In the News
New York Daily News: Facebook is making the right choice on political speech
By Scott Blackburn
Should Elizabeth Warren be allowed to advertise that her campaign is 100% grassroots-funded? Should Joe Biden be allowed to run an ad saying that Trump, unlike Obama, is locking up families in cages at the border? Should Bernie Sanders be allowed to run an ad decrying that 500,000 Americans are going bankrupt due to medical bills?
These are all false claims, according to independent fact-checkers.
The candidates, unsurprisingly, disagree. The fact-checkers are quibbling over minor details, they argue, or they asked the wrong experts. The campaigns, of course, can point to sources that support their claims.
That politicians might spin the facts in their favor is not a new or surprising phenomenon. It is the job of the media to unwind misleading claims and add context. Of course, they can be overly pedantic or outright biased. And it is the American voters’ job, then, to sort it all out. Only each individual voter can decide which politicians to trust or doubt, which political ads are honest or misleading, and which media outlets to listen to or ignore.
Not too long ago, this was called politics.
But now, in a burgeoning age of moral panic over the internet, many are demanding that Facebook, Google and Twitter determine which political ads are “true.” And then censor any that are not…
Facebook (or Google or Twitter) should not be in the political fact-checking business.
This doesn’t mean that false speech is good or that we want politicians to run false ads. Quite the contrary. Candidates should call out false speech…
Elected officials should not, however, attempt to circumvent the First Amendment by cajoling and threatening companies to reject certain political ads. We should not compromise free expression in the name of silencing potential falsehoods.
Must Read Alaska: Alaska’s $500 limit for campaigns working way through U.S. Supreme Court
By Suzanne Downing
Alaska’s extremely low campaign contribution limits of “$500 per candidate per-donor, per-year” are the subject of a lawsuit working its way through the Supreme Court this month.
Will the nation’s highest court hear it? Alaskans may find out soon.
The $500 limit was upheld in the Ninth Circuit Court of Appeals on Nov. 27, 2018, and the petitioners are now asking the Supreme Court to take a look at whether the limit infringes on Alaskans’ right to free speech…
Filing briefs in support of Thompson, Downing, and Crawford is the Institute for Justice, the Cato Institute, Institute for Free Speech, and the Brennan Center for Justice at NYU School of Law. Pro bono legal work is being handled by Reed Smith LLP .
According to Cato, the Supreme Court has never granted the federal or state governments such an extreme authority to restrict valid First Amendment activity.
“The Ninth Circuit’s decision flouted Supreme Court precedent and it deserves a firm rebuke,” Cato wrote. “In doing so, the Court should emphasize, once again, that core political speech and association activities, including political contributions, are entitled to robust protection by the First Amendment.”
Supreme Court
Slate: The Supreme Court May Criminalize Immigrant Advocacy
By Lorelei Laird
The Supreme Court has agreed to take up United States v. Sineneng-Smith this term, a case that concerns a little-used provision of immigration law that forbids “encourag[ing] or induc[ing] an alien to … reside in the United States” when the encourager knows that person has no legal status.
The case seems straightforward enough: Immigration consultant Evelyn Sineneng-Smith told her undocumented clients they could stay in the United States under a program she knew had ended. That was fraud, and the government ultimately convicted her for it.
But the government also convicted her on the encouragement provision, which on its face appears to criminalize any pro-immigration speech…
The 9th U.S. Circuit Court of Appeals made short work of rejecting Sineneng-Smith’s appeal on the fraud convictions but reversed her encouragement convictions, finding that the government’s interpretation of the statute criminalizes a large amount of constitutionally protected speech.
Writing for a three-judge majority, Judge A. Wallace Tashima said the provision could send a social media user to prison for encouraging undocumented people to stay until the law is changed, or a lawyer for telling her client that he has fewer due process rights outside the United States than inside. In so ruling, he had the help of a great many amicus briefs from immigration advocacy groups, attorney groups, and First Amendment advocates, mostly arguing that the encouragement provision criminalizes protected political speech and routine legal work.
Online Speech Platforms
Washington Post: Getting rid of microtargeting in political advertising is a terrible idea
By Chris Wilson
Jack Dorsey, chief executive of Twitter, unleashed a frenzy of commentary when he went Pontius Pilate and effectively washed his hands of the false advertising problem online by announcing his platform would no longer take political ads. But perhaps the most alarming reaction came from Federal Election Commission Chair Ellen Weintraub, who called on social media giants to “stop the practice of microtargeting” ads on their platforms.
As someone who has worked on multiple state and federal election campaigns, I found such comments from the highest campaign regulatory official in the country counterproductive and anti-democratic. Such a radical proposal would limit speech, reward millionaire candidates, protect incumbents and, worst of all, limit the newfound interest and participation in U.S. elections…
[The] ability to target on multiple specific and real issues, rather than vague messages that work generically, incentivizes politicians to have plans for, make commitments about and campaign on a much wider variety of concerns. Real problems have been solved because research leading to targeted ads found issues worth addressing.
Further, the cost is a fraction of expensive TV advertising, which mitigates the advantage millionaires and incumbents have in elections…
In 2008, the Obama campaign was on the leading edge of data-driven appeals and the impact of their effort was dramatic. With strong appeals to minorities and low-turnout Democratic voters, the Obama team drove up turnout by almost 6 million from 2004. The effort, which has become more sophisticated since, was good for democracy; Weintraub’s proposal would make it illegal…
Moreover, the renaissance of online organizing for political causes – from climate change to gun control to abortion – would not have been feasible without the ability to target those likely to agree. Again, Weintraub’s proposal would shut that down for all but the most well-funded organizations.
New York Times: Four Ways to Fix Social Media’s Political Ads Problem – Without Banning Them
By Daniel Kreiss and Matt Perault
[W]hen President Trump tweets about the strength of the economy or about alleged corruption by a political opponent, no opposition candidate can run an ad on Twitter to counter the enormous organic reach of the person holding the highest elected office in the country.
During the 2020 election cycle, on a platform that is one of the greatest technological innovations in free expression in our lifetimes, candidates won’t be able to use ads to speak their views on political issues or gain access to wider audiences, and advocacy organizations won’t be able to use ads to push for legislative changes…
Political advertising has long been controversial, but broad bans on digital platforms will harm our democratic process by silencing voices and reducing the range of views that reach voters. Digital advertising plays a particularly important role in political communication in an era of heightened media choice and fragmented public attention. Tech platforms have greatly lowered the costs of running political advertising…
A recent research paper by leading political advertising scholars found that a more diverse array of candidates advertises on Facebook than on television, particularly down-ballot candidates and challengers to incumbents. Other research has found that digital political advertising has the potential to increase voting, especially among young voters harder to reach through mass media. Candidates run digital political ads to find voters, convert them into donors and volunteers, and to mobilize them on Election Day…
Instead of Twitter’s overly broad and ill-conceived blanket ban on political ads, and confusing restrictions on issue ads, it could have considered four common-sense changes to political advertising that would help to mitigate some of the most egregious abuses and instill more confidence in the platforms’ stated commitments to election integrity. Facebook still has time to do so. These are proposals that we developed together (based on Matt’s experience working at Facebook and Daniel’s decade of research on digital campaigning).
Fundraising
Yale Law Journal: Small-Donor-Based Campaign-Finance Reform and Political Polarization
By Richard H. Pildes
The communications revolution has led to a sudden, dramatic explosion in small-donor contributions to national election campaigns. In response, many political reformers, including most Democrats in Congress, have abandoned traditional public financing of elections and now advocate small-donor-based matching programs, such as those in which $6 of public funds would be provided to candidates for every $1 they raise from small donors. But the evidence suggests that online fundraising is subject to many of the same pathologies as the internet in general; the candidates who are most successful at small-donor fundraising are those who are able to generate national media coverage, often because they are more ideologically extreme or more able to create viral moments. Before adding further fuel to the fires of our hyperpolarized era, we need more discussion about the costs, as well as the benefits, of basing public financing on small-donor matching programs rather than more traditional forms of public financing…
This Essay seeks to raise some concerns about the effects of small donors on politics, particularly about building campaign-finance reform around them. Part I describes the ways in which the communications revolution is reshaping our privately financed campaign system. Part II then presents the evidence to date that suggests small donors tend to fuel more ideologically extreme candidates. Finally, Part III identifies specific aspects of H.R. 1’s design that ought to be discussed more widely.
Independent Groups
Bloomberg: Democrats Use Super-PACs to Blunt Trump’s Funding Dominance
By Bill Allison
Wealthy Democratic donors are pouring money into outside groups as part of their effort to defeat President Donald Trump in 2020, avoiding contributions to a party apparatus that lost in 2016 and to leading candidates who don’t want their help.
Outside groups aligned with Democrats have pledged to spend more than $300 million attacking Trump, far more than the $67 million raised by the Democratic National Committee. With little primary opposition, Trump and the Republican Party are already in general election mode, free to spend millions in states he’ll need to win a second term.
The Democratic groups are being fueled by seven-figure checks necessary to advertise in battleground states, blunting Trump’s big campaign cash advantage…
The organizations are part of a diverse coalition that includes nonprofits, labor unions, super-PACs and state-level political committees. The groups honed their techniques in the 2018 midterm elections, when they spent $524 million at the federal level — slightly more than Republican super-PACs and nonprofits — helping Democrats take over the House and limit losses in the Senate.
FEC
Washington Examiner: Democratic FEC chairwoman seeks to boost student vote
By Paul Bedard
Republicans are raising new concerns about the Democratic chairwoman of the Federal Election Commission’s efforts to boost the Democratic vote in the 2020 election.
Critics are pointing to a series of letters and tweets Ellen Weintraub has written to North Carolina colleges urging them to comply with new rules on voter identification.
“ALERT!” she wrote in a tweet decorated with flashing red lights. “According to the NC State Board of Elections, dozens of #NorthCarolina colleges and universities have not yet had their student IDs approved as photo IDs for voting,” she added.
Supporters of her action said that she is simply trying to make sure students get to vote.
But critics say that is not the role of the FEC, which was created to police campaign financing, and it also amounts to “meddling” in state elections.
One election law expert said, “Chair Weintraub has been using the power of her office to pressure North Carolina colleges into making it easier for a key Democratic constituency – college students – to vote in the 2020 election. The FEC chair has no business meddling in issues like voter ID because they are a state rather than a federal issue.”
Weintraub has been critical of President Trump, who edged out Hillary Clinton by less than 200,000 votes in 2016.
The States
The Intercept: As Longest-Serving Senate President In U.S. History Steps Aside, Maryland Set For A Political Shakeup
By Rachel M. Cohen
Thomas “Mike” Miller, the longest serving state Senate president in U.S. history, has been a formidable barrier to progressive action for decades. A member of the Maryland Senate since 1975, the conservative Democrat has been the chamber’s top leader for the last 32 years…
Maryland’s political landscape, however, drastically changed late last month, when Miller announced his resignation as Senate president due to complications from his cancer treatment. Come next year, he will continue to be a rank-and-file senator, but the state Senate will instead be led by Bill Ferguson, a 36-year-old progressive lawmaker from Baltimore…
[Larry] Stafford, of Progressive Maryland, says that immediate priorities for progressives next year will be campaign finance reform and passing a more equitable public education school funding formula.
“I’m most excited about the prospect for a small-dollar fund matching program and getting the influence of money out of politics in state-level elections,” he told The Intercept. “We’ve been able to win campaigns to pass public financing in Howard County, Prince George’s County, Montgomery County, and Baltimore City, and we believe this shift with Miller will enable us to have more success in pushing that type of policy forward, which could further change the makeup of the state’s political landscape.” A study released this past September by the Maryland Public Interest Research Group found that candidates who participated in Montgomery County’s new public financing program attracted far more donors in the 2018 election than those who didn’t.
