New from the Institute for Free Speech
Spooky Spending on Halloween: Pet Costumes Dwarf So-Called “Dark Money”
By Eric Peterson
According to the National Retail Federation, 18 percent of those celebrating Halloween this year will be dressing their pets up in costumes, up 2 percent from last year. This translates to over 31 million Americans dressing up their furry companion at a cost of nearly a half billion dollars…
But while the media is reporting this trend as the cute, feel-good story it is, when the media doesn’t like what Americans are spending money on, the headlines are much scarier. Just look at how some press outlets cover political spending around elections.
In the 2015-2016 election cycle, for example, so-called “dark money” totaled $181 million dollars – less than half of a single year’s worth of pet costumes. “Dark money,” of course, is a pejorative term for spending on political speech by nonprofits. Ironically, the biggest such spenders in the 2016 cycle were well-known groups such as the Chamber of Commerce and League of Conservation Voters.
Spooky groups indeed.
Far from an outlier, 2016 was a typical cycle for nonprofit political spending. Since the 2006 election cycle, “dark money” has never comprised more than 4.9% of overall political spending on the federal level. In 2016, nonprofit spending only accounted for 2.9% of total political spending. The projection for “dark money” in 2018 is only slightly above the 2016 total…
Even looking at the larger trends in overall political spending, the horror stories written about the surge in political spending look silly. The Center for Responsive Politics projects that the midterm election will cost roughly $5.2 billion. Americans meanwhile are spending over $9 billion on Halloween…
This continues Americans’ proud tradition of spending more on holidays than politics.
First Amendment
Foreign Policy: Trump’s Divisive Speech Puts the First Amendment at Risk
By Suzanne Nossel
With divisive political rhetoric stoking violent impulses, Americans’ collective faith in free speech is being shaken. Many living in the United States are beginning to ask whether instead of protections for speech, we may now need protections from it. For free speech to survive this reckoning intact, the United States will need to prove that its current system of voluntary constraints on speech-operating through an informal scaffold of taboos, social conventions, appeals to conscientiousness and civility, and a willingness to dismiss, tune out, and ignore- still works and that it can effectively disrupt the chain reaction now linking inflammatory words to dangerous actions.
The First Amendment is under pressure on multiple fronts. Some racial justice advocates argue that to achieve equality, the government must ban speech that persecutes and dehumanizes minorities. After violent white supremacists descended on Charlottesville, Virginia, in August 2017, and with hate crimes on the rise, rampant online trolling, and a president who offers succor to white supremacists, it has become harder to argue that the U.S. system offers adequate safeguards against the harms of hateful speech…
Some U.S. constitutional theorists are now drawing attention to Canadian and European approaches that delimit free speech to exclude bigotry. While it is fair to acknowledge that those systems have found ways to remain free while excluding some of the most noxious forms of speech, it’s not clear that the solutions they offer improve upon the formulation set out in the U.S. Constitution. Racial and religious minorities don’t necessarily feel better treated in Europe than in the United States, and the fine distinctions required to parse what sort of speech crosses the line involve complex questions of intent, history, foresight, cultural context, and more.
Online Speech Platforms
Forbes: Is There A Downside To Activist Groups Pressuring Social Media About What Speech To Allow?
By Clyde Wayne Crews Jr.
There is growing comfort on the part of some with instructing social media platforms about what forms of free speech they should and should not allow…
Social media has every right to block whatever content it wants, of course.
Furthermore, those spouting hateful, divisive and even just plain old unpopular speech don’t get to demand that others supply them a microphone or platform…
While these groups are pressing companies directly to self-regulate the speech they allow, lawmakers are simultaneously forging legislation aimed at fighting “misinformation,” whatever that term ends up meaning to the federal government. This prospect changes the stakes in the debate...
Do we all agree on what “misinformation” is? Are we all comfortable with whatever future changes in political leadership over the coming years and decades may come to think misinformation (or hate) is? …
Sure, social media can change its policies as these groups demand; it would not constitute a violation of free speech, nor censorship.
But today’s atmosphere is trending toward getting government to legislate (and that even comes from right-of-center elements seeking to deem social media platforms as “essential facilities”), and to force a yet-unclear conformity in online speech.
Censorship is what emerges when such policies become compulsory, and extend to other kinds of controversial speech besides.
And if we insist upon social media adherence, then the question naturally arises: why not mainstream media, too.
Vice News: We posed as 100 Senators to run ads on Facebook. Facebook approved all of them.
By William Turton
VICE News applied to buy fake ads on behalf of all 100 sitting U.S. senators, including ads “Paid for by” by Mitch McConnell and Chuck Schumer. Facebook’s approvals were bipartisan: All 100 sailed through the system, indicating that just about anyone can buy an ad identified as “Paid for by” by a major U.S. politician.
What’s more, all of these approvals were granted to be shared from pages for fake political groups such as “Cookies for Political Transparency” and “Ninja Turtles PAC.” VICE News did not buy any Facebook ads as part of the test; rather, we received approval to include “Paid for by” disclosures for potential ads.
This comes after a VICE News test conducted last week, where we received approval to run political ads posing as Vice President Mike Pence, Democratic National Committee Chairman Tom Perez, and the Islamic State group. An attempt to place an ad posing as Hillary Clinton was denied…
“If Facebook is going to claim to verify who’s paying for political ads, they need to actually do the work,” said Sen. Ron Wyden, Democrat of Oregon, in a statement to VICE News. “Clearly it needs to do far more to combat fraudulent and false content, both in paid advertisements and viral posts.”
Facebook confirmed that the 100 “Paid for by” disclosures in the names of U.S. senators should never have been approved. But the company argues that its “Paid for by” feature has brought a new level of transparency to political advertising, and cautioned it’s just one piece of its efforts, along with a searchable Ad Archive.
“We know we can’t do this alone, and by housing these ads for up to seven years, people, regulators, third parties and watchdog groups can hold these groups more accountable,” said Facebook Director of Product Management Rob Leathern in a statement.
Lawfare: Gab Vanishes, and the Internet Shrugs
By Quinta Jurecic
When I asked Cloudflare about the status of its relationship with Gab, the company declined to comment on Gab specifically but wrote that, “We’ve been vocal about that fact that deep infrastructure companies like Cloudflare should not be in the position to make editorial decisions based on content,” pointing me toward Prince’s 2017 statement on his decision to terminate service to the Daily Stormer…
What many people-including myself-found troubling about Cloudflare’s banning of the Daily Stormer was not the idea of a platform moderating content at all, but where Cloudflare is located in the “stack” of infrastructure that keeps a website online. If a user is banned from a platform like Twitter for repeatedly posting violent anti-Semitic memes, there are plenty of other platforms-like, say, Gab-where that user can go. But if Cloudflare refuses to work with a website, there are relatively few comparable services that site can turn to. Cloudflare works at a more tectonic level of the internet…
Cloudflare’s decision to ban the Daily Stormer from its service was a telling moment for an American cultural environment that had already become much less friendly toward technology, and much more willing to raise alarm over the potential dangers cultivated by the internet, in the wake of Russian electoral interference in the 2016 election. The relative lack of anguish over the downfall of Gab is similarly telling-a sign of just how far out from shore this tidal shift has taken us.
I’m among those who were alarmed by Prince’s decision at the time, and I confess I was much less alarmed by GoDaddy and Joyent’s decisions. My colleague Matt Tait, no slouch when it comes to defending free speech online, expressed a similar change of mind.
So what changed?
Independent Groups
New York Times: How a Democratic Dark-Money Group Flooded the 2018 House Map
By Alexander Burns
A structure unknown even to some of those involved, Floridians for a Fair Shake and 13 other groups around the country are funded and coordinated out of a single office in Washington, with the goal of battering Republicans for their health care and economic policies during the midterm elections.
At the center of the effort is an opaquely named Democratic organization, the Hub Project, which is on track to spend nearly $30 million since 2017 pressuring members of Congress in their districts. The great bulk of its funding has come from so-called dark money – funds from donors who are not legally required to reveal their names.
With that money, the Hub Project – run by a former Obama administration official and public relations specialist, Leslie Dach, and Arkadi Gerney, a former political strategist for the liberal Center for American Progress – set up an array of affiliate groups around the country, many with vaguely sympathetic names like Keep Iowa Healthy, New Jersey for a Better Future and North Carolinians for a Fair Economy. The Hub Project then used them to mobilize volunteers and run advertising on policy issues against Republican members of Congress many months before the election.
Candidates and Campaigns
Center for Responsive Politics: Democratic women outraise men among female donors – another record-breaking first
By Grace Haley
With one week left before the 2018 elections, all eyes are on the female nominees after a set of primaries broke a number of glass ceilings – notably, a record number of women running as congressional candidates, a record amount of money donated to congressional candidates by women, and a record number of women as major party nominees in both the House and the Senate. There was a significant increase in the percentage of congressional campaign contributions coming from female donors, and the trends benefiting Democratic candidates, notably Democratic women, have continued through the pre-general election deadline.
The 2018 election cycle largely shows increased participation by female donors to the benefit of Democratic candidates, both men and women. As with candidates, there has been a major surge in congressional contributions from women, again, to the benefit of Democratic candidates.
Democratic women have received the largest amount of money from female donors this cycle at $159 million – a significantly historic high when we are looking at general election numbers. It is nearly 2.5 times larger than the amount of money female Democratic congressional candidates raised from female donors in 2016. This is the first time we have witnessed women congressional candidates outraise men – both Republican and Democratic.
IRS
Missoulian: Political yard signs at Missoula church not expected to affect nonprofit status
By Eve Byron
The Crosspoint Church has installed political signs on its lawn showing support for two federal and two state candidates running for office. Under the IRS code, all 501(c)(3) organizations are “absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of, or in opposition to, any candidate for elective public office.”
The IRS code adds that violating this prohibition may result in revocation of a tax-exempt status.
Bruce Speer, the church’s senior pastor, didn’t return two phone calls from the Missoulian seeking comments about the signs on Monday. But he told Fox News that the church’s support for the four candidates has to do with their pro-life stance, not about being a Democrat or Republican…
Montana faced a similar situation in 2004, when the Canyon Ferry Road Baptist Church in East Helena was involved in political activities in support of a ballot measure that defined marriage as a union between a man and a woman. Those activities included providing petitions in the church that congregants could sign opposing the measure.
In 2006, U.S. District Judge Donald Molloy of Missoula ruled against the church, writing that “nothing in the First Amendment keeps the state from exercising its regulatory authority over the political process, even when the politicking takes place in the ‘sanctuary.’”
But the church took its case to the 9th U.S. Circuit Court of Appeals, which ruled the state violated the church’s First Amendment rights when then-Commissioner of Political Practices Gordon Higgins ruled the church became an “incidental campaign committee,” and needed to report its expenditures to the state.
The States
NPR: Voters Could Clamp Down On Ethics, Campaign Finance At The Ballot Box
By Peter Overby
One of this year’s broadest measures is in South Dakota…
Among its provisions are restrictions on gifts from lobbyists to lawmakers, a ban on campaign contributions from foreign sources, reductions in special interest money and creation of a more independent ethics commission with greater enforcement powers. Amendment W drops a proposed system of publicly financing campaigns, which was the most controversial piece of the 2016 measure.
A well-financed national group, RepresentUs, is pouring money and other support into South Dakota. It also backed the 2016 initiative.
“What we do is we decide which are the states where there is a real possibility of impact, of victory, and protecting those victories post-passage,” said RepresentUs Director Josh Silver. “When we see that combination, then we get in and support them with time and treasure.”
Leaders of the opposition in South Dakota say RepresentUs and its allies exaggerate both the problem and the proposed fixes. They contend Amendment W would give the ethics commission too much money and power…
Colorado, Massachusetts, Missouri and North Dakota propose campaign finance reforms ranging from bans on foreign money in campaigns to restrictions on corporate and union money; in Denver, there is a proposal for public financing of local candidates. Tougher ethics rules are on the ballot in Florida, Missouri, New Mexico, North Dakota and South Dakota.
Voters will decide on proposed ethics reforms, such as creating new ethics commissions, in states including the Dakotas and New Mexico. Long Beach, Calif., has proposals for municipal commissions on ethics and redistricting. And in Baltimore, voters will decide whether to have a citizens commission consider public funding for municipal candidates.
Austin Monitor: City ethics rule may be unconstitutional
By Jo Clifton
Mayor Steve Adler’s campaign manager filed an ethics complaint Tuesday against Megaphone GPAC, a general purpose political action committee opposing the mayor’s re-election. But it seems likely that the complaint will be dismissed, according to attorneys familiar with election law.
Adler’s campaign manager, Jim Wick, noted that the committee’s treasurer, Luke McAlpin, filed Megaphone’s appointment of campaign treasurer with the Austin city clerk on Oct. 19. Just seven days later, Megaphone PAC then spent $4,995 to oppose Adler. According to the complaint, “City of Austin Code 2-2-23(c) states that all G PAC expenditures must have a (campaign treasurer appointment) filed 60 days prior to the expenditure.”
However, it seems likely that the complaint will eventually be dismissed because the 5th U.S. Circuit Court of Appeals has declared a state law with almost identical wording to be unconstitutional, according to two attorneys with election law experience. Fred Lewis and Jim Cousar both said that the 2014 case, Catholic Leadership Coalition of Texas v. Reisman, means that the city can no longer enforce its law either.
Seattle Times: A good idea to cut down on sneaky campaign ads
By Melissa Santos
State Democrats are understandably livid about a series of misleading campaign mailers popping up in key legislative swing districts….
The conservative activist behind them, Glen Morgan, took the unusual step of including his name and email address on the mailers, when he legally could have hidden behind the two mysterious political-action committees…
state lawmakers should revive legislation next year that would force these political committees to list their true donors on their advertisements…
In theory, political committees buying independent-expenditure ads are already supposed to list their top-five donors clearly on their advertisements. So are committees urging voters to support or reject ballot initiatives.
But by routing money through vaguely named political-action committees, these political groups may list only these shell PACs in their disclosures, rather than their top individual, union or corporate contributors…
Sneaky use of interconnected PACs also played a role in one of the state’s biggest campaign-finance scandals, this one orchestrated by Democratic groups. In 2010, the liberal political consulting firm Moxie Media was working to elect a progressive Democrat, Nick Harper, to replace a more moderate Democratic state senator, Jean Berkey, in Everett’s 38th District.
Shortly before the August primary, Moxie created PACs with conservative-sounding names to attack Berkey as being too liberal. Those PACs sent out mailers and robocalls urging conservative voters to instead cast their ballots for a little-known third party candidate, Rod Reiger…
While Moxie Media was slapped with a six-figure fine over its actions, Morgan appears to have avoided some of the same reporting errors (which went far beyond layering PACs).
