In the News
PJ Media: Why Do the Democrats Hate Citizens United So Much?
By Tyler O’Neil
Of course, this [Citizens United] decision did have some impact on elections, but not when it comes to entrenching the powerful. Quite the reverse.
As Bradley Smith noted in The Wall Street Journal, “The decision made it easier to promote (or criticize) a candidate without help from party leaders or media elites.”
This led to some upset victories where challengers defeated establishment political figures: “Hillary Clinton outspent Mr. Trump 3 to 1 in 2016. Congressional leaders and big-time fundraisers such as Reps. Eric Cantor (R., Va.) and Joe Crowley (D., N.Y.) lost their seats to primary challengers who spent a fraction of what the incumbents did. Incumbent re-election rates in the House never dipped below 94% from 1996 to 2008, but did in 2010, 2012 and 2018.”
Non-profit groups were able to promote issues that voters believed in, even when the party establishments disagreed. Suddenly, political challengers became more viable.
Freeing up political speech did not result in less democracy, but in more dynamic representative government.
Supreme Court
Pacific Legal Foundation: The Supreme Court cases constitutional law experts are watching
By PLF Staff
In Elster v. City of Seattle, two Seattle property owners are challenging a new-fangled campaign-finance scheme that Seattle calls “democracy vouchers.” Each election cycle, Seattle residents receive four $25 vouchers, which can be used only as a political contribution to local electoral campaigns. The vouchers are funded through a dedicated property levy, thus forcing property owners to pay for other people’s campaign contributions.
The plaintiffs argue this scheme violates their First Amendment right to refrain from sponsoring speech they oppose. This “compelled subsidy” doctrine of the First Amendment has typically applied in the union context, protecting non-members from being forced to pay union dues. Elster presents an important opportunity for the Supreme Court to extend that doctrine to other compelled subsidies of speech…
In recent years, the State of California has tried to force all nonprofit organizations that solicit donations in California to turn over otherwise confidential lists of their donors. Americans for Prosperity v. Becerra could decide whether states are allowed to target nonprofit donors by exposing who they give money to…
The Ninth Circuit Court has already ruled in favor of California, which has the potential to chill nonprofit donations nationwide and opens the door for similar-or even more invasive-donor disclosure laws across the country…
The Supreme Court has not yet agreed to hear [either] case…
The Courts
Wall Street Journal: Justice Department Believes It Should Have Ended Surveillance of Trump Adviser Earlier
By Byron Tau
The Justice Department now believes it should have discontinued its secret surveillance of one-time Trump campaign adviser Carter Page far earlier than it did, according to a new court filing unsealed Thursday.
The Justice Department made that determination in a December letter to the secret court that oversees surveillance of suspected foreign spies, acknowledging it may have lacked probable cause to continue wiretapping in the last two of the four surveillance applications it sought against Mr. Page.
The government began the surveillance in late 2016, after he left the Trump campaign, and continued monitoring him until late 2017-ultimately obtaining a warrant and three subsequent renewals. The last two applications were submitted in April and June of 2017. It now has concluded there was “insufficient predication to establish probable cause” in the last two renewals, which authorized about six months of surveillance on the former adviser.
Probable cause is the legal standard to obtain a secret warrant against suspected agents of a foreign power from the Foreign Intelligence Surveillance Court, the secret judicial panel that approves such warrants.
The Justice Department letter is classified, but is referenced in a new order declassified by the judge that heads the FISA court, James Boasberg, on Thursday. The Justice Department said it would sequester all the material it collected against Mr. Page pending further internal review of the matter.
Reporters Committee for Freedom of the Press: This Week in Technology + Press Freedom
By Jordan Murov-Goodman
The Reporters Committee filed a friend-of-the-court brief last week in the ongoing case concerning journalist Brian Karem’s White House “hard pass,” the credentials that facilitate reporters’ access to White House grounds.
Last August, the White House suddenly notified Karem of a 30-day suspension of his hard pass, citing the Playboy correspondent’s alleged failure “to abide by basic norms of decorum and order,” more than three weeks after Karem had an altercation with former Trump aide Sebastian Gorka in the Rose Garden.
Karem immediately sought a preliminary injunction in federal court in the District of Columbia to get his credentials restored. The Reporters Committee filed a friend-of-the-court brief in support of Karem, emphasizing the well-established legal rule that the White House can deny hard passes only pursuant to basic due process – that is, notice of the conduct that will result in denial of security credentials and an opportunity to challenge the denial…
The district court granted the preliminary injunction, echoing many of the arguments presented by the Reporters Committee. The government appealed…
[T]the government can’t use the levers of power to retaliate for coverage perceived as negative, be it a “hard pass” that permits a White House reporter to do his or her job, or economic regulations like antitrust that can hit a news organization where it may hurt most: the pocketbook.
IRS
Forbes: Will Dark-Money-Funded Tax-Exempt Churches Campaign In 2020?
By Benjamin Willis
President Trump ordered executive agencies to stop enforcing the Johnson Amendment, a current law that prevents section 501(c)(3) entities from supporting or opposing political campaigns. Specifically, Executive Order 13798, issued May 4, 2017, provides that all executive departments and agencies will respect and “protect the freedom of persons and organizations” to engage in religious and political speech “to the extent permitted by law.” Many agree with the administration’s desire to protect unnecessary disclosure of donors’ identities and the free speech of churches that might otherwise lose their tax-exempt status by supporting political candidates…
The executive order, proclamation, and recently proposed regulations may shield churches and other tax-exempt organizations relying on worldwide donors to fund their political objectives by discouraging enforcement of the donor disclosure rules to which the churches and donors would otherwise be subject…
If the IRS can satisfy the laws and follow its own directives without requiring public disclosure of all section 501(c)(3) donations, it’s easy to see why many would be more eager to donate and engage in political activity. In the current political environment, some people are hesitant to share their views, knowing that disclosures could be required; the IRS and government representatives’ abuse of their powers based on political views has led to scandals, including that involving former IRS Exempt Organizations Director Lois Lerner and the agency’s mishandling of conservative groups’ exemption applications.
Congress
Reason: Lawmakers Say the FBI’s Problematic Carter Page Warrant Require Congressional Surveillance Reforms
By Scott Shackford
A bipartisan group in Congress is attempting (again) to pass legislation that would restrict the National Security Agency from abusing the PATRIOT Act and the Foreign Intelligence Surveillance Amendment (FISA) Court in order to collect and access private records of Americans.
The Safeguarding Americans’ Private Records Act would formally prohibit the bulk collection of Americans’ phone records, which Edward Snowden exposed and the NSA has since quietly ended…
The bill would also prohibit warrantless collection of geolocation information and it would forbid the NSA and other intelligence agencies from creating “secret” interpretations of surveillance laws…
The bill also seeks to address some of the institutional problems with the FISA Court, recently revealed by the Justice Department [OIG]…
The [bill] would allow independent advisers like Kris (“amici curiae,” in the bill’s language) to access all the reports, transcripts, and pleadings submitted to the FISA Court. These advisors would theoretically thus be in a position to offer an adversarial perspective to the Court…
The bill would also empower the [OIG] to investigate whether this surveillance has been used against people who are engaged in First Amendment-protected activities, and the extent to which agencies are collecting information about people who have not been specifically targeted (known as “backdoor collection”).
First Amendment
Intercept: The Fire This Time
By Alice Speri
[T]he [FBI] has also been heavily criticized for devoting large resources to surveilling political dissent by groups and individuals, often of color, who pose no threat but are critical of the government because they oppose official immigration policies or demand police accountability…
[C]ivil rights advocates have argued against using recent white supremacist attacks to call for more domestic terror laws and mass policing of any ideology, cautioning that trampling on constitutionally protected speech in the absence of criminality or national security threats risks strengthening authoritarian systems that will inevitably blow back on government critics and minorities. But there is a fundamental difference between policing ideas and policing crime and criminal intent…
[A] recent lawsuit against the city of Memphis has exposed the lengths to which police will go to surveil the free speech activities of Black Lives Matter and other activists who have committed no crimes.
In 2018, a federal judge in Memphis ruled that the city’s police department was in violation of a decades-old federal consent decree prohibiting local law enforcement from gathering “political intelligence.” The ruling followed litigation that revealed that Memphis police’s Office of Homeland Security, a unit set up following the 9/11 attacks, had engaged in widespread and systemic surveillance of the constitutionally protected activities of individuals protesting, among other things, the killings of black men at the hands of police.
Free Speech
New York Times: Brazil Calls Glenn Greenwald’s Reporting a Crime
By The Editorial Board
Sadly, assailing a free and critical press has become a cornerstone of the new breed of illiberal leaders in Brazil, as in the United States and elsewhere around the world. Accusations of wrongdoing are dismissed as “fake news” or politically motivated slander, and the power of the state is harnessed not against the accused officials but against the reporter.
In its 2018 report on press freedoms, the organization Reporters Without Borders warned that a “climate of hatred and animosity” whipped up by leaders toward journalists was posing a “threat to democracies.”
“More and more democratically elected leaders no longer see the media as part of democracy’s essential underpinning, but as an adversary to which they openly display their aversion,” the report said. When Mr. Bolsonaro was elected president in 2018, Reporters Without Borders called him “a serious threat to press freedom and democracy in Brazil.”
President Trump may not have made a dent in press freedoms in the United States – its traditions and institutions are too strong for that – but his incessant dismissal of stories he doesn’t like as “fake news” and his outrageous attacks on reporters as “enemies of the people” have provided succor and encouragement for the likes of Mr. Bolsonaro, who fuel loathing toward reporters both out of a personal disdain for the free press and as a cynical means of firing up the anger of their followers.
FEC
Washington Post: Nonprofit expands free security services for campaigns as election season heats up
By Cat Zakrzewski
Defending Digital Campaigns…is offering campaigns a wide range of free and discounted cybersecurity services…
While the FEC has taken major steps toward easing the restrictions on offering free services, there are still limitations. The commission ruled in July that the cybersecurity company Area1 could provide campaigns with free services because it was already offering similar services to other organizations such as non-profits at the same cost, the New York Times reported.
Daniel Petalas, a former general counsel at the FEC who represented Area1’s petition in that ruling, said the decision was a good step, but still didn’t provide enough clarity for the industry or campaigns.
“Political campaigns are highly targeted and vulnerable, and as not-for-profits often cannot spend resources to protect themselves as they should,” he told me. “The FEC is historically unwilling and presently unable to act to make these services available at no or low cost, despite the willingness of providers to come to the aid of the campaigns.” …
“Campaign finance hawks are wary of opening the floodgates to all security organizations out of concern they’ll try to barter for political favors later,” my colleague Joseph Marks has written.
But [Alissa Starzak, Cloudflare’s head of public policy] praised the FEC’s “thoughtfulness” In approaching the issue.
Citizens United
American Constitution Society: Revisiting Campaign Finance Regulation 10 Years After Citizens United
ACS held a panel discussion on the state of campaign finance on January 16, 2020. Titled “Revisiting Campaign Finance Regulation 10 Years After Citizens United,” the event featured Jason Abel, Lee Goodman, Chisun Lee, and Ciara Torres-Spelliscy and was moderated by Michael Tomasky
A decade after the Supreme Court’s Citizens United decision, super PACS and independent expenditures now dominate the political landscape. The FEC, tasked with monitoring these expenditures and enforcing campaign finance laws, lacks a quorum. What is the current state of play and what changes can and/or should be made to the way our elections are regulated?
Featured Speakers:
Michael Tomasky, Editor, Democracy: A Journal of Ideas; Columnist, Daily Beast; Moderator
Ciara Torres-Spelliscy, Professor of Law, Stetson University
Chisun Lee, Deputy Director, Election Reform Program, Brennan Center for Justice
Jason Abel, Partner, Steptoe
Lee Goodman, Partner, Wiley Rein
Lindsay Langholz, ACS, Welcome remarks
Washington Times: Revisiting the landmark Citizens United v. FEC decision
By David N. Bossie and Michael Boos
In the 10 years since the U.S. Supreme Court handed down its landmark decision in Citizens United v. FEC, history has proven the ruling’s chief critics completely wrong about its impact on American democracy.
The ruling did not usher in an era of unrestrained corporate campaign spending that drowned out the voices of ordinary Americans. Instead, by opening up alternative funding sources, Citizens United and its progeny have helped our democracy to flourish by taking power from the establishment political elites and their news media cronies, and made it possible for outsider candidates, such as Donald Trump, to effectively compete for votes in the American political arena.
Before the ink even had a chance to dry, The New York Times, itself a corporation, fired off an editorial decrying the decision, saying it “thrust politics back to the robber-baron era of the 19th century.” President Barack Obama in his 2010 State of the Union address a few days later claimed the court’s ruling “will open the floodgates for special interests – including foreign corporations – to spend without limit in or elections.” …
Democracy is alive and well in the United States of America, and Citizens United has helped it to flourish. In addition to voter turnout, political spending is a good measure of overall political participation and interest among the electorate. In the decade since Citizens United was handed down, overall election-related spending has increased in each of the five subsequent two-year election cycles.
Online Speech Platforms
Yahoo Finance: Why ‘micro-targeting’ is a problem for elections
By Melody Hahm
With just 12 days until the Iowa caucuses, concerns surrounding disinformation and meddling are only escalating ahead of the U.S. elections in November.
In addition to the threat of hacking and interference from foreign actors, tech giants like Facebook micro-target users, serving up hyper-specific ads that mirror an individual’s beliefs, interests, and opinions.
Ellen Weintraub, commissioner and three-time chair of the Federal Election Commission (FEC), has been a vocal opponent of this practice, which is now a normalized business model in the tech world.
“[These companies] are targeting ads in very small slices to people, making sure [they’re] almost custom-designed for you. At the same time, anyone who disagrees is likely to be getting a different ad set. They’re not even going to see the ad. There’s no opportunity for what we call counterspeech, for someone to come out and say, ‘wait a minute, that’s not right. there’s another take on that’ or ‘there’s other information that you really ought to hear in order to make an informed judgment,'” she said in an interview with Yahoo Finance’s The Final Round Tuesday.
“If the platform circulated these ads to a broader base of viewers and listeners, those other folks would be able to critique the ads and there would be a fairer exchange and a more robust debate of our politics,” added Weintraub.
While she acknowledges the possibility that the actual experience for consumers is enhanced with more targeted advertising, Weintraub believes it’s a net negative for democracy.
Candidates and Campaigns
Yahoo Finance: Bloomberg’s billionaire campaign is working
By Rick Newman
[P]eople are paying attention to Bloomberg, and it’s clearly because of his money. It should be a travesty. But maybe it’s not.
The former New York City mayor has risen from nothing to 10% percent of the vote in Morning Consult’s latest poll of Democratic primary voters, putting him in fourth place…
Bloomberg has also suggested he’ll spend $1 billion or more to defeat Trump this year, whether on his own campaign or on behalf of whoever the Democrats end up nominating. That would be 23% more than every donor combined spent on Hillary Clinton’s campaign in 2016, and 55% more than all Trump donors spent, combined. In short, Bloomberg, worth about $55 billion, brings a transformative amount of money to the race.
Is this okay? Or appalling? It’s arguably both, given that private money is an unfortunate constant in American politics and a de facto requirement for winning national races. Since the 2010 Citizens United Supreme Court decision opened the donor floodgates, rich donors have poured money into super PACs and other groups that help tilt elections.
Several Democrats, including Bernie Sanders and Elizabeth Warren, are trying to buck that trend this cycle, relying solely on small-dollar donations. But that would put each at a huge disadvantage to Trump, who is accepting corporate funding and other large donations.
The Verge: Meet the 26-year-old Socialist Trucker Running For Congress On TikTok
By Makena Kelly
[Joshua] Collins’ TikTok has become the centerpiece for a new kind of political campaign – one he hopes will carry him all the way to Congress…
Collins also has one crucial advantage over [candidates] Reeves and Strickland: he’s kind of famous online. Before he formally launched his campaign last spring, Collins had around 40,000 followers on Instagram. His Twitter following was much smaller, but after a few well-timed retweets from Ocasio-Cortez, thousands of people started flocking to his account. Last October, he joined TikTok and launched his official campaign account @joshua4congress. As of publication, the account has over 26,000 followers. That presence on Instagram, Twitter, and TikTok hassled to a “big boost in our donations and volunteer signups,”…
As his TikTok following grew, Collins began urging followers to support him more directly by joining his Discord server…The Discord membership is a fraction of his TikTok following, but potentially far more powerful. Collins calls the Discord server “a campaign office, but online” and a “remote organizing ‘space'” for volunteers to talk shop and inspire other young members of the resurgent left to run for political office themselves.
“Our Discord has literally doubled in size since I started using it, and my timely TikTok video about my incumbent opponent dropping out was part of a massive two-day fundraising haul,” Collins told The Verge. “If it isn’t translating for other people, they probably aren’t using it right.”
