February 8, 2024

Supreme Court

National Review: Trump’s Disqualification Case Could Set a Dangerous First Amendment Precedent

By Thomas A. Berry

.....But these [novel 14th Amendment] questions should not distract from an important First Amendment question that is also under review. The Colorado supreme court held that Trump’s speech near the National Mall on January 6 was not protected by the First Amendment because it qualified as “incitement,” a type of speech that the government can punish and even criminalize. Whether the Supreme Court rules that Trump is disqualified under the 14th Amendment or not, the high court should not endorse this approach to the First Amendment. There are multiple ways that the Court could find Trump to be disqualified for insurrection without holding his speech to be categorically unprotected. Affirming the Colorado supreme court’s methods would unnecessarily set a dangerous precedent that could chill the speech of politicians and activists of all political persuasions.

The Courts

The Hill: Not wearing mask during COVID-19 outbreak isn’t protected by free speech, court rules

By Lauren Irwin

.....A federal appeals court in New Jersey ruled Monday that residents’ refusal to wear face masks at a school board meeting during the COVID-19 pandemic is not protected as a free speech right.

The 3rd Circuit Court of Appeals issued a ruling in two similar cases that stemmed from lawsuits against officials in Freehold and Cranford, N.J. The plaintiffs refused to wear masks during public meetings and say they were retaliated against by the school board, The Associated Press reported.

Congress

Racket News: Financial Big Brother is Watching You

By Matt Taibbi

.....A few weeks ago, Ohio congressman and Judiciary Committee chairman Jim Jordan’s office released a letter to Noah Bishoff, the former director of the Financial Crimes Enforcement Network, or FinCEN, an arm of the Treasury Department. Jordan’s team was asking Bishoff for answers about why FinCEN had “distributed slides, prepared by a financial institution,” detailing how other private companies might use MCC transaction codes to “detect customers whose transactions may reflect ‘potential active shooters.’” The slide suggested the “financial company” was sorting for terms like “Trump” and “MAGA,” and watching for purchases of small arms and sporting goods, or purchases in places like pawn shops or Cabela’s, to identify financial threats…

If Facebook, Twitter, and Google have already shown a tendency toward wide-scale monitoring of speech and the use of subtle levers to apply pressure on attitudes, financial companies can use records of transactions to penetrate individual behaviors far more deeply. Especially if enhanced by AI, a financial history can give almost any institution an immediate, unpleasantly accurate outline of anyone’s life, habits, and secrets. Worse, they can couple that picture with a powerful disciplinary lever, in the form of the threat of closed accounts or reduced access to payment services or credit. Jordan’s slide is a picture of the birth of the political credit score.

Common Dreams: New Bill Would Prevent Billionaires From Donating to Dark Money Groups Tax-Free

By Jake Johnson

.....Legislation introduced Tuesday by a pair of Democratic lawmakers would close a loophole that lets billionaires donate assets to dark money organizations without paying any taxes.

The U.S. tax code allows write-offs when appreciated assets such as shares of stock are donated to a charity, but the tax break doesn't apply when the assets are given to political groups.

However, donations to 501(c)(4) organizations—which are allowed to engage in some political activity as long as it's not their primary purpose—are exempt from capital gains taxes, a loophole that Sen. Sheldon Whitehouse (D-R.I.) and Rep. Judy Chu (D-Calif.) are looking to shutter with their End Tax Breaks for Dark Money Act.

FEC

Wiley: FEC Allows Federal Officeholders to Establish State PACs

By Lee E. Goodman and Robert L. Walker

.....Recently the Federal Election Commission (FEC) approved an advisory opinion (AO 2023-09) that allows federal officeholders and candidates to establish and operate state PACs that spend funds solely in connection with state and local elections for public office and ballot measures, provided that the state PACs raise only federally permissible funds (contribution amounts of $5,000 or less per year from individual donors) and within applicable state contribution limits (if stricter than the federal limits).

Significantly, the state PACs will not share a contribution limit with the federal officeholder’s federal leadership PAC or campaign committee. Thus, for purposes of compliance with the Federal Election Campaign Act (FECA), members of Congress may establish and solicit funds for a state PAC that raises individual contributions in amounts of no more than $5,000 (up to state limits) while still maintaining their federal leadership PACs with separate contribution limits of $5,000. 

Candidates and Campaigns

Jonathan Turley: Torching Free Speech: Republican Candidate in Missouri is Running as a Book Burner

.....Last year, we discussed a Democratic candidate (Will Rollins) for Congress who was running on an anti-free speech pledge to increase censorship in the United States. Now there is a GOP candidate for Secretary of State in Missouri, Valentina Gomez, who is literally running on a book burning platform.

Gomez posed a video of herself on X using a flamethrower to burn a stack of library books about the LGBTQ+ community. She then pledged that “[t]his is what I will do to grooming books when I become Secretary of State. These books come from a Missouri Public Library. When I am in office, they will burn.” …

Running on good old-fashioned book burning represents a new low for this anti-free speech period. It is a practice most associated with Nazi Germany in the 1930s...

It is tragic to see a young person like Gomez, 24, embrace such practices. 

New York Times: Trump Leads Biden in Number of Small Donors

By Albert Sun, K.K. Rebecca Lai, Andrew Fischer and Rebecca Davis O’Brien

.....Former President Donald J. Trump was trailing President Biden in overall campaign cash on hand at the end of 2023, but he dominated fund-raising last year by at least one critical measure: his number of small donors. An analysis of Federal Election Commission data by The New York Times shows that about 668,000 donors gave less than $200 to Mr. Trump, compared with 564,000 for Mr. Biden.

Small donors have always been intrinsic to Mr. Trump’s political momentum. Not only have they powered his three presidential bids, but they are also a vital measure of his broad appeal to an immovable grass-roots base. Most large donors have so far kept their distance from Mr. Trump this cycle.

Mr. Biden, in contrast, has drawn ample support from big donors, who are not reflected in this dataset. 

Election Law Blog: “Municipal campaign spending in California shows no evidence that contribution limits increase independent expenditures”

By Zoe Klingmann

.....Critics of campaign finance reform have often argued that contribution limits have unintended consequences: rather than reducing the influence of large donors, they simply lead to more independent expenditures, which are less regulated and often less transparent than direct contributions to campaigns. 

A new report by California Common Cause studying a targeted sample of cities finds no evidence for this theory. The report looks at local independent expenditures before and after the passage of California State Assembly Bill 571 (2019), which set “default” contribution limits for local elections across the state. The law does not affect local governments that institute their own contribution limits, but otherwise applies a biennially-adjusted cap starting at $4,700 per election for city council, mayor, and other local positions, mirroring the limit for state legislative seats.

Daily Wire: Watchdog Group Warns Of Foreign Money Being Used To Influence Elections Ahead Of 2024 Cycle

By Leif Le Mahieu

.....Honest Elections Project Executive Director Jason Snead told The Daily Wire that several red states had made strides since 2020 in improving election integrity, but there were still problems to address, including how foreign nationals can pour money into state-wide ballot races…

One of the key recommendations highlighted in the report is that foreign money can go toward state ballot measures that have far-reaching policy ramifications.

Online Speech Platforms

Washington Post: TikTok removes feature that critics used to study Israel-Gaza war videos

By Drew Harwell

.....TikTok no longer displays how many times videos with a specific hashtag have been viewed, a change made after researchers used that data point to highlight the huge viewership difference between videos with hashtags for pro-Israel and pro-Palestinian content after the start of the Israel-Gaza war.

The feature, which the company changed without an official announcement, was one of the main tools critics used to question whether the platform was improperly boosting pro-Palestinian content. Searches for hashtags now show only the number of related TikTok posts, without the number of total views.

The States

Wyoming Tribune Eagle: New York lawmakers challenge Donald Trump’s ballot eligibility for ‘insurrection’

By Hannah Shields

.....A House joint resolution filed by members of the Legislature’s Joint Corporations, Elections and Political Subdivisions Committee asks for an amendment to the U.S. Constitution to identify the source of political contributions.