In the News
Las Vegas Review-Journal: Horsford among those who would limit political speech
By Editorial Board
It is often forgotten that Citizens United turned on whether a campaign finance law could prevent the airing of a film that was critical of Hillary Clinton and partially funded with corporate money. Incredibly, a federal appeals court ruled that the law did indeed give federal election officials the power to keep the movie off the air — and to prohibit advertisements for the film — within 60 days of a primary election or 30 days of a general election. When the case reached the Supreme Court, Deputy Solicitor General Malcolm Stewart, arguing the government’s position, went even further.
“By the time Stewart’s turn at the podium was over,” former Federal Election Commission member Bradley A. Smith wrote in 2010, “he had told Justice Anthony Kennedy that the government could restrict the distribution of books through Amazon’s digital book reader, Kindle; responded to Justice David Souter that the government could prevent a union from hiring a writer to author a political book; and conceded to Chief Justice John Roberts that a corporate publisher could be prohibited from publishing a 500-page book if it contained even one line of candidate advocacy.”
By Camila DeChalus and Nicole Gaudiano
Clad in a white polo shirt and red “Make America Great Again” hat, Donald Trump lined up to hit a golf ball.
“First on tee — 45th president of the United States,” a man off-camera declares in a now-viral video.
Trump then interjects: “The 45th and the 47th.”
It’s the latest in a litany of hints, suggestions, and near-declarations that Trump’s offered about whether he’ll run for president in 2024.
But Trump must make more than a few indicative remarks for the federal government to require him to officially register as a presidential candidate and begin adhering to financial disclosure and fundraising limit requirements, election experts say.
“There’s no law against joking, bloviating, speculating, or predicting, said Brad Smith, chairman and founder of the Institute for Free Speech and a former Federal Election Commission chairman.
Supreme Court
Election Law Blog: Justice Breyer’s Most Significant Election Law Opinion
By Rick Hasen
What made Justice Breyer’s opinion in [Nixon v. Shrink Missouri Government PAC] so significant was his discussion of how to conceive of First Amendment challenges when it comes to laws limiting the role of money in politics. On the one hand, Justice Breyer saw the problem of great disparities in economic power translating into great political power to be threatening to American democracy and interfering with free and fair elections. On the other hand, Justice Breyer saw that overregulation in this area could stifle competition and robust political debate. He wrote that “this is a case where constitutionally protected interests lie on both sides of the legal equation.”
Much of what he wrote about the problems of money in politics in Shrink Missouri did not pretend that the problem was all about “corruption.”
Bloomberg Law: SCOTUS Must Reject Ted Cruz’s Campaign Loan Repayment Request
By Orion De Nevers
Congress has long understood that the risk of corruption in the post-election fundraising context is substantial. There are several legitimate reasons donors typically make campaign contributions: to facilitate political speech, to express symbolic support for a candidate, and to increase the chances that a particular candidate will win. None apply to post-election loan repayments.
For starters, loan repayments go directly to a candidate’s pocket, not to fund more speech. What’s more, there is minimal symbolic expression because the campaign has already concluded. Last and most obviously, the funds cannot help the candidate win because the election is over.
Instead, the motivation for making post-election contributions is likely more questionable: the expectation of political favors in return. It is no surprise, then, that winning campaigns radically out-raise losing campaigns in which candidates “don’t legislate” after an election.
Free Speech
Real Time with Bill Maher (HBO): Ira Glasser on Free Speech
The former ACLU Executive Director and subject of the documentary, “Mighty Ira,” joins Bill to discuss the importance of protecting free speech.
Nonprofits
New York Times: Democrats Decried Dark Money. Then They Won With It in 2020.
By Kenneth P. Vogel and Shane Goldmacher
For much of the last decade, Democrats complained — with a mix of indignation, frustration and envy — that Republicans and their allies were spending hundreds of millions of difficult-to-trace dollars to influence politics.
“Dark money” became a dirty word, as the left warned of the threat of corruption posed by corporations and billionaires that were spending unlimited sums through loosely regulated nonprofits, which did not disclose their donors’ identities.
Then came the 2020 election.
Spurred by opposition to then-President Trump, donors and operatives allied with the Democratic Party embraced dark money with fresh zeal, pulling even with and, by some measures, surpassing Republicans in 2020 spending, according to a New York Times analysis of tax filings and other data.
The analysis shows that 15 of the most politically active nonprofit organizations that generally align with the Democratic Party spent more than $1.5 billion in 2020 — compared to roughly $900 million spent by a comparable sample of 15 of the most politically active groups aligned with the G.O.P.
Online Speech Platforms
On Substack: Society has a trust problem. More censorship will only make it worse.
By Hamish McKenzie, Chris Best, and Jairaj
[A]s we face growing pressure to censor content published on Substack that to some seems dubious or objectionable, our answer remains the same: we make decisions based on principles not PR, we will defend free expression, and we will stick to our hands-off approach to content moderation. While we have content guidelines that allow us to protect the platform at the extremes, we will always view censorship as a last resort, because we believe open discourse is better for writers and better for society.
This position has some uncomfortable consequences. It means we allow writers to publish what they want and readers to decide for themselves what to read, even when that content is wrong or offensive, and even when it means putting up with the presence of writers with whom we strongly disagree. But we believe this approach is a necessary precondition for building trust in the information ecosystem as a whole. The more that powerful institutions attempt to control what can and cannot be said in public, the more people there will be who are ready to create alternative narratives about what’s “true,” spurred by a belief that there’s a conspiracy to suppress important information. When you look at the data, it is clear that these effects are already in full force in society.
New York Times: Facebook Is Not Ready for the 2022 Election Wave
By Katie Harbath
I know what it’s like to prepare for an election at Facebook. I worked there for 10 years, and from 2014 through the end of 2019, I led the company’s work across elections globally…
[T]here’s still time for Facebook to commit to a publicly available road map that outlines how it plans to build up its resources to fight misinformation and hate speech around the world. Algorithms that find hate speech and election-related content; labels that give people more context, like those in the United States applied to content that questioned the election results; and efforts to get people accurate information about where, when and how to vote should all be a part of the baseline protections Facebook deploys across the globe. On top of these technical protections, it needs people with country-specific language and culture expertise to make tough decisions about speech or behavior that might violate the platform’s rules.
I’m proud of the progress the company made in bringing more transparency to political and issue ads, developing civil society partnerships and taking down influence operations.
The States
Anchorage Daily News: Without action from lawmakers, triple the cash can flow into Alaska campaigns this year
By Nathaniel Herz and Iris Samuels
Candidates in Alaska’s local and state-level elections this year will be able to collect campaign contributions triple the amount allowed in past races, but lingering uncertainty about the rules means those limits could be raised, lowered or even eliminated altogether before Election Day.
State lawmakers and campaign finance regulators are still processing a ruling handed down last year by a federal appeals court that threw out Alaska’s longstanding $500-per-person, per-year limit on donations to political candidates.
For now, the Alaska Public Offices Commission, which polices the state’s campaign finance rules, has raised those limits to $1,500 — and to $3,000 for political groups, up from $1,000.
But the new rules are disputed, and because they’re a preliminary proposal from the commission’s staff, APOC’s five commissioners could still vote to change them at an upcoming meeting. State lawmakers have also proposed new limits of their own, though action on those proposals is uncertain during this year’s legislative session.
The Center Square: Conservative group files for declaratory ruling on Whitmer recall fundraising
By Bruce Walker
The Michigan Freedom Fund is seeking answers from Secretary of State Jocelyn Benson related to her decision to allow Gov. Gretchen Whitmer to disburse questionable campaign donations to other Democratic candidates.
The conservative MFF filed a formal request Friday for a declaratory judgment from Benson – who, like Whitmer, is a Democrat – over $3.4 million collected from 119 large donors. Michigan Campaign Finance law limits individual donations to $7,150, but allows an exemption to accept unlimited contributions if a governor is facing a recall attempt.
At the time Whitmer accepted the contributions, there was no active recall effort.
Benson issued a determination in December that state campaign finance law does not require the governor to return the money to the initial donors. It does, however, allow her to remit, or “disgorge,” the monies to other campaign war chests.
