In the News
The Hill: Congress should protect political speech by ignoring Disclose Act
By Bradley Smith and Eric Wang
This latest allegation of foreign interference with our elections inevitably will be used as fodder to support the newest iteration of the so-called “Disclose Act.” Over the summer, Sen. Sheldon Whitehouse (D-R.I.) introduced a tweaked version of this perennial bill to include features he claimed would “head off foreign election interference.” Upon closer inspection, the legislation turns out to be an exercise in distraction rather than disclosure. The bill’s foreign spending provisions are poorly disguised ploys for clamping down on public debate and dissent…
Aside from its foreign national provisions, the latest Disclose Act also contains numerous purported disclosure requirements (hence its name). But those disclosure provisions are also ploys to shut down political speech. For example, the bill would require any corporation (even one that has no foreign owners at all) making a “campaign-related disbursement” to disclose all of its “beneficial owners,” a term which likely includes any shareholder…
Whitehouse’s latest Disclose Act also would expand the existing “electioneering communications” law to regulate ads that merely mention a congressional candidate or a member of Congress up for reelection beginning on the first day of an election year through Election Day.
CCP
2017 DISCLOSE Act Would Unconstitutionally Restrict Speech, CCP Analysis Finds
The Center for Competitive Politics released an analysis today by Senior Fellow Eric Wang regarding the latest iteration of the DISCLOSE Act. Similar proposals have been introduced in Congress dating back to 2010 with the aim of creating a “deterrent effect” on political speech. The “DISCLOSE Act of 2017” (S. 1585) may be a new bill, but Wang’s analysis concludes that it suffers from the same constitutional deficiencies as previous versions and is even more brazen in its attempt to shut down speech…
“The DISCLOSE Act is a misnomer. Rather than implement meaningful disclosure requirements, the bill attempts to make speaking so burdensome that groups will decide it is not worth the risk,” said Eric Wang, Senior Fellow at the Center for Competitive Politics. “By imposing conditions on political speech that are practically impossible to comply with, the DISCLOSE Act will greatly discourage Americans from exercising their First Amendment rights.”
Analysis of the “DISCLOSE Act of 2017” (S. 1585): New Bill, Same Plan to Crack Down on Speech
By Eric Wang
Ever since the Supreme Court issued its Citizens United ruling in 2010, opponents of the decision in Congress have been trying to counteract it with the “DISCLOSE Act” (“Democracy Is Strengthened by Casting Light on Spending in Elections Act”). Sen. Charles Schumer freely acknowledged the bill’s intent was to create a “deterrent effect” on political speech. Having failed to pass the bill initially in the 111th Congress, its supporters have introduced variants of the bill in each of the four successive Congresses.
In this analysis, we focus on the latest iteration of the “DISCLOSE Act” recently introduced and sponsored by Sen. Sheldon Whitehouse…
Notwithstanding its name, the 2017 DISCLOSE Act would not implement any meaningful disclosure requirements. Rather, the bill uses the language of “disclosure” to disguise its true effect of shutting down political and issue speech by for-profit and nonprofit corporations alike. The bill would do so by drastically expanding the existing time windows during which speech is regulated, and by imposing conditions for speaking that are practically impossible to comply with. While the bill purports to address foreign spending in American elections, its actual provisions are not targeted at foreign nationals, but instead would cover all domestic public corporations as well.
Federal Appeals Court Urged to Rule that Missouri Can’t Force Volunteers to Register as Lobbyists
Ron Calzone volunteers his time and pays his own expenses to promote limited government when he travels to the state capitol to speak to lawmakers and testify at public hearings. He has never been paid to lobby on anyone’s behalf.
Despite the fact he isn’t paid a cent, the Missouri Ethics Commission (MEC) demands that Mr. Calzone register as a lobbyist and file regular reports with the Commission like a professional lobbyist. Forgetting to include an issue he discussed in lobbyist reports or missing a filing deadline can result in stiff fines. In June, a federal judge ruled in favor of the MEC. Now, in an appeal filed late yesterday, the Center for Competitive Politics (CCP) and the Freedom Center of Missouri have asked the Eighth Circuit Court of Appeals to overturn that decision.
The argument is simple: Forcing Mr. Calzone to register as a lobbyist for his volunteer advocacy violates the First Amendment right to petition government for a redress of grievances…
“This case is not just about me,” says Calzone. “The Ethics Commission’s claims and this federal judge’s logic puts everyone’s free speech rights at risk. We are all fortunate to have principled public interest law firms fighting to protect our liberty.”
Plaintiff-Appellant’s Opening Brief Before the Eighth Circuit Court of Appeals in Calzone v. Hagan
This case raises a First Amendment question of first impression: May an individual be regulated as a “lobbyist,” and forced to comply with burdensome registration and reporting requirements, even if he acts solely as an unpaid volunteer? The U.S. Supreme Court last addressed lobbyist reporting requirements in 1954, when it determined that the First Amendment permitted the government to demand information concerning “who is being hired, who is putting up the money, and how much.” United States v. Harriss, 347 U.S. 612, 625 (1954). This Court has reviewed similar laws involving paid lobbyists and, after apparently applying strict scrutiny, has upheld them under Harriss. Minn. State Ethical Practices Bd. v. Nat’l Rifle Ass’n, 761 F.2d 509 (8th Cir. 1985) (per curiam). The district court, however, applied mere exacting scrutiny to hold that Missouri could require unpaid volunteers to carry the same burdens as professional, compensated lobbyists…
Lobbying disclosure laws strike at the heart of First Amendment activity: citizens directly petitioning their representatives on matters of public concern. Accordingly, both this Court and the Supreme Court have suggested that strict scrutiny is the appropriate standard when reviewing lobbying rules.
CCP Job Opening: Attorney, First Amendment Litigation
The Center for Competitive Politics is expanding its litigation team. We are looking for an experienced attorney to take a leading, independent role in First Amendment cases brought in federal and state courts.
[Please click on the link above for a detailed description of job responsibilities, requirements, and instructions on how to apply.]
Congress
CNN: Democratic senators preparing bill to deal with online political advertising
By Dylan Byers
Klobuchar and Warner sent a letter to their colleagues on Thursday inviting them to co-sponsor legislation that would among other things require all major digital platforms to keep a public record of groups or individuals that make ad buys of more than $10,000…
Specifically, they said in their letter, it “would require digital platforms with 1,000,000 or more users to maintain a public file of all electioneering communications purchased by a person or group who spends more than $10,000 aggregate dollars for online political advertisements.”
“The file would contain a digital copy of the advertisement… a description of the audience the advertisement targets, the number of views generated, the dates and times of publication, the rates charged, and the contract information of the purchaser,” the letter stated.
“Additionally, this legislation would require digital platforms, in addition to broadcast, cable and satellite providers, to make reasonable efforts to ensure that electioneering communications are not purchased by a foreign national, directly or indirectly,” the letter said.
The Hill: Congress must end the assault on freedom of speech protections
By Dan Backer
Nestled in the House’s latest spending proposal is a provision to allow churches and other religious organizations to participate in our political debate without fear of losing their tax-exempt status – a longstanding and noble goal of President Trump’s.
The Republican package would also allow businesses to participate in more than one trade association at a time when it comes to representing the policy interests of their employees and customers, while preventing the Internal Revenue Service and Securities and Exchange Commission from restricting the political activities of 501(c)(4) advocacy groups…
There are other pro-speech reforms worth pursuing. For example, Congress should also increase annual contribution limits to PACs – perhaps to $10,000 – and index them to inflation. Today, just one married couple can contribute more to a candidate than an entire grassroots association of many thousands of citizens. Lawmakers should also lift the utterly pointless ban on political parties and their general election nominees “coordinating” – communicating about advertisements the former makes about the latter. Parties exist to elect their candidates. Making it more difficult for them to work together is nonsensical.
Free Speech
San Francisco Chronicle: Free speech isn’t free
By Editorial Board
Yes, Milo Yiannopoulos is a vile demagogue. Yes, the student groups inviting him and other right-wing agitators to UC Berkeley sometimes appear willfully incompetent. And, yes, Yiannopoulos and company are trying to provoke outrage and violence from left-wing militants who have been all too willing to oblige, forcing the campus to assume extraordinary security expenses.
None of that, however, alters a public university’s duty to tolerate even regrettable expression. University leaders deserve credit for making that clear in recent weeks and taking pains to accommodate controversial speakers, resisting a chorus of misguided doubts about the value of unfettered speech and Berkeley’s obligation to welcome it.
The Courts
Delaware State News: Milton settles with ACLU in yard sign dispute
By Craig Anderson
Pointing to a revised ordinance, the ACLU of Delaware announced Thursday a settlement with the town of Milton regarding posted political signs.
Homeowner Penny Nickerson contested the municipality’s law that allowed political signs only 90 days preceding an election and 14 days afterward.
The ACLU agreed to drop the action filed on behalf of Ms. Nickerson in exchange for a new town ordinance that allows up to four temporary signs no larger than six square feet in size, regardless of the message.
The town agreed to pay an undisclosed amount of legal fees to the ACLU because it “was compelled to bring the lawsuit,” according to a news release…
The ACLU filed a state civil lawsuit in May, which was moved to federal court by the town. First Amendment free speech was at stake, the ACLU maintained…
The suit complained that the town allowed other signs to be displayed all year while limiting political free speech.
Disclosure
Reuters: Facebook to overhaul political ads after threat of U.S. regulation
By David Ingram
Facebook Inc on Thursday launched an overhaul of how it handles paid political advertisements, giving a concession to U.S. lawmakers who have threatened to regulate the world’s largest social network over secretive ads that run during election campaigns.
The company also said it would turn over to congressional investigators the 3,000 political ads that it says were likely purchased by Russian entities during and after the 2016 U.S. presidential election.
Chief Executive Mark Zuckerberg said the company, for the first time, would now make it possible for anyone to see any political ads that run on Facebook, no matter whom they target.
Facebook will also demand that political advertisers disclose who is paying for the advertisements…
The political advertising changes represent a retreat for Facebook, which for years has resisted calls from transparency advocates and academics for the regulation of political ads…
The company has long had a rigid policy of refusing to turn over any user information without a court order or other legal process.
HuffPost: Facebook Is Now The Federal Election Commission, But With More Secrets
By Paul Blumenthal
Zuckerberg detailed a nine-point plan. The most important of these new policies involves a requirement that “pages” disclose which ads they have purchased to run elsewhere on Facebook…
Zuckerberg’s address to his nation, carried on Facebook Live, showed a corporate CEO announcing decisions that will govern an important aspect of public elections, including campaign finance, spending and election integrity issues. The new policies have been crafted by a private company with no public input and no democratic mechanism for discussion…
“Facebook took an important step forward, but that a single company has this kind of power shows clearly that we urgently need legal reforms to mandate disclosure online,” said John Wonderlich, executive director of the pro-transparency Sunlight Foundation….
As Michael Whitney, who worked on online advertising for the 2016 presidential campaign of Sen. Bernie Sanders (I-Vt.), pointed out, the Trump campaign was running 40,000 to 50,000 different online ads on an ordinary day. Is it possible to require a politically oriented page to host tens or hundreds of thousands of ads?
Spot-On Spotlight Blog: Why Russians Matter To Your Campaign
By Chris Nolan
Either Congress or the FEC will put an end to automated buying…
[A]utomated buying doesn’t have a lot of restrictions: No disclaimers, no substantiation, no standards and practices. All you need is a credit card and a web browser.
Along the way, we’re probably going to see some sort of standard setting online campaigns for disclosures – something that most local news outlets enforce and a practice Google and Facebook have been successfully putting off for years.
Why? Well, standard setting and review mean that both companies have to use humans to look at and evaluate ads. It also means both companies will need to decide what they will and won’t tolerate – and stick with it, consistently and without regard for political affiliation or message.
These are chores traditionally handled by – wait for it – media companies. And if there’s one thing Google and Facebook have sworn they are not, it’s media companies.
Why? Media companies employ people and Silicon Valley hates people…
Automated buying can make a company money 24/7/365. But it has no sense of humor or ability to read a disclaimer and know it’s following the law.
NewCo Shift: Can We Legislate Political Speech Online?
By John Battelle
Current FEC rules governing offline media are narrow by design. They focus only on specific campaign time periods, and specific candidates or registered lobbying organizations. The ads which ran on Facebook (and most certainly other platforms) skirted these rules by focusing on issues (Build the Wall!) and fake news or opinion stories built to go viral…
Offline media had another important natural constraint: It is expensive, and it is broadcast in nature, easily seen by all. That meant third party players (like the shadowy Russian organizations identified by Facebook earlier this month) would have to spend a lot of money to meaningfully impact the election, and they’d have to do it out in the open, raising questions of origin and intent. On platforms like Facebook, you can have massive impact with minimal dollars, and you can target your ads to very specific audiences with total anonymity. What happened online during the election of 2016 simply has no allegory in offline media, or its regulatory framework…
If we wanted to force all political advertising to be disclosed, we’d have to first identify what speech is in fact political, and whether it actually intends to influence an election.
The States
Washington Examiner: Taxpayers shouldn’t have to subsidize candidates’ hateful speech
By Eric Peterson
Lopez-Pierre raised only $17,000 to spend on spreading his message of intolerance. But the taxpayers of New York involuntarily chipped in an additional $100,000.
That’s because the city’s public financing campaign scheme provides $6 for every $1 a qualified candidate raises. So, while the vast majority of taxpayers and voters rejected Lopez-Pierre and his rhetoric, they nonetheless subsidized the spread of his objectionable views…
Proponents argue that publicly-financed campaigns get big money out of politics, reduce corruption, and give the little guy a chance at winning. But all the evidence points in the opposite direction.
Seattle recently introduced a “democracy voucher” program, which mailed four $25 vouchers for citizens of Seattle to contribute public funds to candidates. It was a resounding failure. Novice political candidates spent all their time attempting to navigate the complicated requirements to qualify for the vouchers instead of getting their message out.
Meanwhile, the well-connected and already well-funded candidates were also able to utilize the program, adding to their existing advantages, and secured easy victories.
Milwaukee Journal Sentinel: Wisconsin lawmakers want to curb riots, but raise questions about free speech
By Jason Stein
The state for the first time would define riots in the law and crack down on them, under three bills that came before lawmakers Thursday.
The bills would make it a misdemeanor to block streets in a riot, make it a felony to participate in a violent riot and to do so while armed. They drew questions from Democrats, free speech advocates and at least one GOP lawmaker about whether they could lead to charges against peaceful protesters.
Rep. John Spiros (R-Marshfield), a former police officer, said his bills are not intended to suppress peaceful protests but rather to ensure that demonstrations remain non-violent…
Several critics at the hearing Thursday say the bills are vague and wondered what would happen in cases where a group was protesting and someone in the group made a threat or acted violently. Rep. Chris Taylor (D-Madison), an attorney, noted that she frequently attends peaceful demonstrations.
But, “if one person commits an act of violence or threatens to do so, then I’m in a riot,” Taylor said.
Matthew Rothschild, the executive director of the Wisconsin Democracy Campaign, said that it was already a crime for demonstrators to harm another person, damage property or refuse to comply with police requests to disperse.
KRQE News Albuquerque: Albuquerque City Council candidate fined for campaign finance fraud
An Albuquerque City Council candidate has been fined by the Ethics Board for campaign finance fraud.
Last month, KRQE News 13 reported on the allegations against Javier Benavidez, who is running to replace Council Ken Sanchez. The complaint states Benavidez qualified for public financing under false pretenses.
City ordinance requires a candidate to collect $5 from a certain number of voters to qualify, but it turns out Benavidez’s campaign never collected some of that money, and Benavidez put up the cash himself.
The Ethics Board ruled there was enough evidence to prove 19 violations.
