New from the Institute for Free Speech
Volunteers May Not Need to Register as Lobbyists, Eighth Circuit to Review
The Institute for Free Speech applauds the Eighth Circuit Court of Appeals’ significant and unusual decision to rehear Calzone v. Missouri Ethics Commission.
The case concerns a Missouri law that forces unpaid citizen activists to comply with the same registration, reporting, and disclosure requirements as professional lobbyists. In November, a three-judge panel of the Eighth Circuit upheld that law (over a dissent by Judge David Stras) against a challenge by Ron Calzone, a Missouri citizen, who regularly testifies before the Missouri General Assembly. As Judge Stras argued in his powerful dissent, “The [Missouri] law seemingly sweeps up all unpaid political advocacy by anyone who acts on behalf of someone else, no matter how often it occurs and regardless of its purpose.”
On Monday, the Eighth Circuit vacated the panel ruling and granted en banc review.
“The Eighth Circuit is right to take a second look at this crucial case,” said Institute for Free Speech Legal Director Allen Dickerson. “People differ over how to regulate paid political speech, but no one should support regulating purely voluntary activity with no financial dimension whatsoever.”
“Missouri’s unprecedented regulation of unpaid advocacy raises new questions about the most basic rights guaranteed by our Constitution. We are glad the Eighth Circuit is taking the time to get this case right,” said David Roland, Director of Litigation for the Freedom Center of Missouri.
The decision of the three-judge panel was a victory for the Missouri Ethics Commission, which has spent years pursuing Calzone. The Commission wants to force Calzone to register as a lobbyist and file fourteen reports with the state each year, despite the fact that he does not receive any compensation and does not give anything of value to legislators, other than his opinions.
Calzone is represented by attorneys from the Institute for Free Speech and the Freedom Center of Missouri. To read more about the case, click here.
Letter to U.S. House Judiciary Committee on Citizens United and H.R. 1
By David Keating
The Institute for Free Speech writes in response to a provision of H.R. 1 related to the Supreme Court decision, Citizens United v. FEC, scheduled for discussion by this Committee on January 29, 2019. From the moment the ruling was announced in 2010, Citizens United has been wildly misconstrued. H.R. 1’s factual findings related to Citizens United, unfortunately, continue this trend. The Institute for Free Speech seeks to correct some of these mistakes and provide members of this Committee an accurate educational resource describing the Court’s holding in Citizens United and placing the case in context.
Congress
Office of U.S. Senate Majority Leader Mitch McConnell: “The Democrat Politician Protection Act”
U.S. Senate Majority Leader Mitch McConnell (R-KY) made the following remarks on the Senate floor regarding House Democrats’ proposal to centralize electoral control in Washington, D.C. and to erode free speech: …
“To begin with, Democrats want to make the Federal Elections Commission a partisan institution.
“Since Watergate, the FEC has been a six-member body and neither party gets more than three seats. Neither party. After all, this is the commission with the sensitive duty of regulating Americans’ speech about politics and campaigns themselves. The FEC should not be a weapon that one political party can wield against its rivals. But the legislation that Democrats are moving through committee would throw away that bipartisan split. It would reduce the FEC to a five-member body and — listen to this — let sitting presidents hand-pick their majority. Obviously this is a recipe for turning the FEC into a partisan weapon.
“Democrats also empower that newly-partisan FEC to regulate more of what Americans say. That 3-to-2 FEC would get to determine what they subjectively see as ‘campaign-related’ – a new, vague category of regulated speech. There’d also be new latitude to decide when a nonprofit’s speech has crossed that same fuzzy line and subsequently force the publication of the group’s private supporters. All this appears custom-built to chill the exercise of the First Amendment and give federal bureaucrats — and the waiting left-wing mob — a clearer idea of just who to intimidate. And this just scratches the surface of this proposal. House Democrats are also eyeing an expensive new set of taxpayer subsidies for political campaign consultants.
“They want a new six-fold government ‘match’ for certain types of political contributions, a new federally-funded voucher program to line politicians’ pockets with even more taxpayer dollars.”
U.S. News & World Report: H.R. 1 Would Fix – and Protect – Democracy in the U.S.
By Paul Smith
The legislation would bring dark money into the light by requiring all groups spending money in elections to disclose donors giving over $10,000. It would bring transparency to the dark money daisy chain – where funds are passed between multiple entities to evade disclosure – by creating donor tracing mechanisms. It would take aim at shell LLCs by calling for beneficial owner disclosure.
H.R. 1 targets secretive online influence campaigns by enacting the bipartisan Honest Ads Act, which ensures that digital political ad spending is subject to the same transparency measures as political spending on any other medium. And it would prevent foreign corporations from influencing elections through subsidiaries, by banning contributions by corporations with significant corporate ownership or control…
Finally, a critical element of any effort to combat foreign interference is robust enforcement. Not only does H.R. 1 strengthen enforcement of FARA, it also reforms the agency that was designed to be the cop on the beat that would faithfully enforce campaign finance laws: the FEC. Any legislation passed by Congress means little if the agency charged with enforcing it refuses to do so. H.R. 1 fixes the FEC by ending the gridlock that has plagued it over the last decade.
New York Times: Senate Advances Pro-Israel Bill as G.O.P. Searches for Democratic Divisions
By Catie Edmondson
The Senate voted Monday to advance legislation affirming the right of local and state governments to break ties with companies that boycott or divest from Israel…
Republican leaders added a provision by Senator Marco Rubio, Republican of Florida, that aims to curtail support for the boycott, divest and sanctions – or B.D.S. – movement, which seeks to pressure Israel into ending the occupation of the West Bank…
The Senate voted 74 to 19 on Monday to cut off debate on the measure, with final passage expected on Wednesday…
The inclusion of the anti-B.D.S. provision will most likely kill the Senate package in the House. Lawmakers in the lower chamber will instead take its pieces one at a time…
There are no plans to take up the anti-B.D.S. provision, and House Democrats have accused Senate Republicans of attaching the fourth bill to score political points and distort the views of liberal lawmakers who favor of a two-state solution in the region…
No Senate Democrats have publicly announced support for the movement, though some liberals, such as Senator Bernie Sanders, independent of Vermont, have objected to the legislation on the grounds that it would violate freedom of speech.
“While I do not support the B.D.S. movement, we must defend every American’s constitutional right to engage in political activity,” he said Monday after voting to filibuster the bill. “It is clear to me that this bill would violate Americans’ First Amendment rights.”
The Hill: Lawmakers push crackdown on foreign lobbyists
By Alex Gangitano
Sen. Chuck Grassley (R-Iowa) is aiming to reintroduce legislation that would close loopholes in the Foreign Agents Registration Act (FARA)…
Grassley introduced the Disclosing Foreign Influence Act in late 2017 with Rep. Mike Johnson (R-La.). Grassley said at the Barr hearing that he wants to try again to pass the bill, and Johnson said it would be reintroduced this Congress.
The bill would correct loopholes that lobbyists who work with foreign entities use to avoid disclosing their work through FARA. Currently, non-U.S. companies can register through the Lobbying Disclosure Act, which is the domestic lobbying law, if they are representing foreign entities that are not governments…
But some are calling for caution as lawmakers push to change the law.
The Organization for International Investment, a trade association comprised of the U.S. subsidiaries of international companies, believes FARA reforms could complicate matters for their members. The group cited Nestle, a member based in Switzerland that has operations in the U.S.
“There should be a very bright line between somebody working for the Russian government versus Americans working for a Dutch grocery story or a Canadian auto parts company,” the organization’s president and CEO, Nancy McLernon, told The Hill…
Sen. Michael Bennet (D-Colo.) and Rep. John Sarbanes (D-Md.) had a bill last Congress, the Curtailing Lobbyists and Empowering Americans for a New Politics Act. It’s unclear if they will reintroduce it this Congress.
The bill would change the 20 percent rule, which requires people to register as lobbyists only if they spend at least 20 percent of their time lobbying.
Mother Jones: Ocasio-Cortez Takes Facebook, Microsoft, and Google to Task for Conference Promoting Climate Denial
By Stephanie Mencimer
Rep. Alexandria Ocasio-Cortez (D-N.Y.) and Rep. Chellie Pingree (D-Maine) sent a letter to three of the nation’s biggest tech companies on Monday decrying their sponsorship of a conference this month that promoted climate change denial.
As Mother Jones reported last week, Google, Facebook, and Microsoft all sponsored LibertyCon, a libertarian student conference held in Washington, DC. The event featured a group called the CO2 Coalition, which handed out brochures in the exhibit hall that said its goal is to “explain how our lives and our planet Earth will be improved by additional atmospheric carbon dioxide.” One brochure claimed that “more carbon dioxide will help everyone, including future generations of our families” and that the “recent increase in CO2 levels has had a measurable, positive effect on plant life,” apparently because the greenhouse gas will make plants grow faster. The group also sponsored the conference and a talk titled “Let’s Talk About Not Talking: Should There Be ‘No Debate’ that Industrial Carbon Dioxide is Causing Climate Catastrophe?”
Ocasio-Cortez and Pingree, who are both making climate change a priority in the new Congress, were not pleased by the news. On Monday, they sent a letter to the CEOs of Google, Facebook, and Microsoft expressing their concern that the tech companies are contributing to the spread of misinformation about the reality of climate change despite their public commitment to reducing carbon emissions in their own operations.
Wall Street Journal: Michael Cohen to Testify Before House Intelligence Committee on Feb. 8
By Rebecca Ballhaus
Michael Cohen, President Trump’s former lawyer, will testify behind closed doors before the House Intelligence Committee on Feb. 8, the panel said Monday-the first of a series of expected hearings for Mr. Cohen in the weeks before he is scheduled to report to prison.
Rep. Adam Schiff (D., Calif.), chairman of the House Intelligence Committee, said Mr. Cohen agreed to appear voluntarily before the panel. Mr. Cohen last week had postponed a planned public hearing before the House Oversight Committee, citing concerns about threats by Mr. Trump and his attorneys toward members of Mr. Cohen’s family…
On Feb. 12, Mr. Cohen is set to testify behind closed doors before the Senate Intelligence Committee, which served him with a subpoena last week.
Also Monday, Mr. Cohen’s lawyer announced that he was changing his legal team to better focus on Congress in the weeks before he reports to prison on March 6…
Mr. Cohen pleaded guilty in August to charges including violating campaign-finance law by arranging hush-money payments to two women who, during the 2016 campaign, alleged an affair with Mr. Trump in a case brought by federal prosecutors in New York. He told a federal judge that Mr. Trump directed him to make the payments, implicating the president in two federal crimes. Mr. Trump has denied directing Mr. Cohen to break-campaign finance laws.
Privacy
ProPublica: A Onetime Rising Democratic Star Faces Questions About Voter Privacy
By Jessica Huseman and Daniel Desrochers
In an appearance on MSNBC in July 2017, Kentucky Secretary of State Alison Lundergan Grimes expressed her vehement opposition to giving voter data to President Donald Trump’s voter fraud commission, which had requested it from election officials in all 50 states. The privacy risks were simply too high, she said.
“There is not enough bourbon here in Kentucky to make this request seem sensible,” Grimes said. “Not on my watch are we going to be releasing sensitive information that relates to the privacy of individuals.”
But beginning months before she made that statement, Grimes’ own staff had been looking up hundreds of voters in the very same registration system. One of her former staffers first revealed the practice last summer but provided little detail.
Now, an investigation by ProPublica and the Lexington Herald-Leader shows that the searches were extensive and targeted prominent state politicians…
Now, three state agencies are pursuing investigations against her office – a result of complaints filed by numerous state employees and officials. At least four have quietly filed complaints with the Executive Branch Ethics Commission; two others have complained publicly…
Grimes’ staff made questionable use of its unprecedented access to the voter registration system, or VRS. They looked up applicants for non-political positions with the seeming purpose of discovering their party affiliation. State law prohibits inquiring as to whether such applicants are Republicans or Democrats.
Her staff searched for hundreds of voters, mostly state employees outside the secretary of state’s office, for no discernible reason. Documents show they looked up current and former employees, a federal judge, the Kentucky education commissioner and every member of the Kentucky Board of Education.
They even searched for members of the ethics commission who are investigating Grimes herself.
The Courts
Wall Street Journal: Roger Stone Enters Not Guilty Plea to Charges in Mueller Indictment
By Aruna Viswanatha and Sadie Gurman
Roger Stone entered a not guilty plea in federal court on Tuesday, after the longtime political adviser to President Trump was arrested at his Florida home on charges from special counsel Robert Mueller of lying to Congress…
Mr. Stone was charged in a seven-count indictment last week accusing him of misleading a House committee about his efforts to obtain information about WikiLeaks’ plans to publish emails that Russian hackers stole from Democrats in 2016…
The special counsel’s office is nearly two years into an investigation into Russia’s efforts to interfere in the 2016 election, and whether any Trump campaign officials aided in that effort, which Mr. Trump has repeatedly denied and derided as a “witch hunt.”
The federal grand jury’s indictment against Mr. Stone accuses him of lying to the House Intelligence Committee to cover up his efforts to obtain and share with Trump campaign officials details of WikiLeak’s plans to publish emails that were damaging to Hillary Clinton, Mr. Trump’s 2016 Democratic opponent. U.S. officials have said those emails were hacked by Russian intelligence officers.
Mr. Stone was also charged with obstructing the congressional inquiry and trying to persuade a witness to lie to a House committee. A status hearing in his case is scheduled for Friday.
Online Speech Platforms
ProPublica: Facebook Moves to Block Ad Transparency Tools – Including Ours
By Jeremy B. Merrill and Ariana Tobin
A number of organizations, including ProPublica, have developed tools to let the public see exactly how Facebook users are being targeted by advertisers.
Now, Facebook has quietly made changes to its site that stop those efforts.
ProPublica, Mozilla and Who Targets Me have all noticed their tools stopped working this month after Facebook inserted code in its website that blocks them.
“This is very concerning,” said Sen. Mark Warner, D-Va., who has co-sponsored the Honest Ads Act, which would require transparency on Facebook ads. “Investigative groups like ProPublica need access to this information in order to track and report on the opaque and frequently deceptive world of online advertising.”
For the past year and a half, ProPublica has been building a searchable database of political ads and the segments of the population advertisers are paying to reach. We did this by enlisting thousands of volunteers who installed a web browser extension. The tool shared the ads users see as well as Facebook’s details on why the users were targeted.
In a statement to ProPublica, Facebook said the change was meant to simply enforce its terms of service. (The Guardian also published a story Sunday flagging the change.)
“We regularly improve the ways we prevent unauthorized access by third parties like web browser plugins to keep people’s information safe,” Facebook spokesperson Beth Gautier said. “This was a routine update and applied to ad blocking and ad scraping plugins, which can expose people’s information to bad actors in ways they did not expect.”
By Peter Ferrara
Sen. Lindsey Graham, R-S.C., took over as chairman of the Senate Judiciary Committee this month, which has jurisdiction over federal antitrust law. How will he handle social media giants like Facebook, Google and Twitter, which have become the new restrictive, oppressive robber barons of today? …
Facebook founder and CEO Mark Zuckerberg inadvertently revealed today’s problem in a Wall Street Journal editorial published last week, which he mistakenly thought would address the issues. He wrote:
“Another question is whether we leave harmful or divisive content up because it drives engagement. We don’t. People consistently tell us they don’t want to see this content. Advertisers don’t want their brands anywhere near it. The only reason bad content remains is because the people and artificial intelligence system we use to review it are not perfect – not because we have an incentive to ignore it.”
“Harmful or divisive” content is awfully vague and broad for Mark Zuckerberg to have the power to prohibit in public discourse…
Some might argue that Facebook is a private company free to do what it wants with speech on its platform, just like any newspaper can refuse any op-ed from anyone whose speech it does not want to support.
That is where properly understood antitrust policy comes in. Breaking up a big company is not the only remedy under antitrust.
If a company has accumulated too much market power, as Facebook has, it can be found guilty of violating antitrust law. The remedy can be a binding federal agreement, known as a consent decree, requiring the company to follow the policy of viewpoint neutrality – that is, to protect the First Amendment by prohibiting the singling out or freezing of one set of opinions and perspectives.
The States
Albuquerque Journal: Campaign finance overhaul clears hurdle
By Dan McKay
The bill, sponsored by Senate Majority Leader Peter Wirth, D-Santa Fe, is similar to a measure vetoed by then-Gov. Susana Martinez two years ago. But newly elected Gov. Michelle Lujan Grisham, who took office Jan. 1, says she is open to the legislation and generally supports transparency in campaign spending…
Senate Bill 3 would make a variety of other changes to New Mexico’s campaign law, too, including adjusting limits on the size of campaign contributions. There would be a $5,000 cap for each primary and general election cycle for all candidates, regardless of the race. That would be nearly twice what legislative candidates can now accept and a decrease from the $5,700 limit for statewide candidates.
Opponents of the bill raised a variety of concerns. Some said the contribution limits should be abolished altogether, and others said the bill is too complex.
Sen. Mark Moores, R-Albuquerque, said the donation cap puts lawmakers at a disadvantage because some political groups – those that don’t coordinate with a candidate – can accept unlimited contributions…
The measure cleared the Senate Rules Committee 7-4 Monday morning and now heads to Senate Judiciary, potentially its last stop before it reaches the Senate floor…
Under the proposal, independent expenditures would be disclosed under certain circumstances. The ad would have to refer to a clearly identified candidate, for example, within 30 days of a primary election or within 60 days of a general election.
The requirements would also kick in only if the independent spending by the group exceeded $3,000 for a statewide race or $1,000 if it isn’t statewide.
Wirth said the state is limited in how it can regulate independent spending because of the legal protections enshrined in the First Amendment.
By Joshua L. Oppenheimer and Mark F. Glaser, Greenberg Traurig LLP
Not even a month into 2019, and New York has adopted significant changes to the state’s campaign finance laws. With Democrats controlling both the Assembly and the Senate, the Legislature passed and promptly delivered to the governor legislation that would change the way limited liability companies (LLCs) are treated for campaign contribution purposes. Less than a week later, on Jan. 24, the governor held a bill-signing ceremony to approve the LLC contribution rule change, as well as a package of other election law reforms. Governor Andrew Cuomo described the new laws – including the LLC amendment – as “a pivotal step forward,” but insisted further reforms to the system are necessary and, as such, included several notable changes in the Executive Budget Proposal (the Governor’s Ethics Bill). This GT Alert summarizes the new law on LLC campaign contributions, as well as the other key campaign finance proposals.
