In the News
Daily Caller: Democrats Want A New, Partisan Majority At FEC To Regulate Internet
By Rudy Takala
When will the Federal Election Commission be open for business? The House Committee on Administration is set to hold a hearing on the issue on Sept. 25, but members are unlikely to agree on an answer…
Democrats have grown increasingly bitter over the stalemate, saying the agency should be reconstituted with a partisan majority. House Democrats’ signature legislative proposal, H.R. 1, would accomplish that by reducing the number of commissioners to five.
In the absence of seismic institutional change, Democrats have suggested they would be amenable to at least restoring quorum as long as they hold a majority.
“I hope the Senate will consider a bipartisan pair of nominees, as it has in the past, to restore a quorum,” Lofgren said in a statement to the Center for Public Integrity’s Dave Levinthal, alluding to a tradition by which party leaders in the Senate recommend nominees to the president and confirm them in bipartisan pairs. The move would restore quorum and give Democrats a 3-2 advantage, while leaving one seat vacant…
“There is an ongoing effort to fill all six FEC commissioner seats,” a senior Republican Senate aide said in a statement. “To do that, though, Schumer and Senate Democrats must replace the two long-time Democratic holdovers. A clean slate of members will go a long way toward fixing some of the perceived dysfunction at the commission.”…
Brad Smith, who served as a Republican commissioner from 2000-05 before founding the Institute for Free Speech, concurred with Democrats who say the agency’s closure may not matter much. “Most campaigns aren’t going to obviously cheat. There will be much wailing and gnashing of teeth, but the American public won’t notice the difference.”
Epoch Times: A Culture of Intimidation Has Taken Root in Politics (Video)
By Joshua Philipp
Donors to President Donald Trump are being exposed by rival politicians, and people are being attacked and threatened for their political views. In this episode of Crossroads we speak with Luke Wachob, Communications Director at the Institute for Free Speech, about these forms of political intimidation, and about the importance of guarding free expression.
Event
Committee on House Administration: Oversight Of The Federal Election Commission
On Wednesday, September 25, 2019 the Committee on House Administration will hold a hearing entitled “Oversight of the Federal Election Commission.”
The Committee hearing will take place at 9:00 AM in 1310 Longworth House Office Building, Washington, D.C. 20515.
[Ed. note: IFS Chairman and Founder Bradley A. Smith will be testifying at this hearing.]
First Amendment
San Francisco Chronicle: FDA to investigate Juul over SF ads claiming vaping is safer than cigarettes
By Catherine Ho
San Francisco Supervisor Shamann Walton, who co-wrote legislation that recently passed and suspends the sale of e-cigarettes in the city, sent the agency a letter raising concerns that even after the FDA had warned Juul to stop making unauthorized safety claims, the Juul-funded campaign committee behind Prop. C continued making similar claims in election mailers and ads…
“Juul appears to be using the electioneering in San Francisco to systematically advance unauthorized health-related marketing claims about its products’ advantages to consumers,” Walton wrote…
Jim Sutton, an attorney for the Prop. C campaign, said it is following the law.
“The law places restrictions on tobacco companies for making claims,” he said. “If you look at the (Prop. C) ads, there’s no tobacco companies making claims in those ads. Those are individuals who say vaping products help them quit smoking. … They have a First Amendment right to say that.”…
“The statements alluded to in the letter encompass the heart of free, political speech,” Juul spokesman Ted Kwong said in a statement. “They are not promotional statements about any particular product, but are advocacy in support of an important policy position.”…
The courts have interpreted the First Amendment as giving political ads much more leeway than regular consumer ads to assert claims…
“While they may not be violating any political campaign laws – since truth is not required in political ads and the voters are the judges – violations of consumer protection laws are an entirely different matter,” [Jon Golinger, an attorney and political strategist who teaches election law at Golden Gate University] said. “If the FDA chooses to take an enforcement action, that would raise novel legal issues that ultimately a court would probably have to decide.”…
“I’m not 100% sure what the FDA thinks about whether a third party can make a modified risk claim,” said [Desmond Jenson, an attorney at the Public Health Law Center at Mitchell Hamline School of Law who specializes in FDA tobacco regulations] … “The (answer to the) question of, ‘Is Juul violating the law through their committee?’ might be ‘Yes.'”
Reason: A Michigan Man Has Been Acquitted by a Jury for Criticizing a County Judge on Facebook
By Zuri Davis
According to Jonathan Vanderhagen’s lawyer, it took a jury all of 26 minutes and 8 seconds to decide that he was not guilty of using his Facebook account to threaten a county judge. Reason previously covered the Michigan father’s free speech case, which began with a custody battle two years ago.
In 2017, Vanderhagen petitioned the court for sole custody over his 2-year-old son, Killian. Vanderhagen believed Killian’s mother to be an unfit guardian. Macomb County Circuit Court Judge Rachel Rancilio, the presiding judge, denied the request and Killian was permitted to continue living with his mother. Killian passed away that September while in his mother’s care.
Authorities concluded that a preexisting medical condition contributed to Killian’s death. Vanderhagen, however, blamed Rancilio’s custody ruling for contributing to his son’s death, which he believes would not have happened had Killian been in his care. He used his Facebook page to say as much. For two years, he posted about Killian’s mother, the court system, and Rancilio-at times using Rancilio’s own public Facebook posts and Pinterest pins to criticize her ruling.
Rancilio was made aware of the posts and an investigation was opened against Vanderhagen. “At no point does [Vanderhagen] threaten harm or violence towards Rancilio,” Sgt. Jason Conklin of the Macomb County Sheriff’s Office, the investigating officer, concluded in his case report.
Nevertheless, Vanderhagen was charged with the malicious use of telecommunication services, a misdemeanor, in July.
FEC
Politico Magazine: Yang’s Possibly Illegal Giveaway Shows Why We Need a Working FEC
By Ann Ravel
I’m the former chair of the Federal Election Commission, and if such a program came to a vote while I was still on the commission, I would say the program violated campaign finance regulations.
Federal election laws bar using campaign funds for “personal use,” and the law prohibits such personal use by “any person.” Campaign money is given in trust by the donors for campaign activities, such as paying for consultants who are working on the campaign-not to benefit individuals who are not engaged in campaign activities. So the proposal to give raffle winners campaign money to be used for anything they like might well violate the law.
But there is no mechanism for deciding the legality of Yang’s pilot program right now. The confused legal debate over the program is just another reason why the lack of a quorum, or a minimum number of commissioners, at the FEC is so concerning…
The FEC has been dysfunctional for some time because of partisan deadlocks on issues such as dark money, which have led to low fines for clear violations of the law and an inability to investigate even major violations. But now, the commission has gone from dysfunctional to nonfunctioning…
I shudder to think about the campaign finance law violations that might be happening behind closed doors…
Sure, Yang’s pilot program might be a long way from Watergate. But we can look at it as a test case for how-or whether-campaign finance laws will be enforced in 2020 and what campaigns do in the absence of their enforcement. It’s not looking good.
Politico: FEC finds fault with de Blasio’s campaign finances
By Joe Anuta
An official with the Federal Election Commission sent a letter to the mayor’s presidential campaign, which ended Friday, highlighting a problem that has been the subject of multiple POLITICO reports and two formal complaints from watchdog groups.
In a July public filing, the de Blasio camp noted a $52,852 debt owed to the NY Fairness PAC, a state political action committee controlled by the mayor. The campaign had argued that this was a permissible loan from one organization to another. But the FEC’s senior campaign finance analyst, Robin Kelly, wrote this week that the practice is not allowed by campaign finance rules.
Such transfers are capped at $5,000 per election cycle, Kelly’s letter said, meaning the campaign took more than ten times the permissible amount from the state PAC and spent it on travel and advertising. Kelly mandated that the campaign refile an amended report by late October that corrects the transfer, and noted that an audit of the campaign may follow.
The campaign repaid the loan Thursday, the day it received the FEC’s letter, spokesperson Jaclyn Rothenberg said.
Last year, de Blasio created a federal political action committee called Fairness PAC – ostensibly to fund his trips around the country advocating for progressive causes and to offer financial support to other left-leaning Democrats. However, the mayor also quietly created a state committee called NY Fairness PAC and used both to fund exploratory efforts for his own presidential campaign.
Last month, the Campaign Legal Center filed a complaint with the FEC illustrating why it found this practice problematic. Essentially, donors who had already given the max to de Blasio’s presidential campaign were also donating to both of his PACs. And PAC money was being shifted back into the presidential warchest.
Trump Administration
Wall Street Journal: Trump Repeatedly Pressed Ukraine President to Investigate Biden’s Son
By Alan Cullison, Rebecca Ballhaus and Dustin Volz
President Trump in a July phone call repeatedly pressured the president of Ukraine to investigate Joe Biden ‘s son, according to people familiar with the matter, urging Volodymyr Zelensky about eight times to work with Rudy Giuliani on a probe that could hamper Mr. Trump’s potential 2020 opponent.
“He told him that he should work with [Mr. Giuliani] on Biden, and that people in Washington wanted to know” if his lawyer’s assertions that Mr. Biden acted improperly as vice president were true, one of the people said. Mr. Giuliani has suggested Mr. Biden’s pressure on Ukraine to fight corruption had to do with an investigation of a gas company for which his son was a director. A Ukrainian official this year said he had no evidence of wrongdoing by Mr. Biden or his son Hunter Biden…
The interactions between the president, Mr. Giuliani and Ukraine have come under scrutiny in recent days in the wake of a whistleblower complaint that a person familiar with the matter said involves the president’s communications with a foreign leader…
While Mr. Mueller said in his report this spring that he didn’t establish a conspiracy between Moscow and the Trump campaign, Mr. Trump’s efforts to seek Ukraine’s help in damaging a potential political opponent are certain to revive criticism that the president welcomes campaign help from foreign countries.
Mr. Trump on Friday defended his July call with Mr. Zelensky as “totally appropriate” but declined to say whether he had asked the Ukrainian leader to investigate Mr. Biden. At the same time, he reiterated his call for an investigation into Mr. Biden’s effort as vice president to oust Ukraine’s prosecutor general. “Somebody ought to look into that,” he told reporters.
Slate: Trump’s Ukraine Gambit Could Be Another Campaign Finance Crime
By Richard L. Hasen
President Donald Trump may well have committed a new campaign finance crime if he, as reported, pressured Ukraine into providing dirt on a political rival, former Vice President Joe Biden, and Biden’s son Hunter. Unfortunately, special counsel Robert Mueller may have stymied any future DOJ’s ability to enforce that law when he gave Trump’s son Donald Trump Jr. a pass earlier this year on similar conduct. If Trump has again sought foreign assistance in an election, Mueller’s decision not to enforce the law last time around is partly to blame for the president acting with total impunity…
Putting aside whether Trump made promises in order to get Biden-related dirt, or whether his conduct counts as extortion or bribery, there is a good argument that if the facts as reported are true, Trump committed a new campaign finance crime. (Trump has already been directly implicated in Michael Cohen’s campaign finance offense related to the Stormy Daniels payment, for which the president’s former lawyer is currently serving prison time). The case against this sort of behavior as a campaign finance crime was much stronger, though, before Mueller issued his report investigating foreign interference in the 2016 elections and refused to prosecute Trump Jr.
Federal law makes it a crime for any person to “solicit” any “thing of value” from a foreign national…
Thanks to Mueller, Trump can plausibly claim he has a First Amendment right to go to a foreign government to solicit-even potentially extort-valuable information against political opponents…
Ultimately, the best legal argument is that Trump committed a campaign finance crime if he solicited dirt on Biden and his son, as appears to be the case, regardless of whether there was any quid pro quo. But Mueller, despite expressing concern about potential foreign interference in the 2020 elections in his recent testimony before the House Judiciary Committee, may have given Trump a green light through his own report.
Just Security: The “Quid” is a Crime: No Need to Prove “Pro Quo” in Ukrainegate
By Paul Seamus Ryan
If these allegations are true, some of which were admitted by the President himself on Sunday, it looks like Trump has violated federal campaign finance laws. Again. Trump’s personal attorney Rudy Giuliani seems to be on the hook for violations, too…
Federal law prohibits a foreign national from directly or indirectly making a “contribution or donation of money or other thing of value” in connection with a U.S. election, and prohibits a person from soliciting, accepting or receiving such a contribution or donation from a foreign national. Federal law defines “contribution” to include “any gift … of money or anything of value made by any person for the purpose of influencing any election for Federal office.” And the FEC by regulation defines “solicit” to mean “to ask, request, or recommend, explicitly or implicitly, that another person make a contribution, donation, transfer of funds, or otherwise provide anything of value.”
And that’s all the law requires. Whether or not Ukraine came through, whether or not the communications involved a quid pro quo, the solicitation of a thing of value from the Ukraine President in connection with a U.S. election could be a federal crime.
The States
Casper Star-Tribune: Wyoming is looking to close a campaign finance loophole. But it may not matter.
By Nick Reynolds
Last week in Jackson, the state’s Joint Committee on Corporations, Elections and Political Subdivisions considered reforms…
Also among those proposed reforms was a bill intended to close a loophole in the state’s campaign finance law which, previously, allowed corporations and nonprofits to contribute funds or services to campaign committees or political action committees who “directly coordinate with a candidate or a candidate’s campaign committee.”
“These changes explicitly seek to close a loophole for parties and PACs to no longer be able to function as a conduit for corporations to funnel money directly to a candidate or campaign committee,” said Secretary of State spokesman Will Dinneen. “Also, it gives our office the ability to define a direct contribution through the rule-making process.”…
One of the most glaring problems with the legislation is two-pronged: the lack of language offering clarity on what “cooperation” – i.e. spending money to help or hurt a candidate – is under the new law, and the existing issue of corporate transparency in Wyoming, which has allowed limited liability corporations to be formed for the sole purpose of running negative campaign advertisements with no way to know who was behind them.
Under the proposed law, National Institute for Money in Politics research director Pete Quist said any entity engaged in opposition ads that is not coordinating with any candidate in the race “would be able to spend as much as they want on these ads regardless of their corporate structure, tax status, or anything else.”…
Then there’s the issue of compliance. In Wyoming, the Secretary of State – which oversees the state’s elections – largely acts as an intermediary between electors and the state Attorney General’s Office: the only entity that can litigate complaints when someone breaks the law. With no ability to investigate independently, the Secretary of State can only sit idly by while the law could, in some cases, be broken right in front of them.
San Francisco Chronicle: Gov. Gavin Newsom to decide whether American Independent Party must change name
By John Wildermuth
If Newsom signs the bill, it will spark a court battle about just what rules California can put on a political party, especially when the rules are set by the competing political parties that run the Legislature.
“We have an attorney and as soon as the governor signs it, we’ll be in court the same day,” said Mark Seidenberg, California vice-chair of the American Independent Party.
The bill, SB696 by state Sen. Tom Umberg, D-Santa Ana, states that a political party with a name that includes “independent” – or “decline to state” or “no party preference” – “inherently misleads voters” and creates “confusion for voters who wish to not register with any political party and stay independent of political parties.”…
Umberg’s bill said the ban on “independent” was necessary because “voter education is ineffective in remedying this voter confusion,” an assertion that American Independent Party officials called “remarkable (and inherently insulting to voters).”…
If the party is forced to change its name, every member has to be informed, which could prompt them to change their registration. If there isn’t a name change by the Oct. 29 deadline, those voters would immediately be re-registered as no-party-preference voters…
The battle could go to the courts, said Richard Winger, who runs the Ballot Access News website.
“No state in history has ever ordered a ballot-qualified party to change its name,” said Winger, who testified against the bill in Sacramento. “There are a dozen court precedents that suggest this would violate … the Constitution.”
The nonpartisan analysis of the bill by state Senate staff also warns of potential legal problems.
“By requiring one existing political party to change its current name, this bill could be interpreted as a violation of the rights of free speech and association guaranteed by the First and Fourteenth Amendments to the United States Constitution,” the analysis said.
Wall Street Journal: New York State Panel Hears Input on Public Campaign-Finance System
By Jimmy Vielkind
Dozens of activists, lawmakers and political-party bosses spoke at a state commission hearing Wednesday to weigh in on New York’s plans for a public campaign-finance system and potential changes to the way candidates appear on the electoral ballot…
Jessica Wisneski, co-executive director of Citizen Action of New York, an advocacy group, urged the panel to adopt a system-similar to New York City’s-where small contributions to candidates are matched 6:1 by taxpayer funds. She also urged the commission to reduce the donation limits for candidates.
Assemblyman Chris Tague, a Republican from Schoharie County, urged the commission not to adopt public campaign financing. He said taxpayer money could be better spent on other matters.
Connecticut State Sen. Matt Lesser, a Democrat, traveled from the Hartford suburbs to talk to commissioners about his state’s public financing system, which Mr. Lesser said has allowed officials to spend more time discussing policy and be less beholden to political donors.
In Connecticut, candidates are given a block grant of public funds if they collect seed money from at least 150 donors, with exact parameters varying by office. Green Party of New York co-chair Peter LaVenia testified that such a system should be implemented in New York, but was sharply critical of fusion voting.
