By Bob Bauer
The Independence Institute, a 501(c)(3) organization, has pressed on this issue with a challenge to the application of the reporting rules to an ad lacking either express advocacy or its functional equivalent-i.e. a “genuine issue ad.” The ad named two Senators, one running for election, in appealing for support of pending legislation on criminal justice reform. A three-judge district court last month rejected the claim that the ad was constitutionally protected. The Court relied on the language of Citizens United. It appeared satisfied that even in the case of a genuine issue ad, a reference to a candidate was sufficient to trigger the electioneering communication disclosure requirements. Independence Institute v. Federal Election Commission, No. 14-cv-1500, 2016 WL656396 (D.D.C. November 3, 2016)…
For tax-exempt and other progressive issue organizations, the case is a significant one with implications of its own for the coming debate over “Trumpism” and the congressional majority’s plan to implement it. In the next election season, much of the discussion will center on the stand members of Congress (and other candidates) have taken, or would propose to take,on elements of this program. Under this decision, issue ads directed to this question would be regulated “electioneering communications.”
By Bob Bauer
Forbes: Thomas More Law Center Victory Over California AG – Big Win For Free Speech Or Dark Money? (In the News)
By Peter J. Reilly
The Thomas More Law Center is very concerned about donor confidentiality and is quite pleased about its recent win in the Ninth Circuit where it was opposing the California Attorney General. The argument was over whether TMLC should be required to provide the AG with the Schedule B of IRS Form 990 that discloses information about donors who have given $5,000 or more in a year…
TMLC had a victory, but hardly a sweeping one. They won’t have to turn their Schedule B over to the California AG, but almost every other charity that wants to raise money in California still does. Stephen Yosifon of Perlman+Perlman noted in the EO Tax Journal…
“For every other organization registering in California, Schedule B must still be submitted, as determined in Center for Competitive Politics v. Harris, 784 F.3d 1307 (9th Cir. 2015), cert denied.”…
In order to get this exemption, TMLC had to make a strong showing that their donors might be subject to harassment. They managed that…
“It also satisfies the requirement of Center for Competitive Politics that an organization show “a reasonable probability” that the disclosure of TMLC’s donors would subject them to threats or harassment.”
Recent stories about internet-enabled “fake news” turned a discussion about fact-checking in the digital age into an indictment of the objectivity of “real news.” News outlets not only reported on the phenomenon, but took steps to actively combat it. The New York Times and The Huffington Post created their own primers on fake news and […]
By Caleb Brown
The incoming Trump administration raises fears of further regulation of political speech. David Keating of the Center for Competitive Politics discusses the risks and opportunities.
By Joe Albanese
Overall, White has lived up to the standard that the SEC should “never” make decisions “in response to political pressure.”
Probably the most forceful pressure applied on her was to have the SEC write a disclosure rule on giving by businesses to trade groups. Federal law bans companies from donating to federal candidates, and almost all election spending is already disclosed. The clear aim of those pushing for the rule was to force trade groups out of the public debate. Stockholders have repeatedly voted down such proposals. No one seriously thought they would help investors…
Chair White deserves great credit for maintaining the SEC’s independence despite relentless attacks. She served the public well by declining to appease ideological crusaders. That type of restraint and good judgment is all too rare in government and deserves praise.
By Jim Stinson
Every hour, a computer program, or “bot,” tweets out the name, job, and address of a donor to President-Elect Donald Trump’s campaign.
The apparent goal is sunshine – a more sinister objective may be intimidation. In either case, the account is taking advantage of disclosure laws, and using them to name and shame people…
According to Brad Smith, a former Federal Election Commission member and a Capital University law professor, 49 states and the federal government require some disclosure of campaign contributions and spending…
Smith said disclosure laws “neither provide the public with good information, nor solve the alleged problems of ‘secret money.'”
“Further, they will come at a price in political freedom and safety from government and private retaliation,” Smith wrote. “Precedents protecting civil liberties, established over a half century of painstaking litigation, could be brushed aside in the sudden hysteria for ‘full disclosure.'”
Pacific Legal Foundation: Sacramento city councilman reminded that the Constitution protects freedom of association (In the News)
By Caleb Trotter
It seems that Sacramento City Councilman Jay Schenirer has grown weary of a watchdog organization (Eye on Sacramento) that routinely challenges proposed ordinances and policies, and generally serves as a vocal check on city government. Councilman Schenirer requested the group provide him with a list of its members, a detailed accounting of its funds and donors, and its organizational bylaws-all in the name of “transparency.”…
In 2014, in Center for Competitive Politics v. Harris, a non-profit organization challenged California Attorney General (now Senator-elect) Kamala Harris’ policy that required non-profits soliciting funds in California to provide the Attorney General with a document listing the names and information of all donors giving the organization more than $5,000 in a year. Since the Attorney General’s office routinely discloses that private information to the public “by mistake,” and since the United States Supreme Court held long ago that “inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly when a group espouses dissident beliefs,” the group urged the court to declare the policy unconstitutional.
By Dana Ferguson
The sprawling reform package, known in South Dakota as Initiated Measure 22, was designed to limit the influence of outside money in state government. The 34-page law, narrowly passed by voters Nov. 8, creates strict new rules on lobbying and fundraising and establishes an independent ethics commission…
Free-speech groups have said they plan to challenge the law for limiting political free speech, a potential civil rights violation. David Keating, president of the Virginia-based Center for Competitive Politics, said he’d heard from at least one person interested in bringing a lawsuit following the law’s enactment.
“I think a court challenge is inevitable,” he said. “It’s just a question of when.”
Other attorneys said the law’s language approving an appropriation from the state’s general fund without consent of the state Legislature violates the South Dakota Constitution and could also be grounds for legal action.
Attorney General Marty Jackley, who will have the constitutional obligation to defend the law now that it is on the books, said he alerted voters to the possible constitutional problems with the law in his explanation of IM 22.
Social Science Research Network: The Academy, Campaign Finance, and Free Speech under Fire (In the News)
By Bradley A. Smith
This short essay, part of a symposium on “Free Speech Under Fire” at Brooklyn Law School, argues that academic efforts to fit campaign finance restrictions within the rubric of the First Amendment have distorted First Amendment doctrine, and contributed to a decline in respect for free speech generally. The essay briefly reviews and critiques recent scholarship by Robert Post (“Citizens Divided”), Richard Hasen (“Plutocrats United”), Larry Lessig, and Zephyr Teachout.
By Tan Siok Choo
Although full spending reports haven’t been submitted, assuming both candidates spent all that they raised, as at Oct 28 this year, Clinton’s war chest totalled an astronomical US$687 million (RM3 billion), more than double Trump’s US$307 million.
Despite blanketing six states – Florida, Ohio, North Carolina, Pennsylvania, Nevada and Iowa – with 299,067 ads supporting Clinton compared with 89,995 ads for Trump, the former secretary of state lost all states except Nevada, Ken Kurson of the Observer noted.
“Money can’t buy love, it can’t buy votes. All it can do is help deliver a message. The voters didn’t want what Clinton offered,” David Keating, president of the Center for Competitive Politics, said.