November 12, 2024

Ed. note: The Daily Media Update will return Thursday, November 14.

Congress

Washington Post: Steely patience underpins Mitch McConnell’s unrivaled reign

By George F. Will

.....Henry Clay, now Kentucky’s second-most accomplished senator, was, like McConnell, averse to articulating political philosophy. McConnell’s accomplishments are his philosophy distilled. They include, inter alia:

Protecting free speech from attacks from left and right. Using the legislature to make federal courts more judicial and less legislative. And demonstrating that what the Declaration of Independence calls “a decent respect to the opinions of mankind” implies that there can be indecent truckling to opinion.

McConnell has implacably opposed campaign spending restrictions because all political spending supports, directly or indirectly, political speech, the proper amount of which should not be determined by the government. McConnell’s vote prevented cluttering the Constitution with an amendment banning the expressive act of burning the flag. For these positions, he was denounced. He did not care.

The Courts

Reason (Volokh Conspiracy): Project Veritas' Defamation Lawsuit Against CNN Can Go Forward

By Eugene Volokh

.....Today's Eleventh Circuit decision in Project Veritas v. CNN, written by Judge Elizabeth Branch and joined by Judges Andrew Brasher and Ed Carnes, involves CNN's coverage of Twitter's suspension of Project Veritas:

Reason (Volokh Conspiracy): An Interview with Judge James C. Ho

By Josh Blackman

.....Q: Judge Amul Thapar of the Sixth Circuit recently criticized the law clerk hiring boycott that you and others launched earlier this year against Columbia. Judge Kevin Newsom of the Eleventh Circuit made similar criticisms on a podcast hosted by The Dispatch. On the other hand, Judge Matthew Solomson of the Court of Federal Claims has been quite vocal in defending your efforts, including an extended interview with me here. Other than joining the judges' letter, I don't think you've said anything publicly about Columbia to date. Would you like to say anything here, just as Judge Solomson did?

National Taxpayers Union Foundation: NTUF Urges Fourth Circuit to Strike Down Maryland’s ‘Tax Speech’ Ban, Defending First Amendment

By Tyler Martinez

.....We filed an amicus curiae (“friend of the court”) brief on November 7 urging the U.S. Court of Appeals for the Fourth Circuit to strike down Maryland’s law preventing businesses from listing the state’s new Digital Ad Tax customer invoices. This “tax speech” ban infringes on key First Amendment rights. 

At issue in Chamber of Commerce of the United States v. Lierman is Md. Code, Tax-Gen. § 7.5-102(c), which prohibits sellers of digital services from itemizing on their invoices any “separate fee, surcharge, or line-item” that details the effect of Maryland’s higher tax structure. All agree that businesses are free to raise their prices to cover extra Maryland tax, but the businesses are barred from detailing on the invoices why the prices are higher as an itemized line. 

Discussion of tax issues—particularly tax hikes—forms a core part of American political history. Tax speech is quintessentially political speech, tracing back to the colonial era’s resistance to “taxation without representation,” a phrase dating back to the 1750s and repeated by the Founders throughout the lead up to the American Revolution. Having secured Independence, the Founders put into place multiple provisions in the proposed Constitution to prevent states from exceeding their taxing and regulatory powers over interstate goods and services. That is how we know the First Amendment was originally thought to cover tax related speech.

FEMA

New York Times: FEMA Fires Employee for Telling Milton Relief Workers to Skip Houses With Trump Signs

By Rachel Nostrant and Christopher Flavelle

.....An employee with the Federal Emergency Management Agency has been fired after reports that in the aftermath of Hurricane Milton, the employee told relief workers in Florida to pass over houses with signs supporting Donald J. Trump, the agency said Saturday.

The agency confirmed that an employee had advised her survivor assistance team not to go to homes with yard signs supporting Mr. Trump during rescue efforts after Milton hit the state last month as a Category 3 hurricane. FEMA said the employee, whose name was not revealed, has now been terminated. It said that it believed this was an isolated incident, which is now under investigation...

In a post on X, Gov. Ron DeSantis of Florida said state officials were seeking answers for what he said were “partisan activists in the federal bureaucracy.”

“At my direction, the Division of Emergency Management is launching an investigation into the federal government’s targeted discrimination of Floridians who support Donald Trump,” Mr. DeSantis wrote.

Nonprofits

Nonprofit Law Prof Blog: Trump Wins Campaign Intervention Olympics: What About The Johnson Amendment?

By Darryll K. Jones

.....Now that one party will be in control of all three branches of federal government what sort of changes might we expect in nonprofit and tax exemption law? Let’s start with campaign intervention, the most visible issue. Trump has promised to do away with the Johnson Amendment. Within the first week, he said just last month. But let’s cut him some hyperbolic slack. If he means it, Ways and Means will comply very quickly because it is led by political expediency more often than not. Finance will go along too, if push came to shove. Finance has not often jumped into the frat boy hearings Ways and Means has conducted against Civil Society for the last two years. It likes to think things through at least. So it might take some pushing and shoving to get Finance on board. But eventually, the Johnson Amendment could be gone in one fell swoop.

I still wouldn’t bet on that happening as fast as all that. A wide spectrum of nonprofit organizations – left, center, and right leaning – want the cover and legitimacy the Johnson Amendment affords. It’s not like the Johnson Amendment prevents what it prohibits anyway. Language is too complex for a law against “endorsement” or “opposition” to really prevent a nonprofit from endorsing or opposing one candidate or another. Let’s just be honest about it.

Politico (Playbook): Playbook: Dems agonize over Sotomayor

By Eugene Daniels and Rachel Bade

.....OpenSecrets, the nonpartisan money-in-politics research nonprofit, laid off 10 employees yesterday due to financial difficulties, Daniel Lippman reports. Much of the research team were among the casualties, which constituted around a third of the group’s total headcount, according to a current employee.

Executive director HILARY BRASETH wrote in an email to supporters that “OpenSecrets remains committed to its mission — serving as the trusted authority on money in American politics — but our task has become more difficult as groups have opted to fund a partisan outcome rather than nonpartisan democratic infrastructure.”

She said in a subsequent email to Playbook that the layoffs were “a necessary first step to make our organization sustainable,” and that she had “no doubt that our team will continue to produce the high-quality data that the public has come to rely on.”

Ed. note: Read former FEC Chair Brad Smith's take on the news here.

Candidates and Campaigns

Wall Street Journal: How the Supreme Court Helped Democrats

By The Editorial Board

.....Democrats took a pounding last week, but it could have been worse. The party was spared from an even bigger rout by their huge advantage in campaign spending, and for that they can thank their billionaire donors—and the Supreme Court they love to hate…

Looking at all federal campaign spending, Democrats beat out Republicans with some $4.5 billion in political ads compared with the GOP’s $3.5 billion. That included ad spending for presidential, congressional and down-ballot races including campaigns and independent spending. Democratic independent groups spent $2.4 billion while Republican independent groups spent $2.2 billion, according to AdImpact.

The great irony is that none of this would have been possible without Supreme Court decisions that have opened the door to more money in elections.

The Court ruled that the First Amendment protects political speech, and spending on campaigns is a form of speech. If not for these rulings, which Democrats denounce every other day, Republicans would have bigger majorities in Congress. Funny how you don’t hear cries for “campaign finance reform” this year.

Washington Examiner: How Kamala Harris plowed through $1 billion

By Gabe Kaminsky

.....The story of how Harris pocketed record sums while failing to gain support from voters will be studied by campaigns for decades to come. Democrats who successfully pressured octogenarian President Joe Biden to pass the torch to the former California senator are now conducting an internal autopsy of the 2024 race, in which Trump raised and spent hundreds of millions of dollars less than Harris…

The Harris campaign and its affiliated committees dropped more than $654 million on advertising from July 22 to Election Day, whereas Trump spent $378 million, or 57% less, in the same category, according to data from AdImpact.

Future Forward, the $500 million “ad-testing factory” and super PAC that supported Harris, was a reliable clearinghouse for checks from wealthy Democrats such as Reid Hoffman, George Soros, Michael Bloomberg, and Dustin Moskovitz. And anonymous donations, or so-called “dark money,” also benefited Harris at a faster and more substantial clip than Trump thanks to lax federal laws that progressives often criticize but, nonetheless, exploited in 2024.

The States

AZ Mirror: Court of Appeals: Arizona’s law requiring disclosure of ‘dark money’ is constitutional

By Jerod MacDonald-Evoy

.....The Arizona Court of Appeals upheld the anti-dark-money law that voters approved in 2022, ruling Friday that it was constitutional to force disclosure of the source of political spending.

This is the second legal victory for backers of the Voters Right to Know Act, which voters approved two years ago as Proposition 211. It requires any person or organization making campaign media expenditures of more than $50,000 on a statewide election or $25,000 on local elections to disclose the original source of any contributions totaling more than $5,000.

The legal challenge, brought by the anti-abortion advocacy group Center for Arizona Policy and the Arizona Free Enterprise Club, a dark money nonprofit, argued that mandating disclosure of the source of political spending violates the Arizona Constitution’s protections of free speech, association, privacy and separation of powers. 

Republican legislative leaders made similar arguments in their failed attempt to overturn the proposition, which was approved by more than 70% of voters. 

The suit also included two anonymous donors who alleged they feared harassment and violence if their political spending was disclosed. However, the court was unconvinced. 

“[N]either alleged any incident where a donor experienced harassment or retaliation because they donated to a covered person’s cause,” the court wrote in a unanimous opinion. “Not one incident of actual donor harassment was alleged.” 

Federalist Society: Texas Court Confronts Misleading Political Communications and the First Amendment

By Daniel Ortner

.....Can states prohibit “misleading” political communications? Not if the First Amendment has anything to say about it. At least that is the conclusion that the Court of Criminal Appeals of Texas recently reached in Ex parte Stafford. 

Texas Election Code § 255.004(b), known as the “True Source Statute,” makes it a criminal offense for anyone to, “with intent to injure a candidate or influence the result of an election, . . . knowingly represent[] in a campaign communication that the communication emanates from a source other than its true source.” 

DPM: Delaware's campaign finance law sees small changes with a potential overhaul on the horizon

By Sarah Petrowich

.....Gov. John Carney signed House Bill 291 into law, requiring the Department of Elections to provide a phone number and online form for reporting alleged campaign financing violations in the First State.

Additionally, the bill requires contributions made that exceed the legal limit to be deposited into the state’s General Fund rather than allowing them to be donated to charities.

State Rep. Eric Morrison (D-Glasgow), the bill’s sponsor, explains before this law, donating excess contributions to nonprofits could be used for political leverage.

“I could go on social media and say, ‘Hey, look at me, I was happy to donate $300 to this nonprofit.’ When you took money you shouldn't have, and you're getting political mileage for doing that,' he explained.

Morrison had also written in a requirement for campaign donors to disclose their primary employer and job title, but it was removed from the final version of the bill.

He says the recommendation came from a years-old report that found an employer was funneling money through his employees to donate to a candidate.