the former counsel to a commissioner at the Federal Election Commission (FEC), I reviewed many enforcement matters at the agency – from the complex to the mundane. The Stormy Daniels case is easily one that should move forward in the enforcement process. It is not even a close call.
By Sasha Savitsky
Liberal comedian Rosie O’Donnell is being accused of exceeding the legal limit for campaign donations, according to a weekend report from the New York Post.
The report claims that the Trump critic used fake names and addresses in the five donations that exceeded the limit of $2,700 per candidate.
Conservative filmmaker Dinesh D’Souza, who was convicted of making an illegal campaign contribution in 2014, posed the question on Fox & Friends Monday morning on whether or not O’Donnell would face charges for her alleged crimes.
“It seems clear from what we know, that Rosie broke the law and she broke the law five times,” D’ZSouza said. “So it’s in a sense an egregious violation.”
He continued, “What makes it particularly sneaky on her part is that she used four different names and five different addresses. So it seems clear that she knew what she was doing and she was trying to cover her tracks.”
D’Souza pleaded guilty in 2014 for donating $20,000 to New York politician Wendy Long. He was sentenced to five years probation, eight months in a halfway house and paid a $30,000 fine.
“Now normally, if these offenses occur a single time, particularly when there’s no corruption involved they don’t prosecute them. But they do prosecute repeat offenders and it seems clear that Rosie, in this sense, is a repeat offender,” the 57-year-old stated.
Former New York City Police Commissioner Bernard Kerik echoed D’Souza’s remarks, writing on Twitter, “Will @Rosie be held to the same standard as @DineshDSouza for illegally exceeded campaign contribution limits?”
The States
Portland Press Herald: Maine Republicans gather at state convention to adopt a platform
By Kevin Miller
Among other things, the platform calls for eliminating the income tax, espouses the “sanctity of human life – from conception to natural death,” opposes federal Common Core education standards as well proficiency-based learning, calls for respect of free speech “regardless of the merits of the opinions expressed,” defines marriage as a union between a man and a woman, and calls for an end to public campaign financing.
Observer: Here’s How a Small Tax Credit Could Bring Bigger Democracy
By Jeff Brindle
Increasingly, independent groups are dominating elections in New Jersey, more so than weakened political parties and even the candidates themselves.
The Election Law Enforcement Commission (ELEC) has put forth proposals to offset the influence of secretive groups by strengthening political parties, reforming pay-to-play and requiring registration and disclosure by independent groups…
Now is the time to add an additional proposal to the package above: tax credits for political donations to political parties and candidates.
Tax credits for donations to political parties and candidates, combined with the enactment of the proposals highlighted above, would go far toward redirecting the flow of money in New Jersey campaigns away from secretive groups and toward more accountable parties and candidates.
To make matters even better, tax credits would serve as an incentive for citizens to involve themselves in elections through donating to parties and candidates in small amounts.
Spectrum News Austin: ‘Democracy dollars’ campaign financing program could come to Austin
By Reena Diamante
The Charter Review Commission is weighing in on a so-called “Democracy Dollars” program. Eligible Austin residents would get two $25 certificates for every city council and mayoral position appearing on their ballot. Then, they could give that money to the candidate of their choice…
Seattle is the only place in the country with a program of this kind. Supporters in Austin are touting the results…
The program would take up to $1.5 million from the general revenue fund.
If the Commission approves it, the City Council will decide if it will appear on the November ballot. Once voters decide, the program would be in place in time for the 2022 election cycle.
