[EL] “Court to Weigh Challenge to Ban on Campaign Lies”
Smith, Brad
BSmith at law.capital.edu
Wed Apr 16 09:36:58 PDT 2014
“Court to Weigh Challenge to Ban on Campaign Lies”<http://electionlawblog.org/?p=60549>
so blares the AP headline, and it's one of many. This is so disappointing to watch the media jump in line to frame it this way. I wonder if they would frame a statute allowing the government to investigate and fine them for allegedly false stories as "Press's right to lie."
In the case at hand, the statements made by the Susan B. Anthony List were actually, literally true - the most that one could say is that they didn't frame the issue the way then Congressman Driehaus would have liked.
But that aside, the issue is not the "right to lie," but the ability of government to empower a commission to place legal sanctions behind the type of work done by Politifact, Glenn Kessler, and others. One of the things that is apparent in these press efforts of recent years is precisely that politics is rarely about "lies," but about framing and shades of gray. Of course libel and slander laws still apply to political ads, however. If the government were empowered to investigate and fine reporters and their media outlets because they didn't like the "framing" of the issue, or didn't think the press had adequately covered both sides of the story, I wonder if our media friends would frame it for the public as "Ban on Press lies." I suspect not.
It's another sad example of failing to inform the public what is actually at stake in a meaningful way. If the Ohio statute at issue applied to reporters as it does to candidates, I could even file a complaint against them for this framing, alleging it is a "lie" that doesn't report the full truth. They would have to answer before a tribunal made up of rival media representatives, non-lawyers, exercising no articulated burden of proof, with the power to determine that their statements just weren't accurate enough, with such a finding possibly costing them their jobs.
But particularly here, where the SBA List ads were literally true, where the President and the members (including Driehaus) openly admitted that even under their bargain the Act would pay with public funds for some abortions, it is remarkable that the press frames it as a "right to lie."
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
614.236.6317
http://law.capital.edu/faculty/bios/bsmith.aspx
________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Rick Hasen [rhasen at law.uci.edu]
Sent: Wednesday, April 16, 2014 12:06 PM
To: law-election at UCI.edu
Subject: [EL] ELB News and Commentary 4/16/14
“Court to Weigh Challenge to Ban on Campaign Lies”<http://electionlawblog.org/?p=60549>
Posted on April 16, 2014 9:02 am<http://electionlawblog.org/?p=60549> by Rick Hasen<http://electionlawblog.org/?author=3>
AP preview<http://hosted.ap.org/dynamic/stories/U/US_SUPREME_COURT_POLITICAL_SPEECH?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT> of the Susan B. Anthony case.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, Supreme Court<http://electionlawblog.org/?cat=29>
“GOP Congressman Isn’t Sure The Civil Rights Act Is Constitutional”<http://electionlawblog.org/?p=60547>
Posted on April 16, 2014 9:01 am<http://electionlawblog.org/?p=60547> by Rick Hasen<http://electionlawblog.org/?author=3>
TPM reports.<http://talkingpointsmemo.com/dc/ted-yoho-civil-rights-act-constitutional>
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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15>
“Bloomberg Plans a $50 Million Challenge to the N.R.A.”<http://electionlawblog.org/?p=60545>
Posted on April 16, 2014 8:55 am<http://electionlawblog.org/?p=60545> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT<http://www.nytimes.com/2014/04/16/us/bloomberg-plans-a-50-million-challenge-to-the-nra.html?ref=politics&_r=0>: “Michael R. Bloomberg, making his first major political investment since leaving office, plans to spend $50 million this year building a nationwide grass-roots network to motivate voters who feel strongly about curbing gun violence, an organization he hopes can eventually outmuscle the National Rifle Association.”
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Posted in campaigns<http://electionlawblog.org/?cat=59>, lobbying<http://electionlawblog.org/?cat=28>
“Billionaire Hedge Fund Leaders Join Ricketts’s Super-PAC”<http://electionlawblog.org/?p=60543>
Posted on April 16, 2014 8:48 am<http://electionlawblog.org/?p=60543> by Rick Hasen<http://electionlawblog.org/?author=3>
Bloomberg reports<http://click.email.bloomberg.com/?qs=ec62875d992ab410d7de0293b7875e08dd8b9ea2eb9f09f1e009336b14f73e89>.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>
“Wealthy donors pump money into super PACs as 2014 midterm contests heat up”<http://electionlawblog.org/?p=60540>
Posted on April 16, 2014 8:46 am<http://electionlawblog.org/?p=60540> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo reports.<http://www.washingtonpost.com/politics/wealthy-donors-pump-money-into-super-pacs-as-2014-midterm-contests-heat-up/2014/04/15/7364ee66-c4ec-11e3-bcec-b71ee10e9bc3_story.html>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>
“McCutcheon Attorney Files New Challenge To Contribution Limits for Traditional PACs”<http://electionlawblog.org/?p=60538>
Posted on April 16, 2014 8:45 am<http://electionlawblog.org/?p=60538> by Rick Hasen<http://electionlawblog.org/?author=3>
Bloomberg BNA<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=44880425&vname=mpebulallissues&jd=a0e9c3x9t7&split=0>:
An attorney who helped launch the successful challenge to the cap on individual campaign contributions recently decided by the Supreme Court has filed a new lawsuit<http://www.bloomberglaw.com/public/document/Stop_Reckless_Economic_Instability_Caused_By_Democrats_et_al_v_Fe> challenging limits on contributions by traditional political action committees (PACs) that contribute to candidates (Stop Reckless Economic Instability Caused By Democrats (Stop Reid) v. FEC, E.D. Va., No. 14-397, filed 4/14/14).
Attorney Dan Backer of DB Capitol Strategies filed the new case April 14 in federal district court in Alexandria, Va., on behalf of a PAC called Stop Reckless Economic Instability Caused By Democrats (STOP REID). The suit names the Federal Election Commission (FEC) as defendant.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>
“Democratic super PAC raises big sum for Senate fights”<http://electionlawblog.org/?p=60536>
Posted on April 16, 2014 8:42 am<http://electionlawblog.org/?p=60536> by Rick Hasen<http://electionlawblog.org/?author=3>
USA Today reports.<http://onpolitics.usatoday.com/2014/04/15/democratic-senate-majority-pac-raises-big-sum-for-senate-fight/>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>
Gov. Christie Wants Unlimited Donations to Candidates in State and Federal Elections<http://electionlawblog.org/?p=60534>
Posted on April 16, 2014 8:41 am<http://electionlawblog.org/?p=60534> by Rick Hasen<http://electionlawblog.org/?author=3>
Why not<http://www.realclearpolitics.com/articles/2014/04/15/_christie_campaign_finance_system_is_ridiculous_122294.html>? It’s not like New Jersey has had any problems with corrupt politicians. And Christie doesn’t seem to mind kneeling before oligarchs<http://www.politico.com/story/2014/03/chris-christie-occupied-territories-apology-105169.html>.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>
“What John Roberts Doesn’t Get About Corruption”<http://electionlawblog.org/?p=60532>
Posted on April 16, 2014 8:38 am<http://electionlawblog.org/?p=60532> by Rick Hasen<http://electionlawblog.org/?author=3>
Zephyr Teachout <http://www.politico.com/magazine/story/2014/04/what-john-roberts-doesnt-get-about-corruption-105683.html#.U06jxsexQu4> writes for Politico magazine.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>
“Obama on Voter ID: Right Speech in the Right Place for the Right Reason”<http://electionlawblog.org/?p=60530>
Posted on April 16, 2014 8:36 am<http://electionlawblog.org/?p=60530> by Rick Hasen<http://electionlawblog.org/?author=3>
Brentin Mock blogs<http://www.demos.org/blog/4/15/14/obama-voter-id-right-speech-right-place-right-reason>.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>
Blogging, Listserv Technical Issues<http://electionlawblog.org/?p=60528>
Posted on April 16, 2014 8:35 am<http://electionlawblog.org/?p=60528> by Rick Hasen<http://electionlawblog.org/?author=3>
Due to some problems at UCI yesterday and today, there have been issues with the blog as well as with the Election Law listserv and Legislation listserv.
The blog seems to be back. As to the listservs, it appears that some listserv members who subscribe via email addresses from yahoo, comcast, aol, or hotmail may have had their accounts inadvertently suspended. We are working on it.
Thanks for your patience.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>
“In wake of McCutcheon case, states abandon aggregate contribution limits”<http://electionlawblog.org/?p=60526>
Posted on April 15, 2014 9:41 pm<http://electionlawblog.org/?p=60526> by Rick Hasen<http://electionlawblog.org/?author=3>
DLA Piper<http://www.dlapiper.com/en/us/insights/publications/2014/04/in-the-wake-of-mccutcheon/> Political Law Alert.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>
“Supreme Court to consider challenge to law barring campaign falsehoods”<http://electionlawblog.org/?p=60524>
Posted on April 15, 2014 9:39 pm<http://electionlawblog.org/?p=60524> by Rick Hasen<http://electionlawblog.org/?author=3>
David Savage<http://www.latimes.com/nation/la-na-court-false-statements-20140416,0,5789165.story#axzz2z1MO2GIN> previews Susan B. Anthony for the LAT.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, Supreme Court<http://electionlawblog.org/?cat=29>
“Longtime Professor Peter Tiersma, who shaped Calif. jury instructions, leaves legacy of scholarship”<http://electionlawblog.org/?p=60522>
Posted on April 15, 2014 9:37 pm<http://electionlawblog.org/?p=60522> by Rick Hasen<http://electionlawblog.org/?author=3>
Very sad news<http://www.lls.edu/resources/newsroom/newsroomfeed/listofnewsitems/name,86619,en.html> about my former Loyola colleague Peter Tiersma. He was a giant in the field of law and language. Everyone in California today benefits from his important work on clarity in jury instructions. Condolences to his family and friends.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>
Political Campaign Ethics Conference in Miami-Dade<http://electionlawblog.org/?p=60520>
Posted on April 15, 2014 1:30 pm<http://electionlawblog.org/?p=60520> by Rick Hasen<http://electionlawblog.org/?author=3>
This event<http://ethics.miamidade.gov/library/Publications/camp_conf_prog_4-1.pdf> sponsored by the Miami-Dade Commission on Ethics and Public Trust and the St. Thomas University Center for Ethics looks great. It includes a Bonifaz-Bopp debate on campaign finance.
Registration: www.stu.edu/campaignethicsconference<http://www.stu.edu/campaignethicsconference>
More information: ethics.miamidade.gov or 305-579-2594
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Posted in campaign finance<http://electionlawblog.org/?cat=10>
Federalism and Election Law<http://electionlawblog.org/?p=60518>
Posted on April 15, 2014 1:28 pm<http://electionlawblog.org/?p=60518> by Heather Gerken<http://electionlawblog.org/?author=6>
Those interested in the intersection between election law and federalism might want to take a look at a new Feature in the Yale Law Journal, which I blog about here<http://balkin.blogspot.com/2014/04/federalism-as-new-nationalism.html>. Entitled “Federalism as the New Nationalism,” it marks the emergence of a nationalist school of federalism. A lot of the work in the Feature centers on the relationship between state and national politics and thus may be of interest to election-law junkies.
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Posted in election law and constitutional law<http://electionlawblog.org/?cat=55> | Tagged election law<http://electionlawblog.org/?tag=election-law>, federalism<http://electionlawblog.org/?tag=federalism>
“Supreme Court Protester Sentenced to Time-Served”<http://electionlawblog.org/?p=60515>
Posted on April 15, 2014 12:53 pm<http://electionlawblog.org/?p=60515> by Rick Hasen<http://electionlawblog.org/?author=3>
Tony Mauro<http://www.nationallawjournal.com/legaltimes/id=1202651206100/Supreme+Court+Protester+Sentenced+to+TimeServed%3Fmcode=0&curindex=0&curpage=ALLhttp://>:
In a statement to the judge, Newkirk said he had spoken out at the Supreme Court and broken the law “in the tradition of civil disobedience” to draw attention to the court’s 2010 Citizens United ruling and the then-pending McCutcheon campaign finance case.<http://www.nationallawjournal.com/id=1202649627595/The-Post-%27McCutcheon%27-World?slreturn=20140315143529>
“Our democracy is greatly threatened” by the court’s decisions weakening restrictions on campaign money, Newkirk told McKenna. “The Supreme Court has played a shameful role.”
The sentencing concluded a morning marked by hallway negotiations in which the Supreme Court—represented by court legal counsel Ethan Torrey—played a significant behind-the-scenes role. Torrey was present in the courtroom, as was a Supreme Court police officer.
After the session was over, the officer handed Newkirk a “barring notice” alerting Newkirk that he is prohibited from setting foot on Supreme Court property for the next 12 months. Earlier, Newkirk’s lawyer, Jeffrey Light, told McKenna that Newkirk, a resident of Los Angeles, had “no intention to return to the Supreme Court to do this again.”
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>
“IRS chief: New rule on the way for tax-exempt groups”<http://electionlawblog.org/?p=60513>
Posted on April 15, 2014 10:28 am<http://electionlawblog.org/?p=60513> by Rick Hasen<http://electionlawblog.org/?author=3>
USA Today<http://www.usatoday.com/story/news/politics/2014/04/14/irs-commissioner-john-koskinen/7701609/>:
The Internal Revenue Service is prepared to rewrite a proposed rule regulating the political activities of non-profit groups to address complaints from the right and left that it goes too far, IRS Commissioner John Koskinen said Monday.
“In all likelihood we will re-propose a redefined rule and ask for more public comment,” Koskinen told USA TODAY’s Capital Download. It’s a process he predicts will take “until the end of the year and beyond” to complete. The proposed regulation of groups known as 501(c)(4)s drew a record 150,000 comments before the deadline in late February.
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Posted in tax law and election law<http://electionlawblog.org/?cat=22>
Larry Noble on the FEC Commissioner Breakdown<http://electionlawblog.org/?p=60511>
Posted on April 15, 2014 10:24 am<http://electionlawblog.org/?p=60511> by Rick Hasen<http://electionlawblog.org/?author=3>
Blogging<http://www.clcblog.org/index.php?option=com_content&view=article&id=558:more-dysfunction-at-the-fec> at CLC:
Truth be told, I wish there were a better position than the one Vice Chairwoman Ravel and Commissioner Weintraub have taken. But at some point you have to say “enough is enough” and let everyone play by the same rules. While I don’t think this will do anything to improve the current FEC, it may highlight the FEC’s complete breakdown as an effective enforcement agency. In the end, Congress and the White House have to be held accountable for the fact that there will be no serious enforcement of the campaign finance laws until fundamental changes are made to the agency, including the appointment of commissioners who believe in the law and its enforcement.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>
Gov. Cuomo Signs Bill Adding New York to National Popular Vote Compact<http://electionlawblog.org/?p=60509>
Posted on April 15, 2014 9:43 am<http://electionlawblog.org/?p=60509> by Rick Hasen<http://electionlawblog.org/?author=3>
Release.<http://t.co/a8rOo2Jrbx>
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Posted in electoral college<http://electionlawblog.org/?cat=44>
“Kansas Gets Extra Time In Voter Registration Case”<http://electionlawblog.org/?p=60507>
Posted on April 15, 2014 8:43 am<http://electionlawblog.org/?p=60507> by Rick Hasen<http://electionlawblog.org/?author=3>
The latest <http://www.kscbnews.net/news/?nk=35687> on Kobach v. EAC.
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Posted in election administration<http://electionlawblog.org/?cat=18>, Election Assistance Commission<http://electionlawblog.org/?cat=34>, Elections Clause<http://electionlawblog.org/?cat=70>
Congratulations to Donald Tobin<http://electionlawblog.org/?p=60505>
Posted on April 15, 2014 8:35 am<http://electionlawblog.org/?p=60505> by Rick Hasen<http://electionlawblog.org/?author=3>
The tax law/election law scholar and teacher from OSU’s Moritz College of Law is the new dean <http://www.oea.umaryland.edu/communications/news/?ViewStatus=FullArticle&articleDetail=22561> at the University of Maryland Law School.
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Posted in election law biz<http://electionlawblog.org/?cat=51>
“Public Trust Act – A Public Financing Trial and Tribulation”<http://electionlawblog.org/?p=60503>
Posted on April 15, 2014 8:32 am<http://electionlawblog.org/?p=60503> by Rick Hasen<http://electionlawblog.org/?author=3>
Jisha Dymond <http://www.corporatepoliticalactivitylaw.com/new_york/public-trust-act-public-financing-trial-tribulation> on the new NYS public financing law.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>
“New Proposal: 15 Executive Actions to Overcome Government Dysfunction”<http://electionlawblog.org/?p=60501>
Posted on April 15, 2014 8:27 am<http://electionlawblog.org/?p=60501> by Rick Hasen<http://electionlawblog.org/?author=3>
Press release: <http://www.brennancenter.org/press-release/new-proposal-15-executive-actions-overcome-government-dysfunction> “Following the Obama administration’s vow to use strong executive action in the face of a paralyzed Congress, the Brennan Center for Justice at NYU School of Law released a new policy proposal today<http://www.brennancenter.org/publication/15-executive-actions> outlining 15 steps the administration can take to strengthen democracy, secure justice, and further the rule of law.”
Of the 15, it looks like these are the ones related to voting and elections:
1.
Direct federal agencies to find ways to increase voter participation nationwide.
2.
Direct federal agencies to accept designation as NVRA agencies.
3.
Enlist the private sector to assure free and fair elections.
4.
Appoint Republicans and Democrats to the Election Assistance and Federal Election Commissions.
5.
Sign an executive order requiring disclosure of political spending by entities awarded government contracts.
6.
Request that the Securities and Exchange Commission to issue regulations requiring disclosure of corporate political spending.
7.
Request that the Federal Communications Commission to require more thorough disclaimers of outside spending on political advertisements.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, election administration<http://electionlawblog.org/?cat=18>
“TurboTax Maker Linked to ‘Grassroots’ Campaign Against Free, Simple Tax Filing”<http://electionlawblog.org/?p=60499>
Posted on April 15, 2014 8:19 am<http://electionlawblog.org/?p=60499> by Rick Hasen<http://electionlawblog.org/?author=3>
Must-read ProPublica<http://www.propublica.org/article/turbotax-maker-linked-to-grassroots-campaign-against-free-simple-tax-filing>:
Over the last year, a rabbi, a state NAACP official, a small town mayor and other community leaders wrote op-eds and letters to Congress with remarkably similar language<https://projects.propublica.org/graphics/tax-letters> on a remarkably obscure topic.
Each railed against a long-standing proposal that would give taxpayers the option to use pre-filled tax returns. They warned that the program would be a conflict of interest for the IRS and would especially hurt low-income people, who wouldn’t have the resources to fight inaccurate returns. Rabbi Elliot Dorff wrote in a Jewish Journal<http://www.jewishjournal.com/opinion/item/irs_return_free_bad_for_most_vulnerable> op-ed<http://www.jewishjournal.com/opinion/item/irs_return_free_bad_for_most_vulnerable> that he “shudder[s] at the impact this program will have on the most vulnerable people in American society.”
“It’s alarming and offensive” that the IRS would target the “the most vulnerable Americans,” two other letters said. The concept, known as return-free filing, is a government “experiment” that would mean higher taxes for the poor, two op-eds argued.
The letters and op-eds don’t mention that, as ProPublica laid out last year<http://www.propublica.org/article/how-the-maker-of-turbotax-fought-free-simple-tax-filing>, return-free filing might allow tens of millions of Americans to file their taxes for free and in minutes. Or that, under proposals authored by several federal lawmakers, it would be voluntary, using information the government already receives from banks and employers and that taxpayers could adjust. Or that the concept has been endorsed by Presidents Obama and Reagan and is already a reality in some parts of Europe.
So, where did the letters and op-eds come from? Here’s one clue:
Rabbi Dorff says he was approached by a former student, Emily Pflaster, who sent him details and asked him to write an op-ed alerting the Jewish community to the threat.
What Pflaster did not tell him is that she works for a PR and lobbying firm with connections to Intuit, the maker of best-selling tax software TurboTax.
“I wish she would have told me that,” Dorff told ProPublica.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, lobbying<http://electionlawblog.org/?cat=28>
“How Democrats Work To Restrict Voting and Disenfranchise People in a Purple State”<http://electionlawblog.org/?p=60497>
Posted on April 15, 2014 8:12 am<http://electionlawblog.org/?p=60497> by Rick Hasen<http://electionlawblog.org/?author=3>
RNLA blog post<http://thereplawyer.blogspot.com/2014/04/how-democrats-work-to-restrict-voting.html> on Virginia.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>
CPI Documents How Some Political Consultants Reward Themselves Handsomely via Super PACs<http://electionlawblog.org/?p=60495>
Posted on April 15, 2014 8:08 am<http://electionlawblog.org/?p=60495> by Rick Hasen<http://electionlawblog.org/?author=3>
Here<http://www.publicintegrity.org/2014/04/15/14537/super-pac-leaders-score-perks-political-donations>.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>
“Can You Lie in Politics? Supreme Court Will Decide”<http://electionlawblog.org/?p=60493>
Posted on April 15, 2014 8:07 am<http://electionlawblog.org/?p=60493> by Rick Hasen<http://electionlawblog.org/?author=3>
Roll Call reports<http://blogs.rollcall.com/hawkings/chabot-driehaus-lying-supreme-court-ohio-case/?dcz=>. Despite the headline, I don’t expect<http://electionlawblog.org/?p=57900> that the Supreme Court will reach the merits of the question in the upcoming Susan B. Anthony case.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>
--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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