July 10, 2024

In the News

Chairman Bradley Smith Testifies at Hearing before the Select Subcommittee on the Weaponization of the Federal Government

.... The decisions of the prosecutors and Judge Merchan place in danger the entire enforcement scheme designed by Congress when it passed the FECA. Congress feared partisan enforcement of campaign finance law. Senator Alan Cranston, a supporter of the law implored Congress not to “allow the FEC to become a tool for harassment by future imperial Presidents” like Richard Nixon.

If this verdict stands, there is nothing to prevent any (or every) state from passing a law such as New York Election Law 17-152. Such a law could then be used to prosecute federal candidates and officeholders on the theory that they had influenced an election through unlawful means. Those means could include alleged violations of FECA for which the defendants—maybe one of you—had never been found to have violated, and indeed that neither the DOJ nor the FEC would pursue, or even consider a violation of the FECA. And as in New York, this can be done by partisan elected judges, in venues chosen by prosecutors for their hostility to the targeted defendant. That is not a world anyone should want.

The Courts

Bloomberg Law: Clinton Campaign Case to Prompt Review of Disclosure Exemption

By Mike Vilensky

.....Hillary Clinton’s 2016 campaign and a pro-Clinton political action committee must face claims they failed to properly disclose millions in expenditures, a D.C. Circuit panel ruled.

The Federal Election Commission “acted contrary to law” in dismissing watchdog group Campaign Legal Center’s complaint alleging Federal Election Campaign Act violations by Hillary for America and Correct the Record, Judge Cornelia Pillard said in an opinion issued Tuesday. The FEC erred by stretching statutory exemptions for internet spending “beyond lawful limits,” wrote Pillard, of the US Court of Appeals for the District of Columbia Circuit...

The ruling means the FEC must “sketch the bounds of the internet exemption” and allows it to consider “enforcement action” against the Clinton campaign and Correct the Record, the court said. If the FEC fails to comply with the ruling within 30 days, Campaign Legal Center can also pursue a private lawsuit against Correct the Record and Hillary for America, the court added.

Ballot Access News: Second Circuit Upholds Discriminatory Campaign Finance Laws

By Richard Winger

.....On July 3, the Second Circuit issued an opinion in Upstate Jobs Party v Kosinski, 21-2518. It upholds New York campaign finance laws that allow qualified parties to make unlimited contributions to their own nominees in the general election, but does not permit unqualified parties to do the same. The decision also upholds New York laws that allow individuals to contribute twice as much money to the nominee of a qualified party as to the nominee of an unqualified party.

Here is the opinion.  

Election Law Blog: 11th Circuit finds Younger abstention applies to Georgia campaign finance dispute

By Derek Muller

.....From New Georgia Project, Inc. v. Attorney General, an opinion by Judge Newsom, joined by Judges Rosenbaum and Marcus (some light revisions):

Tallahassee Democrat: Florida school board, sued for book bans, wants to take testimony of 7-year-old student

By Douglas Soule

.....A Florida school board is trying to take the deposition of one of its 7-year-old students in the hopes it helps tank a federal lawsuit filed over some of its book ban decisions.

The Escambia County School Board, which is simultaneously arguing its own members can't be deposed, says it "has the right to explore the claims and defenses in the case directly with the students."

Washington Post: A billionaire is boosting a major defamation lawsuit against Fox News

By Jeremy Barr

.....Smartmatic, the voting technology company enmeshed in complex defamation lawsuits against Fox News and Newsmax, has a powerful new financial ally: billionaire tech entrepreneur Reid Hoffman.

Hoffman, a co-founder of LinkedIn, has made a multimillion-dollar investment intended in part to help the company sustain its costly litigation...

Billionaires have previously wielded unexpected influence in media defamation battles. Peter Thiel, who co-founded PayPal, paid about $10 million to help finance a lawsuit filed by the wrestler Hulk Hogan against Gawker Media. Thiel had taken a dislike to Gawker after the gossip-focused website published unflattering articles about him and his associates. When Hogan won a $140 million judgment against Gawker, the company was forced into bankruptcy.

RealClearPolitics:  No Remedy for Censorship: The Perils of Murthy

By Philip Hamburger

.....Indeed, in its opinion, the court denied that that the plaintiffs had standing by inventing what Justice Alito calls “a new and heightened standard” of traceability – a standard so onerous that, if the court adheres to it in other cases, almost no one will be able to sue. It is sufficiently unrealistic that the court won’t stick to it in future cases.

The “evidence was more than sufficient to establish” at least one plaintiff’s “standing to sue,” and consequently, as Alito’s dissent pointed out, “we are obligated to tackle the free speech issue.” Regrettably, the court, however, again in Alito’s words, “shirks that duty and thus permits … this case to stand as an attractive model for future officials who want to control what the people say, hear, and think.” The case gives a greenlight for the government to engage in further censorship.

Podcasts

Early Returns - Law and Politics with Jan Baran: Josh Gerstein: SCOTUS, the Presidential Immunity Case Fallout, and the Dobbs Case Leak Investigation

.....A very unusual and historic week of political and legal events just preceded America’s Independence Day. The Supreme Court of the United States ended its term with pivotal decisions, including a number that affect former President Donald Trump, the pending legal cases against him, and the 2024 presidential election. Indeed, the justices have ruled on constitutional, political, and cultural controversies in recent years in ways that have eroded the public’s confidence in the Court.  

Josh Gerstein, POLITICO’s Senior Legal Affairs Reporter, has watched it all. He joins Jan to discuss the ramifications of these decisions, how our Supreme Court justices are also being judged for their alleged partisan opinions, and the Court’s investigation after he reported on the leaked decision that reversed Roe v. Wade.

Online Speech Platforms

Meta: Update from the Policy Forum on our approach to ‘Zionist’ as a proxy for hate speech

.....Going forward, we will remove content attacking “Zionists” when it is not explicitly about the political movement, but instead uses antisemitic stereotypes, or threatens other types of harm through intimidation, or violence directed against Jews or Israelis under the guise of attacking Zionists, including:

Washington Post: U.S. and allies take down Russian ‘bot farm’ powered by AI

By Joseph Menn

.....The United States and several allies said Tuesday that they had seized control of a sophisticated Russian propaganda mill that used artificial intelligence to drive nearly a thousand covert accounts on the social network X.

Candidates and Campaigns

Wall Street Journal: Biden Has 100 Million Reasons to Stay In

By Charlie Spies

.....Campaign finance rules create an incentive for Mr. Biden to stay in the race through the Democratic National Convention in August. At that point, but not before, Mr. Biden would be able to transfer his campaign’s anticipated $100 million war chest to Vice President Kamala Harris, assuming that she, too, is still on the ticket.

If Mr. Biden drops out before the Democratic Party formally makes him its nominee, then Federal Election Commission rules dictate that no more than $2,000 of any campaign funds that he raised may be transferred to any other candidate, including Ms. Harris. The Federal Election Campaign Act governs what a presidential campaign may do with “excess campaign funds,” which is what the money left in the Biden for President campaign will legally be considered if he is no longer a candidate. Those excess funds may be contributed in an unlimited amount to the Democratic National Committee or an independent expenditure committee. Presidential campaigns may also contribute such funds to other federal campaigns, subject to contribution limits, which are $2,000 per election.

The States

Semafor: Top Democratic lawyer backs mysterious news site

By Max Tani

.....A secretive local media network with ties to high-profile national Democratic operatives wants to convince regulators in Arizona that despite the political tilt of its stories, it is not a political entity and should not be subject to campaign finance disclosures.

Star Spangled Media operates a series of left-leaning websites including the Morning Mirror, a difficult-to-find, barebones blog that for the last few months has periodically published a few unbylined stories about seemingly random topics. Its “About Us” page simply reads: “Welcome to the Morning Mirror—where reliability meets fresh insight. Stay informed with us as we deliver on the matters that impact your life.”

Over the last few weeks, Star Spangled Media has started spending a modest amount to boost Morning Mirror stories on Facebook that tout the pro-abortion rights records of local Democratic candidates running for Michigan House seats…

In a letter to the state’s campaign finance regulator, the Arizona Citizens Clean Election Commission, in late May, Jonathan S. Berkon, an attorney at the Elias Group, asked the state finance regulator to opine on whether the state’s campaign finance law applies to Star Spangled Media. The company’s activities, argued Berkon, do not constitute campaign media spending, and it shouldn’t have to report extensive financial info to state or federal campaign finance regulators.