June 2, 2023

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In the News

Maine Wire: Auburn Rep Files Lawsuit Challenging Constitutionality of PAC Fundraising Restrictions

By Edward Tomic

.....State Rep. Laurel Libby (R-Auburn) has filed a lawsuit challenging the constitutionality of a recent change in Maine law that established fundraising limits for political action committees (PACs) led by legislators known as “leadership PACs.”

In a press release sent Wednesday, Libby said she has challenged 21-A MRSA 1056-C, a new law that restricts individual contributions to leadership PACs to just $475 per year. The campaign finance law also prohibits any contributions to these PACs from business entities.

Ed. note: Listen to Rep. Libby discuss the case on "Voice of Maine" here.

Just the News: ACLU joins conservatives to defend teachers fined $300k for challenging antiracism training

By Greg Piper

.....Two Missouri teachers forced to pay over $300,000 for unsuccessfully challenging the constitutionality of their school district's compelled antiracism training are getting support from a surprising source: the state affiliate of the ACLU...

Briefs by other groups challenged the merit of the ruling itself and the impartiality of U.S. District Judge Douglas Harpool, a longtime Democratic elected official in Missouri appointed to the bench by President Obama, who claimed the suit "trivializ[ed]" and used his court for "judicial activism."

Harpool sounded "more like a legislator than a judge" and "essentially invited defendants to file a fee motion … an extreme outlier" in related jurisprudence, according to the joint brief by the Institute for Free Speech and Manhattan Institute.

The judge's declarations "serve as a warning to other putative civil-rights plaintiffs not to challenge the ideology of antiracism, especially if they work in public schools," they wrote, asking for reassignment upon remand. "Perhaps Judge Harpool misperceives the nature of antiracism or is himself sympathetic to its creed or ideology."

City Sentinel: Coalition thanks Stitt for Free-Speech Stand

By Trent England

.....A broad coalition of groups that support freedom of speech and the press has sent a letter of thanks to Governor Kevin Stitt for his veto of House Bill 1236.

The measure would have weakened the Oklahoma Citizen Participation Act, which provides legal recourse against frivolous lawsuits that are intended to chill free speech.

DOJ

New York Times: Prosecutors Scrutinize Political Nonprofit Groups for Fund-Raising Fraud

By David A. Fahrenthold, William K. Rashbaum and Tiff Fehr

.....Federal prosecutors are scrutinizing at least 10 political nonprofit groups — including five recently profiled in The New York Times — seeking to determine if the groups defrauded donors, according to two recent subpoenas.

The subpoenas, both signed by the same Manhattan-based federal prosecutor, sought recordings of the fund-raising calls made by two separate networks of political nonprofits that together have raised tens of millions of dollars.

In the last five years, the Justice Department has charged a handful of other political operatives with fraud for running what prosecutors called “scam PACs.”

Supreme Court

New York Times: The Supreme Court Has Earned a Little Contempt

By Josh Chafetz

.....In a 2014 case, Mr. Roberts wrote that campaign finance regulations that pursue objectives other than eradicating quid pro quo corruption or its appearance “impermissibly inject the government into the debate over who should govern. And those who govern should be the last people to help decide who should govern.”

In this brief passage, Mr. Roberts implicitly distances his own institution from “the government” of which it is obviously a part, implies that the court stands outside the processes of governance, and suggests that there is something self-dealing and borderline corrupt about campaign finance laws passed by elected legislatures.

In these same cases, the justices have described nonjudicial political speech in terms that make it sound kind of … icky. It involves “sound bites, talking points and scripted messages that dominate the 24-hour news cycle,” in Justice Anthony Kennedy’s words. This sort of speech deserves protection for the same reasons that “flag burning, funeral protests and Nazi parades” do, in Mr. Roberts’s.

Yet there has been one glaring exception to the majority’s hostility to campaign finance regulations: In the context of state judicial elections, they have upheld restrictions that they would be highly unlikely to tolerate in the context of nonjudicial elections. Tellingly, these cases describe judges in a manner that starkly contrasts with how they have described nonjudicial officeholders.

The Courts

Washington Post: Court: No lawsuit immunity for Michigan official who had rifle during online meeting

By Ed White, AP News

.....A lawsuit can go forward against a Michigan official who flashed a rifle during a public meeting over video conference, a federal appeals court said Wednesday.

Patricia MacIntosh is suing Ron Clous, alleging he tried to silence her right to free speech when he displayed the rifle during a 2021 meeting of Grand Traverse County commissioners.

Clous has no governmental immunity at this stage of the litigation, the 6th U.S. Circuit Court of Appeals said in a 2-1 opinion...

In response to the lawsuit, an attorney for Clous argued that displaying the rifle was his own “expressive conduct” protected by the Constitution. But the appeals court said it could be considered an “adverse action.”

Congress

Reason: Josh Hawley Wants the Government To Silence A.I.

By Robby Soave

.....Sen. Josh Hawley (R–Mo.) has cultivated a reputation as one of the federal government's most tech-phobic legislators. Naturally, he is now setting his sights on artificial intelligence (A.I.), a technology he describes as dangerous and likely to "manipulate" Americans unless subjected to crushing regulatory burdens.

In a recent interview with Fox News, Hawley said he was "worried about AI's power to manipulate our attention, to manipulate our opinions and to manipulate the information that we're given."

His solution is for the government to increase the liability incurred by companies that use A.I., such that they can be sued by users for engaging in misinformation. What constitutes misinformation, of course, is open to interpretation. Per usual, Hawley's approach wouldn't actually protect users of new technology—A.I., in this case—from harm. Rather, it would create opportunities for costly, constant litigation to cripple the technology.

Free Expression

Popehat Report: Speech or Cancel Culture At Boston University?

By Ken White

.....90% of invocations of “cancel culture” are bullshit. Of that 90%, maybe two-thirds is cynical partisan bullshit and a third is just thoughtless bullshit.

Where did I get those numbers? I made them up, obviously. Duh. But I’ve been arguing this point for a long time. The epithet “cancel culture” is overwhelmingly used to express disagreement with speech, not to defend speech. Rather than a principled description of people trying to prevent others from speaking, it’s a form of special pleading that some kinds of criticism are too mean, too uncivil. It’s certainly possible to approach a speech incident and analyze it in some kind of methodical way, that’s not the way the term is generally used. It’s generally used to mean “I disagree with these critics and their values and values I associate with them.”

For a prime example consider, consider Boston University President Robert A. Brown.

Candidates and Campaigns

Daily Beast: Trump and DeSantis Push Election Laws to Breaking Point

By Roger Sollenberger

.....The campaigns of both former President Donald Trump and Florida Gov. Ron DeSantis have pushed the bounds of federal fundraising laws in the early days of their bids. Legal experts say those moves—tens of millions of dollars worth of transactions in each case—may violate the law, give megadonors even more of an outsized influence, and undermine public faith in the democratic system.

ABC News: Nikki Haley slams foreign lobbyists while accepting funds from them

By Soo Rin Kim

.....Despite calling for a ban on foreign lobbying, in which Americans lobby lawmakers and the public for foreign interests, Republican 2024 presidential hopeful Nikki Haley has raised tens of thousands of dollars in political donations from foreign lobbyists, disclosure reports show.

The States

Washington Post (Technology 202): California assembly passes journalism bill, brushing off Meta’s threat

By Cristiano Lima

.....California’s lower chamber overwhelmingly passed a bill Thursday requiring tech companies to pay publishers for their content, rebuffing Meta’s threat to block news articles across its platforms in the state if lawmakers converted on the effort.

The state’s assembly advanced the California Journalism Preservation Act, AB 886, in a bipartisan 55-6 vote, teeing the measure up for consideration in the state Senate.

MLive: Michigan must expose political dark money’s ‘corrosive’ influence, AG Nessel says

By Simon Schuster

.....Attorney General Dana Nessel told MLive in an interview she’d like the legislature to require dark money accounts, widely used by politicians in Michigan, to fully disclose their sources of fundraising and spending…

Nessel was prompted to explore the issue in part by her department’s investigation into former House speaker Lee Chatfield, who left office in 2020. He’s the subject of a wide-ranging probe that has encompassed allegations of sexual assault, embezzlement, bribery and campaign finance violations.

A Nessel spokesperson said they intend to conclude that investigation, which began in early 2022, by the end of the year.

“I came into this job thinking that the influence of dark money was substantial and corrosive to government,” Nessel told MLive in an interview. “My opinion of that now is perhaps ten-fold of what it was when I came into office.”

For Nessel, the lessons from the investigation have centered on the use of 501(c)(4)s, financial vehicles officials considered “social welfare organizations” but regularly used by politicians as to raise money in unlimited amounts, often from sources banned under campaign finance laws.

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