In the News
RealClearPolitics: Democrats Are Using the FEC as a Partisan Weapon
By Bradley Smith
Imagine you are accused of a crime. Fortunately for you, the jury rejects the prosecution’s case. But the judge disagrees with the verdict. He pretends the jury has not reached a decision, and announces that the trial will continue, but no sign of when. Sound fair?
Incredibly, something like this is happening at the Federal Election Commission. The FEC’s Democrats are regularly refusing to dismiss complaints and notify respondents that they are in the clear when the commission has voted not to prosecute. This is a violation of due process norms and suppresses lawful free speech about politics and issues.
To understand how this has come about, it is necessary to understand the unique role and structure of the FEC. When Congress created it in the 1970s, lawmakers gave the agency sole responsibility for civil enforcement of federal campaign finance laws. It understood that the power to regulate political campaigns and speech could become a dangerous partisan weapon. Thus, the FEC was created with six commissioners, with no more than three from one party, and four votes are required to investigate and prosecute offenses. As the late Democratic Sen. Alan Cranston noted, this would prevent the FEC from becoming “a tool for harassment by future imperial presidents who may seek to repeat the abuses of Watergate.”
ICYMI
Campaign Organizers Sue California Over AB 5’s Discrimination Against Political Speech
A California nonprofit, a political committee, and a company that provides door-knocking and signature gathering services late yesterday filed a lawsuit in federal court saying that California’s Assembly Bill 5 (AB 5) discriminates against political speech. The lawsuit argues that AB 5 violates the First Amendment because independent contractors, who are permitted to work as direct sales salespersons and newspaper carriers, are prohibited from performing similar work for campaigns and advocacy groups.
“California allows independent contractors to ask passersby to sign a credit card application, but not a ballot measure petition. It allows them to go door-to-door selling home goods, but not promoting candidates. It allows them to drop off newspapers, but not campaign literature,” said Institute for Free Speech Vice President for Litigation Alan Gura. “The First Amendment prohibits discrimination against speech based on its content, and that’s exactly what’s happening here.” …
The case is Mobilize the Message, LLC v. Bonta in the United States District Court for the Central District of California. To read the complaint, click here.
Supreme Court
Election Law Blog: Disclosure Law in a Toxic Political Culture: The Impending Americans for Prosperity v. Bonta Decision
By Richard Pildes
The major precedents on when state demands for disclosure of a group’s donors violate the First Amendment’s protections for freedom of association (outside the campaign-finance context) come from earlier eras. More specifically, many of those cases involve attempts by Southern states in the 1950s and 1960s to force disclosure of donors to the NAACP…
The California law in this case is a general law and is clearly not targeted at any specific group. But in today’s political culture, the Court is realistic enough to realize, as oral argument demonstrated, that the risks of economic or other reprisals against donors to a broader range of groups is greater than in earlier decades. Because cultural issues are so much more central to politics, and so polarizing, groups dealing with issues ranging from religion, to education, to sexual-orientation, and many other areas are at the center of intense political conflict (the animal-rights group, PETA, filed a brief in the case). Not only is the political culture more punitive, but the internet and social media make it far easier to get access to sensitive information and to mobilize tactics, including various forms of reprisal, against donors to groups perceived to be controversial. On top of that, politically motivated leaking of information disclosed to the government, and required to be held confidentially, has become more common.
Reason (Volokh Conspiracy): The Incomprehensibility of Mahanoy Area School District v. B.L.
By Josh Blackman
I had high hopes for Mahanoy Area School District v. B.L. This case could have brought some clarity to an important issue: what are the free speech rights of students who are off campus. Alas, we did not get clarity. Justice Breyer’s opinion is almost incomprehensible. It lists countless factors and considerations, none of which are dispositive, but any of which can be relevant. Here is the closest we get to a summary:
The Courts
Reason (Volokh Conspiracy): Fifth Circuit Certifies Questions in Doe v. Mckesson to Louisiana Supreme Court
By Eugene Volokh
From Friday’s opinion:
This case arose out of a protest alleged to have been organized and led by defendant DeRay Mckesson in Baton Rouge, Louisiana, in response to the police shooting of Alton Sterling. According to the complaint, the defendant directed the protest to a public highway in front of a police station. The police began making arrests and attempting to clear the highway.
Some protesters began throwing various objects at the police. Officer John Doe was struck in the face by a piece of concrete or similar rock-like object. As a result, he lost teeth and suffered injury to his jaw and brain. The individual who threw the object has not been identified.
Officer Doe brought suit against Mckesson in the Baton Rouge, Louisiana, federal district court, alleging that his injuries resulted from Mckesson’s negligence in organizing and leading the protest. The district court dismissed Officer Doe’s claim …. It found that the facts alleged did not fall into one of the specific categories of conduct for which an individual can be held liable for the tortious activity of an associate…
Tampa Bay Times: Florida judge hears challenge to cap on ballot initiative contributions
By Dara Kam, News Service of Florida
Backers of initiatives to expand voting urged a federal judge on Thursday to block a new law that imposes a $3,000 limit on contributions to political committees collecting petition signatures to put proposed constitutional amendments on the ballot.
The American Civil Liberties Union of Florida and three political committees are challenging the law, arguing the contribution limit imposes an unconstitutional burden on political speech. Republican lawmakers passed the cap in April as part of a years-long effort to make it more difficult for citizens to amend the state constitution…
The ACLU of Florida and the political committees, which are trying to get voting expansion initiatives on the November 2022 ballot, are asking U.S. District Judge Allen Winsor to issue a preliminary injunction to block the law from going into effect.
During a Thursday hearing, plaintiffs’ witnesses told Winsor that the cap will discourage them from donating to the political committees and harm the committees’ ability to collect the requisite number of signatures.
Congress
Roll Call: Unkept promise on elections overhaul leaves Democrats scrambling
By Shawn Zeller
Democrats always intended the bill to overhaul elections, campaign finance and ethics law that stalled last week in the Senate as a statement of principle with which to draw a contrast with Republicans. But the measure’s demise is, thus far, demonstrating more fissures in their own party.
It has divided progressives who believe democracy cannot survive without its enactment, a president in Joe Biden who hasn’t used his bully pulpit to promote it as much as they’d like, and moderate Democrats who don’t think it’s worth upending the Senate filibuster to overcome GOP opposition.
Free Speech
Washington Post: As the Giuliani case goes forward, courts should think deeply about the First Amendment
By Bruce A. Green and Rebecca Roiphe
Lawyers have the right as private citizens to engage in political debate. This includes a right to lie about the government — not because lies are desirable, but because it is too dangerous to give the state the power to determine which statements are true or false when it comes to political speech. Robust political debate would be chilled because people would fear misspeaking. Efforts to expose government wrongdoing would be abandoned out of concern about retribution.
To encourage criticism of the government, the First Amendment gives the public breathing room. Lawyers need it too. They should not have to choose between a law license and the license to engage in the same vigorous political speech as other citizens. It is true that lawyers are officers of the court, but they have also historically played an important part in holding government to account. It would be a shame to strip them of this powerful role.
Candidates and Campaigns
New York Times: How Deceptive Campaign Fund-Raising Ensnares Older People
By Shane Goldmacher
The dirty little secret of online political fund-raising is that the most aggressive and pernicious practices that campaigns use to raise money are especially likely to ensnare unsuspecting older people, according to interviews with digital strategists and an examination of federal donation and refund data…
Digital operatives in both parties deploy an array of manipulative tactics that can deceive donors of all age groups: faux bill notices and official-looking correspondence; bogus offers to match donations and hidden links to unsubscribe; and prechecked boxes that automatically repeat donations, which are widely seen as the most egregious scheme.
But some groups appear to specifically target older internet users, blasting out messages with subject lines like “Social Security” that have particular resonance for older people, and spending disproportionately on ads for an older audience. In many cases, the most unscrupulous tactics of direct mail have simply been rebooted for the digital age — with ruthless new precision.
The States
KXAN: Candidate for Austin mayor sues city over election rules
By Sophie Gifford
A candidate for running for mayor of Austin is suing the city.
Jennifer Virden, who announced her campaign for mayor earlier this week, filed a lawsuit against the City of Austin alleging it is unconstitutional to prevent her from fundraising before November.
City ordinances prevent candidates in city general elections from accepting campaign donations until one year before election day…
In March, Virden filed a lawsuit against the City of Austin alleging Section 2-2-7(B) of the city ordinances is unconstitutional and “has the effect of silencing the competing speech of challengers.”
In a hearing Friday at the federal courthouse, Virden’s lawyer, Jerad Najvar, requested a judge put a preliminary injunction on §2-2-7(B), which would allow Virden to start fundraising immediately.
Najvar explained the prohibition against candidates fundraising more than a year out from the election allows incumbents to speak on issues as they arise but prevents challengers from doing the same thing.
“People with a different perspective, people who want to come out and challenge what’s going on in the city right now don’t have those [media] advantages. And so, they must raise money. So, Austin’s law, as it stands now, prevents organized opposition from coming together,” said Najvar in an interview earlier on Friday.
Louisiana Radio Network: Governor OK’s uncapped contributions from PACs to state candidates
By Matt Doyle
Governor Edwards signs legislation removing the cap on the amount of money candidates in state elections can receive from political action committees.
Opponents are concerned this will open the state up to an influx of outside money but Gonzales Senator Ed Price said his legislation was about transparency. He said it allows candidates to consolidate the number of PACs they form to receive donations, making the money easier to track.
“It may open it up but at least citizens can now see what political action committee is supporting you without having to go and search,” said Price.
The bill was opposed by the State Board of Ethics. Council for a Better Louisiana President Barry Erwin said removing the previous caps could result in a campaigns becoming a lot more expensive, and drastically increase the influence of out-of-state actors.
Sun-Sentinel: Florida law allows unlimited dark money donations and pols don’t care
By Sun-Sentinel Editorial Board
Even with the bank records, it may be hard for investigators to determine precisely the source of the money that financed a crooked election. That’s because Florida’s campaign finance laws have essentially legalized money laundering.
Donors can only give up to $3,000 to candidates for statewide office in Florida, and $1,000 for legislative races. But they can give as much as they want to political committees or PCs. And these PCs can donate unlimited amounts to each other.
So let’s say you’re a corporation that wants to rain down mudslinging ads on a candidate or cause, but you want to keep your hands clean. You’ll just donate $10,000 each to a dozen different political committees, which in turn move that money around to still other political committees (the donations now coming from those committees rather than the original corporation), until the money winds up at a committee that pays for attack ads that land in voters’ mailboxes.
Associated Press: Ohio House approves legislation aimed at protest behavior
By Andrew Welsh-Huggins
The definition of obstructing justice in Ohio would be expanded to include failure to follow a lawful order or diverting a law enforcement officer’s attention, under a bill approved Friday by Republican House lawmakers.
The bill is one of four GOP proposals that would criminalize or increase penalties associated with behavior at last year’s racial injustice and police brutality protests.
Sponsoring GOP Reps. Jeffrey LaRae and Shane Wilkin say the measure is needed to protect both police officers and peaceful protesters and will not thwart the filming of police. Opponents, including the Ohio chapter of the American Civil Liberties Union, call it an effort to discourage free speech and the right to protest.
It goes next to the Ohio Senate, where similar legislation is being considered.
