Latest Developments
The United States Supreme Court heard oral arguments in Barr v. American Association of Political Consultants, which questions whether a federal law that prohibits robocalls to cellphones violates the First Amendment. SCOTUSblog’s analysis indicates that “most justices appeared convinced that the law was ‘content based’… and likely unconstitutional. But the justices also appeared about as thrilled as the rest of us at the prospect of endless robocalls to our cellphones.”
- The United States Supreme Court, in Kelly v. United States, tossed out the federal convictions of participants in the 2013 New Jersey Bridgegate debacle. The Justices unanimously found that the scheme “did not aim to obtain money or property,” a necessary element of the statute, and noted that “not every corrupt act by state or local officials is a federal crime.” Politico points out that the case “follows in a line of recent rulings that have diminished the power of federal prosecutors to go after corruption.”
- COVID-19 Update: Government agencies and courts continue to respond to the COVID-19 emergency. Each week we will add the latest information. For more information about filing deadlines, contact our Political Reporting Unit. Among the more notable developments this week:
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- The Honolulu Ethics Commission approved temporary changes to gift rules in order to permit “city police officers and other first responders to accept gifts from the public that are considered ‘tokens of aloha and acts of kindness’ for the duration of the new coronavirus outbreak,” according to the Honolulu Star Advertiser.
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- A Federal District Court Judge in New York has reinstated the June presidential primary election, which had been cancelled due to COVID-19. Reuters reports that former candidate Andrew Yang was successful in obtaining an injunction to require that the election be held. The State Board of Elections promises an appeal.
- The Law and Policy Committee of the California Fair Political Practices Commission met to consider staff proposals to revise the Commission’s regulations on behested payments and propose legislative changes. The staff memo notes that the Commission’s interest follows “recent media accounts investigating various behested payment practices that some believe could involve an undisclosed personal benefit or financial interest.”
- The Maryland State Board of Public Works approved a settlement (page 13) in Washington Post v. McManus. In that case, the Post and other media successfully sued to stop the state from requiring that online publishers collect information about political ads sold. The Baltimore Sun reports that the plaintiffs successfully argued that the law was overbroad.
Reminders:
The Practising Law Institute presents a one-hour program on COVID-19 Political Compliance Considerations for Companies and Nonprofits on May 21, 2020 at 1 p.m. EDT. Register here for the briefing presented by Jason Kaune and Elli Abdoli of Nielsen Merksamer. The program, which is free to PLI members, will outline the government ethics, lobby disclosure, and campaign finance rules you need to know in connection with working with public officials, donating goods, and engaging in political activity during the pandemic.
The American Bar Association will conduct a webinar on Adapting Elections in a Pandemic: COVID-19 and Beyond on May 13, 2020 at 2 p.m. EDT. Register here for the program which will discuss the impact of the COVID-19 crisis on elections, including vote-by-mail issues, and approaches that might be adapted to the November elections.
In Case You Missed It:
- Oregon Contribution Saga Continues: A candidate for Mayor of Portland continues to press in court to have contribution limits imposed on the incumbent Mayor in the current election. The Portland Tribune reports that the fight will likely continue past the upcoming election. Meanwhile, the Oregonian reports that the Governor is promoting a constitutional amendment for the November ballot that would permit contribution limits.
- Beware of Phantom PACs: Americans for Progressive Action USA filed a report with the Federal Election Commission disclosing more than $2.5 million in advertising and other expenses. However, Politico investigated and tells us that none of it is real. The article suggests that it is a phantom PAC created for nefarious purposes, and that “filing detailed FEC reports could be an attempt to create the appearance of credibility for some other means.”
- Prospects of an FEC Quorum may Thwart Some: Bloomberg Government reports that the Senate’s effort to confirm a new Commissioner of the FEC will lead the Federal Election Commission to “resume its pattern of deadlocking on enforcement cases, leading to dismissal of alleged violations.” But without a quorum, campaign finance groups have been able to pursue private actions to enforce campaign finance statutes. Meanwhile, The Hill reports that the Senate Rules Committee advanced the nomination of Trey Trainor, which now moves to the full Senate.
- Help for Some Lobbyists: The Intercept reports that an effort is underway to extend provisions of the Paycheck Protection Act to trade groups that lobby (501(c)(6) organizations) and possibly to other nonprofits (501(c)(4) organizations).