By Bradley Smith
Under federal law, candidates, political parties and PACs (including “super PACs”) must disclose all donors who contribute more than $200. Sometimes, however, groups that exist for things other than promoting candidates will spend money on an election ad. Because many people support these groups for reasons other than political activity, they are not required to disclose information on financial supporters unless those people gave for the purpose of financing political ads. But the group making the expenditure must disclose its political spending in excess of $250.
Thus, “dark money” isn’t really “dark” – we know who spent it, and how much they spent. We just don’t know the name of every individual who gave money to that group or organization.
Despite the panic about “dark money,” the Center for Competitive Politics, using data compiled by the Center for Responsive Politics (an organization that does much to pump up the “dark money” scare) and the Federal Election Commission, calculates that “dark money” was less than 4 percent of all federal political spending in the 2014 election cycle. While final numbers aren’t in yet for 2016, preliminary figures look like they will fall below 3 percent for 2016.
By Bradley Smith
Philanthropy Daily: Philanthropy Roundtable petitions Supreme Court to uphold donor privacy (In the News)
The Philanthropy Roundtable filed an amicus brief Monday in the case Independence Institute v. Federal Election Commission urging the Supreme Court of the United States to uphold donor privacy and free speech for 501(c)3 charities.
“Many philanthropists value the freedom to keep their giving private for important religious, historical, cultural, and practical reasons,” said Sean Parnell, vice president for public policy at the Roundtable. “The Philanthropy Roundtable urges the Supreme Court to preserve this freedom and reject efforts to pry open the donor lists of nonprofits that are not engaged in election-related speech.”…
“The Independence Institute should not be forced to choose between remaining silent on issues of public importance or subjecting its donors to harassment and retribution by those who do not share its views. The Supreme Court should uphold the important privacy rights of donors that have been recognized since 1958 in NAACP v. Alabama,” Parnell said.
New York Post: Democrats’ only idea for ‘draining the swamp’ is a proven failure By Brad Smith and Luke Wachob Democratic proposals to “get money out of politics” have been tried for over 40 years, starting with the institution of campaign-contribution limits and donor-disclosure requirements via the Federal Election Campaign Act in the 1970s. It hasn’t […]
By Ilya Shapiro and Thomas Berry
We make two broad points. First BCRA’s disclosure provision is undeniably content-based, which should subject it to strict scrutiny under the First Amendment (meaning the government needs to provide a compelling justification). The law applies only if a speaker chooses to make reference to a candidate for office, so the law expressly draws distinctions based on the expressive content of speech.
Second, mandatory-disclosure laws chill speech by forcing people to surrender their “privacy interest in keeping personal facts away from the public eye,” as the Supreme Court put it in U.S. Department of Justice v. Reporters Committee for Freedom of Press (1989). In the context of reviewing disclosures made under the Freedom of Information Act, the Court has recognized that “embarrassment in … social and community relationships” is among the consequences of disclosure that “must be given great weight.” U.S. Department of State v. Ray (1991)…
Because enforcement of the rule raises a substantial question under the First Amendment, the Court should take up Independence Institute v. FEC and ultimately overturn the district court.
By Dan Walters
California’s Political Reform Act, backed by Jerry Brown as he ran for governor in 1974, can be amended by the Legislature to further its purposes. However, the Legislature’s own lawyer concluded that since voters enacted the flat ban on public finance, they would have to repeal it.
In a letter, the legislative counsel’s office said the public financing provisions in SB 1107 “would require voter approval in order to become effective.”
Legislative leaders, with the support of Fair Political Practices Commission Chairwoman Jodi Remke, ignored that advice. SB 1107 was passed last year and signed by Brown, 42 years after he sponsored the original Political Reform Act.
The issue – whether the Legislature can overturn a voter-enacted public financing ban – is headed to the courts.
Last month, the Howard Jarvis Taxpayers Association and Quentin Kopp, a former state senator and judge who was one of Proposition 73’s original sponsors, filed suit to invalidate the new law…
If Common Cause et al. want to legalize public financing of campaigns, they should ask voters for permission.
By Jim Stinson
Not every Republican or conservative likes the idea of getting rid of the Senate filibuster, which allows just one senator to keep a bill or Supreme Court nominee from getting a vote on the Senate floor.
The filibuster prevented an unbridled Obama agenda when Democrats had control of the White House and Congress from 2009 to 2011, some say.
“Republicans should beware,” said Bradley A. Smith, chairman of the Center for Competitive Politics. “Imagine Obama unchecked by filibuster. Republicans did a lot to stop his agenda, even if many don’t realize that.”
Smith thinks much can be done without nuking the filibuster completely.
Smith expects Republicans will push Democrats’ anti-filibuster rule to include Supreme Court nominees. And for Obamacare, they’ll take care of repeal through “budget reconciliation.” That prevents a filibuster.
“Much of what Obama did was done through executive orders and regulatory ‘policy statements,’ precisely because GOP blocked it in Congress,” said Smith. “So that stuff can be easily undone without Congress.”
Michigan Capitol Confidential: Harvard Study Says Michigan Elections Less Democratic Than Cuba, North Korea, Iran (In the News)
By Derek Draplin
Bradley Smith, a law professor at Capital University and an adjunct scholar with the Mackinac Center for Public Policy, said the study is “absurd” and not based on objective criteria.
“Isn’t a study that ranks Cuba, North Korean and Iran higher on a democracy list than half of the United States – from conservative Georgia to liberal New York, from tiny Rhode Island to giant Texas, self-evidently absurd?” said Smith, a former chairman of the FEC who now specializes in election law and campaign finance. “That should be enough to dismiss this silly study.”…
“The criteria is subjective, and often ideological highly contested – for example, U.S. scores were lowered in the latest survey because of recent deregulation of the campaign finance in the United States – even though those who have argued for such deregulation believe it is a huge plus for democracy,” Smith continued…
“This ‘study’ is not only not worth the paper it is printed on, it should irritate honest election specialists because it is the type of bogus study that makes people skeptical of ‘experts’ who purport to know what is best for them,” he said.
By Paul H. Jossey
Cyberspace has also reduced the relevance of government censors who oversee old-style political communications. But it also raises questions about whether the new boss, Silicon Valley tech giants, will be worse than the old. As political speech evolves, new threats emerge as old ones cling to power. The fight for free political speech isn’t over, but it has changed, and we must remain vigilant lest our freedom slip…
The Internet is an incredible human achievement. It has done more to ensure freedom and human rights than any government agency ever could. But such freedom is insecure when would-be censors exist either inside or outside government. We can guard against them by ensuring that government policy and technological processes preserve the right to speak, offend, ridicule, hate, or lie without sanction. Congress should codify Internet freedom – as in many important respects it already did when it passed the Communications Decency Act in 1996 – by amending the FEC’s enabling statute. Further rulemaking on the scope of the Internet exemption granted by the FEC would reduce the power of recalcitrant agencies to ignore it.
By Kenneth P. Doyle
A constitutional challenge to restrictions on campaign contributions to a political party has been given a go-ahead by a federal judge in Washington, D.C. (Libertarian Nat’l Comm. v. Federal Election Commission, D.D.C., No. 16-cv-121, memorandum opinion 1/3/17). The Libertarian Party’s national committee challenged restrictions imposed by Congress in 2014 when it passed a law sharply increasing the amount of money a single contributor can give to a party but limiting the uses of that increased money. The controversial 2014 law — tacked onto an approriations bill funding the federal government — boosted the total contribution a party committee can receive to more than $300,000 annually but required that most of the money be used to pay only for three purposes: party conventions, legal costs and party headquarters…
The Libertarian Party’s current challenge to FEC limits on a bequest of campaign money continues a long-running effort. An earlier challenge was dismissed as moot in 2014 by the U.S. Court of Appeals for the D.C. Circuit. That court said it took so long for the case to be litigated that all the bequeathed money involved had already been paid in annual installments that complied with party contribution limits, by the time the case was ready to be decided.
Washington Examiner: Indiana robocall ban doesn’t violate First Amendment, court rules (In the News)
By Ryan Lovelace
Indiana’s Automated Dialing Machine Statute prevents a caller from using an automated telephone call that delivers a recorded message, with limited exceptions for such sources as school districts and employers.
The political action committee Patriotic Veterans Inc. challenged the law, saying it violated the group’s First Amendment rights, but the appeals court ruled that the measure didn’t discriminate based on content but rather restricted who may be called.
“Everyone has plenty of ways to spread messages: TV, newspapers and magazines (including ads), websites, social media (Facebook, Twitter, and the like), calls from live persons, and even recorded spiels if a live operator first secures consent,” wrote Judge Frank Easterbrook in the 7th Circuit’s opinion. “Plaintiff can ask its donors and potential donors to agree to receive robocalls. Preventing automated messages to persons who don’t want their peace and quiet disturbed is a valid time, place and manner restriction.”