In the News
Courthouse News Service: Elections
A California appeals court affirmed a ruling for the Howard Jarvis Taxpayers Association, which claimed that legislation intended to allow for public election funding is not permissible due to the Political Reform Act of 1974.
[Learn more about the case here.]
Election Law Blog: California Appeals Court Unanimously Holds That New California Law Allowing Public Financing of Campaigns Illegally Conflicts with Earlier Ballot Measure
By Rick Hasen
Opinion here.
If this stands, it means it will take another ballot measure to get California on the road to public financing of campaigns.
New from the Institute for Free Speech
Amicus Brief: Supreme Court Should Hear Alaska Contribution Limits Case
The largest state in the country has the nation’s lowest limits on donations to statewide candidates. In an amicus brief filed yesterday, the Institute for Free Speech asked the Supreme Court to hear a case challenging those limits as unconstitutional under the First Amendment. The brief says the Court should overturn its 2006 ruling in Randall v. Sorrell and implement a clearer standard for evaluating campaign finance laws.
“The right to support candidates is protected by the First Amendment. Yet the Court’s principal case, Randall v. Sorrell, is a one-off decision that provides little useful guidance. The Court now has a chance to bring clarity to the law while addressing the fundamental question of whether any limit on campaign contributions is simply too low,” said Institute for Free Speech Legal Director Allen Dickerson.
The case, Thompson v. Hebdon, challenges Alaska’s $500 per election cycle limit on contributions from individuals to legislative and gubernatorial candidates. It also challenges the state’s $500 per cycle limit on giving to groups other than political parties.
The plaintiffs, a group of Alaska voters, assert that these low limits are not necessary to prevent corruption and violate their First Amendment right to support the candidates of their choice. They are represented by former U.S. Solicitor General Paul Clement and attorneys from the Alliance Defending Freedom.
In Randall v. Sorrell, the Supreme Court struck down Vermont’s contribution limits for being too low. That decision, however, relied on a complex two-step, five-factor analysis that lower courts struggle to apply consistently.
A panel of the Ninth Circuit Court of Appeals upheld Alaska’s limits in November, saying previous rulings in that circuit compelled its decision. However, Supreme Court rulings suggest limits should be held to a higher level of scrutiny. Other appellate courts have also applied more rigorous scrutiny to campaign finance laws.
Institute for Free Speech Amicus Brief in Thompson v. Hebdon (U.S. Supreme Court)
The Ninth Circuit erred in failing to apply one of the specific tests, the plurality opinion in Randall v. Sorrell, 548 U.S. 230 (2006). But this error is understandable. Randall is a symptom of the larger problem, applying to only a small subset of campaign finance challenges and imposing a two-step, five-factor test that is unworkable in practice and has never since been invoked by this Court. Consequently, Randall should be set aside, and the Buckley standard restored.
Doing so will allow this Court to re-affirm that Buckley requires campaign finance measures of all types to meet the “strict test,” 424 U.S. at 66, of the “closest scrutiny” announced in NAACP v. Alabama and Buckley itself. Id. at 25 (citation and quotation marks omitted). While perhaps not strict scrutiny as it is currently understood, that standard should be high and, more importantly, consistent.
The Petition provides this Court with an ideal vehicle for protecting core First Amendment rights while resolving substantial confusion in the circuit courts of appeal. It should be granted.
FEC
New York Times: The Federal Election Commission Needs 4 of 6 Members to Enforce the Law. It Now Has 3.
By Shane Goldmacher
“Voters should be extremely concerned,” said Ann M. Ravel, a Democrat and former F.E.C. chairwoman who stepped down in 2017 and who has not been replaced…
Angelo Roefaro, a spokesman for Senator Chuck Schumer of New York, who as the top Democrat in the Senate would traditionally have input in the selection of a Democratic commissioner, said, “Congress should address this issue quickly because we need a fully functioning F.E.C.”
The F.E.C. last fell short of a quorum more than a decade ago, during the 2008 election cycle.
Adav Noti, a former associate counsel at the F.E.C. who was at the commission during the last partial shutdown, called it a “potential nightmare” in the short term. “What they can do in absence of a quorum is push paper around,” he said. “Literally.”
Among the challenges noted by Mr. Noti, who is now a senior director for the Campaign Legal Center, was that the F.E.C. could not defend itself in court from lawsuits without a commission vote.
The only potential upside of the crisis, he said, is if it causes the White House and Senate to agree on an entirely new slate of commissioners to “clean house”…
Ms. Ravel, who wrote that the agency was “failing to enforce the nation’s campaign finance laws” while she served as vice chairwoman in 2014, said in an interview that the shortage of commissioners had been predictable for more than a year. She laid blame on Donald F. McGahn II …
“When I saw initially that Don McGahn went to be the White House counsel, I predicted publicly that what that meant was that all agencies in the federal government whose job it was to protect the public interest were going to be rendered useless,” she said. “And I believe that prediction came to fruition.”
Fundraising
Washington Post: Fuzzy math: Democrats spend big to draw small-dollar donors
By Brian Slodysko, AP
“You spend $60 on Facebook right now to get a $1 donor,” Bullock said last week while campaigning in Iowa , referring to the 130,000 donor threshold that is one of the requirements to reach the debate stage in Houston next month…
The DNC designed the requirements to bring order to an unwieldy field of more than 20 White House hopefuls, while elevating the role of online grassroots donors who are among the party’s most fervent supporters…
“It forces campaigns to (hand) over millions of dollars to Facebook – the same platform that let the Russians interfere in 2016,” said Colorado Sen. Michael Bennet, who won’t make the September stage and plans to campaign in early voting states instead…
Other than Steyer, no one has spent more than Gillibrand to qualify. She’s struggled since entering the race to gain traction and is keeping her campaign afloat with a $9.6 million transfer from her Senate campaign fund.
During the last fundraising quarter she spent almost twice what she raised, records show…
Though the rules have helped deplete some candidates’ campaign accounts, they’ve yielded a massive payday for Democratic consultants, with some online fundraising programs costing as much as $90 per dollar raised, campaign aides say. About two dozen consulting firms have collected at least $25 million in payments for online and digital-related services, according to an analysis of campaign finance data that tracked payments made between January and the end of June, when the last fundraising quarter ended. Rates do vary, though, and the appeal of the candidate is an obvious factor in fundraising success.
While it’s hard to tell whether the campaigns would have spent that much without the rules, there is a discernable trend line that shows many candidates increased their spending as the first set of debates in June neared – and trailed off once they qualified.
Online Speech Platforms
National Review: The Right Way to Regulate Big Tech
By Jed Rubenfeld
Ultimately, the public-utility and antitrust strategies are big-government regulatory weapons created for the last war. They were suited to AT&T, but AT&T never did the two most problematic things that Facebook and Google do: (1) harvest our personal data for profit; and (2) exercise extraordinary control over the content of public discourse. These are two specific and very different problems – the first a threat to privacy, the second to free speech. Each requires a different, specialized fix, not a bureaucratic bulldozer.
One obvious alternative to rule-by-bureaucracy is a free market. Another, perhaps counterintuitively, is the Constitution. Online privacy should be solved through the market. Big Tech’s threat to free speech requires a constitutional solution…
Platforms such as Facebook and Google should, with respect to their speech-blocking policies, be treated as operating constitutionally protected forums where content can be moderated but censorship of opinion is prohibited. Facebook and Google should of course be able to exclude unlawful content, such as solicitations of criminal conduct, but they should be prohibited from policing the constitutionally protected expression of ideas. Government regulators would not supervise this prohibition; rather, it would be a legal right, enforceable in court.
Stiff measures would remain available to deal with vicious online content. Harassment and threats directed at identifiable individuals can and should be blocked. Optional filters to block hate speech could be offered to all users, respecting their right not to see content they don’t want to see or to protect their children from such content. Facebook could continue to exclude pornography, because that kind of content-based restriction doesn’t censor particular opinions. And we need to rethink online anonymity; in most circumstances, being ultimately accountable for what you say is as fundamental to a vital freedom of speech as the right to say what you think. But opinion-based censorship should stop.
The Media
Columbia Journalism Review: Op-Ed: Bernie Sanders on his plan for journalism
By Senator Bernie Sanders
Today, after decades of consolidation and deregulation, just a small handful of companies control almost everything you watch, read, and download. Given that reality, we should not want even more of the free press to be put under the control of a handful of corporations and “benevolent” billionaires who can use their media empires to punish their critics and shield themselves from scrutiny.
After all, TV networks that rely on $4.5 billion a year of pharmaceutical ads may be thrilled to sugarcoat our current dysfunctional health care system-but they will never provide a consistently fair hearing for something like Medicare for All…
Corporate media organizations sponsored by fossil fuel industry ads may gladly provide a platform for guests who insist that our current oligarchic economy is just great, but as studies show, the same outlets often downplay or omit coverage of the climate crisis that those advertisers are helping create.
And news outlets owned by Disney and Jeff Bezos may happily tout Disney films and Bezos’s plans for space exploration, but we cannot count on them to consistently and aggressively cover workers’ fight for better wages…
In my administration, we are going to institute an immediate moratorium on approving mergers of major media corporations until we can better understand the true effect these transactions have on our democracy…
I will appoint an Attorney General as well as Federal Trade Commission officials who more stringently enforce antitrust laws against tech giants like Facebook and Google, to prevent them from using their enormous market power to cannibalize, bilk, and defund news organizations…
We must also explore new ways to empower media organizations to collectively bargain with these tech monopolies, and we should consider taxing targeted ads and using the revenue to fund nonprofit civic-minded media…
More than two centuries after the constitution was signed, we cannot sit by and allow corporations, billionaires, and demagogues to destroy the Fourth Estate, nor can we allow them to replace serious reporting with infotainment and propaganda.
Candidates and Campaigns
Washington Post: Olive Garden: Unlimited breadsticks, yes. Trump campaign donations, no.
By Tim Carman
Olive Garden has had to deny that its parent company, the Orlando-based Darden Restaurants, is donating funds to President Trump’s reelection campaign. The rumors, of course, came with the requisite hashtag, #boycottolivegarden …
A quick search on OpenSecrets.org, the Center for Responsive Politics database that tracks campaign contributions, shows that neither Darden nor its employees have made donations for the 2020 campaign. But in the 2016 elections, OpenSecrets shows that Darden Restaurants “PACs” contributed $101,000 to candidates. An additional $30,969 came from Darden employees…
Rich Jeffers, a spokesman for Darden, pointed out the language at the top of the OpenSecrets.org page, which reads: “The organization itself did not donate, rather the money came from the organization’s PACs, their individual members or employees or owners, and those individuals’ immediate family members.”
Corporations are prohibited from donating to campaigns, according to the Federal Election Commission.
At the same time, Jeffers said that Darden’s lone political action committee was dissolved in 2015, ahead of the last presidential election. That would appear to be true, based on OpenSecrets.org data. There were no Darden PAC contributions during the 2018 midterm elections.
The spokesman said Darden employs 185,000 people. By law, both political campaigns and PACs must provide the name, address, occupation and employer for donors who contribute more than $200.
“It stands to reason that there are employees who have given political donations on both sides of the aisle,” Jeffers said.
As the 2020 election heats up, fast-food companies have come increasingly under attack for alleged donations to the Trump reelection bid, even though reporters continue to point out that individual donations from employees of a company do not necessarily represent any political viewpoint of the company itself.
Roll Call: Richard Neal Facebook page mixes campaign, congressional business
By Paul V. Fontelo
House Ways and Means Chairman Richard E. Neal used his government-funded official Facebook page to air campaign advertisements, Facebook Ad Library shows, potentially running afoul of House Ethics rules that prohibit campaign business on House official resources.
In Neal’s official Facebook page disclaimer, up to $100 were spent on the ads in 2018 paid for by “Richard Neal for Congress Committee, Treasurer Michael F. Hall,” suggesting Neal’s campaign funds paid for the ad to air through the House office’s Facebook page.
House official resources, including social media, also run under the purview of the House Administration Committee. Their rules say that member-controlled content on social media accounts is subject to the same requirements as member websites. In both cases, it forbids any campaign use. The rules also explicitly state that campaign funds may not pay for a member’s official expenses, which are used to maintain and operate a members’ official resources…
Official guidance from the House Ethics Committee generally bars members from using their office or official House resources for purposes of “the drafting of campaign speeches, statements, press releases or literature.” However, there is little mention of rules regarding social media sites and their sponsored content.
Neal’s official Facebook account ran the two ads for 13 days, Aug. 10, 2018 to Aug. 23, 2018, two weeks prior to Massachusetts’ Sept 4th primary. Both are identical to ads from the Massachusetts Democrat’s campaign Facebook that ran from Aug. 21, 2018 to Sept. 4, 2018. According to House franking rules, a member is prohibited from sending out unsolicited mass communications, including advertisements, within 90 days of any election.
The States
Charlotte Observer: Two candidates for governor can take unlimited donations. One can’t.
By Colin Campbell
A little-noticed provision in a 2015 law is allowing deep-pocketed donors to make unlimited contributions that are being funneled into the two leading campaigns for governor, finance records show.
Gov. Roy Cooper and Lt. Gov. Dan Forest have benefited from “Council of State affiliated party committees,” which allows them to solicit and accept donations of any size in collaboration with other statewide elected office holders from their party.
The money is then used to purchase core services such as advertising and consultants for the contenders’ main campaign organizations. It’s an advantage that the third candidate in the race – Rep. Holly Grange, R-New Hanover – doesn’t have because all of her supporters are limited to the $5,400 maximum contribution.
While the committees have been allowed since 2015, Council of State Democrats led by Cooper didn’t form the N.C. Democratic Leadership Committee until January of this year. Since then, it has raised $1.18 million, of which $186,735 has gone to Cooper’s campaign to cover expenses such as office rent, research and fundraising consultants, finance reports show.
New York Times: A Lobbyist Gave $900,000 in Donations. Whose Money Is It?
By J. David Goodman
Although the nonprofit hospital association is free to make political contributions without an annual cap, it gives nothing to individual candidates – essentially allowing Mr. Rich’s personal donations to speak for the organization…
Mr. Rich said that his donations were personal and had no connection to his job.
“My personal contributions are mine alone and reflect my passion for, and participation in, the political process,” Mr. Rich said in an email…
“No part of my compensation is determined by or connected to my campaign contributions,” he said. “In my 26 years at G.N.Y.H.A., I have never been directed or required by my employer to make a campaign contribution, nor have I ever been reimbursed by my employer for a campaign contribution.”…
“Given the donor’s job, these hefty contributions raise all kinds of questions, but the larger issue here is New York’s ridiculously high contribution limits, which invite pay to play,” said John Kaehny, the executive director of Reinvent Albany, a good government group. “The Campaign Finance Commission has to lower contribution limits, or nothing will really change in Albany.”…
Mr. Rich has given tens of thousands of dollars to the current chair of the State Senate health committee, Gustavo Rivera, a Democrat, and to the former chairman, Kemp Hannon, a Republican.
“He’s an incredibly smart, effective and thoughtful advocate for his constituency. We won’t always agree, but I will always listen to him,” Mr. Rivera said in a telephone interview. “My decisions as a policymaker have never been influenced and will never be influenced by who supports me financially.”
