The Courts

Newseum Institute: State High Courts Can Provide Greater Free-Speech Protections

By Lata Nott

Forty years ago in the Harvard Law Review,U.S. Supreme Court Justice William Brennan described state constitutions as “a font of individual liberty, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law.”    Brennan urged state high courts to provide needed protections to individual liberty, particularly as the U.S. Supreme Court began cutting back on individual freedoms.

With regard to individual rights, the U.S. Constitution sits as a floor, not a ceiling.  This means that a state high court can do as Brennan urged in the late 1970s – provide greater protection for individual liberty than the U.S. Supreme Court. What a state high court cannot do is provide less protection than the floor of liberty established by the U.S. Constitution.  

Applied to free expression, this means that a state supreme court can interpret the free-expression provision in its state constitution more expansively than the U.S. Supreme Court has interpreted the First Amendment.   

IRS

CBS News: DOJ denies GOP request to reopen case against former IRS official Lois Lerner

By Kathryn Watson

The Justice Department will not be re-opening a criminal investigation to consider charging former IRS official Lois Lerner for her role in delaying non-profit status for conservative groups, the DOJ said in a letter to top members of the House Ways and Means Committee…

After reviewing the evidence, including information provided by the committee and the prosecutorial decisions that had been made, Assistant Attorney General Stephen Boyd notified the committee’s chairman, Rep. Kevin Brady, R-Texas, and Rep. Peter Roskam, R-Illinois, a chairman of the committee’s subcommittee on tax policy, that the department would not be reopening the case…

“This is a terrible decision,” Brady said in a statement. “It sends the message that the same legal, ethical, and constitutional standards we all live by do not apply to Washington political appointees – who will now have the green light to target Americans for their political beliefs and mislead investigators without ever being held accountable for their lawlessness. Not only has the Department of Justice chosen not to hold Lois Lerner criminally liable for obstructing an official investigation by the Inspector General, the Department continues to defend the Internal Revenue Service’s unconstitutional actions against taxpayers in ongoing civil litigation.” 

Congress

Wall Street Journal: Nestled in House Spending Bill: Campaign Finance Deregulation

By Cezary Podkul

House Republicans are backing several provisions that could reshape campaign-finance rules ahead of next year’s midterm elections as spending negotiations continue this fall.

The measures are included in a GOP package of spending bills being debated in the House. While the House package is unlikely to advance in the Senate, its provisions could become bargaining chips in the negotiations leading up to the next government-funding deadline, now Dec. 8…

Corporations also would be able to ask their employees to donate to unlimited numbers of trade associations’ political-action groups instead of limiting employee solicitations to one group per year.

Other measures included in the bill would continue to prevent the Internal Revenue Service and the Securities and Exchange Commission from implementing rules that would affect political activities of 501(C)(4) nonprofits and publicly traded corporations, respectively…

The religious rider would allow churches to skirt the so-called Johnson Amendment. 

FEC

CPI: Will Donald Trump let the Federal Election Commission rot?

By Dave Levinthal

President Donald Trump on Thursday nominated Republican Matthew Petersen to a federal judgeship, meaning the FEC is poised to putter on with the minimum number of commissioners – four – required to take official action on most anything of consequence.

Three of those remaining four commissioners are themselves wavering on whether they’ll continue serving. With 2018 midterm campaigns already afoot, what would it mean if the FEC fell short of a quorum? Plenty.

No penalizing candidates and committees found breaking campaign laws.

No completing new investigations of political actors suspected of misdeeds.

No new rules or opinions governing how campaign cash must be raised and spent…

And certainly no action on what’s easily the thorniest topic now before the commission: whatever to do about Russian influence in U.S. elections. 

Washington Examiner: FEC Dems renew bid to regulate Internet, Drudge, ‘not done fighting’

By Paul Bedard

Commissioner Ellen Weintraub and former FEC Chairwoman Ann Ravel quickly reacted to reports on the Russian ads targeting voters, using their favorite social media tool – Twitter – to indicate their new focus.

“Oh, that’s not good,” tweeted Weintraub. “I wholeheartedly agree,” responded Ravel to a series of tweets that included the Russia influence report.

Weintraub also demanded that the FEC address the issue of “internet political communications” at its next meeting on Sept. 14.

Facebook’s involvement and proof of Russian spending on political ads could give Democratic FEC critics of the freewheeling Internet the case they’ve needed…

Weintraub pushed further on Twitter, promising more action on the politically split FEC. “We’re *very* late on this. Don’t know why @FEC GOPers have obstructed us for months, but I’m not done fighting. Stay tuned,” she wrote.

She attached her demand that the issue be discussed next week to a tweet that read, “So I’m putting it to a vote at @FEC: Do the American people deserve to know who’s paying for the political info they see on the internet?” 

Disclosure

Wall Street Journal: Facebook’s Disclosure About Russian Political Ads Sparks Debate on Transparency

By Deepa Seetharaman and Robert McMillan

Nate Persily, a Stanford professor who studies election law, said the public should be able to see the ads Facebook uncovered.

“It doesn’t seem to be a terribly chilling idea to say that we should be able to know how much money is being spent on election-related advertisements online, and we ought to be able to see what those advertisements were and who they were targeted to,” he said…

Unlike broadcasters, Facebook, Twitter and other social media firms aren’t obligated by law to disclose information about political advertising on their site. This makes it difficult to track how campaigns are using social media, a major source of news and information for American voters…

“Facebook keeps that data very much hidden,” said Sam Woolley, an Oxford research associate.

While there has been much debate over Facebook other social network’s algorithms and how they choose to promote posts, “there hasn’t been as much outcry about the fact that these companies hold a tremendous amount of data on things that are exceptionally important, like the U.S. election, and don’t share it with the American public,” Mr. Woolley said.    

Fortune: How We Can Fix Facebook Before the 2020 Election

By Mark Bartholomew

In its announcement about the Russia-linked political ads, Facebook contended it would deploy technological solutions to “help keep activity on Facebook authentic.”

I have no doubt that Facebook’s data scientists are hard at work on this solution. But this represents an incomplete response at best. What Facebook didn’t suggest, and what it and other social media companies routinely fight tooth and nail, is a regulatory response. Let “machine learning” solve the problem, says Facebook, not new laws and opportunities for review by outsiders.

Social media audiences benefit from knowing the source of an ad or post. Presumably, Facebook users would be better able to judge the veracity of a political message if they knew it came from George Soros, the Koch brothers, or a Putin-friendly troll farm in Russia. If we want to avoid similar problems in 2020, the law needs to update political advertising disclosure rules for the digital age.

First, there needs to be reform of the Federal Election Commission’s so-called “Internet exemption.”…

Second, Facebook needs to disclose the bulk of the data about who it sells political advertising space to and who these ads reach. 

The States

Albuquerque Journal: New campaign spending rules to take effect

By Dan Boyd

Secretary of State Maggie Toulouse Oliver forged ahead Friday with new rules aimed at requiring more disclosure of New Mexico political spending, setting up a potential court showdown.

In adopting the rules, the first-term Democratic secretary of state announced they will take effect Oct. 10 – in time for the 2018 election cycle…

“For too long, our campaign finance disclosure laws have been vague and confusing, and this rule will provide much-needed guidance and clarity,” Toulouse Oliver said. “The rule will also help to shine a light on the dark money that has been plaguing our state’s campaigns.”…

Several national groups have argued the rules would curb free speech rights and could lead to individuals being harassed because of their political donations. They’ve also suggested a lawsuit might be filed if the rules were implemented…

The rules will require groups active in New Mexico campaigns – but not coordinating with candidates – to disclose their significant donors if they spend more than $2,500 on any single political advertisement for a statewide race or more than $7,500 total in an election cycle. Those figures would be lower for races or ballot measures that are not statewide, including legislative races.

Santa Fe New Mexican: Secretary of State’s Office releases final version of campaign rules

By Steve Terrell

New Mexico Secretary of State Maggie Toulouse Oliver on Friday issued the final version of her new campaign finance rules that require more information about donors to so-called “dark money” groups – independent nonprofits that spend money trying to influence voters during elections.

Such organizations, which aren’t directly tied to a candidate or political party, have been able to accept and spend unlimited amounts of money on advertising and other efforts without disclosing any of their funders, as long as most of their budget is not used for political purposes.

The new rule, which will go into effect Oct. 10, the first day of the new campaign finance reporting period, will change that, requiring such groups to report the names and addresses of those contributing more than $200. While advocates of the rule say it will increase transparency in campaign spending, a coalition of conservative and libertarian groups has opposed it, saying it will stifle the political process and raises privacy concerns.