In the News
Reason (Volokh Conspiracy): Exciting Free Speech Event at the Scalia Law School Next Wednesday, Nov. 14
By David E. Bernstein
Volokh Conspiracy readers are invited to a conversation with two renowned First Amendment experts, the VC’s own Eugene Volokh and Nadine Strossen (former president of the ACLU). They will discuss the future of free speech in the United States. The conversation will be moderated by Bradley A. Smith, founder and Chairman of the Institute for Free Speech, and former Chairman of the Federal Elections Committee. The conversation will be immediately followed by a reception to celebrate the launch of Scalia Law’s Free Speech Clinic, a project of our Liberty & Law Center.
The event will be held on Wednesday, November 14 at 4 pm. Note that the Federalist Society annual conference starts the next day in DC, and that Scalia Law is only three miles or so from the conference hotel. So if you plan to or are thinking about getting to town early, you now have an additional incentive to do so.
If you’d like to attend, please register here.
New from the Institute for Free Speech
Another Reason to Simplify Campaign Laws: Allowing Free Rides to the Polls
By David Keating
Three cheers for Uber and Lyft for offering discounted (and, in many cases, free) rides to voters on Election Day. It’s a shame that the law arguably makes doing so illegal.
The question of whether Uber and Lyft can offer rides illustrates much of what is wrong with campaign finance law. It is absurdly complex and chills ordinary political activity we ought to encourage.
Unfortunately, a pretty strong argument could be made that Uber and Lyft might be doing something wrong under federal campaign finance law that regulates corporate and union spending. If a complaint is filed with the FEC making these arguments, some commissioners might even find a reason to believe a violation has occurred in their poll ride programs…
If the person who filed such a complaint believed that the relevant FEC regulations are too permissive compared to the statute (as they arguably are here), he or she could take the matter to court if the FEC dismissed the complaint based on compliance with the regulation.
The Institute for Free Speech would disagree with these arguments, but the fact that an argument can be made illustrates the dangerous complexity and chill in something that should be simple and clear. Or not regulated at all.
Importantly, only giant companies like Uber can afford the legal help and the PR advice necessary to avoid potential legal issues. But because of the state of the law, there is still legal risk, even to Uber…
It’s also worth noting that these ride discounts would likely be considered federal election activity. Hopefully for Uber and Lyft’s sake, no elected official asked them to offer this service. That issue, which is outside the scope of this post, would likely open another can of worms for the companies.
So with that introduction, here is a dive into the law and relevant regulations…
My Speech is Good. Your Speech Should be Banned.
By Alex Baiocco
As Patagonia and Ben & Jerry’s demonstrate, businesses often have values beyond just turning a profit. Often, those values align with the interests of their customers. That a company is able to speak up for those values, and even support candidates that stand for those values, is good for democracy. And even if a company supports or opposes a policy or a candidate due to the potential effects on its bottom line, that doesn’t mean the company should be banned from letting citizens know about it.
If a couple of guys who founded a popular ice cream brand want the country to hear their views about a few candidates, they have the right to associate with a political group for that purpose. If the company they started wants to create an ice cream flavor that promotes opposition to President Trump, who is also a candidate, it has the right to do that as well.
And if a group of people who make a living selling outdoor recreation apparel wants to support candidates who value preserving public lands, they have the same First Amendment right to do so. Furthermore, the American people have the right to hear the views of any speaker they wish.
Banning speech based on a speaker’s corporate identity is as misguided and unjust as banning Ben Cohen and Jerry Greenfield from appearing in political ads because they have a platform 99% of Americans will never have. And abolishing super PACs, far from lifting the voices of ordinary Americans, would achieve nothing more than the elimination of a vehicle by which citizens can join together to make their voices heard in competition with powerful politicians and big media corporations.
First Amendment
Los Angeles Times: ICE moves to silence detention center volunteer visitors
By Kate Morrissey
Immigration officials have stopped allowing a volunteer group to visit people at Otay Mesa Detention Center unless its members agreed not to talk with the media or other groups about conditions inside.
Immigration and Customs Enforcement said members of Souls Offering Loving and Compassionate Ears must sign the Volunteer Code of Ethics to be in compliance with the agency’s detention standards. The group so far has refused, arguing that detention standards don’t require them to sign away their 1st Amendment rights in order to visit detainees…
At recent meetings, volunteers speculated that either the political climate or critical media coverage of conditions in immigration detention facilities may have led to the change, but they could not think of a specific report that might have triggered the code’s restrictive language.
The confidentiality sections of the new code require volunteers to agree not to share information they acquire without written permission from the warden.
The volunteers worry that if a detainee told them about abuse at the facility, they wouldn’t be able to speak up…
To David Loy, legal director of the American Civil Liberties Union in San Diego, the restrictions in the code are unconscionable.
“I don’t say that kind of thing lightly,” Loy said. “This is an absolutely unconstitutional attempt to stifle speech and evade accountability.”
Loy has sent a letter threatening legal action if ICE doesn’t reinstate SOLACE…
In 2013, after volunteers raised concerns about alleged sexual abuse at Otay Mesa, ICE introduced a similar form and temporarily suspended SOLACE. After the media got involved, the volunteers were allowed to continue without signing the form.
The Courts
Wall Street Journal: A Regulatory Vendetta Exposed
By Editorial Board
The wheels of justice turn slowly, but the Obama Administration’s vendetta against payday lenders is now emerging into full view in federal court. It isn’t pretty. Government regulators so loathed payday lending that they tried to ruin a legal industry by cutting it off from the banking system. This tactic could be used to destroy any business-from gun stores to abortion providers…
If a business can’t get a bank account, not because it’s a bad risk but because of government pressure, where is it supposed to appeal?
The same goes for every other politically unpopular enterprise, whether a firearms dealer in Chicago or a Planned Parenthood in rural Texas. They all should worry about the precedent if the government wins this suit.
Congress
The Verge: Sen. Mark Warner On Breaking Up Facebook And Congress’ Plan To Regulate Tech
By Makena Kelly
What about the Honest Ads Act? It seemed that with the threat of that bill looming, Facebook decided to release a public ads database on its own. Do you think that legislation is necessary now that we’re seeing the industry reacting?
It’s absolutely still necessary. Because you’re basically relying on the good will of Facebook to continue to release. And what they’ve done is they’ve released information that is candidate-specific, but if you turn on the TV right now many of the ads you’ll see won’t mention a candidate. They’ll say, “vote against the candidate who is not for strong immigration rules,” or “vote against a candidate that doesn’t believe in protecting our planet.” So they’ve not really done a whole lot around issue ads…
What have the challenges been then?
The challenges have been that the majority leader of the Senate doesn’t want to do anything on campaign finance reform. The thing is, if it got to the floor, it would get 95 votes.
How do you juggle anonymity on the internet with the location and identity disclosures that would be included in Honest Ads Act?
What I’ve thought about on identity validation is the notion of the internet, at first, that it was this great, open town square where everyone could be anonymous. And I think if you’re a female journalist in Egypt, you want that anonymity, but I’m not sure we can continue with total anonymity…
I’m wondering if you think people have become less absolutist about the First Amendment when it comes to the internet and content moderation?
Even with the First Amendment, you can’t yell “fire” in a crowded theater.
Online Speech Platforms
Wall Street Journal: Internet Platforms Censor Campaign Ads
By Mark Epstein
While many Americans dislike incendiary ads, empowering tech titans to dictate the decency of political advertising leads down a treacherous path. At best the rules are unpredictable and enforced unevenly. At worst the platforms can use their rules as a pretext for political discrimination.
Other advertising media cannot legally make these judgments. In April, perennial Oklahoma candidate Gary Richardson invoked the death of sportscaster Bob Barry Jr. at the hands of an illegal alien in a TV spot, despite the Barry family’s vocal objection. Local station KFOR explained that it had to run the ad even though the station was “displeased with their advertising tactics and the exploitation.” Under federal law, radio and television broadcasters must “permit purchase of reasonable amounts of time” for campaign advertisements and possess “no power of censorship over the material broadcast.”
While these rules were enacted in the 1930s, when there were only a few broadcasters in each market, in 1994 the Supreme Court upheld must-carry rules for cable operators in Turner Broadcasting System v. FCC. The First Amendment “does not disable the government from taking steps to ensure that private interests not restrict . . . the free flow of information and ideas,” the court ruled. The FCC also considers viewpoint diversity in mergers of both mobile-internet and cable companies.
The internet has increased the number of media voices. But the concentration of the search, online-advertising and social-network markets means a few companies have more control over what information reaches voters than any internet service provider or media conglomerate, much less a local radio station.
Wired: Can a Facebook Ad Really Sway Your Vote? MoveOn Thinks So
By Issie Lapowsky
[R]esearchers have cast doubt on whether political ads can actually change minds. “In general, the persuasive effects of ads are small,” says Eitan Hersh, an associate professor of political science at Tufts University, and author of the book Hacking the Electorate…
And while Facebook lets advertisers run tests to see which ads get the most engagement, research has found that engagement and persuasion aren’t always synonymous.
“If you look at how people measure digital persuasion, the approaches people have are incredibly expensive, and they’re not that accurate,” says Milan De Vries, MoveOn’s director of analytics…
Working with Eskedar Getahun, MoveOn’s team lead who oversaw the project, DeVries and his colleagues created a Facebook app called MO Research and targeted ads at people, asking them to answer survey questions…
They also answer questions about things like their hometown, gender, and age. That allows MO Research to build demographic profiles of people and match them to their voter file records…
MoveOn sent ads to the people who, according to the experiment, were most susceptible to persuasion.
If the idea of using Facebook surveys for political modeling and ad targeting sounds familiar, it’s because MoveOn’s strategy does bear a slight resemblance to the strategy deployed by Cambridge Analytica in the run-up to the 2016 election.
Wall Street Journal: Facebook Takes Down Accounts Engaged in Misinformation on Eve of Midterms
By Deepa Seetharaman and Dustin Volz
Facebook Inc. said late Monday that it dismantled 115 Facebook and Instagram accounts as the social-media platform continues to combat misinformation campaigns on the eve of the U.S. midterm elections.
U.S. law-enforcement officials tipped Facebook off to the activity on Sunday night, the company said in a blog post. Government officials believe the activity may be linked to foreign actors, the company said. The company blocked 30 accounts on Facebook and 85 on Instagram…
In its disclosure Monday, Facebook said it couldn’t share many details about the accounts but opted to announce the investigation given the proximity to Tuesday’s election. The company said it would provide more updates as it learned more from its investigation…
The announcement by Facebook late Monday came shortly after a joint statement from senior government officials, including the chiefs of the FBI and DHS, detailing government efforts to prevent election interference in the midterms.
“At this time we have no indication of compromise of our nation’s election infrastructure that would prevent voting, change vote counts, or disrupt the ability to tally votes,” the statement said. But, it added: “Americans should be aware that foreign actors-and Russia in particular-continue to try to influence public sentiment and voter perceptions through actions intended to sow discord.” …
Pages associated with the 30 Facebook accounts were predominantly in French and Russian, while the Instagram accounts were largely in English, Facebook said Monday. Some of the Instagram accounts were focused on political debate, while others posted about celebrities. The Facebook spokesman declined to say what topics the Facebook pages wrote on.
Candidates and Campaigns
National Review: These Are Our Costliest Midterms Ever. So What?
By J. J. McCullough
Tuesday’s elections will herald a great many milestones for the country and Congress, including a record number of minority and female candidates. Far less interesting is the fact that they will also be the most expensive midterms in U.S. history, with a total price tag surpassing $5 billion, according to the watchdog group OpenSecrets.
That we are spending more money with each passing election cycle does not in itself reveal much beyond the obvious: Americans are wealthy and increasingly eager to give to politicians. It certainly doesn’t prove what it’s often implied to – namely, that American democracy is being warped by the pernicious influence of “monied interests.”
One of the worst things about right-wing populism is the incorporation of hackneyed left-wing talking points into a conservative narrative on the pretext of finding anti-establishment common ground. Conservatives were at one time leading skeptics of the money-in-politics moral panic, yet paranoia over Trump-age demons such as Silicon Valley and George Soros now mirrors leftist scaremongering about Big Oil and the Koch brothers. To his supporters, a considerable part of Trump’s superhuman mystique comes from beating the moneyed interests aligned against him, including the Clinton campaign, which outspent him nearly two-to-one.
Yet what Trump did – and what Republicans could do on Tuesday, given they’re currently being outspent by Democrats – is not nearly as remarkable as it’s made out to be.
New York Times: You ‘Approved This Message’? Seriously?
By Jim Rutenberg
[T]he “Stand By Your Ad” provision was passed as part of the Bipartisan Campaign Reform Act. Ever since, anyone running for federal office has had to utter this brief refrain as part of every commercial: “I’m so-and-so and I approve this message.”
The lawmakers’ idea was simple. A mix of shame and self-preservation would make candidates less inclined to put out ads that were false or just plain ugly…
Sixteen years after “I approve this message” became part of the lexicon, negative political ads seem to be everywhere, increasing by 61 percent since the last midterm season, according to a recent report from the Wesleyan Media Project.
None of this even accounts for social media, which has gone unregulated because Facebook and other platforms managed to get themselves exempted from the advertising disclosure requirements of television and radio.
The drafters of the “Stand By Your Ad” rule thought they would bring about a more civil brand of campaign discourse. But perhaps naïvely they did not foresee a time when candidates, following the lead of a self-described “nationalist” president for whom insults and falsehoods are political weapons of choice, would see no downside in attaching their names to racially incendiary messages.
One of the architects of the “I approve this message” provision, the longtime Representative David E. Price, Democrat of North Carolina, told me he still believes in it enough to propose something similar for social media ads. The challenge now, he said, is that the crudest tactics are being rewarded with votes.
Roll Call: How the ‘No Corporate PAC’ Pledge Caught Fire
By Simone Pathé
The idea of rejecting corporate PAC money isn’t new – former President Barack Obama did it in 2008, as do a handful of incumbents. What’s unusual this year has been how many House candidates who aren’t self-funders have made the same commitment in competitive races – and just how fast it caught on.
Critics offer a simple explanation: It’s easy for challengers to pass up corporate PAC money since they don’t receive much anyway. But with Democrats favored to win the House majority, this informal pledge may soon be something incumbents have to grapple with, too.
In 2016, just 6 percent of candidates on the Democratic Congressional Campaign Committee’s Red to Blue list for top recruits rejected corporate PAC money. This year, 72 percent of Red to Blue candidates – from all ideological factions – have made the same commitment.
Independent Groups
Campaign Finance Institute: Democrats Outspending Republicans Two-To-One In Final Independent Spending Push
Independent expenditures (IEs) reported to the Federal Election Commission (FEC) for the general election show groups supporting Democratic candidates outspending Republican efforts two-to-one in the last seven days (Oct. 29-Nov. 4), $82.4 million to $40.5 million. The advantage is clear in both the House ($43.7 to $20 million) and the Senate ($38.7 to $20.5 million).
Overall, for the entire general election, IEs have exceeded $1 billion dollars, compared to $820 million in 2016. This is based on a Campaign Finance Institute (CFI) analysis of data supplied by the FEC.
Fundraising
Washington Post: How small donations gave underdog Democrats a fighting chance for the House
By Michelle Ye Hee Lee
Democratic candidates raised more money than Republicans in the 2018 midterms, particularly in small sums under $200…
Republicans, too, have benefited from a surge in small-dollar donations, driven by loyal supporters of President Trump. The Republican National Committee raised $117 million in small contributions this election – more than half of its direct donations…
Nonetheless, Democrats raised more than three times as much money in small-dollar donations as Republicans…
As of October, Democratic candidates had outraised their Republican opponents in 53 of the 73 most competitive congressional races, including 20 districts that Trump won by double digits in 2016, according to a Washington Post analysis…
The amounts raised by first-time candidates in particular have upended fundraising expectations of political newcomers and underscored the intensity on the left – though Republicans note that being outraised does not matter if you are able to stay competitive and turn out your voters…
Democrats this year have been buoyed by ActBlue, a sophisticated online fundraising tool that made donating as easy as one click on a smartphone.
Donations through ActBlue have surpassed $1.5 billion for the 2018 cycle, with $250 million raised in October alone, according to the organization. There were more than 3 million new donors this cycle, with an average contribution of $40…
ActBlue and other groups have allowed donors to give on impulse – when they are angry with the president, frustrated by Congress or hopeful about a candidate’s ad message…
Many Democrats have benefited from this emotion-driven giving.
The Media
Slate: Samantha Bee Finds a Way to Talk About Campaign Finance Reform That Won’t Make Your Eyes Glaze Over
By Marissa Martinelli
Samantha Bee has a new ice cream flavor, and she’s using it to teach her audience about constitutional originalism and campaign finance reform. On a special midterms election episode on Monday, the Full Frontal host dressed up in Colonial-era garb to talk to former FEC chair Ann Ravel and Harvard professor Larry Lessig about what the framers of the United States Constitution thought about money in politics…
“A lot of people’s eyes glaze over when you talk about campaign finance, but they shouldn’t,” said Ravel. In the case of Full Frontal’s segment, the subject might actually make your mouth water instead, because Bee received a visit from Ben Cohen, co-founder of Ben & Jerry’s, to introduce Get Your Fudgin’ Money Out of My Democracy…
Ben & Jerry’s has a history of using its dairy products to promote a political agenda by giving flavors punny, progessive names. There was EmpowerMint to encourage people to vote in the 2016 election; I Dough, I Dough to celebrate marriage equality; and even a limited-edition flavor created to support Bernie Sanders. (Sadly, it was not called “Feel the Churn.”) Just last week the ice cream peddlers launched Pecan Resist out of solidarity with organizations that empower people of color, women, and environmentalists and protest Donald Trump’s agenda. Bee’s flavor will be available via a MoveOn raffle that can be entered by text message.
The States
Sludge: NYC Progressives Coalesce Around Campaign Finance Ballot Initiative
By David Moore
The ballot measure received national attention last week when Vermont Senator Bernie Sanders Tweeted his endorsement of Question One, one of three New York City local democracy proposals receiving an “aye/nay” vote on the back of the midterm ballot.
According to the official summary, Question One was “designed to address persistent perceptions of corruption associated with large campaign contributions…”. The proposal, crafted by the Mayor’s Charter Review Commission, seeks to enhance New York City’s existing campaign finance program in several ways: by lowering contribution limits for various levels of candidates, by increasing public matching funds for candidates who opt-in, and by making funds available earlier in the process…
So far, 12 states provide some form of public financing for campaigns for governor, and only five of them also do so for state legislative offices, according to the National Conference of State Legislatures.
Arizona and Maine are recognized as leaders in “clean elections” offering full public funding of campaigns, while the others offer matching funds.
The national reform group RepresentUs has identified over 24 anti-corruption campaigns in states and cities in the midterm elections, such as North Dakota’s Measure One-profiled on Ballotpedia- and a South Dakota amendment on lobbying covered last week by Sludge’s Jay Cassano…
Vox’s Sarah Kliff surveyed Seattle’s experience with “democracy vouchers” for city elections – which was the topic of a Sludge event in New York City in late October, with research presented by Dr. Jen Heerwig of the Scholars Strategy Network NYC Chapter.
