Daily Media Links 12/22: Big sums from lawmakers sitting pretty to those in need – but victory not a given, Conservative duo in Congress wants 2016 to be the last year for super PACs, and more…

In the News  

Claremont Review of Books: Bullying Culture

By Fred Smith

Wall Street Journal columnist Kimberley Strassel has written an insightful, important book on the Left’s efforts to drive market-friendly voices from the public square. A skilled investigative journalist, Strassel documents the extensive efforts to suppress political opposition, intimidate dissidents, and weaken the First Amendment.

Strassel notes that attacks on speech-and defenders of it-have come from both parties. She traces the history of campaign “reform” initiatives, accompanying court challenges, and bipartisan support for “transparency” and “accountability.” Readers will gain clarity, but little comfort, from her chronicle of culture and politics conspiring to weaken free speech…  

Strassel extols Bradley Smith, a law professor and member of the Federal Election Commission during George W. Bush’s presidency. Smith alerted conservatives to the risks of disclosure, helping them understand and challenge this policy. His work on campaign finance laws and disclosure requirements strengthened Republican resistance.

CCP  

Comments to FEC regarding Revising Rules on Online Disclaimers to Adapt to New or Emerging Technologies

By Allen Dickerson and Zac Morgan

In addressing the topic of online disclaimers, the Commission does not write upon a blank slate. Most directly, present regulations state that “[a]ll public communications…made by a political committee; electronic mail of more than 500 substantively similar communications when sent by a political committee; and all Internet websites of political committees available to the general public…must include disclaimers.”[3] The definition of “public communication,” however, explicitly excludes “communications over the Internet, except for communications placed for a fee on another person’s Web site.”[4]…

These rules reflect the near-universal recognition that “[d]isclaimer… requirements may burden the ability to speak,”[7] and that in regulating political activity “more speech, not less, is the governing rule.”[8] This is no less true for electronic communications. After all, “[i]t must be remembered…that the [I]nternet is the new soapbox; it is the new town square.”[9] “[W]hatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary when a new and different medium for communication appears.”[10]

PDF 

FEC  

Bloomberg BNA: FEC Pursuing Major Republican-Linked Nonprofit

By Kenneth P. Doyle

Americans for Job Security (AJS), a Republican-leaning nonprofit group that has spent millions of dollars on political ads but never disclosed its donors, is facing enforcement action by the Federal Election Commission, a new FEC court filing indicated ( Citizens for Responsibilty and Ethics in Washington v. FEC, D.D.C. Civil No. 14-1419, memorandum filed 12/12/16).

The FEC told a federal district court in Washington, D.C., that it was taking action involving AJS but could not reveal details to the public because of confidentiality provisions in campaign finance law that cover ongoing FEC enforcement matters…  

CREW sued the FEC last year for failure to take enforcement action against AJS and another conservative nonprofit, American Action Network (AAN). The case is ongoing.

CREW contends the conservative groups are subject to FEC disclosure laws, including a requirement to reveal their funding sources. AJS and AAN haven’t registered with the FEC as political committees; instead, they’re organized under Section 501(c) of the tax code, which doesn’t required disclosure.

Political Parties  

CRP: Big sums from lawmakers sitting pretty to those in need – but victory not a given

By Niv Sultan

With control of the Senate and possibly the House at stake – or so it seemed until close to Election Day – the word went out from the Democratic and Republican parties to lawmakers: If you’re not running this time, or if you’re sitting on a pile of cash, share the love. Priority races were flagged, and those who could were expected to ante up.

Still, while being on the receiving end of those funds was far better than the alternative, it didn’t guarantee victory. In fact, less than 75 percent of the 15 House and Senate candidates who netted the most money from fellow candidates and party committees in 2016 won their races. In Nevada, GOP Rep. Joe Heck, for instance, who received almost $660,000, lost to incoming Sen. Catherine Cortez Masto (D), who claimed just over $437,000, in their battle over an open seat.

Congress

McClatchy DC: Conservative duo in Congress wants 2016 to be the last year for super PACs 

By Anna Douglas

Cruz and Meadows’ “SuperPAC Elimination Act of 2017” would remove the ceiling of campaign giving for individuals who donate to candidates. Meadows, who is from Cashiers, North Carolina, pitched the bill as a way to “level the playing field” for average Americans in elections.

“I am pleased to join my friend Sen. Cruz in a fight that I believe is critical for all Americans – the fight to ensure that individual citizens have an adequate say in our political process,” Meadows said in a news statement…

Although the title suggests “super PACs” would be eliminated, the Cruz-Meadows campaign finance legislation would not outright ban outside political action committees.

Instead, Cruz and Meadows say that by abolishing the individual donor limit, there would be no need for the independent political action committees, which, historically, have played a huge role in campaign advertising and influencing voters.

Lobbying

More Soft Money Hard Law: The Quandaries of Ethics Reform in the Trump Era

By Bob Bauer

There is now bipartisan interest in a change in the lobbying rules to reach the “back room” or “shadow” lobbyist. Most immediately, the proposal has been to have the new Administration expand the ban by Executive Order on federal government employment of lobbyists to include these individuals believed to be lobbyists in all but the name…  

Would lobbying reform include, as has been proposed in the past, grassroots lobbying-appeals to the public to pressure legislators for or against a public policy position?

For example, we now have an escalating war over rules to compel reporting of “issue advocacy,” which is effectively a fight by a different name over grassroots lobbying…

Should those donors’ resistance to exposure warrant sympathetic attention? With all the evidence of harsh, retributive uses of social media to attack political adversaries, it is not hard to appreciate the reasons for donor unease. This fear will increase as the most senior political leaders use Twitter and other Internet platforms to single out for public attack those they disagree with.   

Trump Administration

Politico: Trump team discussing ‘half-blind’ trust for conflicts of interest

By Josh Gerstein

Aides responsible for setting up ethics firewalls have held discussions with officials at the Office of Government Ethics about establishing what’s known as a “discretionary trust,” according to two sources briefed on the talks…

The discussions with the Office of Government Ethics about discretionary trusts suggest the Trump team is still weighing options that fall short of what ethics watchdogs have demanded, such as selling off assets that could pose a conflict of interest or parking wealth in classic blind trusts.

“It’s highly inappropriate,” said Richard Painter, a former ethics lawyer in President George W. Bush’s White House who recently joined watchdog group Citizens for Responsibility and Ethics in Washington. “To have someone baby-sit your conflict-creating assets while you go around and do whatever you want, in my view that’s a violation of at least the spirit of the rules and that’s an abuse.”

New York Times: Trump’s Son, Fearing ‘Quagmire’ to Stop Soliciting for Charity

By Eric Lipton and Maggie Haberman

Eric Trump said on Wednesday that he had decided to stop directly soliciting contributions for his charitable foundation, which supports causes like the fight against childhood cancer, because he now recognizes that his status as the president-elect’s son means that donors could try to use him to gain access to his father.

“As unfortunate as it is, I understand the quagmire,” Mr. Trump said in an interview Wednesday evening. “You do a good thing that backfires.”

His move followed public criticism of an online auction that the Eric Trump Foundation had sponsored offering a chance to have coffee with his sister Ivanka. The criticism intensified over the weekend after an invitation was drafted offering a hunting trip with Eric Trump or his brother Donald Jr. in exchange for donations of $500,000 or $1 million to a new charity that friends of Eric Trump had created this month with his apparent consent, according to legal documents.

Bloomberg: Dusting Off the Constitution’s Obscure Clauses

By Noah Feldman

The First and 14th Amendments usually hog all the glory, and each did get a few big moments over the last year. But much more important were ignored and unheralded provisions like the “advice and consent” clause, the Electoral College clauses, and most improbably, the emoluments clause, which since the election has featured prominently as one of the only defenses against conflicts of interest in the Trump White House…

Finally, as 2016 drew to a close, we came to know the truly unknown emoluments clause, Article 1, Section 9, Clause 8, which says that “no person holding any office of profit or trust” in the government may accept “any present, emolument, office, or title, of any kind whatever” from a foreign state “without the consent of Congress.” Trump’s hotel holdings seemed potentially to violate this clause, especially after his Washington, DC, hotel started an outreach campaign to get foreign diplomats to stay there.

…The key facts to know are that there may well be no way to bring an emoluments challenge to court and that sanctions, if any, would have to come from Congress.

The States

South Dakota News Center 1: Court: Measure on ethics, campaign finance, unconstitutional

Attorney General Marty Jackley confirms that the Sixth Circuit Court Judge Mark Barnett has issued an Order Enjoining and Declining Severability in the Initiated Measure 22 lawsuit.

The Court orders that there is no severability and Initiated Measure 22 is preliminarily enjoined in its entirety.

“The Court has presented a detailed Order stopping Initiated Measure 22 from taking effect based on various provisions of the South Dakota Constitution. The Court further determined it would not be appropriate to leave only part of the Initiated Measure in effect since it was a comprehensive package. As Attorney General, I will continue to work with the attorneys for the Plaintiffs and sponsors to determine appropriate future action in the litigation. Based upon the voice of the voters, I strongly believe that our Legislature should work to resolve the Constitutional concerns and create a Board to address ethics, conflicts of interest and election matters,” said Jackley.

Billings Gazette: Lawsuit aims to keep Montana’s top political cop in office two more years

By Holly Michel

The outgoing secretary of state, former state lawmakers and several others are preparing to sue Gov. Steve Bullock to keep Montana’s top political cop in office another two years…

The suit states that Jonathan Motl, the commissioner of political practices, began his term as commissioner in 2013. Commissioners who are confirmed by the state Senate serve six-year terms.

What’s unclear is if Motl started his own term or assumed the term of Jennifer Hensley, who was appointed in 2011 by former Democratic Gov. Brian Schweitzer but not approved by the state Senate in that year’s legislative session…

 The plaintiffs ask for the court to keep Motl in place and say that resolution of the matter is important, given the “partisan wrangling and legislative manipulation” the office of the Commissioner of Political Practices is often subject to. They add the failure of the Legislature to approve appointees between 2010 and 2013 erodes public confidence in the office. 

Cincinati.com: The subject, not the server, matters with public documents

By Jack Greiner

I saw a report recently about a case in California where the issue is whether e-mails sent by public employees concerning public business are subject to the California Public Records Act. I think the answer is obvious – of course they’re public records – but apparently, not everyone thinks the way I do…  

In the California case, an environmental activist named Ted Smith requested a bunch of public records from the city of San Jose. Included in his request were e-mails, text messages, and voice mails sent or received on private devices by then mayor Chuck Reed, San Jose City Council members and their staff.

Smith won at the trial level, but the appellate court reversed. The case is now before the California Supreme Court.

The city apparently is taking an across the board position that any message on a private server is off-limits under the law. The city argued that disclosure wouldn’t ensure transparency, but could have a chilling effect on employees’ private speech.