All Citizens Are Entitled to an Impartial FEC

(This is the fourth in a series of five posts on the demonstrated bias of Democratic FEC Commissioner Ellen Weintraub.  The first installment is here, the second here, the third here, and the last installment will be posted in the next few days.)

Former FEC Chairman Brad Smith was the first to warn the American public, detailing the legal problems presented by Commissioner Weintraub's actions in a June 2017 blog post at the Institute for Free Speech.  According to Chairman Smith, "Federal Election Commissioner Ellen Weintraub's actions in recent months cast serious doubt on whether she can continue to credibly carry on her duties as a Commissioner.  She should recognize this predicament and do the honorable thing, which is to resign."  Chairman Smith outlined federal law that requires government officials to act without bias and documented Weintraub's violations of that legal duty.  
  
Chairman Smith also explained the corrosive effects of the anonymous AltFEC Twitter feed in 2017, before it was widely known that the AltFEC twitter feed is sponsored by Weintraub's staff.  

Liberal defenders like Professor Rick Hasen rallied to Weintraub's defense.  Hasen called Chairman Smith "mean spirited" for his analysis of Weintraub's bias.  No doubt Professor Hasen has exhibited some mean spiritedness on his own blog.  More important than his one-sided view of campaign finance discourse, however, apparently liberals like Hasen thinks it's okay for Democratic law enforcement officials like Loretta Lynch and Ellen Weintraub to enforce the law with prejudice.  They are not in the least bit concerned for "good government" when it comes to law enforcement bias, which is its own form of corruption.  

But Chairman Smith was right and it shouldn't take a national controversy like Lois Lerner or Peter Strozk to restore the appearance of fairness and impartiality.  Weintraub's demonstrations of bias are worse than the Peter Strozk controversy.  Her public political jabs at the President go well beyond private texts and emails.  And her votes to punish Trump demonstrate that she will use her public office to get the President.  Yet, there has been little outcry about it.   

The FEC is a law enforcement agency.  Commissioner Weintraub is a law enforcement official.  Nobody looking at this evidence could reasonably conclude that Commissioner Weintraub is unbiased, fair and neutral in her approach to President Trump.  Nor is she known throughout Washington, DC as a dispassionate, objective regulator.  Rather, she has a reputation as a flamboyant, outspoken ideologue, given to partisan infighting and polarization on the Commission.  The strong opinions she and her confidential counsel have expressed about President Trump (and other Republicans) taint everything the FEC does.  

President Trump is entitled to not only actual neutrality but the absolute appearance of neutrality in the enforcement of campaign finance laws by the FEC.  That neutrality does not exist so long as Commissioner Weintraub and her office participate on Trump cases.  Like the FBI fired Peter Strozk, Commissioner Weintraub should do the right thing and remove herself from all cases related to Donald Trump.      

Judge Brett Kavanaugh Respects First Amendment Rights; Skeptical of Campaign Finance Regulatory Overreach

One of the many advantages of Judge Brett Kavanaugh's long service on the D.C. Circuit is that we have a very clear picture of how he applies the First Amendment to statutes that restrict speech.

The D.C. Circuit hears many campaign finance cases, and the Institute for Free Speech reviewed them, starting with Emily's List v. FEC:

His opinion in Emily’s List is particularly impressive. Foreshadowing later rulings in Citizens United and SpeechNow, Judge Kavanaugh clearly articulated a First Amendment right for associations to spend money in support of candidates. The opinion demonstrates an ability to anticipate trends in First Amendment jurisprudence before they fully take hold. . . . 

Emily’s List v. Federal Election Commission dealt with a spate of regulations that the FEC put in place against certain nonprofit corporations in the aftermath of the 2004 presidential election. Specifically, in response to the so-called “527” expenditures made during the 2004 election against President Bush and Senator Kerry, the FEC imposed a panoply of limits designed to treat nonprofit corporations, functionally, as if they were political parties. 

In an opinion that preceded and foreshadowed the Citizens United and SpeechNow.org opinions, Judge Kavanaugh wrote an opinion for the Court reversing the lower court and striking down these regulations on First Amendment grounds. The Court decided that nonprofits such as Emily’s List, a pro-choice, partisan nonprofit dedicated to electing pro-choice Democratic female candidates for office, ought to have “the right to spend unlimited money to support their preferred candidates” and “receive full First Amendment protection.” 581 F.3d at 8-9. “A non-profit that makes expenditures to support federal candidates,” Judge Kavanaugh wrote, “does not suddenly forfeit its First Amendment rights when it decides also to make direct contributions to candidates.” Instead, so long as it complied with modest regulation, it was “entitled” to make certain “advertisements, get-out-the-vote efforts, and voter registration drives” out of an “account…not subject to source and amount limits.” Id. at 12.

Judge Kavanaugh also wrote for the court in Independence Institute v. FEC in 2016.  The Institute for Free Speech also notes that when he has written upholding campaign finance regulations, he has done so with respect for the First Amendment and how government regulation can endanger the free speech rights of Americans, as he did in Bluman v. FEC, concerning the ban on foreign intervention in U.S. elections:

Nevertheless, Judge Kavanaugh warned that government could easily overstep in this area. He noted that the ruling did not decide whether Congress could constitutionally extend the ban to lawful permanent residents, nor did it decide whether Congress could prohibit foreign nationals from engaging in political speech other than contributions. He also cautioned the government “that seeking criminal penalties for violations… will require proof of the defendant’s knowledge of the law.”

Judge Kavanaugh's extensive judicial record provides a valuable look into his interpretive methods and how he analyzes complicated legal controversies of the type faced daily at the Supreme Court.  As the Senate considers his nomination over the next few months, we will provide insights into his judicial record on this blog, Facebook, and Twitter, in addition to analyzing the political situation.  While Democrats will attack him unfairly however they can, they will find it very difficult to substantively criticize Judge Kavanaugh's strong record on the D.C. Circuit.

Reversing the Obama DOJ's Politicization of Justice with Trump Pardon of D'Souza

In stark contrast to the current Department of Justice (DOJ), the Obama Justice Department was run more as a political shop with Eric Holder serving more as a DNC Counsel. As even NPR stated:

Justice Department traditionalists grimaced when former Attorney General Eric Holder called himself President Obama's "wingman."

A prime example of how this politicization was more than words and ran throughout the Obama DOJ was the treatment of Dinesh D’Souza.  As President Trump stated:

Will be giving a Full Pardon to Dinesh D’Souza today. He was treated very unfairly by our government!

— Donald J. Trump (@realDonaldTrump) May 31, 2018

D’Souza illegally gave $20,000 to a college friend’s campaign for Senate, that she lost by 46 points.  He is 100% guilty.  He was also a major and financially successful critic of Obama and progressives.   He should have been punished, but the punishment was completely over the top by an Obama DOJ that was trying to silence an Adminstration critic.  Obama supporter Alan Dershowitz stated at the time:

The Justice Department's tactics remind Dershowitz of the words of Stalin's secret police chief, Lavrentiy Beria, who said, "Show me the man and I’ll find you the crime."

"This is an outrageous prosecution and is certainly a misuse of resources," charged Dershowitz. "It raises the question of why he is being selected for prosecution among the many, many people who commit similar crimes.

"This sounds to me like it is coming from higher places. It is hard for me to believe this did not come out of Washington or at least get the approval of those in Washington."

Former FEC Commissioner David Mason added at the time:

Law enforcement experts tell Newsmax that if the FBI or another federal agency received a tip about a fraudulent act involving just $20,000, the government would likely show little interest in investigating. Mason notes that a violation of $20,000 in contributions is trivial compared to most cases.

"The violation involves a pretty small amount for this type of case," said Mason, who was an FEC commissioner from 1998 to 2008. When small amounts of campaign financing regularities are uncovered the matter is usually resolved at a low level.

The unprecentedented arrest makes even more sense when you realize the U.S. Attorney in charge of the case was Preet Bharara.  The same U.S. Attorney who refused to leave his position after President Trump was elected:

A few days ahead of a resignation request from the Department of Justice — part of the routine housecleaning of political appointees that accompanies every administration changeover — Bharara set up a “personal” Twitter account, writing portentously: “Stay tuned . . . ” Then, on Saturday, he tweeted: “I did not resign. Moments ago I was fired. Being the US Attorney in SDNY will forever be the greatest honor of my professional life.”

Leave it to a Manhattanite to be a drama queen.

The replacement of the nation’s 93 U.S. attorneys is standard procedure when a president from a different party takes the White House. Bill Clinton asked for the resignation of all but one U.S. attorney in March 1993 (unlike, Bharara, they complied); George W. Bush had replaced nearly every U.S. attorney by the end of his first year in office; Barack Obama swapped out Bush-era U.S. attorneys for his own — among whom was Bharara. This is not a scandal. Since the executive branch is tasked with enforcing the laws, and since every administration has different (sometimes radically different) enforcement priorities, each administration wants lawyers who will carry out its priorities. . . . The Constitution provides for this. And when an at-will employee refuses to give up his post, the White House obviously has no alternative but to can him.

Bharara was out for retribution against a critic of Obama and progressives to score political points.  The political nature of Bharara's prosecution is clear from comparing similar cases.  Take the higher profile candidate case involving Democratic Presidential Candidate John Edwards:

D'Souza's conviction was clearly political retribution. Compare attorney Pierce O'Donnell, who gave $26,000 in illegal contributions to 2004 Democratic presidential candidate John Edwards and ended up facing only misdemeanor charges .

The judge rightly rejected Bharara’s efforts to get D’Souza a seven-year prision term but D’Souza was still confined to a halfway house.  As Andrew McCarthy concludes:

No matter what you think of D’Souza’s politics, his treatment was abusive.

President Trump’s pardon of Dinesh D’Souza is just.

D’Souza took it a step further to call it Karma:

KARMA IS A BITCH DEPT: @PreetBharara wanted to destroy a fellow Indian American to advance his career. Then he got fired & I got pardoned

— Dinesh D'Souza (@DineshDSouza) May 31, 2018

Another Court Criminalizes Political Activity -- Will It Be Applied Equally?

The U.S. Court of Appeals for the Eighth Circuit has ruled, in United States v. Benton (8th Cir. May 11, 2018) that three officials from Ron Paul's 2012 presidential campaign committed criminal acts by (1) paying an Iowa State Senator for various services, including his endorsement, through a sub-contract with a video production vendor and (2) reporting the purpose of the expenditure as "audio/visual services."

The State Senator indeed provided "audio/visual services" to the Paul campaign by recording telephone messages and appearing on television for the Paul campaign.  He also traveled for the campaign and encouraged support for the campaign.  But federal prosecutors claimed the main purpose of the payment was the State Senator's "endorsement," which was not reported as the purpose of the payment.

All three of the Republican political operatives were convicted and punished.  One had his house raided and went to prison.    

The ruling has serious implications for the Hillary Clinton campaign and the Democratic National Committee.  News media have reported that the Clinton campaign and DNC funneled money to the Perkins Coie law firm, which in turn sub-contracted with an opposition research firm, Fusion GPS, which in turn sub-contracted with a foreign operative, Christopher Steele, to perform opposition research about Donald Trump.  The foreign operative reached out to Russians with Kremlin connections for information that might harm Donald Trump's candidacy.  The Clinton campaign reported the purpose of its payments to Perkins Coie as "legal services."  One liberal group has filed a complaint with the FEC over the activity. 

RNLA member Prof. Brad Smith noted that this decision could impact Perkins Coie:

“If I'm Perkins Coie, right now I'm a bit nervous about the reporting of payments to Fusion GPS,” said Brad Smith, a former FEC chairman and current chairman of the Institute for Free Speech.

Republicans do not support the criminalization of politics.  But Republicans do respect the rule of law and equal justice.  

In First Issued Opinion, Judge Ho Relies on Constitution and Would Overturn Low Contributions Limit

RNLA member Prof. Brad Smith wrote about the first judicial opinion issued by Judge James Ho, one of President Trump's nominees to the Fifth Circuit:

“The unfortunate trend in modern constitutional law is not only to create rights that appear nowhere in the Constitution, but also to disfavor rights expressly enumerated by our Founders.” . . .

His first opinion, released in April, was a dissent in a case asking whether an Austin, Texas, $350 limit on political contributions was constitutional. . . . He began with a detailed analysis as to why Austin’s $350 limit on campaign contributions should be struck down as unconstitutionally low under Supreme Court precedent. Straightforward enough. Ho went further, questioning the right of government to limit political participation at all. “As citizens,” he wrote, “we enjoy the fundamental right to express our opinions on who does or does not belong in elected office.” 

Prof. Smith describes how Judge Ho applied the anti-corruption standard that is the only constitutionally permissible rationale for contribution limits, according to the Supreme Court, in a common-sense, real-world fashion, instead of the in the theoretical, and therefore far too expansive, manner in which it is usually applied: 

Ho pointed out that contribution limits prohibit the exercise of protected First Amendment rights to support candidates and voice political views even when there is no corruption whatsoever. Adding a badly needed dose of realism, Ho wrote, “Countless Americans contribute for no other reason than to support candidates who share their beliefs and interests … without any inkling of a quid pro quo agreement. Indeed, many Americans contribute without ever even communicating with the candidate. … A donor might simply be inspired by the candidate’s prior record of public service, proposed future action, or a particular speech or debate performance. Such contributions are far from corrupt.” . . . 

What makes Ho’s opinion so refreshing is that it emphasizes actual corruption and the motives of donors, bringing campaign finance law back to the real world. Too often courts have sanctioned vague restrictions on political speech to meet nebulous goals and strained hypotheticals. The First Amendment is not a relic of an era gone by, and it’s rewarding to see a judge who thinks the rights enumerated in the Constitution are still meaningful.

Judge Ho's opinion respects the text of the Constitution, and his reliance on the Constitution protects the enumerated rights of individuals against over-regulation by the government.  This is the kind of text-based legal reasoning starting to be issued around the country by judges nominated by President Trump, who are beginning to restore the rule of law to the judiciary.

FEC Republicans Allow Public a Chance to Comment on Free Speech on the Internet

Wednesday, the Federal Election Commission approved a draft Notice of Proposed Rulemaking on Internet Communication Disclaimers and the Definition of "Public Communication":

The Commission approved a Draft Notice of Proposed Rulemaking requesting comment on two alternative proposals to amend its regulations concerning disclaimers on public communications on the internet that contain express advocacy, solicit contributions, or are made by political committees. The approved draft notice also requests comment on proposed changes to the definition of “public communication.” Comments must be received on or before 60 days after the date of publication in the Federal Register. The Commission will hold a public hearing on this notice on June 27, 2018.

Thanks to the steadfast defense of the First Amendment and the rule of law by the Republican FEC commissioners, the Democrat commissioners have not be successful in their efforts to expand and change the rules regarding Internet advertising ex post, in response to complaints about Internet activities that are clearly legal and/or unregulated under the FEC's current regulations and policies.    The FEC Democrats have, at times, also supported unrealistic requirements that would make disclaimers take up the entirety of small Internet ads (such as those on Twitter or mobile devices).  

Through the efforts of the Republican commissioners, the FEC is going about regulating this important area in the correct way, through notice and comment rule making with ample opportunity for the regulated community and interested parties to speak on the issue and with plenty of notice to the regulated community on any changes in the rules.  All along, the Republican commissioners have supported a reasonable, common-sense approach to regulating Internet communications that protects the public's interests and comports with the goals of campaign finance regulation while taking into account the constraints and opportunities provided by changes in technology, all while protecting the political speech rights of Americans.

The RNLA will provide in-depth analysis of the proposals in this NPRM in the coming weeks.  But its very existence is a testament to the leadership of Chair Caroline Hunter, Commissioner Matthew Petersen, former Commissioner Lee Goodman, and the many Republican FEC commissioners who have gone before them.

Democrat Hypocrisy on Tax Cut Bonuses vs. Campaign Finance Disclosure

Writing in the Washington Examiner, Prof. Brad Smith astutely pointed out the disconnect between House Minority Leader Nancy Pelosi's response to employees receiving $1,000 bonuses as a result of the tax cut bill passed in December and the current campaign finance disclosure thresholds:

. . . The truth is that the U.S. today has more extensive disclosure than ever before. Contrary to popular myth, even “super PACs” are required by law to publicly disclose all donors giving more than $200. Traditional PACs, political parties, and candidates must do the same. In many states, the disclosure thresholds are much lower — as little as $10. 

Which takes me back to “crumbs.” If Nancy Pelosi thinks that $1,000 is “crumbs,” why does she support a law that requires every American who contributes more than $200 (and as little as $10 in some states) to a candidate, political party, or PAC, to be reported to the government, with their names, addresses, and employment information published for the world to see? . . . 

. . . A $200 contribution represents about one one-hundredth of 1 percent of what the average winning House candidate spent in 2016. No one in Congress is being corrupted by $200 contributions. Nor do undecided voters learn anything from seeing the personal information of thousands of small donors, whom they almost certainly have never heard of. 

These disclosure thresholds were low when enacted, and haven’t been adjusted, not even for inflation, since 1979. Studies have shown that compulsory disclosure of campaign contributions discourages small donor political participation. . . . The threshold at which contributor information must be publicly disclosed should be substantially higher than it currently is. That would simplify the reporting system, make harassment of small donors less likely, and encourage small donor participation. That would be one campaign finance reform both Left and Right could get behind. And it wouldn’t be “crumbs.”

Democrats and liberals are quick to dismiss when Americans get to keep more of their hard-earned money (and of course, $1,000 is a substantial amount to most people, even if not to multi-millionaire Pelosi).  Yet despite lamenting the lack of small donor participation in the political system, they champion outdated disclosure requirements that discourage small donors and require disclosure of small contributions of which a candidate takes no notice.  And as Prof. Smith describes, in this era of political violence and intimidation, the disclosure requirements open up everyday Americans to bullying and threats of violence for expressing their political beliefs through their contributions.

State of the Law on Donor Disclosure and Its Dangers

RNLA member Eric Wang published a thorough analysis of the state of the law on donor disclosure requirements and what the law should be under First Amendment free speech principles.  "Staring at the Sun: An Inquiry into Compulsory Campaign Finance Donor Disclosure Laws" was published today as a Policy Analysis paper from the Cato Institute.  Mr. Wang begins by pointing out the tension at the heart of any discussion of disclosure (footnotes omitted):

“Disclosure” is a term with warm and fuzzy connotations. When someone intersperses a “full disclosure” disclaimer in a conversation, we tend to credit the speaker for his or her candor. But privacy also is commonly regarded as a virtue in its own right. The right to privacy is held to be “fundamental” against intrusions by the government . . . . These competing interests of privacy and anonymity versus disclosure in the context of political speech are reflected in the Court’s tortured and tortuous jurisprudence. 

After examining the Supreme Court's unrealistic and limited justifications for donor disclosure requirements, Mr. Wang says that other justifications are not better:

If one goes in search of better justifications for compulsory donor disclosure beyond the Supreme Court’s holdings, the landscape is still rather bleak. The arguments put forward for disclosure often are illogical on their face, contrary to actual experience, inconsistent with other First Amendment precepts, or downright invidious. 

People United for Privacy just released this video about the chilling effects of donor disclosure requirements, including a disturbing moment when Senate Minority Leader Chuck Schumer admitted that the purpose of disclosure requirements was to deter citizens' speech about their government.  Mr. Wang describes this and the constitutional problems with that position:

Every so often, compulsory disclosure supporters reveal their true intention of deterring speech. . . .  This sometimes not-so-subtle effort to use compulsory donor disclosure laws to limit speech runs head-on, however, into what the Court has long held to be our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Not only that, but the deterrence of speech diminishes the public’s “right to hear, to learn, to know”—a right that also has been held to be fundamental.

Mr. Wang concludes by offering recommendations for disclosure laws that serve the legitimate purpose of disclosure while protecting citizens' constitutional rights, while pointing out how current laws often fall short of these principles: 

Disclosure’s purpose should be to “allow[] citizens to keep tabs on their elected officials”— not for “the government to monitor its constituents.” The legitimacy of disclosure laws is at its zenith when they focus on government transparency. Open government is essential to representative government and holding officials accountable and responsive to the public. When disclosure laws’ purpose is to monitor private individuals and groups exercising their First Amendment rights, however, such laws become an authoritarian tool for intimidation, retribution, and the suppression of democratic debate. 

Liberals and Democrats, in their ongoing quest to force more disclosure to deter citizens from speaking out about their government, would do well to pay attention to Mr. Wang's reasoned analysis of the dangers and proper role of donor disclosure.  Free speech often demands the right to speak anonymously, especially in our politically charged era where threats of violence against conservative speakers are becoming commonplace.

WI DOJ Report on Leak and Mishandling of Documents in "John Doe" Investigations

The Wisconsin Department of Justice completed an investigation and report on the 2016 leak of 1500 pages of documents from the so-called "John Doe" investigations, expansive and intrusive investigations into alleged coordination and prohibited political activity by Republicans in Wisconsin.  The Wisconsin Supreme Court eventually held that the activity under investigation was constitutionally protected First Amendment speech and halted the politically motivated investigations that had terrorized conservative citizens of Wisconsin.

The report was released on Tuesday and unsealed by the court yesterday contains details about the gross mishandling of evidence and people's confidential information:

Moreover, DOJ is deeply concerned by what appears to have been the weaponization of GAB [Government Accountability Board] by partisans in furtherance of political goals, which permitted the vast collection of highly personal information from dozens of Wisconsin Republicans without even taking modest steps to secure this information. 

In the following pages, this report will explain how the former GAB never fully divested itself of evidence from the John Doe investigations and how former GAB employees and current employees of the Wisconsin Ethics Commission (Ethics) left sensitive evidence unsecured in the former GAB office space and on former GAB computer systems. This report also describes how DOJ investigators, in searching for the leaked documents, discovered what this report calls “John Doe III,” a previously unknown and secret investigation into a broad range of Wisconsin Republicans. John Doe III reached far beyond John Doe II’s original (and unsubstantiated) allegation centering on unlawful “coordination” during Governor Walker’s 2010 election and 2012 recall election. As explained more thoroughly below, this secret investigation collected hundreds of thousands of private emails from dozens of Wisconsin Republicans (and at least two national conservative leaders, Ed Gillespie and Leonard Leo). In searching for the leaked documents and the leaker, DOJ investigators found over 500,000 of these John Doe III emails in the basement of the former GAB in two unsecured boxes labeled “Shane Falk.” Moreover, for reasons that perhaps may never be fully explained, GAB obtained and then held thousands of private emails from Wisconsin Republicans in several folders on their servers marked “Opposition Research.”

The 88-page report details the misdeeds of the Government Accountability Board (GAB), now reorganized as the Wisconsin Ethics Commission, employees and investigators, some of whom are attorneys.  Because the documents and sensitive personal information were unsecured, Attorney General Brad Schimel concludes that no criminal charges can be filed for the leak as it is nearly impossible to identify the leaker.  But he did make the following disturbing findings:

• The Leak Was A Crime 
• The Motivation Of The Leaker Was To Influence The U.S. Supreme Court 
• The Leak Did Not Come From The Wisconsin Courts 
• The Leak Did Not Originate From Any District Attorney’s Office Or Francis Schmitz
• The Leak Originated From The Former GAB
• The Partisan Atmosphere At GAB Contributed To The Leak 
• GAB’s Mishandling Of Evidence Created The Opportunity For The Leak Of Records 
• Members Of The Prosecution Team Still May Not Have Fully Divested Themselves Of All Records Relating The John Doe Investigation 

Attorney General Schimel also recommends disciplinary proceedings and contempt proceedings against nine persons for repeated violations of court orders.

While this is some level of vindication for the Wisconsin citizens whose free speech rights were violated and a step in the right direction, it is also a chilling reminder of how liberals are willing to use the power of government to suppress the speech of their political opponents and are shockingly careless about the people whose lives they are disturbing and ruining.

California’s Campaign-Advertisement Disclosure Laws Become Toughest in the Country

Last week, Governor Jerry Brown signed the California DISCLOSE ACT, AB 249, which by some standards makes California’s campaign-advertisement disclosure laws the toughest in the country.

This new law requires the three largest contributors (of $50,000 or more) to be listed on ballot measure ads and independent expenditures.

On video and TV, the disclosures must be displayed against a solid black background in a clear font that is not all-caps, fill the bottom third of the screen and stay up for a full five seconds during a 30 second ad. Each of the three major funders’ names must appear on a separate line. Disclosures on radio ads would need to be made with the same speed as the rest of the ad. Committees must keep track of donations on a daily basis to make this calculation. If the top contributors change, committees have five business days to make a new ad and update it. Top funders would have to be identified in TV, radio, online and print ads about ballot measures on the ad itself.

This law applies to print, online, TV, and radio ads as well as mass mailers and robocalls. It requires radio ads and robocalls to name the two largest funders.

It also requires that if the funds were earmarked, the “true” source of the funds be disclosed. However, California Fair Political Practices Commission chair Jodi Remke raised a red flag about the fine print tucked inside the bill – particularly how, for example, labor union earmarks are disclosed. Granted, the FPPC chair thought the bill might need to require additional disclosure requirements. But the new earmarking rules benefit labor unions – likely to the detriment of Republicans:

Critics of the bill, including Republican Assemblyman Matthew Harper, R-Costa Mesa, who voted against it, complain that it stacks the deck for Democrats by making an exception for membership dues, helping the labor unions that fund Democrats’ campaigns. 

If a member’s dues are used to pay for a campaign, the organization — not the individual dues-payer — would appear as the contributor as long as the total amount is below $500. Mullin and others argue the change eases the paperwork burden for membership organizations while making it easier for the public to follow the money. But Republicans have cast the provision as union-friendly politics as usual. 

“What this does is it creates a massive, dark-money loophole that unions can drive through,” Harper said. “It’s what Democrats do over and over again.”

Although Republicans may be currently outnumbered in the California legislature, that has not stopped the RNLA from working to set-up a robust lawyer organization in the state. On October 21, RNLA’s California Chapter is hosting National Republican Congressional Committee General Counsel Chris Winkelman at a MCLE event during the California Republican Party Convention in Anaheim. Mr. Winkelman will be discussing the lawyer's role protecting the integrity of elections. He will also highlight important Congressional races in 2018 and discuss how lawyers can help next November. We will also be introducing our statewide leadership and new California Regional Chairs. Register for the event here.

California’s RNLA Chapter is growing and recruiting lawyers around the state to help in 2018 races. If you haven’t already joined RNLA, now is the time!

By Audrey Perry Martin, RNLA California State Chapter Chair and Of Counsel to Bell, McAndrews & Hiltachk, LLP.

Rush to Regulate Foreign Speech Risks China-Like Censorship

RNLA member Eric Wang wrote in USA Today how the rush to regulate foreign speech on American political and policy issues will inevitably stifle American speech, pointing first to the example of China:

Recent revelations that Russian interests used social media to interfere with the 2016 American election campaign have sent lawmakers scurrying to respond. China’s “Great Firewall” offers one possible model for securing our democracy. . . . China censors any agitators, foreign or domestic, on social media. Politically sensitive topics like Tibetan self-determination, the Tiananmen Square demonstrations, or resistance against the Communist Party are off-limits. Of course, the Great Firewall also completely blocks access to Facebook, Twitter, and thousands of other websites. . . . Emulating China’s disregard for free speech may seem like mere satire for Americans. . . . But recent calls to regulate online political speech by foreign interests directed at Americans seem to articulate no bounds. There is a real risk that a rush to regulate will threaten basic civil liberties. . . .

As Mr. Wang points out, the frightening example of China shows that control of the internet almost inevitably leads to censorship.  Even if American citizens' right to speak is not curtailed, their right to listen would be:

Any regulation of speech about political issues by foreigners could end up entangling U.S. citizens. . . . Even if we could use technology, such as blocking overseas Internet Protocol (IP) addresses, to prevent only foreign nationals from influencing us, this would still limit Americans’ First Amendment rights. As the Supreme Court has held, the right to speak also involves the right to listen.

Mr. Wang includes some interesting examples of the various ways foreign actors seek to influence opinion in the U.S. and concludes by pointing out that foreign attempts at influence are inevitable and certainly not new:

Except in the most closed societies, speech has always seeped across national borders. In an irony befitting today’s topsy-turvy politics, Democrats now decry Russia’s attempts to aid Trump last year. But last year, Republicans condemned foreign leaders who urged Americans to reject Trump. Look at history as well. The book “Democracy in America” is one of the most influential tracts on our political system, and remains required reading in American university political science courses today. It was written, of course, by Alexis de Tocqueville, a Frenchman. By regulating Americans’ access to foreign speech about our politics, we risk becoming a “hermit kingdom.” 

All this is not to diminish the threat of foreign interference in our democracy. But First Amendment rights, once curtailed, are not easily restored. Therefore, we must carefully consider how we handle this issue. Rushing to restrict Americans’ political freedoms in the name of curbing foreigners’ political speech would play right into Russia’s hands.

As we have been discussing frequently in the past few weeks, while we may resent foreign attempts to influence our political process, regulating and restricting more than is already done in the law risks stifling speech by American citizens on important political and policy issues and isolating the U.S. internationally in a way that is unthinkable in a modern free society.

Liberals' Russia Narrative Crumbles as They Rush to Regulate Online Speech

The narrative of Russian interference with the 2016 election that has been one of liberals' favorite tools to attempt to undermine the legitimacy of the Trump Presidency continues to crumble.  

Last week, we noted how the Department of Homeland Security had finally notified 21 states where they had evidence of Russian activity regarding their election systems.  Except now California and Wisconsin have been told that this was not actually true, and the election hacking narrative, which started with the Obama DHS, may collapse even further.

Now, Facebook has delivered ads purchased by Russians to Congress and issued some FAQs about them, including these revealing facts (emphasis added):

• An estimated 10 million people in the US saw the ads. We were able to approximate the number of unique people (“reach”) who saw at least one of these ads, with our best modeling [RNLA note: The number of registered voters during the 2016 election was over 157 million and the total citizens of voting age was over 224 million.] 

• 44% of total ad impressions (number of times ads were displayed) were before the US election on November 8, 2016; 56% were after the election. 

• Roughly 25% of the ads were never shown to anyone. That’s because advertising auctions are designed so that ads reach people based on relevance, and certain ads may not reach anyone as a result. 

• For 50% of the ads, less than $3 was spent; for 99% of the ads, less than $1,000 was spent.

But, before their narrative completely crumbles, liberals are rushing to use it as an excuse to regulate online speech, which has long been a goal of campaign finance "reformers" such as former FEC Commissioner Ann Ravel, who advocated overturning the FEC's longstanding exemption of internet activity from certain regulations to apply the regulations to conservative YouTube videos ex post.  Liberal outlet Quartz recently demonstrated how the "reform" community is using the Russian Facebook ads as a pretext to argue for government control of speech by American citizens on the internet (while non-ironically lamenting that Facebook had failed to reach out to any "experts" in the "reform" community as it amended its ad policies).  And Democratic Senators Amy Klobuchar and Mark Warner are expected to introduce legislation to regulate political advertising online soon (more on that here once it is introduced).

FEC Commissioner Lee Goodman's TechFreedom podcast on these issues, that we highlighted on Monday, summarizes the serious constitutional dangers with the liberals' rush to regulate and what factors should be considered in a more measured approach that respects Americans' important political speech rights on the internet.

FEC Commissioner Lee Goodman on Rush to Regulate Social Media

FEC Commissioner Lee Goodman spoke to the TechFreedom podcast about alleged Russian attempts to influence the 2016 election and what our response should be to it.  We covered this twice last week (Thursday and Friday), but Commissioner Goodman's important message bears repeating:

My primary concern is that we not overreact to things that we cannot control and out of frustration, start regulating American citizens and make them guilty or responsible or punish them for what some bad actors do abroad. . . . It would be very difficult for the U.S. government to enforce our laws against a foreign person sitting on foreign soil posting information about U.S. politics on a foreign computer on a foreign server.  That would be very difficult.  We shouldn't, out of frustration, start regulating and punishing American citizens in their use of the internet because there's a lot of social good in the United States from that use. . . . 

Recent news reports are that there may have been $100,000 to $150,000 in ads spent by foreign sources on a range of subjects, some of which may not be in the Federal Election Commission's jurisdiction but under the jurisdiction of the Department of Justice in the Foreign Agents Registration Act.  But those ads are a drop in the ocean of information available from foreign sources on the world wide web. . . . We have all sorts of foreign information available to use from U.S. politics generally. . . . 

I'm not sympathetic to foreign meddling or influence in our elections.  I'm just saying that it is ubiquitous, ok?  Let's not go attacking the free speech rights of American citizens first as an effort to get to capillaries of foreign speech.  Let's target foreign speakers in whatever we do, and let's not at first target the civil liberties of American citizens. . . . We have a long history of overreaction and diminishing the civil liberties of American citizens in order to get at some of the pores that may be open for foreign influence, and I say let's get at the pores. . . .

The entire podcast provides an excellent overview of this issue, the factual realities, current law, and how the free speech of Americans could be threatened by a rush to regulate political advertising on the internet. 

Democrats' Next Target: FEC and Further Regulation of Political Speech

Last week, Business Insider alluded to the next target by the left--further regulation of political speech by the Federal Election Commission (FEC). Business Insider reported:

Democrats in the House and Senate sent a letter to the Federal Election Commission on Wednesday urging it to "develop new guidance" on how to prevent illicit foreign spending in US elections in the wake of Facebook's announcement that Russia-linked accounts purchased $100,000 worth of ads last year. ...  

Looking ahead to the 2018 elections, the Democrats called on the FEC to implement improved disclosure standards "to ensure voters have the information they need to evaluate political advertising" — whether it appears on TV, the internet, or elsewhere. "There is no reason to believe this behavior will stop in future elections," they said. The FEC last approved regulations governing certain types of internet communications by political committees and campaigns in March 2006, when it amended its rules to include paid online ads as a form of ‘‘public communication.’’

The full letter to the FEC can be read here.  RNLA Executive Director Michael Thielen warned against a rush to regulate political speech yesterday.

Well, on Tuesday, the Democrats attempted to follow this letter up with action. Representative Theodore Deutch of Florida introduced legislation targeting political speech, called the Campaign Sunlight Act of 2017.

Some of the key aspects of this bill include:

• (Sec. 2) Most political advertisements must be immediately filed with the FEC for documentation;
• (Sec. 2 (e)(2)) FEC would post the ad or advertisement or material on an online catalog or public website with full links and documentation of the facts being asserted ("sources cited");
• (Sec. 2 (e)(2)(D)) However, the FEC would be able to charge a fee--ultimately a tax--on political speech to fund the website; 
• (Sec. 3) This would apply to almost any effort to highlight or broadcast political positions, as "political advertisement" is defined as a communication covered by 52 U.S.C. § 30120(a) that refers to a clearly identified candidate in the year prior to an election.  

By doing this, Democrats are attempting to tax and regulate our political speech. This bill would further politicize the FEC by turning the commission into a taxing entity and library storing political speech made by groups that just expressing their First Amendment rights. 

The burdens this bill would place on speech are onerous. In addition to the existing (high) compliance costs for political speech, this would require entities and individuals to pay a fee for the privilege of engaging in one of their most important rights for a full year before the election: the right to talk about candidates. How quickly we forget that we fought a Revolution in part because an unaccountable government imposed a tax on our ability to speak.

The bill in its current form is likely to go nowhere. However, it is important to highlight the efforts of the Democrats and the left to quietly target and attempt to further regulate political speech. 

Rush to Regulate Political Ads Threatens Political Speech

RNLA Executive Director Michael Thielen wrote today in the Daily Caller about the potential for suppression of speech in the rush to restrict foreign political ads:

But the First Amendment does not apply to social media, leaving people with unpopular messages silenced by unaccountable decisions made within unresponsive corporate entities. . . . As these companies move forward with their responses to the allegations of Russian influence in the 2016 election through purchasing ads and producing false or misleading content, they need to take care that their efforts do not end up destroying the public forum for discussion they have created. 

For example, Facebook’s announcement certainly has a political tinge to it, as prospective 2020 presidential candidate, noted liberal, and Facebook CEO Mark Zuckerberg is trying to force additional disclosure surrounding political ads that the government has not required.  It is within Facebook’s right as a private entity to do so, but as with many well-meaning but misguided liberals, Zuckerberg may not fully realize the implications of the policies he touts. 

What will Facebook consider political ads?  There are many different legal definitions: express advocacy (vote for/against candidate A), issue advocacy, lobbying, and so on.  There are different speakers: candidates, non-profit organizations, individuals, advertisement agencies, media organizations, for-profit companies, and so on.  What makes an ad political?  What makes an ad sponsored by a foreign person or entity?  Who will be making these decisions at Facebook and how will Facebook ensure that decisions are not politically or ideologically motivated? What recourse exists for silenced parties? What will happen if Zuckerberg officially announces he is running for President? 

There are good reasons to be skeptical.  Last year, Facebook admitted that some conservative news stories were suppressed due to employees’ decisions, not a systemic policy.  Stories abound of conservatives’ posts or profiles being flagged and removed for nothing more than expressing a conservative opinion.  Facebook abandoned plans for a “fake news” removal algorithm that disproportionately removed conservative news stories.  At a large tech company like Facebook, computer algorithms and individual employees often make these nuanced and politically charged decisions that affect individuals’ and organizations’ ability to communicate. . . . How Zuckerberg’s principles are actually implemented will have an enormous impact on the nature of public discourse going forward.  Concerned citizens should watch this process closely.

Mr. Thielen also discusses the new efforts by Democrats and liberals to increase government regulation of speech in response to the allegations of foreign influence in last year's election.  As he notes in conclusion, while foreign efforts to interfere with our elections may be concerning, a rush to regulate and restrict speech without considering the important political speech rights and interests at stake would be a dreadful mistake.

Democrats Change the Election Laws for Partisan Advantage...Again

One of the fundamental differences between Democrats and Republicans is their views on election laws.  Republicans see elections laws as tool for a level playing field where the voters decide.  Democrats see elections laws as a tool for partisan advantage to set up an unbalanced playing field.  

We see the worst of this in blue states where Republicans have little power.  For example, in 2014 we saw the Democrats pass a special one-off same day registration law in Illinois to try to stop now-Governor Rauner from winning.   

Now in very blue California, they are trying again.  As AP is reporting:

California's political watchdog moved forward Thursday with a controversial change to a campaign finance rule that will help a Democratic state senator facing a recall.

Newman barely won last year in a district, mostly in Orange County, that has traditionally been represented by Republicans. His victory gave Democrats a supermajority, allowing them to raise taxes without GOP votes. The California Republican Party, anti-tax groups and talk radio hosts collected signatures to force a recall, citing Newman's support for a gas tax increase.

Democrats have fought hard to boost Newman's chances of surviving a potential recall. In addition to requesting the change in campaign finance rules, they slipped into the state budget a major change in the process for certifying signatures on recall petitions. The change was put on hold by a state appeals court.

Next time you read of Democrat support of new election laws, check their motivation.  It is likely less to do with voter suppression, dark money, or any other officially stated reasons.  It is most likely about tilting the playing field to their advantage and to take power away from the voters.

Latest FEC Reform Proposal Would Threaten Free Speech

RNLA Advisory Council member Dan Backer wrote about the serious problems with the latest proposal to "reform" the FEC:

The legislation would overhaul the Federal Election Commission (FEC) by lowering the number of FEC commissioners from six to five, supposedly putting an end to “gridlock.” The bill would also “reduce partisanship” by limiting commissioners to serving one term and granting the president power to nominate an FEC “chair” to serve for 10 years. This chair would have the authority to act independently of other commissioners, centralizing power in a single unelected political appointee.  

“Reducing partisanship” is the wrong priority. As a nation, we don’t agree on many issues and we shouldn’t gloss over—or worse, use government to suppress—our disagreements. What’s wrong with different people who lead different lives in different parts of the country having different ideas? Only by airing these debates and disagreements can we reach consensus or compromise—or not, and that’s fine too. 

Donnelly’s legislation will openly weaponize the FEC, as it allows one side of the aisle to impose its will when there is legitimate disagreement over complex legal matters. . . . For decades, the independent, six-member FEC has remained bipartisan by design, precisely because it has the power to restrict speech about politics—the very heart of our freedoms of speech and association.  

Under the proposed Donnelly-Renacci legislation, Democrats and Republicans would receive two commissioners each, allowing the president to pick the tiebreaker for the next decade. Consolidating partisan control for 10 years at a time does not sound like an improvement.

While the current structure of the FEC is not perfect, it does provide some protection for political speech by requiring a minimum bipartisan consensus to take any action.  Given the sensitive and important political speech rights regulated by the FEC, any efforts to "reform" it by placing more power in the hands of one party or a few commissioners could seriously endanger First Amendment rights.

California's War on Non-profits Continues Under New AG

RNLA member Eric Wang lamented how California's new attorney general is continuing the political crusade against non-profit organizations that was a hallmark of the previous attorney general's tenure:

California Attorney General Xavier Becerra hit a low note recently during a press conference marking his first 100 days in office. Out of the blue, Becerra lashed out at nonprofit groups for “doing politics.” He threatened to investigate “these groups that are getting tax breaks [while] influencing our political system,” and claimed their donors were illegally taking charitable tax deductions. In his tirade, Becerra misstated the law. As California’s top law enforcement official, he should know better. Then again, his remarks continue his predecessor’s war against nonprofits’ First Amendment rights. . . .  

Under the tax law, only donations to certain nonprofits are tax-deductible. . . . Even the biggest proponents of more regulation of nonprofits have not alleged any widespread violations by 501(c)(3) charities involving themselves in politics. Thus, Becerra’s suggestion that donors are taking charitable deductions for donating to groups that engage in politics is false. . . . And contrary to Becerra’s claim that [nonprofit advocacy groups that fall under section 501(c)(4) of the tax code] are violating the law, the Internal Revenue Service’s regulations have permitted 501(c)(4) entities to engage in a substantial amount of political activity for the past 50-plus years. To this day, both the internal and public guidance from the IRS also expressly permit these groups to participate in election campaign activities. 

Unfortunately, Becerra’s ignorant or disingenuous attack on nonprofit groups’ political speech rights follows the shameful legacy of his predecessor (and now U.S. senator) Kamala Harris. As state attorney general, Harris sought without any legal basis to force nonprofit groups in California to turn over their private donor lists to her office. If they refused, she would not permit them to exercise their constitutional right to solicit funds in the state. That audacious assertion and abuse of official power threatened donors’ First Amendment right to associational speech and privacy, as the U.S. Supreme Court recognized decades ago. 

Going forward, members of the nonprofit community must stand up and resist this intimidation campaign in California and elsewhere. Public officials must be called out for misstating the law about nonprofits’ First Amendment rights. Lawsuits must be brought against government officials who misuse the law to impede citizens’ right to freely associate. And political pressure must be applied to protect the vital role that nonprofits play in our political discourse. Remaining silent in response to attacks like Becerra’s will only invite further and more serious incursions.

Becerra's remarks are representative of the subtle ways that Democrats and liberals mischaracterize tax laws, Supreme Court decisions like Citizens United, and campaign finance laws and regulations to demonize "dark money" and non-profit organizations engaged in perfectly lawful speech activities.  The anti-speech rhetoric is part of the Democrats' current movement to silence opposing views, and they have shown how willing they are to use campaign finance and tax laws--often unlawfully--as weapons against organizations that speak against their favored policy proposals.

Former FEC Chairman Brad Smith: FEC's Weintraub Should Resign

Former FEC Chairman Brad Smith wrote today that it is time for FEC Commissioner Ellen Weintraub to resign, because her political attacks against President Trump and White House Counsel Don McGahn are jeopardizing the FEC's ability to perform its legitimate function:

These various examples show a trend, not of one-off slips of the tongue or misdirected zeal, but rather of a concerted messaging strategy whereby Commissioner Weintraub has intentionally aligned herself with those opposed to the President and his White House Counsel. Thus, while skirting along the edges of government ethics rules, Weintraub has placed herself in a position where any participation by her in a matter involving the Trump campaign could jeopardize any agency finding against the campaign. . . .

For some time now, Weintraub has apparently given up on the substantive work of the FEC in favor of pursuing her obsession with McGahn (who left the Commission nearly four years ago) and political grandstanding. On the latter front, her erratic behavior goes beyond criticizing McGahn and attempting to troll the President. In 2016, she appeared at a “Democracy Awakening” rally, leading the crowd in chants of “Hell No” and “Hell Yes,” while promoting a variety of liberal goals, and criticizing political donors for being overly “white” and “male.” In 2015, having lost a vote at the Commission to launch a new rulemaking, she pulled the stunt of petitioning her own agency to start such a rulemaking. When her colleagues refused to accept her petition, she accused them of denying that she was a “person” and used an open meeting of the Commission to make fatuous arguments about the FEC’s statute and commissioners’ eligibility to file a petition that would earn an “F” in any law school class on statutory construction — even at Harvard. 

If Commissioner Weintraub wishes to be an unserious, progressive martyr on the Commission, it is certainly within her rights to do so. Indeed, that may be her strategy to stay on the Commission, even though her term ended over a decade ago (she continues to serve as an “acting” commissioner). If she criticizes the President enough, she can spin to a ferociously anti-Trump press that any effort to replace her is an effort to silence the hunt for truth. The problem is that there is actual work to do at the FEC. When Commissioner Weintraub engages in ad hominem public attacks on the lawyers representing parties before her agency, repeatedly criticizes the President on matters outside her jurisdiction — or worse, within it — speaks publicly about pending MURs, and announces in advance her views on issues she will have to vote on, it is a problem, not just for her and the Agency she represents, but for the American public.

Prof. Smith detailed Weintraub's recent partisan excesses: how she used her FEC position and FEC resources to engage in partisan activity, namely criticizing President Trump; how she is engaged in a constant campaign of personal attacks against former FEC Commissioner and current White House Counsel Don McGahn; and how she seeks to expand the FEC's -- and therefore her -- jurisdiction to every aspect of federal elections.  Further, Prof. Smith details how just a few weeks ago, Weintraub's public comments may have jeopardized her impartiality on any matter regarding President Trump and his re-election and violated restrictions on FEC employees:

But Weintraub has pressed further. Also on May 23, she called for an investigation of whether Russian agents paid for Facebook ads designed to help then-candidate Trump in the 2016 campaign. Notably, given her criticisms of the President on voter fraud, she offered no evidence to support her allegation that “there is potential there for finding a violation.” More importantly, Weintraub again revealed her bias. Having made the allegation, Weintraub attempted to cover her tracks by adding, “I don’t want to suggest that I have prejudged anything that could potentially come before me.” . . . First, would any impartial observer take seriously her claim that she has not “prejudged anything,” particularly in light of her repeated rants against the President? . . . Second, even if one takes Commissioner Weintraub at her word, the first vote that the FEC takes on any enforcement matter is whether to open an investigation, which is based on whether there is “reason to believe” that an investigation is warranted. Weintraub has already publicly commented on precisely that question. . . . Finally, Weintraub may have violated the legal restrictions on FEC employees commenting on pending investigations.

We will continue to follow Commissioner Weintraub's partisan excesses and hope that she resigns soon so that a commissioner who takes his or her position at the FEC seriously can be appointed to replace her.