In the News

State Policy Network: Connecticut to candidates: Don’t talk about the Governor, or else

By Matt Nese

One of the most important jobs of a state legislature is to check the power of the executive branch. Yet in Connecticut, legislative candidates have been fined simply for mentioning the governor’s policies in campaign ads. The Institute for Free Speech is helping those candidates fight back.

In 2014, Connecticut General Assembly members Joe Markley and Rob Sampson ran for re-election on similar platforms. Both had fought against Democratic Governor Dannel Malloy’s policies on taxes and government spending and wished to tout their records to voters. But when they mentioned the governor in their campaign ads, they unwittingly violated state campaign finance laws. As a result, the State Elections Enforcement Commission (SEEC) assessed them $7,000 in fines.

Represented by the Institute for Free Speech, Markley and Sampson are asking a Connecticut court to vacate the fines and declare the law invalid, unconstitutional, or both. The First Amendment does not permit the government to regulate the content of campaign ads. Yet Connecticut’s law effectively bans legislative candidates from criticizing the governor in their ads…

The SEEC’s ruling, and the underlying regulations and laws upon which it is based, are a clear violation of the First Amendment. It is absurd to force legislative candidates to split the advertising costs with a candidate for governor, who might well refuse to do so, anytime they criticize the governor’s policies. Likewise, campaign regulators should not be able to fine candidates for expressing their policy positions in a mailer.

IFS is optimistic the courts will vindicate its clients’ First Amendment rights.

Nation of Change: IRS changes rules to critical disclosure requirements

By Ashley Curtin

According to NPR, “501(c)(3) charities will still have to identify their most generous donors to the IRS, but 501(c)(4) social welfare organizations and 501(c)(6) business associations will not.” …

[T]he IRS said the new rules will create a “significant reform to protect personal information.” Steven Mnuchin, Treasury Secretary, said it “will in no way limit transparency.” …

David Keating, president of the anti-regulation Institute for Free Speech, said “donor disclosure to the IRS ‘can easily be abused to suppress First Amendment rights,'” NPR reported.

“Americans shouldn’t be required to send the IRS information that it doesn’t need to effectively enforce our tax laws, and the IRS simply does not need tax returns with donor names and addresses to do its job in this area,” Mnuchin said.

While the groups will no longer be required to provide the identity of their donors, they “will still have to keep donor information in their own records and make it available for the IRS when the agency needs the information in audits of taxpayers,” The Hill reported.

ICYMI

Setting the Record Straight: A Response to CLC’s Attacks on Judge Kavanaugh

By Brad Smith

When Justice Kennedy announced his retirement from the Supreme Court last month, the Institute for Free Speech conducted a thorough review of the First Amendment records of each of the potential nominees…

We noted a number of decisions in which we disagree with Judge Kavanaugh. These included Holmes v. Federal Election Commission, a case in which we represented the plaintiffs, but Judge Kavanaugh joined an opinion by Obama appointee Sri Srinivasan upholding an FEC regulation that had the practical effect of giving many incumbents higher contribution limits than their challengers; and Wagner v. Federal Election Commission, in which Judge Kavanaugh joined a majority in voting to uphold a ban on political contributions by individuals who held government contracts, and where we filed an amicus brief on the losing side.
Nevertheless, we concluded – as did most others specifically looking at Judge Kavanaugh’s record in First Amendment cases, that he generally gave the First Amendment a robust interpretation protective of individual rights, and we offered praise for his nomination…

[I]t is not surprising that if the Institute for Free Speech and other First Amendment advocates like the Kavanaugh nomination, CLC does not.
What is unfortunate is that CLC has chosen to make the case for its opposition to Kavanaugh through a report that alternately misleads, misrepresents, cherry-picks data, and resorts to alarmism in place of serious analysis. Titled “Kavanaugh Has an Unsettling Record on Democracy,” and released as a joint effort with the left-wing group Demos, the report does no credit to CLC, and perhaps indicates the general lack of any serious basis for attacking the Kavanaugh nomination. In this review, I will go through the CLC charges as they are presented in the report.

Supreme Court

Washington Post: Russian firm indicted in special counsel probe cites Kavanaugh decision to argue that charge should be dismissed

By Robert Barnes

Legal experts who have analyzed his work say he appears to fit comfortably within the high court’s current conservative majority, which has found that restrictions on campaign-related spending conflict with the First Amendment’s guarantee of free speech…

In the case of the foreign national decision, Kavanaugh said the government would have to prove that foreign nationals had knowledge of the law’s restrictions before seeking criminal charges. And he said the ban did not include foreign spending on “issue advocacy and speaking out on issues of public policy.”

The Supreme Court affirmed the decision in 2012 in a one-sentence order, without noted dissent or scheduling the case for a hearing…

Kavanaugh joined the rest of the circuit in ruling in 2010’s SpeechNow.org v. FEC that federal contribution limits cannot be applied to “independent expenditure committees,” finding that the Supreme Court’s analysis in Citizens United required it. That decision gave rise to super PACs, which can collect unlimited sums from individuals and companies.

Even before the Supreme Court decided Citizens United, Kavanaugh wrote for his court in a 2009 case called Emily’s List v. FEC , ruling against regulations that required independent nonprofit organizations to comply with federal contribution limits…

A year later, he affirmed rules limiting how much money can flow to political parties – noting that Supreme Court precedent gave him no choice.

In Republican National Committee v. FEC in 2010, Kavanaugh wrote for a three-judge panel in upholding contribution limits on federal candidates and parties…

The Bluman ruling is likely to receive outsize attention in Kavanaugh’s confirmation hearings because it is now being cited in an active case about Russian interference in the 2016 campaign.

The Courts

Seattle Times: Free-speech case brought by cop killer and Native American activist Leonard Peltier can go forward, judge rules

By Mike Carter

U.S. District Judge Ronald Leighton, in an 18-page order issued Monday in Tacoma, found that the Department of Labor & Industries (L&I) failed to show a “compelling government interest” when it removed Peltier’s paintings from an exhibit in its lobby during Native American Heritage Month in 2015…

“Freedom of speech, though not absolute, is protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest,” Leighton wrote in denying the state’s motion to dismiss the lawsuit against L&I Director Joel Sacks and his public-information officer, Tim Church…

In 2015, L&I exhibited several of his paintings in its lobby, drawing the particular ire of a pair of retired FBI agents who have made it a mission to see that Peltier’s crimes and victims are not forgotten. Those men, Edward Woods and Larry Langberg, wrote Inslee and Sacks questioning the decision to display Peltier’s art.

The paintings were removed two weeks early because they conflicted with “L&I’s message” and were controversial, according to court pleadings…

Leighton relied on the U.S. Supreme Court ruling in Citizen’s United vs FEC, which concluded in the context of campaign financing that corporations are individuals, holding that they have the same rights to free speech as people.

Likewise, so do convicted killers.

“By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice,” Leighton wrote.

DOJ

Washington Post: Justice Department plans to alert public to foreign operations targeting U.S. democracy

By Ellen Nakashima

“Exposing schemes to the public is an important way to neutralize them,” said Deputy Attorney General Rod J. Rosenstein, who announced the policy at the Aspen Security Forum in Colorado. Rosenstein, who has drawn President Trump’s ire for appointing a special counsel to probe Russian election interference, got a standing ovation.”The American people have a right to know if foreign governments are targeting them with propaganda,” he said…

The new task force for the first time spelled out five types of threats covered under foreign influence operations.

Hackers can target election systems, trying to get into voter registration databases and voting machines. Foreign operatives can pursue political organizations, campaigns and public officials. They can offer to assist political organizations or campaigns, while concealing their links to foreign governments. They can seek to covertly influence public opinion and sow division through the use of social media and other outlets. And they can try to employ lobbyists, foreign media outlets and other foreign organizations to influence policymakers and the public…

To counter foreign influence, the department will aggressively investigate and prosecute such activities, and will work with other departments, such as Homeland Security, to share information about threats and vulnerabilities with state and local election officials, political organizations and other potential victims so they can take measures to detect or prevent harm, the report said.

It also noted that the Justice Department supports other agencies’ actions, such as financial or diplomatic sanctions and intelligence efforts. The department also is forming strategic relationships with social media providers to help them identify malign foreign influence activity.

Congress

Washington Post: How members of Congress cultivate wealthy donors through a little-known PAC

By Michelle Ye Hee Lee

A report released Thursday by two advocacy groups seeking greater regulation of campaign finance offers insight into the swanky world of fundraising for political action committees known as leadership PACs…

Over the years, leadership PACs have become must-have accessories on Capitol Hill. Currently, 486 of 535 members of Congress have at least one leadership PAC, according to the Center for Responsive Politics.

Even in the era of big-money super PACs, which can raise and spend unlimited amounts of money per election cycle, leadership PACs remain essential on Capitol Hill. They are so ubiquitous that even first-time federal candidates establish their own during their campaigns – long before ballots are cast…

Yet the amount each leadership PAC spends to support other campaigns and candidates varies widely, the report finds. For example, during the 2016 cycle, one leadership PAC spent just 3 percent helping candidates or political committees, while another spent 97 percent…

Unlike with their campaign committees, lawmakers face virtually no limits on how to spend leadership PAC money…

The groups urged the FEC to impose limits on leadership PACs, particularly limiting expenses that could be considered “personal use.” This restriction currently applies to lawmakers’ candidate committee spending…

Several leadership PAC aides said their expenses were spent directly for the purpose of fundraising and that the lawmakers did not personally benefit.

Roll Call: Congresswomen to Trump: Appoint an Election Security Czar

By Maria Mendez

Two New York congresswomen on Thursday urged President Donald Trump to appoint an election security czar to combat election meddling.

Democratic Rep. Kathleen Rice and Republican Rep. Elise Stefanik sent a letter calling for a “centralized, senior position” to knock down “silos” and bring together efforts at federal agencies such as the FBI and Department of Homeland Security.

The bipartisan letter comes as Congress continues to grapple with the president’s repeated denials of Russian interference in the 2016 election and his performance at Tuesday’s press conference with Russian leader Vladimir Putin.

The issue of election security gripped the House floor on Thursday, as Democrats chanted “USA, USA” after a fiery speech by Minority Whip Steny H. Hoyer, who challenged Republicans to fund new election security grants.

Congress must “slam the door in the face of the Russian bear,” Hoyer said.

“The flashing red light calls us to action,” he shouted, referring to comments made by Director of National Intelligence Dan Coats on cyberthreats facing the United States.

While Coats said last week that the “warning lights are blinking red again” and that “the digital infrastructure that serves this country is literally under attack,” Trump has appeared to contradict that assessment.

With the midterm elections are four months away, Rice and Stefanik are calling for the president to take “immediate action to combat” the threat of other nation’s interference. “Elections are the foundation of our democracy,” Rice and Stefanik state in their letter.

Online Speech Platforms

New York Times: What Stays on Facebook and What Goes? The Social Network Cannot Answer

By Farhad Manjoo

So to recap: Facebook is deeply committed to free expression and will allow people to post just about anything, including even denying the Holocaust. Unless, that is, if a Holocaust denial constitutes hate speech, in which case the company may take it down. But if a post contains a factual inaccuracy, it would not be removed, but it may be shown to very few people, reducing its impact.

On the other hand, if the misinformation has been determined to be inciting imminent violence, Facebook will remove it – even if it’s not hate speech. On the other other hand, if a site lies repeatedly, spouts conspiracy theories or even incites violence, it can maintain a presence on the site, because ultimately, there’s no falsehood that will get you kicked off Facebook.

All of this fails a basic test: It’s not even coherent. It is a hodgepodge of declarations and exceptions and exceptions to the exceptions.

Center for Responsive Politics: How to search for the new Kavanaugh SCOTUS ads via the new Facebook and Twitter Transparency Tools

By Nihal Krishan

Although these actions taken by Facebook, and to a lesser extent by Twitter, appear to be moving in the direction of more transparency, there is still concern that the organizations that fund political content can have confusing or misleading names that obscure their true purpose. Unless people are willing to go searching and investigating on the internet themselves, the information Facebook and Twitter provides on their political ad database may leave users unclear on the true source and motive of an advertisement.

A Facebook spokesperson told TechCrunch that the page administrator who purchases an ad chooses who to disclose as having paid for it. Facebook requires that this disclosure info be complete and accurate, and that advertisers follow applicable laws. However, these rules still seems to allow advertisers to cite some shell organization or donor group name that could obscure where the money really comes from.

Seeing that an ad was paid for by “Americans for Prosperity” wouldn’t immediately inform most Americans that it’s a conservative “dark money” group linked to billionaire industrialists Charles and David Koch. On the other side, ads to fight Kavanaugh’s confirmation have been bought by “Demand Justice,” a new dark money group with a liberal-leaning agenda.

A notable aspect of Facebook’s political ad database is how repetitive and crowded it is. It shows just how easy it is to create a large fleet of ads on the platform. Ads with identical text and images can appear dozens or hundreds of times in the same search, arguably because each ad is targeted to a different demographic.

Independent Groups 

Wall Street Journal: Heritage Action Advocacy Group Shifts to Bolstering GOP Candidates

By Kristina Peterson

Heritage Action for America, a political sister organization of the Heritage Foundation, has spent years getting Republicans riled up in policy fights. Now the group is trying something new: getting GOP lawmakers elected.

Founded in 2010, Heritage Action spent its early years stirring controversy as it pushed GOP leaders and lawmakers to take a more combative approach in negotiations with former President Barack Obama, a Democrat. But with President Donald Trump, a Republican, in office, the group is recalibrating its strategy and, for the first time, is getting significantly involved in congressional elections.

“The tactics have to change when you [Republicans] have the House, the Senate and the White House,” Tim Chapman, executive director of Heritage Action, said in an interview Monday.

“We have got a very good apparatus built for stopping bad legislation and for holding people accountable. We’re not quite as effective as we’d like to be at passing good pieces of legislation,” he said.

To change that, Heritage Action plans to spend $2.5 million, starting in early September, to help Republicans win in 14 congressional districts. The group plans to use its money on direct mail and digital ads promoting its view of how the tax law passed by Republicans last December is benefiting voters there. Additional money raised could be used on television ads, said the group’s vice president, Jessica Anderson.

Candidates and Campaigns

Politico: Why Russia Will Help the Democrats Next

By Garrett Graff

There’s solid geopolitical evidence that boosting the Democrats would be a smart strategy for a foreign actor this fall.

Vladimir Putin’s goal isn’t-and never was-to help the Republican Party, at least in the long run. Boosting Trump’s presidential campaign was a means to Putin’s end: Weakening the West, and exploiting the seams and divisions of the West’s open democracies to undermine our legitimacy and moral standing. Russia accomplished that with great success in 2016-and it’s a strategy that is continuing to pay dividends today. “Their purpose was to sow discontent and mistrust in our elections; they wanted us to be at each others’ throat when it was over,” former chairman of the House Intelligence Committee Mike Rogers said last year. “It’s influencing, I would say, legislative process today. That’s wildly successful.” …

If it weren’t for the president’s fragile ego, it would be easy for Republican lawmakers to say, “We don’t think the Russian effort affected the 2016 election, but we can’t take the chance that similar efforts in the future ever succeed.” And then throw themselves into an all-out, no-expense-spared, herculean effort to lock down every county-level voter system, ensure paper backups in every elementary school gymnasium voting precinct, install two-factor authentication on every GOP congressional campaign email account, and pound the social media platforms every day to remove disinformation, minimize bots and trolls and block dark-money ads.

The States 

Wichita Eagle: This group put out a flier critical of Kobach. And he likes it

By Jonathan Shorman

New mailers from the American Civil Liberties Union paint Kris Kobach’s record on education, transparency and LGBT discrimination in a negative light – and Kobach is highlighting it.

The Kansas secretary of state frequently says opposition from the ACLU is a sign he’s on the right track. At a fundraiser in Wichita on Tuesday night for his gubernatorial campaign, Kobach held up a mailer.

On one side, the flier says Kobach wants to be governor “but has violated our civil liberties.”

On the other side, Kobach’s positions on education, public records and anti-discrimination efforts are contrasted with Gov. Jeff Colyer, his primary rival in the Republican race for governor.

“It’s a pro-Colyer ad, anti-Kobach ad. In my entire life, I have never heard of the ACLU advertising on behalf of a Republican candidate for anything,” Kobach said.

ACLU spokesman Mark McCormick confirmed that the ACLU had sent out the flier, but he emphasized that the organization does not support candidates.

“We support civil liberties and civil rights and want voters to be well informed on these issues,” McCormick said in an email. “We have no permanent allies and no permanent enemies, only permanent interests in expanding and protecting civil liberties.” …

Kobach’s image on the flier and his positions are listed in black and white, while Colyer and his positions are shown in color. The flier urges readers to “vote to protect liberty and freedom on August 7,” the day of the primary election.

Nowhere does the flier say it was sent by the ACLU. But the Overland Park return address listed is for the ACLU of Kansas.

WIVB News 4 Buffalo: “Impeach Trump” sign sparks free speech debate in Town of Niagara

By Jenn Schanz

Town of Niagara resident Charles Lagreca isn’t shy about his feelings toward President Trump. 

Several weeks ago, he put up an “Impeach Trump” sign in his yard. Then he received a letter from the Town’s building inspector, telling him to take it down or get a permit; failure to do so would result in a fine of 350 dollars.

“They’re requiring me to have a permit for a political sign. And the code says political signs are to be placed 14 days before an election and removed thereafter. And you need a permit and it’s got to comply. I get that. This is different,” Lagreca told News 4…

[W]hile there is a detailed code pertaining to political signs, there is no clear indication in the town code of how to determine whether or not a sign is political in nature.

“This doesn’t smell very good to me, Town of Niagara,” Lagreca said…

Through the course of this story, News 4 learned the Town of Niagara would no longer be requiring Lagreca to obtain a permit for his sign.

Update:

The Town’s current sign code remains unchanged.

The Niagara Town Board said at a meeting on Tuesday night that Legreca can keep his sign up.

They said they did not want to impede his first amendment rights.

The board said they will look into the town’s political sign code.

They also said Lagreca was improperly targeted and that they would look into that matter.