In the News
Wall Street Journal: Majority Preservation Act
By Editorial Board
A central part of H.R. 1 is “campaign-finance reform,” no surprise given the progressive fixation with money in politics, which oddly turns to mist when Tom Steyer or Mike Bloomberg are spending. The House bill requires some advocacy groups to publicly disclose the names of donors who give more than $10,000, even if the groups aren’t running ads that endorse candidates but merely inform voters about the issues.
The goal is to identify donors who don’t genuflect to progressive views, then bully or harass them to stop giving…
H.R. 1 also includes provisions from the Honest Ads Act that supporters say would merely regulate online political ads the same as broadcast television. The pretext is preventing Russian or other election interference, though ads bought by Russian actors in 2016 (about $100,000) represent less than 0.01% of spending on digital ads that cycle.
Honest Ads would impose new disclosure and reporting requirements on online platforms that run paid advertising. This isn’t about equal treatment with television ads because the bill creates more double standards than it eliminates, and it ensnares publishers like this newspaper.
For instance, the bill’s expanded definition of “electioneering communications” would cover “communications that are not even targeted to any relevant electorate,” as Eric Wang of the Institute for Free Speech points out. “In other words, an online ad only running in Texas that named a Senate leader from New York would become a regulated communication. A similar TV or radio ad would not.”
Capital Research Center: CRC Looks Back at 2018
By Christine Ravold
CRC’s Michael Hartmann and Michael Watson wrote a report analyzing the way money flowed to political organizations and nonprofit entities before and after the Supreme Court’s landmark decision in Citizens United v. FEC. Hartmann and Watson determined that overall, giving of all kinds increased across the political spectrum to organizations of all kinds. CRC hosted an event at the National Press Club featuring William Schambra of the Hudson Institute, David Keating of the Institute for Free Speech, Abby Levine of Alliance for Justice, and Gara LaMarche of the Democracy Alliance for a cross-ideological discussion of the findings and their implications for advocacy philanthropy.
Supreme Court
Pacific Legal Foundation: End discrimination against corporate speech
By Deborah J. La Fetra
[S]ome laws restrict speech solely on the basis of the speaker’s identity, granting some favored speakers power and privileges not shared by all. A new case before the Supreme Court, 1A Auto, Inc. v. Sullivan, may break down these artificial distinctions among speakers.
Massachusetts’ ban on corporate contributions prohibits business corporations and other profit-making entities from making contributions to support state or local candidates. They may not contribute to a candidate or to a candidate’s committee, may not establish or administer a political action committee (PAC), and may not contribute to a PAC that is not an independent expenditure PAC. Because of this law, the two small businesses-an auto shop and a storage facility-are prohibited from making political contributions that they otherwise would have made. They sued Michael Sullivan, the Massachusetts Office of Campaign and Political Finance director, to challenge the contribution ban as violating their First Amendment right to free speech. They lost in Massachusetts state courts, largely because of the Supreme Court’s decision in Beaumont v. FEC (2003), which upheld the federal ban on corporate contributions as justified by the government’s interest in “preventing corruption and the appearance of corruption.” Although Citizens United v. FEC (2010) rejected two of the four reasons underlying Beaumont, it accepted one of the reasons (preventing corruption) and was silent as to the fourth (preventing individuals from funneling contributions through corporations).
Now the businesses are asking the Supreme Court to review the case, and overrule Beaumont. PLF filed an amicus brief in support of the petition, arguing that in the fifteen years since Beaumont was decided, First Amendment law has grown more protective of political speech, even when expressed by corporations.
The Courts
Washington Post: Elected officials cannot silence critics on social media, appeals court rules
By Ann E. Marimow
An elected official in Virginia violated the First Amendment when she temporarily blocked a constituent on Facebook, a federal appeals court ruled Monday…
The unanimous ruling from the U.S. Court of Appeals for the 4th Circuit is the first from an appeals court to answer the question of whether free speech protections prevent public officials from barring critics from their social media feeds.
The 42-page opinion addresses the Facebook page of Phyllis J. Randall, chair of the Loudoun County Board of Supervisors, but President Trump is facing a similar lawsuit for silencing critics on his active @realDonaldTrump Twitter account, which has millions of followers…
Public officials cannot block critical comments on digital platforms used to conduct official government business and to interact with constituents, the court concluded. Randall’s case arose after she briefly blocked community activist Brian Davison in early 2016 for accusations she deemed “slanderous.”
“Randall clothed the Chair’s Facebook Page in ‘the power and prestige of h[er] state office’ and created and administered the page to ‘perform actual or apparent dut[ies] of h[er] office,’ ” according to the opinion written by Judge James A. Wynn Jr. and joined by Judge Pamela A. Harris.
“That Randall’s ban of Davison amounted to an effort ‘to suppress speech critical of [such members’] conduct of [their] official duties or fitness for public office’ further reinforces that the ban was taken under color of state law.”
The third judge on the panel, Barbara Milano Keenan, wrote a separate opinion in which she agreed with the ruling but urged the court to “exercise great caution” in such new areas of law and “await further guidance from the Supreme Court on the First Amendment’s reach into social media.”
New York Times: He Disparaged the Police on Facebook. So They Arrested Him.
By Adam Liptak
Like lots of Americans, Robert Frese is not shy about expressing his views on the internet. Last year, in a comment on a newspaper’s Facebook page, he said a New Hampshire police officer who had given him a traffic citation was “a dirty cop.” The police chief, Mr. Frese added, was a coward who had covered up the matter.
The police officers might have looked the other way. They might have responded, explaining their positions and letting readers decide who was right. They might have filed a civil suit for libel, seeking money from Mr. Frese.
Instead, they did a fourth thing, one that seems at odds with the American commitment to free expression, particularly where criticism of government officials is concerned. They arrested Mr. Frese, saying he had committed criminal libel.
About half of states have laws making libel a crime, and prosecutions are not uncommon. About 25 people were charged with violating New Hampshire’s law from 2009 to 2017, according to a lawsuit filed last month on behalf of Mr. Frese by the American Civil Liberties Union.
Congress
ACLU: Instead of Ending the Shutdown, Senators Plan to Encourage Punishment of Israel Boycotts
By Kate Ruane
In the middle of a government shutdown, the Senate leadership’s first order of business in the 116th Congress is not legislation to reopen the government.
Instead, and incredibly, the Senate is again trying to slip a measure intended to suppress protected political expression past public scrutiny. The bill is the “Combatting BDS Act,” which would express federal approval of state laws that place restrictions on boycotts of Israel and its settlements, as part of an effort to weaken the Boycott, Divestment, and Sanctions (BDS) movement against Israel. The bill is included in S.1, which the Senate plans to vote on this week. On Monday, the ACLU sent a letter to senators expressing opposition to the bill…
The Combating BDS Act would attempt to give legal cover to states that enact laws penalizing businesses and individuals who participate in boycott activities against Israel and Israeli-controlled territories. These state laws, dozens of which exist in many different forms, generally compel state contractors and any entity in which the state invests – for example, through a state-run pension, retirement, or endowment fund – to sign oaths promising not to boycott Israel as a requirement of maintaining their relationship with the state. However, as courts found in the McCarthy era, the government can’t fire its employees or contractors just because they refuse to sign an oath promising not to engage in disfavored expression or association. And two federal courts have already held state requirements to swear not to participate in boycotts of Israel be unconstitutional.
While we take no position on Israel boycotts, the BDS movement or the Israeli-Palestinian conflict, we do maintain that states should not be sanctioning businesses on the basis of First Amendment-protected expression and association.
Bloomberg Government: House Democrats Want to Turn Back the Clock on Campaign Finance
By Katherine Scott
Major Provisions [of H.R. 1]: …
Campaign Finance: The bill would outlaw contributions and expenditures from corporations with significant foreign ownership or control. Super political action committees and other nonprofit groups would have to disclose donors who provide more than $10,000. Digital platforms would be required to maintain databases of ad purchases and would be required to prevent foreign nationals from placing political ads.
Coordination Defined: The bill would clarify what kinds of spending should be considered illegal coordination between campaigns and super political action committees. It also would create and define a “coordinated spender” category under FEC rules to ensure single-candidate super PACs don’t operate as campaign affiliates.
Small Donations and Public Financing: The bill would authorize a pilot program in three states to encourage political donations and would create a federal tax credit for congressional campaign contributions by donors who give no more than $300 to any candidate or party. The measure would create a partial federal match for donations of $200 or less and would let candidates use their campaign accounts to pay for child care, mortgage payments, and health insurance, among other things.
Lobbying: Those hired to give lobbyists strategic advice would have to register as lobbyists even if doing no direct advocacy. The bill would create a unit in the Justice Department for investigating compliance with the Foreign Agents Registration Act…
Federal Election Commission: The measure would reduce the number of commissioners to five from six. As many as two could be from each major party, with the fifth independent. The president would point a chairman to a 10-year term.
Common Dreams: In Bid to ‘Get Big Money Out of Politics,’ House Lawmakers Introduce Constitutional Amendment to Overturn Citizens United
By Jake Johnson
“Let’s not mince words here-for too long, the needs of the American people have taken a backseat to the needs of corporations that dump unlimited amounts of money into political campaigns,” said Rep. Jim McGovern (D-Mass.), who introduced the “Democracy for All Amendment” alongside Reps. Ted Deutch (D-Fla.), Jamie Raskin (D-Md.), and John Katko (R-N.Y.).
“From gun violence to healthcare costs to climate change,” McGovern continued, “the issues Americans care about have been held hostage by wealthy special interests. No more. We have got to solve this, and we have to overturn the disastrous Citizens United decision to restore the power of the ballot box and get big money out of politics.”
“Years after the Citizens United decision, election spending has exploded into billion-dollar races that corrupt our elections by drowning out the voices of American voters,” added Deutch. “Meaningful political participation cannot be reserved for individuals with extreme wealth and special interests, and we cannot continue to allow those who spend the most to dictate public policy that is out of step with our country.” …
In a statement applauding the newly unveiled constitutional amendment, Public Citizen president Robert Weissman said this surge in anonymous cash spurred by Citizens United has helped produce “a government responsive to corporate and super-rich demands, but derisive of overwhelming public support to guarantee health care to all, slash drug prices, raise the minimum wage, avert catastrophic climate change, and more.”
Online Speech Platforms
Wall Street Journal: Facebook, Twitter Turn to Right-Leaning Groups to Help Referee Political Speech
By Kirsten Grind and John D. McKinnon
The world’s biggest social-media companies, under fire for failing to police content on their sites, have invited an array of outside groups to help them figure out who should be banned and what’s considered unacceptable.
That solution is creating a new set of problems-public fights, complaints and legal battles.
Silicon Valley giants Facebook Inc., Twitter Inc. and Google’s YouTube unit have made a concerted push to seek out input from hundreds of groups, a growing number of which lean to the right. The companies have become receptive to behind-the-scenes lobbying as well.
Among the initiatives, Facebook has privately sought advice from the Family Research Council, a conservative Christian public-policy group, and its president Tony Perkins, according to people familiar with those meetings. Twitter’s Chief Executive Jack Dorsey recently hosted dinners with conservatives, including Grover Norquist, the founder and president of Americans for Tax Reform, which advocates for lower taxes. Advisers on the left include the Southern Poverty Law Center, a civil-rights group that keeps a list of hate groups.
For users frustrated by the lack of clarity around how these companies make decisions, the added voices have made matters even murkier. Meetings between companies and their unofficial advisers are rarely publicized, and some outside groups and individuals have to sign nondisclosure agreements.
And in many cases, posts that are hateful to one group are considered fair game-or even uncomfortable truths-to others on the opposite end of the spectrum, opening a whole new arena to continue the political and ideological fights that are often a staple of social media.
Washington Post: Secret campaign to use Russian-inspired tactics in 2017 Ala. election stirs anxiety for Democrats
By Craig Timberg, Tony Romm, Aaron C. Davis and Elizabeth Dwoskin
A secret effort to influence the 2017 Senate election in Alabama used tactics inspired by Russian disinformation teams, including the creation of fake accounts to deliver misleading messages on Facebook to hundreds of thousands of voters to help elect Democrat Doug Jones in the deeply red state, according to a document obtained by The Washington Post.
But unlike the 2016 presidential campaign when Russians worked to help elect Donald Trump, the people behind the Alabama effort – dubbed Project Birmingham – were Americans. Now Democratic operatives and a research firm known to have had roles in Project Birmingham are distancing themselves from its most controversial tactics…
Recent revelations about Project Birmingham, however, have shocked Democrats in Alabama and Washington. And news of the effort has underscored the warnings of disinformation experts who long have said that threats to honest, transparent political discourse in the age of social media are as likely to be domestic as foreign.
As the scandal has expanded, with calls for federal and state investigations and Facebook also conducting a review, the tactics described in the Project Birmingham document have come under intense scrutiny…
But all those who have acknowledged playing a role in Project Birmingham have denied knowing the full extent of the activities described in the document.
Candidates and Campaigns
Justia Verdict: Trump “Hush” Payment to Stormy Daniels Likely Does Not Violate Election Law
By Samuel Estreicher and David Moosmann
With the December 2018 sentencing of Michael Cohen-President Trump’s long-time personal lawyer and “fixer”-has come a renewed interest in the president’s exposure to liability for campaign finance violations. Some commentators have suggested that these violations of the Federal Election Campaign Act (FECA) could form the predicate for a bill of impeachment against the president. It may be too soon, however, to pop the champagne corks, for at least with respect to the $130,000 “hush” payment of adult film star Stormy Daniels, it is far from clear that the president has violated federal election law.
Reading the Justice Department (DOJ)’s sentencing memorandum for Cohen, we learn that while remaining formally employed by “Manhattan-based real estate company” (presumably, The Trump Organization), Cohen advised the Trump campaign and, acting at Trump’s direction, entered into a “confidential settlement agreement” with “Woman-2,” whom we now know to be Daniels. He did so, the government alleges, “with the intent to influence the 2016 presidential election” by preventing Daniels from making embarrassing statements about an alleged affair she had with the candidate. After making the payment, Cohen sought “reimbursement payments” which he received in the form of twelve payments of $35,000 over the course of the next year. The government believes that Cohen violated the law by making a campaign contribution in excess of the $2,700 cap permitted by law (11 C.F.R. § 110.1(b)(1)). However, notwithstanding Cohen’s pleas and sentence, the president’s liability under FECA is not clearly established.
The States
Tulsa World: Privacy needed to protect free speech
By Jonathan Small
Should you be put on a list based on what you believe? That hardly seems like the American way. But a state agency is working on a plan to do just that.
The Oklahoma Ethics Commission has a simple and important job: oversee the ethics of government officials and employees. To do that, the commission regulates both campaign finances and the lobbyists who are paid to interact with state officials.
Now the commission, with its unelected members, wants to expand its own power by redefining “lobbyist” to mean just about everybody. Have you ever shared your opinion on Facebook or in a conversation, telling people what you think about something going on in the state Legislature? If so, you might be considered a lobbyist if the commission adopts its proposed regulation.
The proposal is vague, which allows the commission to claim that they would never go after you just for sharing your opinion. Trust us, they say, we would never try to stifle free speech. But vague expansions of government power to police speech should make us all nervous.
The commission’s plan is to define as a lobbyist any person who shares an opinion about pending legislation in a way that might convince someone else to contact a legislator. Every communication like that, whether verbal, online or in print, would require a warning that it is a “lobbyist communication.”
Law and Liberty: Dark Money: A Tendentious Tale of Corruption-Fighters
By Stephen Klein
The documentary Dark Money, which was released on PBS a month before the mid-terms and is viewable at special screenings across the country, makes another ironic addition to the echo chamber of campaign-finance reform.
The film features a number of people who claim that money buys elections, including Montana politicians who won despite facing anonymous mailers in the closing days of their races. Dark Money’s subjects also claim that political money buys policy through the funding of nonprofit groups, yet filmmaker Kimberly Reed has no qualms about giving a platform to at least half of the major pro-campaign regulation groups in Washington, D.C., who enjoy a fair amount of clout across the country.
Dark Money decries anonymous political speech, even as its hero, a Montana investigative journalist named John S. Adams, casually refers to just “a source” who disclosed a series of emails to him that led to an article that helped trigger the campaign-finance prosecution central to the film. Someone with half Adams’s cynicism might gather that the source had as much of a political axe to grind or ulterior motive as anyone funding an anonymous attack ad, but apparently one may simply say “journalism” and anonymity loses its alleged toxicity.
The greatest irony of Dark Money is how it presents two of the worst governmental abuses of campaign-finance law in recent history. What happened in Wisconsin and Montana, which I’ll discuss below, were black-hole prosecutions that were far more dangerous than undisclosed political spending.
NorthJersey.com: ‘Dark money’ politics shadows Gov. Phil Murphy despite his call to make donor names public
By Charles Stile
In Washington, the new, progressive House Democratic majority has promised to “shine a light on the unlimited, secret spending” that has polluted politics.
In Trenton, a group closely aligned with Gov. Phil Murphy is for now deciding to stay in the dark.
The Murphy-aligned group that operate New Direction New Jersey, announced late last month that it will keep secret the names of donors who finance the not-for-profit “social welfare” group that promotes Murphy’s policies and progressive image.
That represents a reversal from November 2017 when the group’s officials vowed to reveal the donors by the end of 2018.
And New Direction is sticking by that decision after Murphy on Friday publicly urged the group – and any other “dark money” vehicles that allow unregulated cash to flow into the political debate – to disclose their donors…
Despite Friday’s call for transparency, campaign finance reform has never been a Murphy priority…
As a candidate, Murphy tapped the grassroots anger in the Democratic Party base, was inflamed by 2016 election of Donald Trump. Now, that grassroots anger helped fuel the Democratic takeover of the House in November.
And many of their priorities packed their first major piece of legislation H.R. 1, which includes a calls for a crackdown on dark money groups. Yet, in Trenton, attempts to rein in issue-advocacy groups have languished for years.
Murphy now says he wants accountability. But, to date, his own allies have other ideas.
