In the News
Watchdog.org: 60 years after NAACP v Alabama guaranteed nonprofit donors’ right to privacy, governments are threatening the protection
By Bethany Blankley
In Colorado, the Institute for Free Speech (IFS) won a lawsuit against the state, raising the required disclosure amount…
Both Montana and New Mexico legislatures enacted laws requiring non-profit donor disclosure, and the most egregious laws infringing on donor privacy have been passed in New York and California, David Keating, President of IFS, told Watchdog.org…
IFS is currently in the process of challenging the state of California in court over its demand for IFS donor information. IFS’s case was not granted cert to the Supreme Court, but it is now being reviewed by the Ninth Circuit Court of Appeals on a different question, which could warrant being heard by the Supreme Court…
IFS also argues that there should be much higher thresholds for donor disclosures and that Congress should adjust the disclosure law that has not been changed since 1979.
One way of encouraging citizens to participate in the political process, Keating argues, is to have some assurance that their privacy will be protected. People who don’t or can’t donate may volunteer their time.
Keating asks, “Should we require that nonprofits disclose a list of all of their volunteers?” …
IFS staff stressed the difference between privacy and transparency to Watchdog.org.
“Transparency is an important value – when applied to government. Citizens, however, have a right to privacy. Not the other way around.”
NPR: As Secret Money Surges In Elections, The FEC Considers A Small Step For Transparency
By Peter Overby
The FEC held two days of hearings [last] week. The discussion leaned toward the technical: font sizes, pixel counts and disclaimer-to-message ratios. The commission last tried to tackle the disclaimer issue in 2006, before concluding the internet was evolving so fast, it didn’t make sense to set standards…
USA Today analyzed some 3,500 Facebook ads from the Internet Research Agency, a Russian entity that was active in the efforts to sway the presidential contest. The newspaper found that more ads dealt with race issues than with the presidential candidates, and only about 100 ads fit the “express advocacy” category that the FEC would regulate.
A disclaimer skeptic, legal director Allen Dickerson of the conservative Institute for Free Speech, told the commission that if its proposed rule had existed in 2016, the effect would have been minimal. “It would have added a disclaimer to some set – some subset – of those 100 ads worth perhaps a few thousand dollars,” he said…
More broadly, Sen. Sheldon Whitehouse, D-R.I., said it’s become easier for big donors to avoid disclosure. “But that’s not a constitutional problem,” he said. “That’s a problem of political leverage and congressional spinelessness. And that can be corrected by pressure from the American people.” …
Whitehouse is the lead Senate sponsor of the DISCLOSE Act, one of several reform bills that congressional Democrats are preparing to rein in the secret money and tighten other gaps in campaign finance law.
Supreme Court
Wall Street Journal: Trump Says He Has Narrowed List of Possible Supreme Court Picks to Five
By Louise Radnofsky and Peter Nicholas
President Donald Trump said on Friday that he planned to interview one or two candidates this weekend at his Bedminster, N.J., resort to fill Supreme Court Justice Anthony Kennedy’s seat, and plans to announce his final pick on July 9.
“I’ve got it narrowed to about five,” he said, including two women…
Late Thursday, the president met with a bipartisan group of six senators who will play a pivotal role in selecting Mr. Kennedy’s successor because they have deviated from their party on key votes in the past. The lawmakers signaled they want an ideological centrist, complicating Mr. Trump’s decision.
Among them were Republican Sens. Susan Collins of Maine and Lisa Murkowski of Alaska, both of whom back abortion rights. Judiciary Committee Chairman Chuck Grassley (R., Iowa), and Democratic Sens. Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia also met with the president, the White House said…
For many of Mr. Trump’s allies, the prospect of remaking the Supreme Court has been their priority, and they are jockeying to promote their favorites on the list of 25, including Judges Amy Coney Barrett, Allison Eid, Thomas Hardiman, Brett Kavanaugh, William Pryor and Amul Thapar.
Inside the White House, the person running the search process is White House counsel Don McGahn. He has already compiled extensive records on the 25 candidates-millions of documents in total, a White House official said Friday. “The White House Counsel’s Office has been preparing for this for a long time,” the official said.
New York Times: How Conservatives Weaponized the First Amendment
By Adam Liptak
On the final day of the Supreme Court term last week, Justice Elena Kagan sounded an alarm…
Conservatives, said Justice Kagan, who is part of the court’s four-member liberal wing, were “weaponizing the First Amendment.” …
“The libertarian position has become dominant on the right on First Amendment issues,” said Ilya Shapiro, a lawyer with the Cato Institute. “It simply means that we should be skeptical of government attempts to regulate speech. That used to be an uncontroversial and nonideological point. What’s now being called the libertarian position on speech was in the 1960s the liberal position on speech.” …
“The left was once not just on board but leading in supporting the broadest First Amendment protections,” said Floyd Abrams, a prominent First Amendment lawyer and a supporter of broad free-speech rights. “Now the progressive community is at least skeptical and sometimes distraught at the level of First Amendment protection which is being afforded in cases brought by litigants on the right.” …
Liberals also played a key role in creating modern campaign finance law in Buckley v. Valeo, the 1976 decision that struck down limits on political spending by individuals and was the basis for Citizens United, the 2010 decision that did away with similar limits for corporations and unions.
One plaintiff was Senator Eugene J. McCarthy, Democrat of Minnesota, who had challenged President Lyndon B. Johnson in the 1968 presidential primaries – from the left. Another was the American Civil Liberties Union’s New York affiliate.
Professor Neuborne, a former A.C.L.U. lawyer, said he now regrets the role he played in winning the case. “I signed the brief in Buckley,” he said. “I’m going to spend long amounts of time in purgatory.”
Wall Street Journal: Meet the Conservative Activist Who Plays Critical Role in Supreme Court Picks
By Jess Bravin
A few weeks before handing in his resignation, Supreme Court Justice Anthony Kennedy talked about judicial vacancies with the man assigned to find his successor.
It was Leonard Leo, the Federalist Society leader upon whom President Donald Trump relies when it comes to picking judges…
Mr. Leo stands poised to install an unflinching conservative in the seat once intended for Judge Bork-the one now relinquished by Justice Kennedy, who was a compromise candidate able to clear the Democratic-held Senate…
In the 1990s, Mr. Leo took aim at the American Bar Association’s decades-old role in vetting potential nominees before they were publicly announced. The effort bore fruit when President George W. Bush eliminated the ABA’s privileged status…
If Mr. Leo was important to the Bush administration, he has made himself indispensable to Mr. Trump, observers say.
While outsiders often have been consulted for advice on nominations, “their advice was quite frequently ignored,” said David Yalof, a political scientist at the University of Connecticut, who described Mr. Leo’s strong influence over the current process “truly unprecedented.”
New York Times: Chuck Schumer: Our Rights Hang in the Balance
By Senator Chuck Schumer
Justice Anthony Kennedy’s retirement has created the most important vacancy on the Supreme Court in our lifetimes. Whoever fills Justice Kennedy’s seat will join an evenly divided court with the ability to affect the laws of the United States and the rights of its citizens for generations. Enormously important issues hang in the balance: the right of workers to organize, the pernicious influence of dark money in politics, the right of Americans to marry who they love, the right to vote.
Internet Speech Regulation
Politico: Morning Tech: D.C., tech tackle political ads … separately
By Cristiano Lima
As the Federal Election Commission concluded its second day of hearings on political ad disclaimers online, Twitter and Facebook – two of the companies that have faced the heaviest scrutiny on the matter – unveiled new measures aimed at increasing transparency around advertisements on their platforms…
“We’re very focused on midterms, on taking the lessons of what we didn’t predict in 2016 and applying them,” Facebook COO Sheryl Sandberg told reporters during a briefing Thursday announcing the new features, which are aimed at making advertising and other content on the site more transparent before the November elections. “By far the most important action we’re taking is going after fake accounts,” Sandberg added. Under the new measures, users will now be able to see when pages were created and whether their names have been changed since.
The session came the same day that Twitter rolled out its long-awaited political-ad transparency features, and the FEC considered whether it needs to regulate digital political ads. Both companies told MT the timing was a coincidence. Earlier this week, an aide to Democratic FEC Commissioner Ellen Weintraub told MT that they received “no response” after inviting leaders from Facebook, Google and Twitter to attend the hearing. The newly unveiled measures were met with mixed reviews from some of those who testified at the FEC’s hearings.
“It’s a positive step but we think that an industry-managed database lacks accountability,” Christine Bannan, an administrative law and policy fellow at the Electronic Privacy Information Center, told MT of the social media companies’ new measures. Joseph Jerome, policy counsel for the Center for Democracy & Technology, told MT the measures “may go a good way to addressing the FEC’s particular concern around disclosures of who paid for the ad.” But, Jerome said, “the bigger picture is getting more disclosure of ad targeting information.”
Candidates and Campaigns
The Intercept: Alexandria Ocasio-Cortez Upset Sends Sobering Message to Democrats Reliant on Big Money: It Won’t Save You
By Ryan Grim
For Democrats in the House, in the Senate, and on the presidential campaign trail, Ocasio-Cortez’s win signals that things have changed. Maria Urbina, political director for the Indivisible Project, which rose up after the 2016 presidential election to challenge Donald Trump, put it bluntly: “A new political era is dawning – and the rusting and reluctant political establishment will wake up or be woken,” she said.
Power is as much an illusion as a reality. A politician with millions in the bank and the support of every local Democratic Party chair may be exposed as just a guy with a few rich friends. Politicians are nothing if not savvy about survival, and they have read the meaning of Tuesday night’s upset. They can lock down every big donor and every key endorsement and they can still be beaten, because people still vote – and there is still some democracy left.
The States
Nonprofit Quarterly: Americans for Prosperity’s Nonprofit Status Challenged in New Hampshire
By Lauren Karch
Seven Republican state representatives-Phil Bean, Jason Janvrin, Sean Morrison, Michael McCarthy, Mark Proulx, Matthew Scruton, and Marty Bove-signed and sent a letter asking New Hampshire’s attorney general and secretary of state to investigate AFP after the nonprofit sent mailers attacking Bean, Janvrin, and Morrison over their votes against a Right-to-Work bill in the state legislature…
Because the mailers called out specific representatives prior to the New Hampshire primary, the representatives say AFP is endorsing those reps’ opponents.
“We believe that these paid advertisements are politically targeted attacks against individuals in office and/or candidates and violate the 501c4 requirements for a social welfare organization doing business in NH,” the letter reads.
The AFP state director for New Hampshire told a New Hampshire news source that the group has focused on issues, not the election of the candidates mentioned, by listing the candidates’ votes on the mailers…
The state’s attorney general’s office has agreed to open an investigation into AFP’s activities. The state has received two previous complaints-one in 2012 and one in 2014-regarding Americans for Prosperity not being registered as a political action committee.
Arizona Daily Star: Clean Elections Commission to sue, says Arizona lawmakers are misleading voters
By Howard Fischer
The Citizens Clean Elections Commission voted Friday to sue the Legislative Council, contending it’s trying to mislead voters about an upcoming ballot measure…
Most immediately, the lawsuit authorized unanimously by the bipartisan commission will seek to block the Secretary of State’s Office from using the description in the ballot pamphlet mailed out ahead of the November election to all households where registered voters live…
The upcoming ballot measure, Proposition 306, would eliminate the ability of the commission to enact its own rules. Instead, changes would have to be approved by the Governor’s Regulatory Review Council.
But Rep. Ken Clark, D-Tucson, said the description for the voter pamphlet does not mention the repeal of existing authority, but makes it sound like voters are being asked to give new rule-making powers to the commission.
Potentially more significant, Clark noted it does not tell voters that the Governor’s Regulatory Review Council is not some nonpartisan body but is made up of six people appointed by Republican Gov. Doug Ducey and a member of his Department of Administration…
This legal fight over the ballot explanation presumes that Proposition 306 will actually be on the November ballot.
A judge is set to hear arguments next month in a separate lawsuit which contends that lawmakers acted illegally in asking voters to approve it because it contains two separate subjects: stripping the commission’s independent rule-making authority and placing restrictions on how candidates can use their money.
New Hampshire Union Leader: Group of GOP lawmakers challenge nonprofit status of Koch-backed Americans for Prosperity
By Dave Soloman
“Based on AFP’s targeted political advertisements against public officials and/or candidates, should AFP be required to register with the state as a political committee based on their political activities?” the June 25 letter states.
“They claim that they do not endorse candidates. We will test this claim,” said Rep. Sean Morrison, R-Epping, one of the representatives targeted in the campaign…“Ultimately right-to-work is a huge issue for us,” said Greg Moore, AFP state director. “We are absolutely committed to making New Hampshire the 29th right-to-work state in the nation.” …
“We believe that AFP is intentionally avoiding reporting requirements by registering as a social welfare organization while acting, in fact, as a political committee by targeting individual public officials and candidates that do not support the AFP agenda,” the letter states…
Moore said he is confident the campaign is consistent with the AFP designation as a 501(c)4 “social welfare organization.”
“A 501(C)4 is allowed to engage in advocacy and political activity as long as it’s not its major purpose,” said Moore. “This is issue advocacy, which is fully protected under the First Amendment. Nowhere in the mailer will you see that we are calling for the election or defeat of any of these guys. All we are asking is for the constituents to reach out to these reps and ask them why they oppose right-to-work.”
