The Courts
Federalist Society: Fourth Circuit Recognizes Free Speech Concerns with Voter List Access Restrictions
By Stephen R. Klein
On July 12, a panel of the U.S. Court of Appeals for the Fourth Circuit overturned a ruling from the District of Maryland that dismissed a challenge to a state law that limits access to Maryland’s registered voter list to Maryland registered voters. (The author of this post is lead counsel for the plaintiff / appellant.) Writing for the unanimous panel in Fusaro v. Cogan, Judge Robert B. King ruled that there are First Amendment implications in restricting access to a voter list this way-especially one that by its own terms is facilitated strictly for purposes “related to the electoral process.” The appellate court ruled that this free speech concern must be balanced against state interests, and remanded the case to district court to conduct that analysis…
The opinion is novel. “The type of claim that Fusaro pursues – namely, a free speech challenge to conditions that a state has imposed on the release of voter registration data – has apparently never been addressed by any appellate court.” The opinion is thus an important, though admittedly short, step toward reconciling free speech and public records doctrine: indeed, one reason the question has not come up owes a lot to other states not enacting voter list laws like Maryland’s. The case may head back to district court uninterrupted, or perhaps undergo en banc review or even certiorari to the Supreme Court, but for now it is an important affirmation that while “‘[t]he Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act'” (Houchins v. KQED, Inc.), certain public records are inseparable from free speech.
Congress
Wired: Before Mueller’s Testimony, Dems Demand More Election Security
By Matt Laslo
There are a number of bipartisan efforts to protect the nation’s electoral process: The Honest Ads Act, cosponsored by Amy Klobuchar (D-Minnesota) and Lindsey Graham (R-South Carolina), is aimed at keeping foreign actors from buying social media ads, among other things. The Duty to Report Act would “impose a legal duty on federal campaigns, candidates, and PACs to report offers of assistance from foreign nationals.” …
Senator Warner is also worried about outside actors intervening, as was laid out in Mueller’s report, through hacking into the personal information of campaign officials, attempting to penetrate election systems nationwide, and creating fake accounts intended to sow discord on social media, which intelligence officials also witnessed happening in the UK’s Brexit vote and the last French presidential election.
But, technologically speaking, 2020 is light years away from 2016, and lawmakers see new potential tools and tactics to simply-and at a bargain-basement price-disrupt the American electoral system in the meantime.
“Maybe the single greatest new threat, from at least the social media standpoint, is the use of deepfakes,” Warner said. “If seeing is believing, the ability for a foreign government-for a foreign entity-to manipulate the images of any of our political candidates to appear to say something they’re not saying, is really, I think, one of the most chilling aspects.” …
“In this era, algorithms will amplify and magnify false, purposefully untrue messages,” Senator Richard Blumenthal (D-Connecticut) said. “Much like atomic fission in the nuclear era, we have no real understanding-even the social media companies have been candid that they have no real understanding about the power of algorithms to magnify false messages.”
The Hill: Democrats paint McConnell as ‘lead opponent’ to election security in new report
By Maggie Miller
The report, specifically released ahead of the House hearings featuring special counsel Robert Mueller on Wednesday, details what the Democrats see as steps taken by McConnell since 1999 to resist election security and voting reform efforts.
“For years, Sen. McConnell has fought to increase the impact of dark money and corporate spending in our elections,” the Senate Democrats wrote. “But now, after reportedly fighting efforts to expose Putin’s interference during the 2016 elections, Senator McConnell is blocking bipartisan reforms that would secure our elections from foreign interference.” …
A spokesperson for McConnell pushed back against the claims made in the report, pointing The Hill towards comments made by McConnell on the Senate floor following a full Senate briefing from administration officials on efforts to secure elections that took place earlier this month.
In his comments, McConnell praised the work done by federal agencies to secure elections in the lead up to 2020, saying that “Leaders across government are continuing to explore and repair potential vulnerabilities and increase cooperation ahead of the 2020 presidential election.”…
At a press conference on Tuesday, Senate Minority Whip Dick Durbin (D-Ill.) said that Congress was doing “nothing” to secure elections ahead of 2020, and the reason was McConnell.
Sen. Ron Wyden (D-Ore.), who has sponsored multiple election security bills, said during the same press conference that “hostile foreign actors are going to interfere in the 2020 elections in a way that makes what happens in 2016 look like very small potatoes.”
Wyden added that Senate Democrats plan to “fan out all over the country” during the upcoming August recess to sound the alarm on threats to elections.
FEC
Florida Politics: Former U.S. Rep. Cliff Stearns fined by feds over ‘zombie’ campaign spending
By Noah Pransky
Former Florida Congressman Cliff Stearns is the first casualty of the Federal Election Commission’s crackdown on zombie campaigns, agreeing to pay a $6,900 fine and reimburse his campaign $8,120 for violating federal law prohibiting personal use of campaign funds.
The Ocala Republican was one of more than 100 former federal candidates – from both parties – exposed by the Tampa Bay Times and WTSP-TV for exploiting loopholes in federal campaign finance laws to keep their old committees alive and spending, long after their political careers were over.
The FEC does not often initiate its own investigations but was turned on to Stearns by a complaint from the nonpartisan watchdog Campaign Legal Center (CLC), which followed an October 2017 POLITICO story detailing Stearns’ questionable spending after leaving Congress in January 2013…
According to the FEC’s settlement agreement with Stearns, it found probable cause the former U.S. Representative violated the law by spending thousands of dollars on fees and meals related to a conservative ideas conference, membership fees and expenses at the National Republican Club of Capitol Hill (“Capitol Hill Club”), and a Jacksonville hotel stay…
“This is great news,” said Brendan Fischer, Director of Federal Reform for the Campaign Legal Center. “This is an additional indication that the FEC is beginning to take the zombie campaign phenomenon seriously.”
The agency recently sent letters to 50 other zombie campaigns asking for more information on why the candidates still had campaign accounts open and active when they were no longer campaigning. It is also believed to have several other investigations open into zombie campaigns from around the country.
DOJ
Washington Post: Justice Department announces broad antitrust review of big tech
By Tony Romm, Elizabeth Dwoskin, and Craig Timberg
The Department of Justice on Tuesday announced it is opening a wide-ranging antitrust review of “market-leading online platforms,” an unprecedented probe of the tech industry that could heighten calls for Amazon, Facebook and Google to be broken up…
To start, DOJ officials are planning a meeting this week with attorneys general from states such as Colorado, Nebraska and Iowa to examine the potential for bringing state-level cases against tech giants, according to two people familiar with the meetings who spoke on the condition of anonymity because they were not authorized to discuss the matter publicly. Some of those states have urged the federal government to open competition probes of tech giants, and many attended a private gathering hosted by the Justice Department in September to discuss the power of online platforms, including concerns about competition, privacy and free speech…
President Trump has repeatedly swiped at Silicon Valley in recent months, at one point last month threatening unspecified lawsuits against Facebook and Google. Earlier this month, Trump convened a summit at the White House during which he attacked the industry for what he called the censoring of conservatives – and pledged to explore “all regulatory and legislative solutions to protect free speech.” …
But the president’s attacks prompted concerns among some experts about the rationale for the new review…
“Another way to read this is that the administration doesn’t like any of these tech firms because they think they all lean Democratic and stifle conservative voices, and this is just pure, raw-knuckles payback,” [said Robert Litan, a partner in the law firm Korein Tillery and former deputy assistant attorney general in the Justice Department’s antitrust division who helped prosecute Microsoft.]
Reason: The Justice Department’s ‘Big Tech’ Antitrust Investigation Is Unnecessary Political Theater
By Eric Boehm
Officially, the department wants to determine “whether and how market-leading online platforms have achieved market power and are engaging in practices that have reduced competition, stifled innovation, or otherwise harmed consumers,” the Justice Department said in a statement…
That all sounds pretty reasonable, but it’s probably right to view the Justice Department’s action with skepticism-for several reasons.
First, because it’s duplicative. The Federal Trade Commission, which shares antitrust enforcement authority with the Justice Department, has already launched a task force to investigate many of the same issues with America’s largest tech platforms. In February, the FTC said the new task force would “closely examine technology markets to ensure consumers benefit from free and fair competition.”
Tech firms are also under pressure from Congress, which has repeatedly hauled the CEOs of Facebook and other top tech firms into hearings to answer for their alleged role in helping Trump get elected or for supposedly stifling Trump supporters’ online speech-depending on which day of the week it is. It’s unclear what the Justice Department thinks it can add to the show.
Second, the lack of a clear rationale for the Justice Department’s investigation makes this look like a politically motivated operation. Earlier this month, President Donald Trump hosted a so-called “social media summit” at the White House-and used the occasion chiefly to complain about not having enough Twitter followers. During a lengthy speech, Trump also promised to explore “all regulatory and legislative solutions to protect free speech” online, though he also indicated that his definition of “free speech” does not include speech he deems “bad” or “dangerous.” …
The Justice Department is not clarifying whether its investigation will include platforms’ policing of online speech, but the timing and the seemingly open-ended nature of the review create the opportunity for the Justice Department’s antitrust enforcement powers to be used for obviously political purposes.
Wall Street Journal: Former Flynn Business Partner Convicted on Foreign Lobbying Charges
By Byron Tau and Aruna Viswanatha
A business partner of former White House national-security adviser Mike Flynn was found guilty Tuesday of not properly disclosing consulting work prosecutors alleged was done on behalf of the Turkish government, a milestone in the U.S. government’s newly aggressive enforcement of foreign-lobbying laws…
The case was one of the first high-profile tests of the Justice Department’s newly aggressive enforcement of the Foreign Agent Registration Act, or FARA, the primary law that regulates consultants and lobbyists disclosing their work on behalf of foreign governments…
In recent years, the Justice Department has aggressively moved to crack down on consultants skirting their registration obligations under the law. Former special counsel Robert Mueller’s investigation into Russian interference in the 2016 election shed new light on a widespread lack of compliance with the law among consultants of both parties.
The Kian trial was one of two major test cases that were scheduled for trial this summer concerning the FARA law. Former Obama White House counsel Greg Craig, who is accused of not properly disclosing his work for Ukraine, will go to trial on similar charges next month. Both cases stem from the investigation conducted by Mr. Mueller.
Independent Groups
Politico: Top Democratic super PAC launches online barrage against Trump on economy
By Maggie Severns
A Democratic super PAC is starting to spend at least $1 million a month online attacking President Donald Trump’s record on the economy, the group announced Tuesday.
The new campaign run by Priorities USA, the main super PAC that will support the eventual Democratic nominee for president, will counter news about Trump tax cuts and rising stock prices with information about increases to the costs of living and health care – and will seek to pin voters’ problems on the Trump White House. It is focused on four states that Democrats see as crucial to winning back the White House: Florida, Pennsylvania, Michigan and Wisconsin…
Priorities USA will also push its message in three parts: it will share news stories online, advertise in search results and push testimonial videos of people talking about their struggles…
The spending is one part of $100 million that Priorities USA has earmarked for the primaries, while Democratic candidates are battling for the nomination. President Donald Trump and the Republican National Committee have meanwhile begun aggressive spending of their own, having put down close to $6 million online on Facebook alone during the first half of the year.
The Hill: Democrats look to capitalize on turmoil inside NRA
By Alex Gangitano
Earlier this month, Washington, D.C., Attorney General Karl Racine (D) subpoenaed the NRA and the NRA Foundation Inc., seeking financial records as he investigates compliance with the city’s Nonprofit Act. New York state Attorney General Letitia James (D) has also been investigating the NRA’s finances.
Congressional Democrats also want answers on the group’s activities.
In February, Sen. Sheldon Whitehouse (D-R.I.) and Rep. Jamie Raskin (D-Md.) wrote to LaPierre asking about reports the NRA “made illegal, excessive, and unreported in-kind donations to Donald J. Trump for President and various Republican congressional candidates in the form of coordinated communications.”
They asked for guidance on compliance with state and federal campaign finance laws and the NRA’s work with a number of media consulting firms.
A Virginia law firm responded on behalf of the NRA and all six subsidiaries and told lawmakers they could not provide those materials because they were being reviewed by the Federal Election Commission.
But Whitehouse and Raskin said the response raised new questions about the entities coordinating their response through common counsel. Coordination between official campaigns and outside groups are prohibited.
“I have a general interest in the phony tricks that are used to dodge around what’s left of our campaign finance requirements,” Whitehouse told The Hill.
Candidates and Campaigns
Daily Beast: 2020 Candidates Delayed Paying Staff to Look Richer on Paper
By Lachlan Markay and Sam Brodey
For months, Sen. Amy Klobuchar’s (D-MN) presidential campaign made regular payments to its staff and vendors, with varying daily expenditures that never exceeded $335,000. But on April 1, 2019, the campaign’s spending exploded.
Whereas Klobuchar’s campaign spent an average of about $55,000 per day through the end of June, according to FEC filings, it dropped a whopping $624,000 on the first day of April, including a $300,000 payment to the campaign’s digital vendor.
That massive uptick in expenses was likely due to the fact that April 1 marked the beginning of the new fundraising quarter. By putting off the payments until then, Klobuchar was able to put the best possible spin on her presidential campaign’s financial position during the previous three months…
A Daily Beast review of campaign finance records indicates that the delayed-expenses strategy has continued through the just completed cycle, and has involved payments to campaign staffers as well.
Klobuchar, whose campaign did not respond to multiple requests for comment, is one of at least four Democratic presidential candidates who appear to have skipped a staff payday at the end of June, putting off that pay period until the beginning of the following month and hence transferring the expense to the next quarter’s balance sheets.
Virtually every campaign engages in forms of accounting gimmicks in order to enhance their financial standings. Veterans of past and current races say that it is common to try and delay spending to future quarters in order to bolster cash reserves that have to reported at filing deadlines.
The States
OZY: An Election With No Facebook Ads? Meet The Digital Black Hole States
By Nick Fouriezos
On Facebook feeds and Google search pages across the nation, potential voters are being bombarded with an avalanche of ads as political campaigning for the 2020 elections picks up…
You wouldn’t know that, though, if you’re a resident of Maryland or Washington state. That’s because Google and Facebook are now refusing to run political ads in both states – together, home to 5 percent of the nation’s population and 22 electoral votes – due to stringent campaign-transparency laws that the tech giants say they can’t properly adhere to. Maryland and Washington are at the extreme end of a growing divide in the way different states will experience the 2020 election…
Yet even as some applaud the decisions to take digital ad transparency seriously, others worry the new restrictions raise significant free speech concerns. “One thing that could happen is the chilling of participation from some advertisers,” says Walter Olson, a senior fellow at the Cato Institute, a libertarian think tank. “That could take some voices that are potentially valuable out of the debate.” …
The Maryland law has been particularly contentious. Social media giants and newspapers reaching more than 100,000 unique monthly viewers were required to keep a database of Maryland political ads, publish proprietary details about audience and pricing and keep records that could be seen by the state at a two-day notice. The regional press association, The Washington Post and The Baltimore Sun all opposed the law in court…
Free speech concerns led a Maryland federal court to block the state law in January while it was unconvinced the legislation “is the least restrictive means of achieving its compelling interest in deterring or exposing foreign attempts to meddle in its elections.” It is unclear if Maryland will challenge the ruling before an appellate court or whether Facebook and Google are willing to reopen political ad spending in the Old Line State (so far, they haven’t announced plans to end the buying freeze).
Davis Enterprise: Can California crack down on deepfakes without violating the First Amendment?
By Ben Christopher, CALmatters
The American Civil Liberties Union of California, the California News Publishers Association and the California Broadcasters Association all oppose the bill on First Amendment grounds.
The bill cleared a hurdle by winning approval from a Senate committee. But at the hearing Whitney Prout, staff attorney with the publishers’ association, called the bill “an ineffective and frankly unconstitutional solution that causes more problems than it solves.” She warned that, if enacted into law, it could discourage social media users from sharing any political content online, lest it be a fake and they be held legally liable. Another possible consequence, she said, is that campaigns plaster every attack ad with a deepfake disclosure to shield themselves from lawsuits, leaving the voting public even more confused.
“The law surrounding the First Amendment really has evolved in a pre-Internet world,” said Louis Tompros, a partner at the law office of WilmerHale in Boston and a lecturer at Harvard. The enactment of laws such as the one Berman proposes would “force the courts to really reconcile the whole body of First Amendment law with these new phenomenon.” …
Tompros said it would be very difficult to craft a law banning socially harmful deepfakes without sweeping up more traditional forms of political speech.
“Is it a ‘deceptive audio or visual media’ if, for example, I take a 10-minute, very nuanced policy speech and I clip out five seconds in the middle where it sounds like the person is taking an extreme position?” he said.
Under that standard, a significant share of attack ads produced over the last half-century would be illegal.
