February 22, 2024

In the News

Daily Northwestern: Debaters square off over the impact of Citizens United at Pritzker

By Betsy Lecy

.....Northwestern’s Pritzker School of Law hosted a debate to discuss whether the Supreme Court case Citizens United v. Federal Election Commission undermined democracy Wednesday. The event was a part of the nonpartisan debate series Open to Debate and the Newton and Jo Minow Debate Series...

On the side for Citizens United was Floyd Abrams, senior counsel for Cahill Gordon & Reindel who represented Citizens United in the original Supreme Court case, and Eric Wang, partner at The Gober Group [and Senior Fellow at the Institute for Free Speech]. 

Abrams and Wang reflected the context of the case. Citizens United challenged campaign finance rules after the FEC stopped it from airing an advertisement tarnishing presidential candidate Hillary Clinton. Abrams and Wang advocated that corporations, like Citizens United, had their speech stifled by those regulations. 

“The speech that people were afraid of, the ‘big money corporate speech,’ did not occur,” Abrams said. “It was a myth.” 

Abrams said the price tag would have been the deprivation of speech had the court ruled against Citizens United. But Abrams also acknowledged Procaccini’s view that the decision undermines the integrity of U.S. elections, making for friendly competition. 

Wang interrupted Procaccini to emphasize that donations are just one aspect of how an election is decided. 

“The overriding thing that decides Washington is candidate quality, and that’s something you can’t buy with money,” Wang said. 

Ed. note: Video of the event will be available March 1, 2024, and will be shared in the Daily Media Update at that time.

ICYMI

The Hill: FEC shows how (and why) bipartisanship can still work

By Bradley A. Smith

.....Everyone loves to hate the Federal Election Commission (FEC). Politicians hate it because it regulates their campaigns. Civil libertarians hate it because it regulates speech. But mostly, “good government” types hate it, because, they claim, its bipartisan structure—it has three Democratic and three Republican appointees—makes it an ineffective enforcer.

It is true that the FEC’s bipartisan structure will lead it to tie votes at times. But this is a feature, not a bug. The FEC’s current structure intentionally ensures that bipartisan consensus is a prerequisite for determining whether a violation occurred, or for adopting regulations that can affect our vital free speech rights. In this era of “lawfare,” it is hard to imagine an agency required to regulate political campaigns would have any legitimacy without this bipartisan structure.

The Courts

NTD: Prosecution of Far-Right But Not Antifa for Same Riots ‘Constitutionally Impermissible’: Judge

By Caden Pearson

.....A federal judge on Wednesday found that the “selective prosecution” of far-right groups without charging their far-left counterparts for the same acts is “constitutionally impermissible.”

U.S. District Court Judge Cormac Carney of southern California therefore dismissed charges against two men from the “white nationalist” Rise Above Movement (RAM) who violently clashed with members of the far-left group Antifa at three southern California pro-Trump events in 2017.

In his 35-page order, the judge stressed the importance of equal protection under the law. He said that although the two men may have been involved in violent acts, prosecutors were wrong to exclusively target them without also pursuing charges against Antifa members implicated in similar violent actions at political events.

“Such selective prosecution leaves the troubling impression that the government believes speech on the left more deserving of protection than speech on the right,” Judge Carney wrote.

Bloomberg Law: Facebook, US Urge Appeals Court to Reject ‘Viewpoint’ Bias Suit

By Joyce E. Cutler

.....Facebook, X Corp., formerly known as Twitter, and federal attorneys urged a US appeals court on Wednesday to scrap a social media user’s lawsuit alleging they jointly violated his First Amendment rights by removing his posts and blocking his accounts.

A skeptical US Court of Appeals for the Ninth Circuit panel questioned how the government could have violated Justin Hart’s free speech rights by providing information and training about Covid vaccine disinformation to social media platforms that later blocked him based on his posts.

“What’s wrong with training?” asked Judge Morrison C. England Jr. with the US District ...

The States

The Detroit News: Nessel levels charges against two GOP political fundraisers in campaign against Whitmer

By Craig Mauger

.....Attorney General Dana Nessel unveiled criminal charges Wednesday against two longtime Republican fundraisers who were allegedly involved in an effort to conceal the names of donors to a campaign to reduce Gov. Gretchen Whitmer's emergency powers during the COVID-19 pandemic.

Heather Lombardini and Sandy Baxter helped raise money for the Unlock Michigan ballot proposal committee in 2020 and 2021 through nonprofit organizations that didn't have to identify their contributors, Nessel said at a press conference. By moving the dollars through the nonprofits first, the donors didn't have to be revealed publicly.

If they had given directly to the controversial Unlock Michigan petition effort, the committee would have had to report their names. The two nonprofits, both tied to then-Senate Majority Leader Mike Shirkey, R-Clarklake, gave about $2.7 million to Unlock Michigan.

“It was done specifically with the intent to evade that very reporting that is required under the Michigan Campaign Finance Act," said Nessel, who's a Democrat.

The Capitolist: House defamation bill advances to floor vote despite scathing backlash

By Caden DeLisa 

.....The House Judiciary Committee advanced a contentious defamation bill on Wednesday by a 14 to 7 margin amid vocal opposition from both conservative figures and media organizations.

The legislation, carried by Rep. Alex Andrade, seeks to amend the state’s defamation laws by introducing measures that would hold journalists and media entities more accountable for publishing false statements sourced anonymously. It also addresses the practice of “venue shopping” through an introduced amendment, where plaintiffs choose court locations they believe will offer them a favorable outcome...

The bill’s progression through the legislature has been marked by a significant backlash. Critics, including the editorial board of the New York Post and conservative talk radio hosts, have condemned the bill as an attack on free speech. United States Congressman Byron Donalds and the National Religious Broadcasters have also expressed opposition, arising concerns over the bill’s implications for journalistic practices and the constitutional right to free speech.

This criticism extended into Wednesday morning’s committee meeting, where swaths of free speech advocacy groups appeared in opposition.

Center Square: Bill to ban foreign money in Ohio ballot issues moves ahead

By J.D. Davidson

.....As Ohio’s March 19 primary begins today with early in-person voting, state senators are moving ahead with election-related legislation to stop foreign campaign contributions.

Senate Bills 215 and 137 are planned to go before the chamber's General Government Committee.

Sen. Theresa Gavarone, R-Bowline Green, says SB215 is a necessary extension of a state ban on foreign contributions to candidates to stop similar political money from going to issue campaigns...

The push for the legislation comes after Republicans lost three ballot issues last year...

Republicans have said an influx of outside cash – including foreign money – helped tip the scales in those campaigns.

Election Law Blog: Andrew Albright: “Opportunities for IE Reform in California Law in a Post-Citizens United World”

By Andrew Albright

.....In a new report I have authored for California Common Cause, “All Hope Is Not Lost: Effectively Regulating Independent Expenditures in a Post-Citizens United World,” I document the amount and nature of IEs in California politics, and examine the legal doctrine and public policy around coordination laws, in California, other states, and federally. The report seeks to understand best-in-field practices, identify where California falls short, and propose improvements to California’s coordination laws. The report publishes today.

“All Hope Is Not Lost” finds that, contrary to the cynicism and defeatism that has quite naturally become the norm around IEs, there may actually be some room for progress. I recommend that California take three steps to strengthen its coordination laws.