In the News
North Jersey Record: NJ’s secret big-money donors will now be named after Phil Murphy backs down
By Ashley Balcerzak
Gov. Phil Murphy, despite vetoing the exact same legislation last month, has now committed to signing it…
In Murphy’s May 13 conditional veto, he said aspects of the bill “may infringe” on “constitutionally protected speech” and that it also did not “go far enough in mandating disclosures of political activity that can be constitutionally required.”…
Murphy also sought to limit a major portion of the bill: He wanted the rules to cover only groups spending money to oppose or support a candidate, but not those that air ads influencing legislation, policy or appointments. Issue advocacy groups such as the American Civil Liberties Union spoke out against this aspect of the bill, saying it would prevent people from donating to the organization…
“Organizations that advocate on issues such as abortion rights, the Second Amendment, racial justice, and LGBTQ protections, to name just a few, remain polarizing and some individuals will be reluctant to contribute financially if those contributions are subject to widespread disclosure,” Murphy said in his veto.
Murphy cited the 1956 U.S. Supreme Court case NAACP v. Patterson, which found that Alabama would be violating the NAACP’s freedom to associate if it forced the organization to reveal its membership list…
Donors may not want to be bombarded by solicitations after their names are posted on a group’s disclosure report, or funders may want to keep their names private for religious reasons, Amol Sinha, the executive director of the New Jersey ACLU, and David Keating, the president of the conservative Institute for Free Speech, wrote in a Star-Ledger op-ed.
“The way to counter corruption and check the influence of entrenched power is not to pry open the donor files of organizations, but to increase participation in democracy – including by protecting the identities of people involved with advocacy organizations,” wrote Sinha and Keating. “Rather than discourage giving to nonprofits, the state should consider making it easier for New Jerseyans to support the causes of their choice.”
The Courts
By Tim Cushing
Here’s how this latest reminder starts, courtesy of the Eighth Circuit Court of Appeals [PDF]:
In 2015, Trooper Cross was performing a routine traffic stop on a van pulled to the shoulder of a busy five-lane highway in Fort Smith, Arkansas. From 50 feet away, Trooper Cross heard Thurairajah, who was driving by, yell “f**k you!” out of his car window…
Trooper Cross ended the traffic stop of the van and pursued Thurairajah, stopped him, and arrested him, citing Arkansas’s disorderly conduct law. Trooper Cross believed the shout constituted “unreasonable or excessive noise” under the law…
Thurairajah claimed the arrest was a retaliatory response to his protected, two-word criticism of Trooper Cross. The court agrees.
First, Thurairajah’s profane shout was protected activity. See, e.g., Cohen v. California, 403 U.S. 15, 25 (1971) (holding where defendant walked through courthouse corridor wearing jacket bearing the words “F**k the Draft” in place where women and children were present and no showed no intent to incite disobedience to or disrupt the draft, state lacked power to punish defendant for underlying content of message the inscription conveyed). Second, Trooper Cross’s arrest was an action that would chill continued activity by a person of ordinary firmness. As we recognized in Hoyland, “there can be little doubt that being arrested for exercising the right to free speech would chill a person of ordinary firmness from exercising that right in the future.” And, according to a fair reading of Trooper Cross’s affidavit, the arrest was motivated, at least in part, by the content of the shout. Finally, as discussed above, Cross had neither probable cause nor arguable probable cause to arrest Thurairajah.
That’s all four prongs of the free speech retaliation test.
Online Speech Platforms
Washington Post: Facebook chief Mark Zuckerberg reached out to Speaker Pelosi. She hasn’t called him back.
By Robert Costa and Elizabeth Dwoskin
Facebook chief executive Mark Zuckerberg contacted House Speaker Nancy Pelosi (D-Calif.) in recent weeks to discuss how his company handles viral misinformation, but she has not called him back or personally replied, according to two people familiar with the exchanges.
Pelosi’s decision not to engage with Zuckerberg, one of the most powerful technology executives in the world, reflects her frustration with how Facebook handled a manipulated video clip of remarks by the speaker, said the people…
Although Pelosi hasn’t responded to Zuckerberg’s overtures, her staff and his staff have been in touch, the people said…
In declining to remove the video, Facebook cited a long-standing policy of not banning false information. While independent fact-checking groups that have contracts with the social network, Lead Stories and PolitiFact, deemed the video “false,” the company said in a statement that it does not have a “policy that stipulates that the information you post on Facebook must be true.”
The company said it instead would “heavily reduce” the video’s appearances in people’s news feeds, append a small informational box alongside the video linking to the two fact-checking sites, and open a pop-up box linking to “additional reporting” whenever someone clicks it…
“We have said all along, ‘Poor Facebook, they were unwittingly exploited by the Russians,’ ” Pelosi told KQED radio last month. “I think wittingly, because right now they are putting up something that they know is false.” …
Pelosi wrote on Twitter on June 3, days after the uproar over the video, that she supports more regulation of technology companies.
“Unwarranted, concentrated economic power in the hands of a few is dangerous to democracy, especially when digital platforms control content. The era of self-regulation is over,” Pelosi wrote.
The Economist: Regulating Big Tech makes them stronger, so they need competition instead
By Cory Doctorow
In the absence of a political faith in break-ups, modern trustbusters are operating on the assumption that Big Tech will dominate in perpetuity-and placing upon the incumbents the state-like duties to police bad user activities, from fomenting terrorist violence to infringing copyright. Yet this raises a new problem: complying with these rules would be so expensive that only a handful of (mostly American) companies could afford it. This snuffs out any hope of a big incumbent being displaced by a nascent competitor…
The past 12 months have seen a blizzard of new internet regulations that, ironically, have done more to enshrine Big Tech’s dominance than the decades of lax antitrust enforcement that preceded them. This will have grave consequences for privacy, free expression and safety…
Shortly after Europe’s privacy rules went into force, America’s Congress passed legislation called SESTA/FOSTA. Don’t worry about the actual name, the “ST” in both acronyms stands for “sex trafficking”, and the law makes online firms liable if users are engaged in sex-trafficking crimes. Because firms are unable to distinguish between the consensual sex-trade and the deplorable activities the law was designed to stop, virtually every online forum where Americans discussed sex-work has gone dark…
One exciting possibility is to create an absolute legal defence for companies that make “interoperable” products that plug into the dominant companies’ offerings, from third-party printer ink to unauthorised Facebook readers that slurp up all the messages waiting for you there and filter them to your specifications, not Mark Zuckerberg’s. This interoperability defence would have to shield digital toolsmiths from all manner of claims: tortious interference, bypassing copyright locks, patent infringement and, of course, violating terms of service.
The Bridge (Mercatus Center): Facebook and Antitrust, Part 1: What is the Relevant Market?
By Adam Thierer and Jennifer Huddleston
In an era of deeply divided politics, it appears that at least one common enemy unites the left and right: Facebook. Politicians and pundits on both sides of the aisle are lining up to take shots at the social networking giant, blaming it for election interference, privacy violations, digital addiction, and online discrimination, among other things. These concerns, as well as Facebook’s acquisition of companies like Instagram and WhatsApp, are now prompting calls for antitrust actions, and possibly even some sort of breakup.
The House Judiciary Committee recently announced a bipartisan investigation into competition in digital markets, which “will conduct a top-to-bottom review of the market power held by giant tech platforms,” and examine “whether dominant firms are engaging in anti-competitive conduct.” At the same time, the Federal Trade Commission (FTC) will lead an antitrust investigation into Facebook to determine whether a case should be opened.
While it is still early and no formal case has been launched, it is worth posing some questions that any antitrust case against Facebook would need to answer. In a series of essays, we will explore these issues.
This first installment focuses on one of the core questions for an antitrust case: what is the “relevant market,” and does Facebook have a monopoly over it?
Congress
HuffPost: Alexandria Ocasio-Cortez Explains ‘Dark Money’ Reason Lawmakers Need Pay Raise
By Lee Moran
Rep. Alexandria Ocasio-Cortez (D-N.Y.) acknowledged Tuesday that her support of a pay raise for members of Congress is “not a fun or politically popular position to take.”
But the freshman lawmaker explained in a thread on Twitter why she believed the idea of curbing pay increases for politicians “may sound nice,” but it “only increases pressure on them to keep dark money loopholes open.”
It also “makes campaign finance reform harder,” punishes members “who rely on a straight salary” and rewards those “who rely on money loopholes and other forms of self-dealing,” she argued.
Corporate Speech
WCNY’s Capitol Pressroom: June 7, 2019: Corporate Politics (Audio)
By Tim Williams
In recent years, companies like Nike and Chik-Fil-A have waded into the political waters. So how does this impact the company’s image and bottom line? We discussed the topic with David M. Primo, Ani and Mark Gabrellian Professor and Associate Professor of Political Science and Business Administration at the University of Rochester, and Asm. Sean Ryan (D-Buffalo).
Fundraising
The New Yorker: Why Famous, Powerful Presidential Candidates Are Begging You for Five Dollars
By Eric Lach
Boyan, who is now seventy-four, retired, and living in Burlington, Vermont, has made more donations than most-more than four thousand of them during the midterm elections alone. All but one of those donations were in amounts of less than two hundred dollars-small donations, by definition. But they added up to tens of thousands of dollars…
When she was twenty-two, she was in a car crash that left her paralyzed on her left side, and she still walks with the help of a cane. “Part of the reason that I give is that I can’t do a lot else,” she said. “I can’t go door to door like I used to.” …
Attracting large numbers of donors is not just a progressive purity test; it is a formal threshold for qualifying for the Democratic Party’s official debates, which begin this month… “I’m inundated with e-mails,” Boyan said. “They’re swamping me.” …
Another group among the top ActBlue recipients is End Citizens United pac, which hopes to “end Big Money in politics and fix our rigged political system by electing campaign finance reform champions, passing state ballot measures, and elevating this issue in the national conversation.” I had never heard of them before. But Boyan had. “I’m furious at the Citizens United court case,” she told me. “So I give money to End Citizens United.” …
In 2018, End Citizens United, which is based in Washington, D.C., raised thirty-two million dollars through ActBlue and forty-four million dollars over all… “Getting money out of politics,” [Patrick Burgwinkle, the group’s communications director] said, “is often a very powerful grassroots fund-raising message.”
Center for Responsive Politics: 2020 Democrats scramble for donors ahead of debate deadline
By Jessica Piper
Facing the prospect that they might not qualify for the Democratic National Committee’s upcoming debates, 2020 presidential hopefuls are getting creative in their race to find donors. Not all candidates are happy about the rules, however, and many are finding that amassing small-dollar supporters is itself an expensive process…
In an attempt to pick up enough supporters to qualify for the debates, the former Maryland congressman [John Delaney], whose net worth was estimated to be $232 million in 2015, announced in mid-March that he would personally donate $2 to charity for every $1 donation his campaign receives. Delaney told the New York Times that he was likely to lose money in recruiting donors regardless, and that he preferred to give money to nonprofits over a digital marketing firm…
Sen. Kirsten Gillibrand’s (D-N.Y.) campaign announced Monday that she had reached the 65,000 donor threshold over the weekend. The achievement came after a fervent digital push as her campaign spent more than $200,000 on Facebook ads between June 2 and 8. The campaign has spent $640,000 on Facebook ads alone since its formal launch in March.
Gillibrand is not alone when it comes to heavy spending on digital advertising – former Vice President Joe Biden and Sens. Kamala Harris (D-Calif.), Bernie Sanders (I-Vt.) and Elizabeth Warren (D-Mass.) have each spent more than $1 million on Facebook ads already. All told, the 24 Democratic presidential candidates have spent nearly $12 million on ads on the site.
The Media
Washington Post: Democrats, band together. Demand better debates.
By Stuart Stevens
Let’s start with the obvious: Why are news organizations sponsoring debates? The logical and proper role for the news media is to cover a debate, just as it covers every other event in presidential politics. Between the staging and promotion of the debates, sponsorship by a large corporation in the news business starts to look a lot like sponsorship by any large corporation.
That’s fine when Home Depot puts its name on a racecar and the employees and folks who love Home Depot can cheer for their car at the track, but why should there be an “MSNBC/CNN/name-a-news-organization” sponsorship of a serious, noncommercial endeavor such as a debate to help select the next president of the United States?
Over the years I’ve had these discussions – okay, arguments – with various news executives, and the most common response is that it is expensive to host a debate, and who will pay for it? This is nonsense on every level. Probably the best debate in the 2012 Republican primary cycle was one at Dartmouth College moderated by Charlie Rose, with the candidates sitting at a table. Those same executives eat at restaurants that charge more for dinner than it likely would have cost to stage that event.
And anyway, why in the world are news organizations involved with increasing the production values of political events? Should we go to a campaign-finance model of product placement, with news corporations paying for super-cool rallies that will draw more viewers? (I suppose we are close to that with Fox News and Trump rallies.)
The States
The Star-Ledger (New Jersey): Overriding dark money bill will cripple progressive groups, grassroots organization says
By Phyllis Salowe-Kaye and Marcia Marley
The legislation vetoed by the governor last month is strongly opposed by the progressive community.
It would impose unprecedented disclosure requirements on thousands of non-profits that are working to make our state a better place to live by protecting our environment, safeguarding our reproductive freedoms and strengthening our democracy. These new mandates would make it much more difficult for progressive organizations to fundraise and would represent a new and onerous burden that grassroots organizations in particular will find difficult to meet.
These requirements are so invasive that they may violate the Constitution, and groups from across the political spectrum are already considering a legal challenge.
New York Daily News: NY City Council advances campaign finance legislation that Comptroller called a ‘power grab’ by Speaker Johnson
By Anna Sanders
The City Council on Tuesday moved forward with campaign finance legislation that has two likely 2021 candidates for mayor already trading barbs.
Comptroller Scott Stringer’s campaign on Monday accused Council Speaker Corey Johnson of making a “brazen power grab” in an attempt “circumvent the will of the voters” by making last minute changes to the bill to help the councilman’s bid for City Hall, the Daily News first reported.
Johnson said on on Fox 5 NY Tuesday morning that this is “patently not true.”
The legislation, sponsored by Councilman Ben Kallos, would force some candidates like Stringer to refund thousands in donations if they wanted to take advantage of increased taxpayer-backed campaign funds in the 2021 elections.
The bill would also increase the total amount that candidates can collect from the public matching funds program.
The measure was approved by a Council committee five to one on Tuesday afternoon, with one member absent. The full Council is expected to approve the legislation this week.
“I want to wake up in a city where elected officials don’t work for big money,” Kallos (D-Manhattan) said before the vote.
Councilman Kalman Yeger, the lone no, said the Council was “voting to put money into politicians’ pockets so that they can send campaign fliers.”
“This is not about getting big money out of politics,” Yeger (D-Brooklyn) said before voting against the bill. “This is about…politicians dipping their own hands into the pockets of the taxpayers to swipe the cash, to do it now, when it’s under the radar.”
