News of Note: Lawsuit Says Utah Campaign Finance Law Violates First Amendment

The Center for Competitive Politics, America’s largest nonprofit working to promote and defend First Amendment rights to free political speech, assembly, and petition, announced today that it has filed a lawsuit to declare unconstitutional a recent Utah law requiring nonprofits that engage in advocacy to report the private information of their supporters to the government. CCP is representing three plaintiffs in the case: the Utah Taxpayers Association, the Utah Taxpayers Legal Foundation, and the Libertas Institute.

The lawsuit challenges Utah House Bill 43, which passed in 2013. Plaintiffs allege the law suffers many of the same defects contained in the Federal Election Campaign Act. That law’s reach was limited by the landmark 1976 Supreme Court case Buckley v. Valeo.

The key defect in the Utah law is that it attempts to regulate any speech “to influence or tend to influence, directly or indirectly” any vote.

“Many forms of speech on legislative or policy issues may indirectly influence how some person might vote but, under this law, it is far from clear what speech would trigger regulated activity and what would not,” said Allen Dickerson, CCP Legal Director and the lead attorney in the lawsuit. “Given the breathtaking scope of this provision, it greatly chills speech about any public policy matter and is clearly unconstitutional under the First Amendment.”

“Our judicial challenge comes from the need to gain clarity on all nonprofits that engage in a limited amount of political activity and whether they will be forced to disclose their donors,” said Billy Hesterman, vice president of the Utah Taxpayers Association. “We feel this violates an individual’s First Amendment rights of free speech and association and would have a chilling effect on Utah’s nonprofit and charitable organizations. We believe the courts will view this the same way.”

“Free speech and association are fundamental aspects of what it means to be an American-and Utahn,” said Connor Boyack, president of Libertas Institute. “They should not be undermined because of rogue political consultants and reactionary legislatures. We look forward to the judicial scrutiny this lawsuit will bring and are hopeful that this problematic law will be declared unconstitutional.”

The law’s impact is worsened as any speech costing more than $750 in a year could trigger burdensome filing requirements similar to those required for candidates for office, mandating detailed disclosure of donors who give just over $50.

New Report Details How Polling Place Resources Should be Managed

With just a year to go before Americans will be headed back to the polls to cast a ballot for a presidential contender, the CalTech/MIT Voting Technology Project has released a report related to how polling place resources should be managed.
Not familiar with the project? It was established by Caltech President David Baltimore and MIT President Charles Vest in December 2000 to prevent a recurrence of the problems that threatened the 2000 U.S. Presidential Election.
Since then, members have studied all aspects of the election process, both
in the United States and abroad.
The newest report from the group was published Nov. 13, and was titled, “Managing Polling Place Resources.”
Here’s a little bit of info from the report’s intro:
This report provides a response by the Caltech/MIT Voting Technology Project about how election administration officials can address the problem of long lines at the polls. This response is based on a combination of our knowledge about the science of lines — particularly the field of queuing theory — and research we have conducted over the past two years into the dynamics of polling place lines across the United States.
The report concluded, in part:
  • Where long lines occur, they are costly, in terms of lost votes, confidence in elections, and time spent by voters.
  • Long lines occur in predictable places on a chronic basis — in a small handful of states, in urban areas, during early voting, and in areas with many non-English speakers.
  • Long lines are fundamentally due to a mismatch between the number of voters who show up and the resources available to accommodate them; insights from queuing theory provide reliable guidance about how to minimize this mismatch
  • An important first step in addressing long polling place lines is for local jurisdictions to get into the habit of regularly collecting the data necessary to diagnose the presence of congestion and analyzing it in a way that helps them to allocate the resources they have, or to advocate more effectively for new resources

Want to read the entire report? Click here.

CREW Files Criminal Complaint Against Rubio Finance Manager, D.C. Power Players


Key associates of the notorious dark money group the Commission on Hope, Growth and Opportunity may have violated federal law by making false statements to the government, obstructing an investigation and pocketing more than $1 million originally meant for broadcasting television ads, Citizens for Responsibility and Ethics in Washington  alleged in a recent complaint to the U.S. Attorney’s Office.

During an FEC investigation sparked by CREW’s complaint that CHGO violated the law by failing to register as a political committee or report the millions of dollars it spent on television ads in 2010, the organization’s key players downplayed their involvement.

A lawyer for Wayne Berman, now the national finance chairman for Sen. Marco Rubio’s presidential campaign, told the FEC’s investigators that Berman “only offered informal and infrequent fundraising advice strictly on a volunteer basis” and did no consulting work for CHGO. Former RNC executive director and current senior political strategist for the US Chamber of Commerce Scott Reed told the investigators “that he could not recall being involved in the formation of CHGO and could not recall having any contact with anyone involved with CHGO after its formation.”

CHGO’s General Counsel William Canfield, now General Counsel for the Carly for America super PAC, declared to the IRS under the penalty of perjury that CHGO spent no money related to fundraising that year, and told the FEC “that his role at CHGO was limited to legal compliance.”  However, others involved in CHGO, including Michael Mihalke, the principal at the vendor that produced CHGO’s ads, painted a very different picture of Reed, Canfield and Berman’s level of involvement in the enterprise.  Strikingly, Mihalke told investigators that under orders from Reed, $1.1 million dollars that had been paid to Mihalke’s group but that had not been spent was to be split between Berman, Reed and Mihalke and classified as a “fundraising commission.”

“There is no reasonable explanation for how people who claim to have such limited involvement with an organization that had no fundraising expenses could be paid more than $1 million for fundraising work,” CREW Executive Director Noah Bookbinder said. “It appears that these operatives deliberately misled the government about their role in CHGO to throw investigators off the trail of the organization’s violations of campaign finance law. If they were telling the truth about their roles to the FEC, how did they end up with all that money?”

Despite misleading testimony and missing documents, the FEC’s investigators nonetheless found that far more than half CHGO’s spending—as much as 85 percent—was on campaign activity and that it should have reported millions of dollars in political spending.  But the three Republican FEC commissioners still said nothing could be done because the statute of limitations had run out and CHGO had gone out of business during the FEC’s lengthy investigation, preventing anyone from being held accountable for CHGO’s legal violations. Today CREW also filed a lawsuit against the FEC to force them to reopen and reexamine the case.

“It is inexcusable that no one has been punished for what even the FEC’s investigators believe to be a clear violation of the law,” Bookbinder said. “Laws only work if they are enforced; we are asking the court to remind the FEC it must do its job.”

Outside Spending by Special Interests Floods Judicial Elections at Record Percentage, Report Finds

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Special-interest groups accounted for a record-high 29 percent of total spending in state judicial races in the 2013-14 election cycle, according to a new report by the Brennan Center for Justice at NYU School of Law, Justice at Stake, and the National Institute on Money in State Politics.

Offering a detailed analysis of the latest state Supreme Court campaign trends, Bankrolling the Bench: The New Politics of Judicial Elections 2013-14 shows how special-interest spending has impacted the composition of state courts nationwide — and calls into question how campaign spending may affect courts’ decisions. The study finds that multi-million dollar judicial races, once unheard of, are now common across the country. Social welfare organizations and other outside groups are also increasingly spending on court races, the report notes, spurred in part by the U.S. Supreme Court’s Citizens United ruling in 2010. The cycle also saw a notable development in a highly public initiative by a national group, the Republican State Leadership Committee, which spent nearly $3.4 million across judicial races in five states.

“As special-interest groups continue to pump money into judicial races, Americans are rightfully questioning whether campaign cash influences courtroom decisions,” said Alicia Bannon, senior counsel in the Democracy Program at the Brennan Center for Justice and co-author of Bankrolling the Bench. “Fifteen years of data makes clear that high-cost and politicized judicial elections are not going away. It’s time for states to rethink how they select judges and to adopt common-sense solutions such as public financing and stronger rules for when judges must step aside from cases. Without real policy change, fair and impartial justice in America is at risk.”

“The hard numbers make it clear: when judges have to run for election, there is a risk that the concerns of ordinary people will take a back seat to the special interests and politicians who are trying to reshape courts to fit their agendas,” said Scott Greytak, Justice at Stake policy counsel and research analyst and lead author of the report. “This turns how we choose our judges into a political circus that is bad for our courts and bad for democracy. The good news is that we can fix this. We can work toward real reforms like merit selection, to help get money and politics out of the process, so judges can focus on their real work instead of raising money and fending off political attacks, and so all of us can have confidence that our courts are fair and impartial.”

While overall election spending was slightly lower than in other recent cycles due to a high number of uncontested races, more than $34.5 million was spent on state Supreme Court elections in a total of 19 states — much of it coming from special interests. Outside spending by interest groups in judicial races rose to a record-setting 29 percent of total spending, or $10.1 million, in 2013-14, topping the previous record of 27 percent in 2011-12. When outside spending by political parties was also included, total outside dollars accounted for 40 percent of total judicial election spending, a record for a non-presidential election cycle.

Among the report’s other key findings:

  • The highest spenders overwhelmingly supported Republican and conservative candidates. Most of the top spenders targeting judicial elections supported conservative candidates, including nearly $3.4 million spent by the Republican State Leadership Committee. Democratic supporters also spent substantially in a few key races. Two of the top three highest spenders in the election cycle supported a Democratic candidate (in Michigan) or opposed a Republican candidate (in Illinois).
  • The airwaves around judicial elections were dominated by ads, many of them harsh, about criminal justice issues. “Tough on crime” was the most common campaign theme, as a record 56 percent of TV ad spots discussed the criminal justice records of judges and candidates.
  • Average per-seat spending on judicial elections has surged in states with retention (i.e, yes-or-no) elections. The average for 2009-14 represents a tenfold increase over the average for the previous eight years. Negative advertising in the most recent retention elections jumped to 46 percent of all ads, compared to 10 percent in the prior cycle.
  • Lawyers and business interests spent big on judicial elections. Business interests — many of whom frequently appear in state court — and lawyers and lobbyists were the largest donors to Supreme Court candidates, collectively responsible for 63 percent of all donations. Business groups and plaintiffs’ lawyers were also major contributors to several of the highest-spending outside groups.

To read the entire report, click here.

Democratic Challengers, Open-Seat Candidates Have More Money on Average – But Number Running Is Down

Reports filed by House candidates covering financial activity continue to show an advantage for the Democratic Party among challengers and open seat candidates.

House Democratic challengers raised more than twice as much as their Republican counterparts through Sept. 30. Democrats running for open seats raised 75 percent more than their GOP equivalents.

However, the small number of candidates who have thrown their hats in the ring will weigh heavily on the party’s chances to close the gap in the battle for majority control. Only 153 Democratic challengers and open seat candidates have reported receipts with the Federal Election Commission through September 30. This number of non-incumbent candidates is well behind historic patterns, down from the 269 at this time in 2013 and 365 in 2011.
* Includes only candidates who have reported receipts as of September 30. Excludes incumbents not running for re-election. Excludes special election candidates.

(For a complete historical table of House candidates’ activity through September 30, 2003-2015 click here.)

Looking at non-incumbent activity at this point in the election cycle can provide insight into what we are likely to see on Election Day. Although many more candidates will join the fray, it is likely that any winning challenger in 2016 would already have been active by Sept. 30, 2015.

In 2014, the only winning challenger who had no reported activity by Sept. 30 2013 was in Louisiana’s 5th district. Louisiana is unique in that it holds an open primary on the same day other states hold their general elections. In 2012, only two winning candidates had not reported receipts by this time. In both cases redistricting played a role in delaying candidates’ entry into the race.

The fundraising trends that CFI reported in July have held up through the third quarter. Democratic challengers outnumber Republicans, 95 to 74. They are also raising more money and have more cash on hand than their Republican counterparts.

On average, Democratic challengers have raised $193,000 compared to $83,000 for Republicans. They hold an advantage of $151,000 to $63,000 in cash on hand. Of the top ten challengers in terms of receipts, nine are Democrats.

In open seats Democratic candidates outnumber Republicans, 57 to 42, but both parties are well off their pace from past years. As with the challengers, the open seat Democrats are out-raising the Republicans.

However, the number of districts with no Democratic candidate at all has gone up. And as the old adage says, you can’t beat somebody with nobody.

For full cycle historical data on past congressional elections, click here.

New Report Explores Citizen Funding for Elections

The Campaign Finance Institute this week released a new report written by Michael J. Malbin – CFI’s executive director and a professor of political science at the University at Albany – titled, “Citizen Funding for Elections: What do we know? What are the effects? What are the options?”

The following description is excerpted from the executive summary:

Political campaigns have always been financed disproportionately by people with above average incomes. But the balance has tilted almost beyond recognition since the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission. As a result, a number of jurisdictions have been looking recently to re-balance the incentives through new (or updated) citizen funding programs or tax credits to enhance the role of small donors.

When looking at these new programs and proposals, it is striking how common impulses have led to a wide variety of policy ideas, and an even wider set of justifications and expectations about what the new programs are meant to accomplish. Some want to drive money out of politics; some to increase competition; some to bring a different type of politician into office; and some to enhance participation. In light of this policy ferment, this report seeks to lay out for policy makers what is known and not yet known about whether citizen funding and other incentive programs have accomplished or are likely to accomplish their stated goals.

The conclusions?

    • It is obvious – certainly in the new world of independent spending – that citizen funding programs do not and cannot squeeze private money out of politics.
    • However, a properly designed program can increase the proportional importance of small donors to candidates and increase participation by an economically and demographically more representative cadre of campaign supporters. Candidates may choose to depend on large donors if they wish, but a well-structured program can make it possible for a candidate to choose otherwise. In the most effective programs, substantial percentages of the candidates make this choice and participate.
    • Interestingly, these results probably do not occur because small donors react spontaneously and directly to matching funds or tax credits. Instead, the research suggests (but is not yet conclusive) that the incentives work by affecting candidates (or political parties and other intermediary actors). The small donors are worth more (both financially and as volunteers), so the candidates and others are willing to spend more time and resources to mobilize them.
    • Whether increasing small donors will favor political polarization will depend on a program’s details, but small donors generally are not more polarized than other individual donors.
    • Citizen funding may also affect other aspects of a candidate’s behavior – from deciding to run, to how they conduct campaigns. However, the research here is not fully settled.
    • The findings are similarly mixed with respect to electoral competition. Public money seems to help when competition is defined one way (focusing on whether races are uncontested or whether candidates run), but not if defined differently (with a focus on the margins of victory in competitive races, or the defeat of incumbents).
    • Research on the post-election effects in government finds more of an impact on agenda-setting than on end-stage roll call votes.
    • Policy-makers need to be aware that answers often depend upon the precise questions asked.
    • The research shows that a program’s fine-grained details can make a huge difference in outcomes. For supporters of citizen funding or tax incentives, this means that passing a program with a good-sounding label will not be enough to accomplish their goals. Neither will it be enough to focus only on what their supporters think they can “sell”. Selling may be a necessary condition for accomplishing goals, but not a sufficient condition. The politics of persuasion is not policy analysis. A program that works will be based on the best available evidence – including the best practices for implementation after a bill becomes law.

The report concludes with the following:

Incentive programs do not accomplish everything their supporters have enthusiastically claimed for them. But what they accomplish can be quite significant…. Today’s incentives produce today’s politics. Changing the incentives could change tomorrow’s.

Two Former PA Lawmakers Join New ReFormer Caucus Devoted to Campaign Finance Reform

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Two former Pennsylvania lawmakers have joined a newly created caucus that is devoted to campaign finance reform.

Former U.S. Reps. William Clinger (1979-1997) a Republican, and Peter Kostmayer,(1983-1993), a Democrat, joined Issue One’s ReFormers Caucus – a group of former governors and members of Congress who have survived the front lines of our campaign finance system and know first-hand how:

  • Elected officials can’t effectively do their jobs when they have to spend half their time fundraising for the next election cycle
  • Leadership positions are given as rewards for fundraising success rather than for expertise and/or experience
  • The need to fund raise prevents viable candidates from even running for office
  • The influence of big money erodes public confidence in the democratic process

Here’s how the group describes itself on its website:

This growing, bipartisan group is committed to standing together to speak out on the issue of money in politics. Currently, there are more than 100 ReFormers, from across the country and the political spectrum. With support from Issue One, the ReFormers contribute significantly to efforts at the national, state and local levels.

To stay up-to-date with the ReForm caucus, click here to access the group’s news feed.

Pennsylvanians for Fair Elections Joins Keystone Votes Coalition

Pennsylvanians for Fair Elections has joined a newly created nonprofit coalition aimed at improving the state’s election system.

The new group, called Keystone Votes, is a nonpartisan coalition of state, local, and national advocacy and community organizations, that this week launched an education campaign about ways Pennsylvanians can update its election system.

The organization, which is composed of more than 20 local, state and national groups, believes Pennsylvania’s voting system needs to be updated to ensure it allows all eligible citizens – particularly seniors, veterans, working folks and young people –an equal opportunity to cast their ballots.

It also believes that an updated voting system would make it easier for those citizens to take part in the election process.

Keystone Votes believes Pennsylvania should take a cue from other states that have adopted election system updates – and to implement those that are tested and proven. The newly created coalition supports a multi-faceted approach to updating the election system through cost-effective initiatives such as:

  • Optional Vote by Mail – Pennsylvania should expand the availability of absentee ballots to allow all voters to use the option without having to provide an excuse.
  • Youth Preregistration – Youth preregistration allows people ages 16 and 17 to complete a registration form even if they will not be old enough to vote in the next election, ensuring they are on the rolls and able to vote once they are eligible.
  • Early Voting – Early voting allows voters to cast ballots in-person at voting locations, allowing people to vote on evenings and weekends, and is offered at a variety of locations to make it convenient for voters across counties.
  • Same-Day Registration – Pennsylvania voters are now required to register or update their registrations 30 days before an election to vote. Same-day registration allows voters to update registration records or register at their polling places on Election Day.

In addition to these policy ideas, Keystone Votes is working with the Department of State and county commissioners across Pennsylvania to guarantee the effective administration of our elections.

Current coalition members include: American Civil Liberties Union of Pennsylvania, Asian Americans United, Common Cause Pennsylvania, Conservation PA, Disability Rights Network of Pennsylvania, Equality Pennsylvania, Fair Elections Legal Network, Keystone Progress Education Fund, Lawyer’s Committee for Civil Rights Under Law, League of Women Voters Pennsylvania, New Voices Pittsburgh , Pennsylvania Public Interest Research Group, Pennsylvania Working Families, Pennsylvania Immigration and Citizenship Coalition, Pennsylvanians for Fair Elections, Pittsburgh United, Planned Parenthood Advocates of Pennsylvania, Project Vote, Public Interest Law Center, Put People First, Senior Law Center, Sierra Club of Pennsylvania and the Urban League of Philadelphia

The Keystone Votes coalition is staffed by the nonprofit group Pennsylvania Voice and strategy decisions are made by its voting reform and election administration work group, which is composed of policy, advocacy, legal, and grassroots partners and it brings experts and leaders in this field to strategize, set collective goals, make joint plans, and hold each organization accountable and to add maximum value to the joint effort.


State of Alabama Signs Memorandum of Understanding with DOJ on Motor Voter Compliance

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Gov. Robert Bentley on Friday announced that the state of Alabama has signed a Memorandum of Understanding with the U.S. Department of Justice concerning compliance with the Motor Voter provision of the National Voter Registration Act of 1993.

In the spring, the state initiated efforts to integrate voter registration into the electronic driver’s license system. The Alabama Law Enforcement Agency will modify its electronic driver’s license system, which is used for in-person license transactions at ALEA offices as well as at the license offices of Judges of Probate, License Commissioners, and Revenue Commissioners.

ALEA will also modify its new online system that allows citizens to renew their licenses or get duplicate licenses. The Secretary of State will adjust Alabama’s statewide electronic voter registration system to be able to electronically receive the voter registration data from ALEA.

On Sept. 8, the DOJ notified the state of Alabama that it had authorized a lawsuit for noncompliance with the Motor Voter provision.

The MOU signed Friday commits the state to undertake a series of actions to resolve DOJ’s concerns, avoid a lawsuit and bring the state into compliance.

Bentley praised ALEA Sec. Spencer Collier and Sec. of State John Merrill for their efforts in reaching this agreement to bring the state into compliance. He also thanked the DOJ for working with the state on an out-of-court solution.

“Voting rights are important to every citizen, and it is imperative that every Alabamian have the ability to vote,” Bentley said. “In signing the comprehensive and realistic agreement announced today, we have avoided spending time and money on litigation, allowing state resources to instead be directed to making it easier for Alabama citizens to register to vote. I commend Secretary Collier, Secretary Merrill and representatives from the Department of Justice who worked through this issue and created a sensible solution.”

“The Secretary of State’s Office is excited about the opportunity to enter into a Memorandum of Understanding with all parties involved,” Merrill said. “This agreement will lead towards full compliance of the National Voter Registration Act to help ensure each eligible Alabamian has an opportunity to register to vote as well as exercise that right to vote in the electoral process for the candidate of their choice. All parties have worked together in a cooperative manner to see that the state of Alabama complies with the NVRA, and our office will do all it can to allow citizens every access possible to voter registration.”

“Voting is a fundamental right and we want all eligible Alabamians to have the ability to vote,” Collier said. “Upon the full implementation of ALEA on Jan. 1, 2015, ALEA began the process of reviewing all former policies and procedures of legacy agencies consolidated into ALEA. As a result of this review, it was discovered that the former Department of Public Safety, had issues similar to other states as it relates to the NVRA. Immediately ALEA initiated discussions with the Secretary of State’s Office and in April formulated a plan to better integrate the ability for citizens to register to vote when performing certain driver license functions. We appreciate Governor Bentley’s leadership and the cooperation of the DOJ and the Attorney General’s Office in implementing our plan with the SOS.”

The state is also implementing a paper-based solution to be in place in the short term, until the electronic solution is complete next summer.

Additionally, the state has agreed to adopt a change of address form for driver’s license purposes, and has agreed to certain requirements concerning training, reporting, public education, and consulting with the DOJ.

A full copy of Friday’s MOU can be found here.