In the News
Philanthropy Roundtable: Congress Continues Campaign to Chill Political Speech
By Patrice Onwuka
With the start of a new session, Congress has resurrected a sweeping election reform bill that’s certain to stifle funding to political advocacy.
U.S. House Speaker Nancy Pelosi, D-Calif., reintroduced House Resolution 1, the For the People Act, which was passed by the Democratic-led House in the last session of Congress but failed along party lines in the U.S. Senate.
This nearly 800-page bill covers many liberal policy priorities meant to cement Democratic dominance at the polls from outlawing gerrymandering to D.C. statehood. It also includes reforms that would restrict spending on political advocacy and chill donations to organizations that influence elections.
As Brad Smith of the Institute for Free Speech wrote in an analysis of the bill’s previous iteration, “These limitations would reach far beyond campaign speech to regulate discussion of legislative issues and public affairs. The restrictions also extend far beyond ‘super PACs’ to apply to literally any civic or membership organization that engages in such discussion. For advocacy groups, unions, and trade associations, several of the limits proposed in H.R. 1 would operate as a total ban on speech.”
Business Insider: Democrats are plotting the death – and rebirth – of a hamstrung Federal Election Commission now that they’ll control the White House and both chambers of Congress
By Dave Levinthal
An emboldened, Democrat-led Congress will aim to reduce the number of FEC commissioners from six to five…thereby nixing frequent deadlocks along ideological lines…
“Having an election commission under partisan control of the president’s party, which is what this would amount to, is a serious mistake,” said Bradley Smith, a former Republican FEC chairman and president of the Institute for Free Speech, a nonprofit that supports campaign finance deregulation.
Even though Democrats propose appointing an “independent” FEC chairperson alongside two Democrats and two Republicans as part of a reconstituted five-member agency, Smith suggested liberals may try to “pack” the agency with a left-leaning chairman all but guaranteed to take their side.
“It’s basically the same ol’, same ol’ – ‘how can we use campaign finance rules to harm our political opponents?'” Smith asked.
Michael Toner, another former Republican FEC chairman who’s now a partner at law firm Wiley Rein LLP shares the same concerns.
“There’s potential for partisan abuse,” Toner told Insider.
But Ellen Weintraub, a Democrat who’s served as an FEC commissioner since 2002, argues whether the commission functions well “all depends on who the commissioners are” – and not so much whether the panel has an even or odd number of members.
Wiley: Political Privacy Update: Supreme Court to Hear Two Donor Privacy Cases From California
By Lee E. Goodman
On January 8, the U.S. Supreme Court granted certiorari in two donor privacy challenges to California’s compulsory donor disclosure for nonprofit organizations. The first is Americans for Prosperity Foundation v. Xavier Becerra (Case No. 19-251). The second is Thomas More Society v. Xavier Becerra (Case No. 19-255). The Court deferred action in a third case, Institute for Free Speech v. Xavier Becerra (Case No. 19-793).
California’s attorney general requires all nonprofit organizations to disclose their donor lists as a condition of registering to solicit donations from California citizens. Three nonprofit organizations challenged the compulsory donor disclosure rule as a violation of the First Amendment right of associational privacy. The results were mixed in the federal district courts, but the U.S. Court of Appeals for the Ninth Circuit upheld the rule in all three cases. Each plaintiff nonprofit petitioned the Supreme Court for certiorari.
The Courts
New York Times: N.Y. Attorney General Sues N.Y.P.D. Over Protests and Demands Monitor
By Ashley Southall
The New York State attorney general sued the New York City Police Department on Thursday over what she said were widespread abuses in how officers handled the protests that erupted last summer after the killing of George Floyd in Minneapolis.
The attorney general, Letitia James, wants a court-appointed monitor to oversee the department’s policing tactics at future protests, and a court order to declare that the policies and practices the department used during the protests last May and June were unlawful.
The lawsuit, filed in federal court in Manhattan, marked the first time in history that the state attorney general has sued a police department, according to Ms. James’s office.
More than 2,000 demonstrators were arrested, most of them while protesting peacefully. An investigation by the attorney general’s office found that police officers beat protesters with batons, rammed them with bicycles, used a dangerous containment strategy called kettling, and arrested legal observers and medics without proper justification.
Congress
Wall Street Journal: Pelosi’s Top Priority: Consolidating Power
By The Editorial Board
Last week House Democrats reintroduced as H.R.1 a voting and campaign-finance bill that would grease the Democratic voting machine nationwide and restrict political opposition…
H.R.1’s campaign-finance provisions would also limit the political speech of conservatives and Republicans. The bill requires some nonprofits to disclose publicly the names of donors who give more than $10,000, even if those groups aren’t taking part in candidate elections. The left’s pressure groups and media will then stigmatize donors. The bill also raises disclosure requirements for political ads on radio and TV, requiring the head of an organization to approve messages and list the group’s top donors by name.
It also imposes new disclosure and reporting requirements on online platforms that run paid political advertising, some of which go beyond or are at variance with standards placed on radio or TV ads. And the bill restructures the Federal Election Commission from a split of three Democratic and three Republican commissioners to two each plus an “independent.” That deciding vote will almost always vote left given the Beltway’s political and media balance of power.
New York Post: AOC says Congress may form commission to ‘rein in’ media after Capitol riot
By Ebony Bowden
Rep. Alexandria Ocasio-Cortez revealed that Congress is looking into creating an investigative commission to “rein in” the media in the wake of the US Capitol siege.
During a lengthy Instagram Live on Tuesday evening where she revealed that she feared for her life during the siege, the “Squad” member accused the mainstream media of “spewing disinformation” ahead of the deadly riot in which five people died.
“There’s absolutely a commission that’s being discussed but it seems to be more investigating in style rather than truth and reconciliation,” she said.
“I do think that several members of Congress in some of my discussions have brought up media literacy because that is part of what happened here,” Ocasio-Cortez (D-NY) went on.
“We’re going to have to figure out how we rein in our media environment so you can’t just spew disinformation and misinformation,” she said.
“It’s one thing to have differentiating opinions, but it’s another thing entirely to just say things that are false, so that’s something that we’re looking into.”
Reason (Volokh Conspiracy): We Should Not Forget The Free Speech Lessons from President Johnson’s Impeachment Trial
By Josh Blackman and Seth Barrett Tillman
[Wednesday], the House adopted a single article of impeachment, titled Incitement of Insurrection. The House did not actually charge President Trump with personally engaging in insurrection. Rather, the five-page resolution asserted that Trump’s words and tweets since the election “encouraged” the “lawless action at the Capitol” and “gravely endangered the security of the United States.” The House rejected any argument that the President’s speech was protected by the First Amendment. The Judiciary Committee concluded that freedom of speech “applies very differently” to the President “by virtue of his office” than it does to “private citizens.” Moreover, the Committee endorsed the views of constitutional scholars who argued the President has zero free speech rights in this process.
Regrettably, the House Democrats have forgotten an important lesson from the impeachment trial of President Andrew Johnson. In 1868, the Radical Republicans impeached the Tennessee Democrat for using “intemperate” and “inflammatory” language that was critical of Congress. Ultimately, Johnson was never convicted on this charge, in part, because pivotal Republican Senators insisted that the First Amendment protects the President’s freedom of speech. History may repeat itself again soon. To secure a conviction, House managers, acting as prosecutors, must make their case to the Senate, and to the country, that convicting Trump is consistent with the First Amendment. The President’s right to free speech should not be simply dismissed out of hand.
FEC
Bloomberg Government: Election Panel’s First Black Member Blazes Path as New Chair
By Kenneth P. Doyle
Shana Broussard, the Federal Election Commission’s incoming chair, is blazing trails as the first Black commissioner in the agency’s 45-year history and as a former prosecutor who rose through the staff ranks to assume the FEC’s top spot…
The commission held its first open meeting Thursday after a 15-month hiatus because of lack of a quorum. Elected chair last month, Broussard’s skills will be put to the test as she tries to forge consensus on what has been a polarized panel that’s struggled to carry out its mission to make and enforce federal campaign finance regulations…
Broussard’s had good discussions with Allen Dickerson, the commission’s newly installed Republican vice chairman, and is hopeful about prospects for consensus…
At the meeting Thursday, all six commissioners expressed support for an advisory opinion regarding Facebook’s internal rules – adopted after the 2016 election – requiring political advertisers to prove they’re American by having a U.S. address and bank account…
Simply having new blood at the FEC could help resolve impasses, said Adav Noti, a former FEC staff attorney now with the nonprofit Campaign Legal Center. Former commissioners were so entrenched in their opposition to each other they couldn’t work toward compromise, Noti said, adding that things like updating rules to recognize the importance of digital advertising in the 21st century “shouldn’t be that hard.”
Independent Groups
Politico: Koch network pledges to shun lawmakers tied to Capitol riots
By Maggie Severns
The powerful Koch political network, funders of the Tea Party, will “weigh heavy” the actions of members of Congress in the days leading up to and after last week’s siege of the Capitol when considering future donations, in a sign that the GOP’s megadonor class is uncomfortable with the party’s recent actions.
In a statement to POLITICO, the Koch network said it will take last week’s events seriously when deciding where to put its millions of dollars in spending next election cycle.
“Lawmakers’ actions leading up to and during last week’s insurrection will weigh heavy in our evaluation of future support. And we will continue to look for ways to support those policymakers who reject the politics of division and work together to move our country forward,” said Emily Seidel, CEO of Americans for Prosperity, the main Koch super PAC.
Online Speech Platforms
Protocol: Google says it’s fighting election lies, but its programmatic ads are funding them
By Issie Lapowsky
Since the 2016 election, endless attention has been paid to the way election misinformation can spread through targeted ads on social media platforms like Facebook and YouTube. But an equally insidious and less-discussed problem is how programmatic advertising, a field dominated by Google, has become the lifeblood of misinformation sites. With or without social platforms, these ads allow misinformation sites to exist and even thrive all on their own by providing a source of revenue, and companies like Google have a shoddy record of policing them.
In a new report released Thursday by the news rating company NewsGuard, researchers found ads for more than 1,600 mainstream brands, from Disney to Procter & Gamble, running on 160 sites…that have openly pushed election conspiracies. Google was responsible for ads on a whopping 80 percent of those sites. Another ad exchange, The Trade Desk, was running ads on roughly half.
Among the examples NewsGuard lists: ads for Harvard University appearing on One America News Network’s website, ads for AARP appearing on sites like The Gateway Pundit and ZeroHedge, and Walmart ads appearing on NOQ Report, a site that recently argued Satan uses Democrats to do his bidding, including stealing the election.
New York Times: They Used to Post Selfies. Now They’re Trying to Reverse the Election.
By Stuart A. Thompson and Charlie Warzel
Facebook’s algorithms have coaxed many Americans into sharing more extreme views on the platform – rewarding them with likes and shares for posts on subjects like election fraud conspiracies, Covid-19 denialism and anti-vaccination rhetoric. We reviewed the public post histories for dozens of active Facebook users in these spaces. Many…transformed seemingly overnight. A decade ago, their online personas looked nothing like their presences today.
A journey through their feeds offers a glimpse of how Facebook rewards exaggerations and lies.
Politico: Right-wing extremist chatter spreads on new platforms as threat of political violence ramps up
By Tina Nguyen and Mark Scott
Law enforcement nationwide is on high alert after last week’s riot at the Capitol, with reports suggesting that several extremist groups have planned armed demonstrations across the country to protest the end of Donald Trump’s presidency.
But the severity of the threat is increasingly hard to ascertain, in part because of the crackdown that authorities have already put in place on message boards. That crackdown has driven would-be insurrectionists further underground and scattered their activity across innumerable platforms, including one – TikTok – that’s best known as a hub for teens to share videos.
Washington Post: Three steps to help treat America’s debilitating information disorder
By Karen Kornbluh and Ellen P. Goodman
If the incoming Biden administration is to make significant progress on any of the other crises facing the nation…it will have to treat America’s debilitating information disorder…
First, clarify that what happens online is subject to the same legal standards as what happens in real life, update regulations and increase enforcement.
Updated regulations would include the bipartisan Honest Ads Act – applying broadcast election ad transparency rules to the Internet – supplemented with know-your-customer rules so dark money groups can’t hide their funding…
Third, we should create a new “PBS of the Internet” to strengthen our civic infrastructure and ensure a strong online supply of trustworthy, nonpartisan scientific and election information.
PACs
Center for Responsive Politics: Impact of corporate PAC promises may be limited
By Karl Evers-Hillstrom
Some of the nation’s most powerful corporations are cutting off their PAC donations to 147 Republicans who objected to the Electoral College results after supporters of President Donald Trump stormed the Capitol…
But the actual impact of these companies’ pledges may be limited.
PAC donations don’t go as far as they did in previous years due to the unprecedented influx of individual donors in recent elections. Many companies are pausing all PAC giving during the post-election period when PACs generally don’t donate much money anyway. And companies aren’t committing to cutting off fundraisers or huge donations to political parties and super PACs that together spend billions to influence elections…
PAC donations accounted for just 5 percent of political giving in the 2020 cycle, down from 9 percent in the 2016 cycle. Meanwhile, small individual donors accounted for a record 22 percent of total fundraising.
The more expensive an election gets, the less PAC contributions matter.
Bloomberg: What Corporate America’s Political Backlash Really Means
By Lananh Nguyen
Some of the biggest names in business said they were halting political donations to lawmakers who tried to overturn the U.S. presidential election results…
“These corporations’ announcements are nothing more than a PR stunt–and a bad one at that,” Tiffany Muller, the president of End Citizens United, a Democratic group that opposes big money in politics, said in a statement.
At issue is the fine print. Dozens of companies like JPMorgan Chase Citigroup and Microsoft, for example, enacted blanket suspensions of all political contributions. Critics, like Muller, say those moves are “predicated upon the dangerous false equivalency that led us to this breaking point.”
It treats legislators who didn’t vote against certification the same as those who did, she said.
Another important note: “This is temporary,” said Sheila Krumholz, executive director of the Center for Responsive Politics. Many companies have merely suspended contributions from their political action committees at a time when few lawmakers are hitting them up for money anyway. That might change in six months when members of Congress are fundraising more aggressively and corporate PACs kick into gear, she said.U.S. Representative Katie Porter, a Democrat from California, said banks in particular should rethink their political contributions even further. “If JPMorgan is serious about change, they should shut down their PAC instead of this short-lived PR stunt,” Porter tweeted this week.
The States
Louisville Courier Journal: Kentucky bill would make social media companies liable for ‘censoring’ users
By Olivia Krauth
Days after Twitter banned President Donald Trump from its platform for inciting a violent raid at the U.S. Capitol, two Kentucky state lawmakers have filed legislation to make companies liable for similar bans.
Senate Bill 111, co-sponsored by Republican Sens. Robby Mills and Phillip Wheeler, would make a user entitled to damages if a social media platform deletes or “censors” religious or political posts.
Companies like Twitter and Facebook would also not be allowed to “shadowban” users, meaning to adjust algorithms to make others less likely to see questionable content.
If sued, the bill says, platforms would be expressly prohibited from justifying their actions by claiming a user posted “hate speech.” In the bill, “hate speech” is defined as “a phrase concerning content that an individual finds offensive based on his or her personal moral code.” …Those companies, the bill adds, “must be deterred from maliciously interfering in elections.” …
The bill violates the Constitution and years of legal precedent, legal experts told The Courier Journal.
“It is, to me, so clearly unconstitutional … that it should be simply disregarded,” open records attorney Jon Fleischaker said, adding the bill is a “waste of time and money.”
Private companies have the right to do business – or not – with whomever they want, he said.
