In the News
WBUR 90.9 (On Point-NPR): Taking Stock Of The Supreme Court’s Citizens United Decision, 10 Years Later
By Meghna Chakrabarti and Hilary McQuilkin
It’s been 10 years since the Supreme Court’s landmark decision on Citizens United. We’ll look back at the last decade and take stock of the fallout.
Guests[:]
Carrie Levine, senior reporter at the Center for Public Integrity. (@levinecarrie)
Bradley Smith, professor of law at Capital University Law School. (@CommishSmith)
Rick Hasen, professor of law and political science at the University of California, Irvine. (@rickhasen)
John S. Adams, editor-in-chief of the Montana Free Press. (@johnsadams406)
Cato (Podcast): Citizens United at 10
Featuring Scott Blackburn and Caleb O. Brown
The fight over Citizens United free speech ruling has raged on years after the Supreme Court weighed in. Scott Blackburn of the Institute for Free Speech explains why the case’s detractors are so very mistaken
Supreme Court
By Ilya Shapiro and Michael Collins
[A] federal law…criminalizes “encourage[ing] … an alien to … reside in the United States, knowing or in reckless disregard of the fact that such … residence is … in violation of law.” The potential sentence for this crime could be increased if the encouragement was motivated by financial gain…
Evelyn Sineneng-Smith is an immigration consultant in California who dealt with many unlawfully present aliens in the Filipino community. She took advantage of certain clients by taking their money to apply for a federal program that would normalize their status, while knowing that this program was not open to them. She was prosecuted for and convicted of that fraud; the government had her dead to rights and that’s the end of that story.
But the government further alleged that Ms. Sineneng’ s advice influenced her clients to stay in the country illegally. She was thus also charged and convicted for encouraging aliens to remain in the United States unlawfully, the sentence for which was enhanced by a finding that she did so for financial gain. The U.S. Court of Appeals for the Ninth Circuit reversed her conviction, ruling that the statute violated the First Amendment. The Supreme Court agreed to consider the case…
Cato has filed an amicus brief supporting Ms. Sineneng-Smith in the Supreme Court. Our brief counters part of the government’s brief, which argues that, even if the statute is overbroad, it’s saved by the fact that additional elements of financial gain need to be proven for a sentence enhancement. We argue that the sentence enhancement is irrelevant to the chilling effect of the underlying statute and, even if the analysis is limited to encouragement motivated by financial gain, the statute still criminalizes protected commercial speech.
The Courts
Reason: Tulsi Gabbard Files Defamation Lawsuit Against Hillary Clinton Over ‘Russian Asset’ Comments
By Christian Britschgi
[P]residential candidate Rep. Tulsi Gabbard (D-Hawaii) has filed an eyebrow-raising lawsuit [in the U.S. District Court for the Southern District of New York] against Hillary Clinton for defamation over comments the former Secretary of State made on a podcast suggesting that Gabbard was a Russian stooge.
In October 2019, Clinton appeared on the podcast Campaign HQ, where she, while not mentioning Gabbard by name, implied that the Hawaiian representative was being “groomed” by the Republicans to launch a disruptive third-party bid, something that would apparently delight the Russian government.
“She’s the favorite of the Russians. They have a bunch of sites and bots and other ways of supporting her so far. And, that’s assuming [2016 Green Party candidate] Jill Stein will give it up, which she might not because she’s also a Russian asset. Yeah, she’s a Russian asset,” said Clinton on the podcast.
When asked the following day if these comments were about Gabbard, a Clinton spokesperson said, “If the nesting doll fits.”…
Her lawsuit asks that Clinton be made to pay damages, and, incredibly, that the court issue an injunction prohibiting the “publication or republication” of Clinton’s Russian asset comments…
Regardless of how the legal battle shakes out, one politician suing another over their rhetoric is not healthy…
Should that become the norm, courts (not voters) will decide the acceptable parameters of political speech and debate.
City Journal: Stand Up for National Review-and Free Speech
By Judith Miller
The judicial wrangle began in 2012, when climatologist Michael E. Mann, a professor of meteorology at Pennsylvania State University and climate-change activist, sued National Review and pundits Mark Steyn and Rand Simberg, claiming that they had libeled him in a series of blog posts…
When Mann’s lawyer sent National Review editor Rich Lowry a letter demanding a public apology and a retraction, Lowry told Mann to “get lost,” noting that the blog post, which the magazine had neither written nor edited, represented an opinion and was “fully protected under the First Amendment.”…
In defense of National Review, Lowry wrote that Steyn’s characterization of Mann’s work as “fraudulent” did not mean that Mann had committed a crime, but rather, that his methods were “intellectually bogus and wrong.” In a free society, National Review wrote, the way to respond to such challenges is through debate and rebuttal, not by filing a lawsuit.
So far, however, the courts have disagreed, ruling in Mann’s favor. In November, the Supreme Court declined to hear the seven-year-old case, ensuring that a full trial, with all associated expenses, will probably take place this year…
The case poses an additional danger, argues Theodore Boutros, Jr., a First Amendment expert at Gibson Dunn. “This kind of defamation case threatens to chill free and open debate about the important issue of global warming and how to address it from a policy standpoint. Whatever your views and opinions are on the topic,” he said, “we should all want as much information and input as possible so we can make the right decisions as a society.”
Reason (The Volokh Conspiracy): Prosecution for Threatening ACLU Employees May Go Forward
By Eugene Volokh
From United States v. Carrillo, decided Wednesday by Judge Kea W. Riggs (D.N.M.):
Defendant argues that his Facebook post is protected by the First Amendment and was mere hyperbolic political speech.
True threats are not protected by the First Amendment…
Here, a reasonable jury could conclude that Defendant communicated a true threat. Defendant stated: “You Bitches Want a Physical Civil War.. I’m Game..I’ll bring My Farm Implements and They will Never find your Bodies..AND for Fun I’ll BURN Every ACLU Office in the State.. GO TRUMP GO.!” Specifically, a reasonable jury could conclude that Defendant intended ACLU personnel to feel threatened, or he knew that by posting the comment ACLU personnel would view it as a threat of injury.
Defendant argues that his comment was mere political speech. Defendant’s message contained political speech, including reference to apparent political discourse regarding a “civil war”, and ending his message with “GO TRUMP GO.” However, that political speech does not shield Defendant from culpability from the true threats otherwise contained in his message. Therefore, the Court cannot say that there is “no question” that Defendant’s comment is protected by the First Amendment.
Defendant argues that he only posted the message on Facebook and did not specifically send the message to ACLU personnel. While Defendant posted his message on Facebook, he specifically targeted ACLU personnel in New Mexico.
First Amendment
Wall Street Journal: Judicial Political Mischief
By The Editorial Board
The federal judiciary is a rare American institution these days that has maintained a reservoir of public trust. But that reputation will erode if the Committee on Codes of Conduct of the U.S. Judicial Conference follows through on its intention to ban judges from belonging to the Federalist Society…
[O]n Tuesday we received what is labeled a “January 2020 exposure draft for review and comment” that was sent to federal judges. The draft is what we feared, and we hope judges and others blast it as undermining legal education in America and perhaps violating the First Amendment right of association.
“In sum, the Committee advises that formal affiliation with the ACS [American Constitution Society] or the Federalist Society, whether as a member or in a leadership role, is inconsistent with Canons 1, 2, 4, and 5 of the Code,” says the draft…
This is political mischief masked in high-sounding rhetoric…
The Codes of Conduct draft offers a patina of balance by linking the Federalist Society with the left-leaning American Constitution Society. But this is false equivalence…
They’ll use the Codes of Conduct opinion as a cudgel against nominees and perhaps as potential grounds for impeachment against judges. The Codes of Conduct draft also advises law clerks not to join the Federalist Society, which means young lawyers in their formative years may avoid membership to avoid any future damage to their careers.
Free Speech
New York Times: Want to Criticize Singapore? Expect a ‘Correction Notice’
By Kirsten Han
When the ruling People’s Action Party (P.A.P.) passed a new law against “fake news” last year, it claimed to want to protect both free speech and national security. Falsehoods, the government said, “have been weaponized, to attack the infrastructure of fact, destroy trust and attack societies.”…
Last Thursday, the one target of the law that so far has dared to challenge it in court, the opposition Singapore Democratic Party, argued that an interpretation of data couldn’t be considered a “deliberate falsehood.” (Or so we, journalists, have been told: The hearings aren’t open to the public.)…
The Protection from Online Falsehoods and Manipulation Act, better known as Pofma, outlaws “false statements of fact” that, among other things, are “prejudicial” to security, public health and Singapore’s external relations or that might “diminish public confidence” in the government’s performance. The law grants government ministers the power to issue “correction notices” to the people or groups they claim have published falsehoods. Alternatively, the law allows offending content to be removed or blocked, and for online users or readers to be directed to a government source instead.
Noncompliance is punishable by fines (of up to $15,000 for individuals and more than $740,000 for companies) and up to one year in prison. The correction notices must be posted when the government asks for them, even if the recipients object: A Pofma order can only be invalidated by the High Court.
Every order so far has been directed at an opposition party or politician, or a government critic.
FEC
National Review: Watchdog Files FEC Complaint over Sanders-Linked Fundraising Group
By Zachary Evans
The watchdog group Common Cause, a left-leaning government watchdog group, has filed a complaint with the Federal Election Commission relating to a non-profit founded by Bernie Sanders.
Sanders established the non-profit Our Revolution after his 2016 primary loss to Hillary Clinton. Our Revolution has since paid for some Sanders advertisements and voter turnout efforts.
In its complaint, Common Cause, which bills itself as an organization that works to “create open, honest, and accountable government,” charges that Our Revolution accepted what are essentially campaign contributions in excess of what is legally permissible, and has not disclosed its donors as required by law. The non-profit, which has never disclosed its donors, has received almost $1 million in donations from 2016 to 2018, with some individual donations reaching six figures.
In the past, Sanders has condemned efforts to allow so-called “dark money” groups, which can raise funds toward political causes without revealing donors. Sanders co-sponsored a 2017 bill that would force dark money groups to reveal their donors to the public.
“I do not have a super PAC, and I do not want a super PAC,” Sanders said after winning the New Hampshire primary in 2016, although Our Revolution functions in much the same way as a super PAC.
Washington Post: Can ‘Atlanta’s own AOC’ make it easier for working-class Americans to run for office?
By Helaine Olen
Almost a decade after the Affordable Care Act was signed into law, 27.5 million Americans still lack health insurance. Nabilah Islam, 30, a progressive political organizer running in the very crowded Democratic primary in Georgia’s 7th Congressional District, is among them. Islam has come up with a unique way to address her situation: She’s asking the Federal Election Commission for help.
In a letter that will be filed next Monday, Islam is petitioning the FEC for an advisory opinion that would permit her to use campaign funds to pay for health insurance. Her short-term goal is medical coverage. But in the long term, this daughter of working-class immigrants from Bangladesh also wants the regulations changed so that more lower- and middle-income people can afford to seek public office…
Monica Klein, the political consultant advising Islam, previously worked with Long Island’s Liuba Grechen Shirley, who successfully petitioned the FEC for permission to use campaign funds to cover her child-care expenses. Klein told me she sees similarities between the two woman’s quests. “Like Liuba, Nabilah isn’t just running for office,” she said. “[They] are both working to dismantle the conditions that keep Congress overwhelmingly white, wealthy and male.”
But Islam is unlikely to meet with similar quick results. That’s got nothing to do with the merits. President Trump hasn’t bothered to nominate candidates to fill the three openings on the six-member commission, leaving the FEC short of the necessary quorum needed to hold meetings or issue rules.
Citizens United
New York Daily News: Money, speech and truth: Citizens United critics fail to understand a fundamental reality about politics and freedom
By Daily News Editorial Board
Ten years ago today, a bogeyman was born. Its name is Citizens United, the Supreme Court ruling that struck down limits on independent corporate political spending and, liberal Cassandras say, ushered in a dystopian era…
Quick history lesson: Citizens United was a nonprofit that, during the 2008 Democratic primaries, sought to air a 90-minute ideological documentary deeply critical of Hillary Clinton to Americans’ homes via pay-per-view. The Federal Election Commission barred its broadcast under rules enforcing the McCain-Feingold Bipartisan Campaign Reform Act.
The Supreme Court faced a question: How could such a ban stand in a nation whose Constitution has a First Amendment forbidding government limitations on speech, and in which political speech is deemed the most privileged and protected form of expression?
How could it be that, in an act of expression no one would ever contemplate abridging, a for-profit corporation could in the thick of the 2004 presidential election release into theaters and advertise on television “Fahrenheit 9/11,” a strident anti-George W. Bush documentary, but the release of “Hillary: The Movie,” a photo-negative film, could four years later be criminalized?
And how could it be, as Theodore Olson argued before the court, that “it is a felony for a small, nonprofit corporation to offer interested viewers a 90-minute political documentary about a candidate for the nation’s highest office, that General Electric,” then owner of NBC, “National Public Radio, or George Soros may freely broadcast”? He could’ve added Fox News to the litany.
Washington Post: Citizens United turns 10 today. Here’s what we’ve learned about dark money.
By Abby K. Wood
- Citizens United allowed new types of spenders. These groups haven’t been required to disclose their spending.
Groups that raise and spend money in U.S. federal political campaigns are required to disclose the sources of that money to the Federal Election Commission, which makes the data publicly available. In theory, voters can then check to see whether elected officials then offer favors to donors.
Citizens United allowed new types of groups to donate to campaigns, on the grounds that banning them violates their rights of free speech, including 501(c)(4) “social welfare” organizations and limited-liability corporations (LLCs). But here’s the catch. Since then, Congress has placed budget riders in spending bills to prevent agencies from regulating those groups’ political spending. Simultaneously, the FEC has been unable to pass robust disclosure covering these groups – so they don’t have to name their donors, as other groups do. The money they raise stays “dark.”
- Lack of disclosure leads to ‘gray money’
- Ads funded by dark money are on the rise, making campaigns more negative…
- Dark money can hide ‘shy’ donors’ contributions
- Voters prefer campaign finance transparency to dark money…
- Dark money can hide foreign influence…
- The court may be wrong about whether such spending can corrupt
The Hill: Democracy has eroded in the decade since Citizens United
By Craig Holman and Roger Fleming
The past decade of living with the landmark [Citizens United] decision has been unkind to American democracy. Every election since this 2010 decision allowing unlimited corporate and union spending in our political system has been more expensive than the last, flush with untraceable money and messier than ever before, and the 2020 election promises to be the worst yet.
It is frightening how much elections have been overtaken by a small core of unknown wealthy individuals from both ends of the political spectrum. Consequently, it is not surprising how many Americans have lost faith in our electoral system of governance. While monied interests have always had the upper hand in influencing government, their domination jumped leaps and bounds with the decision by the justices in Citizens United…
The impact on our elections was immediate…
Citizens United has clearly changed who is paying to elect our lawmakers and to whom those lawmakers invariably feel a sense of debt. Free and fair elections may not have been a fully realized ideal in American democracy, but following Citizens United, many government officials must now rely on an ever smaller circle of very wealthy individuals and special interests for political survival. It leaves unanswered the key question asked by a House staffer during a briefing about the impact of the Supreme Court decision, “How do I say no to a deep pocketed corporate lobbyist who now holds the resources necessary to defeat my boss during the next election?”
The Hill: Citizens United put out a welcome mat for Lev Parnas and Igor Fruman
By Derek Tisler and Daniel Weiner
None of [Lev] Parnas and [Igor] Fruman’s machinations would have been possible without Citizens United, which we can thank not only for the existence of super PACs but also for their donors’ ability to hide behind opaque shell companies like Global Energy Partners. But this particular scheme was also made possible by other institutions that failed to do anything to mitigate the damage.
One, in particular, stands out: the FEC itself.
The FEC, which is evenly divided between Democratic and Republican appointees, has become a byword for gridlock and mismanagement. Since August, the agency has not had a quorum, but even before then, it rarely pursued significant campaign finance violations and had almost completely stopped issuing new regulations. The agency’s long-term paralysis aided Parnas and Fruman’s scheme to buy political influence in two key ways.
First, the FEC’s failures to enforce the law made it easier for Parnas and Fruman to conceal the true source of their contributions…
Even after Citizens United, it is illegal to use a shell company that isn’t a real business as a front to launder a political donation. But the FEC has utterly failed to enforce the law…
Second, the FEC’s failure to update its regulations, specifically around coordination between super PACs and candidates, provided an opening for Parnas and Fruman to directly influence members of Congress.
Privacy
New York Times: We’re Banning Facial Recognition. We’re Missing the Point.
By Bruce Schneier
Communities across the United States are starting to ban facial recognition technologies…
These efforts are well intentioned, but facial recognition bans are the wrong way to fight against modern surveillance. Focusing on one particular identification method misconstrues the nature of the surveillance society we’re in the process of building. Ubiquitous mass surveillance is increasingly the norm. In countries like China, a surveillance infrastructure is being built by the government for social control. In countries like the United States, it’s being built by corporations in order to influence our buying behavior, and is incidentally used by the government…
Once we are identified, the data about who we are and what we are doing can be correlated with other data collected at other times. This might be movement data, which can be used to “follow” us as we move throughout our day. It can be purchasing data, internet browsing data, or data about who we talk to via email or text. It might be data about our income, ethnicity, lifestyle, profession…
The point is that it doesn’t matter which technology is used to identify people…
[W]e can be tracked as we move around a store or shopping mall, even if that tracking isn’t tied to a specific name. And that anonymity is fragile: If we ever order something online with a credit card, or purchase something with a credit card in a store, then suddenly our real names are attached to what was anonymous tracking information.
Candidates and Campaigns
National Review: Gary Peters Bashes Citizens United Despite Benefitting From Dark Money Group’s $1 Million Ad Buy
By Tobias Hoonhout
Senator Gary Peters (D., Mich.), already facing a tough reelection campaign against Republican John James, came under further fire Tuesday after publicly condemning the malign influence of “dark money” in politics despite benefiting from a $1.4 million ad campaign by VoteVets Action Fund.
“Today marks a decade of Citizens United. That’s 10 years of dark money. 10 years of special interests literally buying elections. 10 years of a ‘for sale’ sign on our democracy. Add your name to say you’re in the fight to #EndCitizensUnited,” Peters tweeted Tuesday.
But the Michigan Democrat failed to mention the support his campaign has received from VoteVets, which was described as a “liberal ‘dark money’ nonprofit” by the non-partisan Center for Public Integrity. VoteVets ran a $750,000 ad buy in November to counter a similar GOP effort, and has only increased its support for Peters since then.
Under Citizens United, federal law allows for independent organizations to spend unlimited amounts to promote political candidates but advertisements are considered a campaign contribution – and are as a result subject to limitations – if the organization and the benefiting campaign work in coordination on the effort.
“Gary Peters is a hypocrite by blasting ‘dark money’ on social media while those same groups run millions of dollars in TV ads for his re-election benefit,” Tori Sachs, executive director of Better Future Michigan, told National Review in a statement.
Washington Free Beacon: Sara Gideon Raked in Nearly $20,000 From Lobbyists Before Pushing New Anti-Lobbyist Pledge
By Cameron Cawthorne and Joe Schoffstall
Sara Gideon, the Democratic challenger to Sen. Susan Collins (R., Maine), vows to combat lobbyists in a newly released campaign finance reform plan, but her campaign has accepted nearly $20,000 from more than two dozen lobbyists.
Between April 1 and Sept. 30, 2018, the Gideon campaign raked in $18,310 from 28 individuals who work directly with special interest groups or at firms that spend big on lobbying activities, filings show. A majority of the donations came from individuals in the Washington, D.C., metro area.
Gideon’s reform agenda, released Wednesday, seeks to counter lobbyists’ influence. Gideon, who is currently the speaker of Maine’s House of Representatives, promises to refuse gifts, meals, and trips from anyone working on behalf of special interests. Her plan also rejects corporate PAC money, calls for the disclosure of dark money donors, and backs a lifetime ban on former members working as lobbyists once they’re out of office…
While Gideon pledges to steer away from special interests, her campaign has already collected thousands of dollars from lobbyists…
Gideon is rejecting corporate PAC donations and plans to make it a central issue in the race. The Collins campaign has hit Gideon over hypocrisy on the issue, saying that she has already accepted such donations through Senate Minority Leader Chuck Schumer’s (D., N.Y.) PAC. Gideon also received money directly from corporations and corporate PACs through her state-level PAC.
