New from the Institute for Free Speech
Campaign Finance Institute Report on 2016 Election Spending Shows that Money Isn’t Everything
By Joe Albanese
The Campaign Finance Institute’s (CFI) recent report, “Guide to Money in Federal Elections: 2016 in Historical Context,” may help shed more light on how political speech did and didn’t shape races in that election cycle.
Among its many findings, there are several that stick out for bucking the conventional wisdom of those who seek more regulation of political speech. The findings I specifically highlight in this post point to the same conclusion we’ve reached before: money is just not as impactful as people think it is.
That’s not to say money’s not important. The authors of the report, Michael J. Malbin and Brendan Glavin, point out that campaign fundraising is an important metric in many senses. Not only does it indicate the degree to which people support a candidate or cause, but it provides recipients with the resources to reach out to even more voters through ads or campaign activities. Restricting the ability to give and spend money impedes the ability to exercise free speech in any meaningful sense.
But one should be cautious about overstating money’s impact on elections. 2016 showed that money doesn’t “buy” election outcomes – after all, Donald Trump was outraised by Hillary Clinton at all stages of the campaign, and successful congressional challengers tended to spend less than the incumbents they defeated.
Supreme Court
FiveThirtyEight: Chief Justice Roberts Is Reshaping The First Amendment
By Amelia Thomson-DeVeaux
Roberts has presided over – and participated in – a deliberate and systematic expansion of free speech rights in the realm of campaign finance and commercial speech. The court’s determination that campaign spending limits on corporations violated free speech in the 2010 case Citizens United v. FEC was just one in a series that struck down a range of campaign finance laws on First Amendment grounds and expanded corporations’ right to speech in other venues…
Starting in the 1970s, campaign finance laws restricting the flow of money into politicians’ coffers aimed to make space for more voices in the political sphere by preventing the wealthy from buying influence. But in the Citizens United case, the court ruled that the government couldn’t restrict the free speech rights of corporations simply because they were corporations…
Burt Neuborne, a law professor at New York University and a former legal director of the ACLU, said that the liberal justices are willing to tolerate some restrictions on speech because they see them as necessary to build a fair society. “In this view, you can, for example, limit free speech when it threatens our democracy,” Neuborne said. The conservative justices, on the other hand, tend to view free speech itself as the goal. “They don’t care what happens afterward or who they’re affecting – they just want to get the government out of the business of meddling with speech,” he said.
New York Times: The Abortion Case That’s Really About the First Amendment
By Robert McNamara and Paul Sherman
Most people’s opinions on abortion rights and their opinions on the correct outcome in this case are probably pretty closely linked. But that link shouldn’t be inevitable. We filed a brief in this case supporting the First Amendment rights of crisis pregnancy centers, even though we also personally support abortion rights (our firm shares our view of the First Amendment, though it takes no position on abortion).
We filed our brief because focusing on the abortion debate means missing out on the fact that a decision siding with the State of California could upend decades of First Amendment doctrine and threaten everything from the right to have conversations in a doctor’s office to the right to use math to criticize government officials. (Really.) That’s because the Becerra case raises one of the most important unanswered questions in First Amendment law: Do speakers check their First Amendment rights at the office door? …
As this case moves from oral arguments to a published opinion, the court will undoubtedly be deciding between groups supporting and opposing abortion rights. But it will also have to decide whether or not to grant government officials sweeping powers to regulate speech they find obnoxious on the grounds that the speaker is a professional. Americans have strongly held and widely divergent opinions on the first issue. But if we are to preserve our ability to openly and honestly debate abortion rights – or any issue – we should all stand united on the second one.
The Courts
National Law Review: Federal Court Decision Puts Brakes on Issue Ads
By Zachary G. Parks
The basis for the decision is likely to be challenged. It relies primarily on the argument that Congress “clarified … that it viewed the vast majority of electioneering communications as corroborating a purpose of electing candidates to federal office” when it passed the Bipartisan Campaign Reform Act in 2002. But while BCRA imposed reporting requirements on electioneering communications because of their potential electoral effect, it does not necessarily follow that Congress intended these ads to count as political spending under the “major purpose” test. As a result, the Court’s reading of BCRA as reflecting an implicit Congressional decision to define the “major purpose” test is debatable. Further, “electioneering communications” include only TV and radio advertisements. The logic of the Court’s decision, therefore, suggests that direct mail or digital issue advertisements are not presumptively political while TV and radio advertisements with the same content distributed at the same time are presumptively political…
[W]e expect the decision will cause some 501(c)(4) groups to cut down on the volume of electioneering communications because of the increased risk those advertisements will be treated just like independent expenditures for purposes of determining whether the group’s “major purpose” is political. Some of this reduction may also be driven by donors who are concerned about the possibility of public disclosure.
Congress
Bloomberg Government: What Made the Cut in the $1.3 Trillion Omnibus Spending Package
By Jack Fitzpatrick and Erik Wasson
The omnibus would extend language banning the Securities and Exchange Commission from implementing new rules requiring public corporations to disclose their political spending to shareholders. It would continue to bar the federal government from requiring contractors to disclose their political spending, and the Internal Revenue Service would be barred from clarifying rules on political activity by nonprofits. The report accompanying the bill asks the Federal Election Commission to report to Congress about how the FEC is enforcing the law banning foreign spending in elections.
The Hill: Omnibus spending bill gives IRS $320M to implement tax law
By Naomi Jagoda
Republicans had been critical of the agency during the Obama administration, particularly after a Treasury Department watchdog found in 2013 that the IRS had subjected conservative groups’ applications for tax-exempt status to extra scrutiny.
The omnibus includes several provisions aimed at providing oversight of the IRS that have been a part of several recent spending bills.
However, the legislation does not bar the IRS from using funds to enforce the Johnson Amendment – a law that prohibits churches and other nonprofits with 501(c)(3) tax-exempt status from endorsing political candidates.
A bill the House Appropriations Committee released last year included such a prohibition. Republicans have backed repealing the Johnson Amendment, arguing that it restricts religious institutions’ First Amendment rights. But Democrats have strongly defended the Johnson Amendment, saying that repealing it would inject more “dark money” into politics.
CNN: Mark Zuckerberg tells CNN he is ‘happy to’ testify before Congress
By Seth Fiegerman
“The short answer is I’m happy to if it’s the right thing to do,” the Facebook CEO told CNN’s Laurie Segall in an exclusive TV interview on “Anderson Cooper 360.”
“What we try to do is send the person at Facebook who will have the most knowledge,” Zuckerberg said. “If that’s me, then I am happy to go.” …
Politicians on both sides of the Atlantic have called for Zuckerberg to testify before their legislative bodies in the five days since the Cambridge Analytica scandal erupted…
In the interview with CNN, Zuckerberg suggested the question was not whether Facebook should be regulated so much as how best to do it.
“I’m not sure we shouldn’t be regulated,” Zuckerberg said. “There are things like ad transparency regulation that I would love to see.” …
“And there’s a lot of hard work we have to do to make it harder for nation states like Russia to do election interference,” he said. “But we can get in front of this.”
Zuckerberg also reflected on how far his company has come: “If you told me in 2004, when I was getting started with Facebook, that a big part of my responsibility today would be to help protect the integrity of elections against interference by other governments, you know, I wouldn’t have really believed that.”
Internet Speech Regulation
WIRED: Mark Zuckerberg Talks to WIRED About Facebook’s Privacy Problem
By Nicholas Thompson
Mark Zuckerberg: Well, I mean, I think you’re framing this the right away, because the question isn’t “Should there be regulation or shouldn’t there be?” It’s “How do you do it?” And some of the ones, I think, are more straightforward. So take the Honest Ads Act. Most of the stuff in there, from what I’ve seen, is good. We support it. We’re building full ad transparency tools; even though it doesn’t necessarily seem like that specific bill is going to pass, we’re going to go implement most of it anyway. And that’s just because I think it will end up being good for our community and good for the internet if internet services live up to a lot of the same standards, and even go further than TV and traditional media have had to in advertising-that just seems logical.
There are some really nuanced questions, though, about how to regulate which I think are extremely interesting intellectually. So the biggest one that I’ve been thinking about is this question of: To what extent should companies have a responsibility to use AI tools to kind of self-regulate content? …
I don’t know that it’s going to look like the US model with Honest Ads or any of the specific models that you brought up, but I think that getting that right is going to be one of the key things for the internet and AI going forward.
Candidates and Campaigns
ABC News: Special Counsel studies Trump campaign ties to Cambridge Analytica, sources say
By Katherine Faulders, John Santucci, Megan Christie, and Benjamin Siegel
Special Counsel Robert Mueller’s team for the last several weeks has had a growing interest to better understand the relationship between the campaign, the Republican National Committee, and Cambridge Analytica, sources tell ABC News…
Sources tell ABC News several digital experts who worked in support of Trump’s bid in 2016 have met with Mueller’s team for closed-door interviews. The staffers, most of whom were employed by the RNC, served as key members of the 2016 operation working closely with the campaign and the data firm, the sources said. The company worked closely with the Republican candidate’s political team…
A source with direct knowledge who has met with the special counsel’s team tells ABC News investigators have asked former senior level campaign staff about the digital operations, specifically how data was collected and used and how assets were targeted specifically in the battleground states. Mueller’s team has asked witnesses about the process of “micro targeting” which is the process of using data to identify specific groups of individuals and thereby influence their thoughts and potentially their actions.
The States
National Law Review: Politically Active Nonprofits Face New Donor Disclosure Law in Washington
By Kevin Glandon
Washington State Governor Jay Inslee signed into law the DISCLOSE Act, a law that imposes new donor disclosure requirements on politically active nonprofits.
Under the new law, a nonprofit entity-including, but not limited to a charity, educational institution, advocacy group or trade association-may be required to register with the state as an “incidental committee” and disclose the top 10 donors whose contributions aggregate to $10,000 or more in the calendar year if the nonprofit expects to make contributions or expenditures that aggregate to at least $25,000 in any calendar year in Washington state election campaigns, including ballot initiatives. There is an exception for certain foundations that contract with a nonprofit, so long as the contract prohibits the use of the funds on political activities, and the foundation funds less than 25% of the nonprofit’s budget…
[T]he law will undoubtedly lead to the disclosure of specific individuals who donated to a nonprofit without any intention that their funds would be used in connection with a Washington state election. The law may also dampen nonprofits’ fundraising by discouraging donations of $10,000 or more.
Chicago Sun-Times: Yes, we endorsed them, but their spending is hurting our democracy
By Editorial Board
We thought they were the best candidates in their respective primaries. But as we watched the campaigns play out over the last year, we were as disheartened as anybody by how their enormous wealth overwhelmed all else…
To his credit, Pritzker wants to restrain billionaires like himself, but says he can’t “unilaterally disarm” before the November general election. He says he favors campaign finance reforms that, at the very least, include a more generous system of public funding of elections…
We favor a system of small matching public donations – say $600 in public funds for every $100 raised privately…
Public campaign financing, in various forms, has been applied successfully in at least 25 states. In Maine, to take one of the more extreme examples, qualified candidates fund their campaigns entirely with public funds, removing the need for fundraising.
We understand the limits to any such solutions. Truly wealthy candidates, for one, will opt out of the public financing, if allowed, and continue to spend their tens of millions.
