In the News
Portland Press Herald: Crowdfunding to pressure Collins on Kavanaugh vote likely to face legal challenge
By Kevin Miller
“I think you’d be pretty hard-pressed to say anything here represents a bribe,” countered Bradley Smith, a former chairman and Republican member of the Federal Election Commission, as well as a staunch defender of the concept that campaign donations are “free speech.” …
former Federal Election Commission chairman Bradley Smith compares the threat of funding Collins’ would-be opponent in 2020 to a group pledging to turn out throngs of voters to oppose a candidate because of a certain vote.
Neither meets the definition of “corrupt intent” required for something to be a bribe in Smith’s eyes. That doesn’t preclude “a really ambitious prosecutor” from trying – and potentially succeeding – to convince a grand jury to at least indict on the charge, he said. But Smith, who served on the FEC from 2000 to 2005, believes Crowdpac could be vulnerable to other complaints.
Specifically, Crowdpac received an advisory opinion from the FEC affirming its fundraising tactics at a time when it pledged to offer its crowdfunding services to candidates of any party. But the organization has since decided to only serve Democratic or progressive candidates.
“I expect that the FEC would probably not generate the votes to investigate this … and may say, ‘We have more important things to do,’ ” said Smith, a professor at Capital University Law School in Ohio and chairman of the Institute for Free Speech. “Some of it may depend on whether it is successful. … I suspect that the tactic is just not going to work very well. If Susan Collins runs for re-election, she is going to say she didn’t cave and that she voted based on what she thought was right.”
At least one organization is already pushing for a federal inquiry into the Crowdpac campaign.
New from the Institute for Free Speech
When Speech Bans Aren’t So Foreign
By Eric Peterson
[T]he takedown of numerous popular pages operated by Americans that espouse viewpoints across the spectrum amounts to censorship, even if Facebook is within its rights to do so.
Facebook’s crackdown on “divisive political messages” has intensified dramatically following government scrutiny of foreign meddling on the platform in the 2016 election. Predictably, this scrutiny has come with legislative proposals, such as the so-called “Honest Ads Act,” and an abundance of congressional hearings.
The threat of heavy-handed government intervention has online platforms walking on eggshells. In Facebook’s decision to remove these pages, we can see how government pressure leads to private action.
Make no mistake, this is government censorship by other means.
While politicians may not have the votes or the constitutional authority to censor online political content (though at least one state, Maryland, is having this theory tested) they can exert political pressure on the platforms that host the content. The multitude of congressional hearings, threats of anti-trust enforcement, and the introduction of legislation like the Honest Ads Act have all undoubtedly altered the behavior of these tech firms.
Would Facebook have removed Americans’ accounts in the absence of repeated congressional hearings? Would Facebook have created intensive new verification procedures for ad buyers without the threat of the Honest Ads Act? Would the company be so worried about allegations of bias towards content on its platform if it weren’t for pressure from members of Congress? …
This kind of outsourcing of censorship should worry Americans who believe in a culture of free speech. While it may not be as egregious an offense as the government removing the pages itself, the outcome is often the same.
Free Speech
Washington Post: Trump trashes the laws that protect free speech. But he would be lost without them.
By Margaret Sullivan
[T]he writers’ coalition, PEN America, sued President Trump in federal court…
PEN wants the court to block the president from using his office to retaliate against media criticism. The suit cites Trump’s reported meddling in the proposed merger of AT&T and CNN and his reported pressuring of the U.S. postmaster general to double Amazon’s postal rates. (Amazon founder Jeffrey P. Bezos owns The Washington Post.)
But the same president who calls the media disgusting – and thinks it would be a good idea “loosen up” libel laws so plaintiffs can win lots of money – would be lost without free-speech protections…
Proof came [last] week when Stormy Daniels lost her defamation claim against Trump and was told to pay his legal fees…
She had objected to a Trump tweet that, in essence, called her a liar. But Judge S. James Otero wasn’t having it.
“The court agrees with Mr. Trump’s argument because the tweet in question constitutes ‘rhetorical hyperbole’ normally associated with politics and public discourse in the United States,” he wrote.
“The First Amendment protects this type of rhetorical statement.”…
Just over a week ago, lawyers for the Trump campaign moved to dismiss a different suit – this one over WikiLeaks’ publication of Democratic National Committee emails…
The First Amendment leaves people “free to obtain information from diverse sources in order to determine how to cast their votes,” their motion said.
FIRE: So to Speak podcast: Free speech in the digital age with Jameel Jaffer
By Nico Perrino
On today’s episode of So to Speak: The Free Speech Podcast, we speak with Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University.
Jaffer and the Knight Institute seek to defend “the freedoms of speech and the press in the digital era through strategic litigation, research, and public education.”
The Courts
Forbes: Freedom of Speech Implicated As Another Russian National Charged For Interfering with U.S. Elections
By Marina Medvin
The U.S. government has charged another Russian national for meddling in our elections under the catchall charge known as “conspiracy to commit offense or to defraud United States,” a felony punishable by up to five years in prison…
The essence of the FBI accusations: foreign nationals cannot participate in political speech with the intent of dividing Americans and interfering with U.S. elections…
Under the U.S. government’s interpretation of Congress’ conspiracy law, foreign nationals on U.S. soil should not rely on First Amendment protections – a direct violation of the First Amendment, right?
Unfortunately, it’s more complicated than that. This is where campaign finance law comes into play. U.S. campaign finance law expressly prohibits financial contributions from, and expenditures by, foreign nationals in U.S. elections. These laws have been challenged on First Amendment grounds but have been upheld repeatedly by the Supreme Court. The government alleged that Khusyaynova spent around $35 million on behalf of the conspiracy, implying a violation of FEC rules. The government also alleged noncompliance with certain federal expenditure requirements for foreign nationals.
So does Khusyaynova’s conduct fit into the category of free speech or campaign finance law violation? A jury will decide soon enough. Khusyaynova is awaiting trial in the United States District Court for the Eastern District of Virginia, in Alexandria.
The Media
Fox News: A free press, like it or not
By Chris Stirewalt
We hear a great deal today about how without the dominance of three television networks and two or three newspapers, Americans are losing the ability to govern themselves. Unreliable, partisan and even maliciously false information has reached such a point that we have lost the ability to govern ourselves.
Both sides seem to agree that allowing people like us to write and report as we wish is hurting the country. There are varying degrees and varieties of solutions on offer for what to do.
The current president thinks we need to make it easier to sue news outlets, and failing that, likes to berate the reporters penned like veal in the back of his campaign rallies for the enjoyment of his supporters who enthusiastically follow his cues. “The enemy of the people” remains on heavy rotation.
Members of the opposition party have argued that the government needs to establish standards for what is and isn’t news, and some have even suggested that expressions of editorial opinions should be regulated as campaign contributions.
While the methods of the moment may seem new, press freedom has usually been unpopular because the press has usually been unpopular. The news media of the age of the founding wasn’t anything like the post-World War II bubble of a few friendly faces offering dispassionate-sounding information on the events of the day. Newspapers were often bilious partisan broadsides full of slanderous rumormongering hidden behind crude satire and pseudonyms…The Framers were under no illusions about the excesses of the media and still insisted on our protection because they knew that days like this would come.
Watching this administration soft-peddle serious allegations against an important ally of murdering a dissident journalist while the president plays an assault on a reporter for laughs is a good reminder that the Anti-Federalist were right to make their demands on Mr. Madison.
Disclosure
New Republic: How Dark Money Groups Keep Their Donors Hidden
By Nihal Krishan
[T]he court made the decision to let stand a lower-court ruling that forced dark money groups-mostly the nonprofit arms of groups such as the NRA and Planned Parenthood-to disclose the identity of donors who gave more than $200 for the purpose of influencing federal elections. Champions of campaign-finance reform hailed the decision…
But the celebration proved premature. The latest FEC disclosure reports, released last week, show that most of these groups are still hiding their anonymous donors despite last month’s court order. It turns out that the new disclosure requirements are not as expansive as the reformers had hoped. There’s a gaping loophole-and Democrats are benefitting from it as much as Republicans are…
The FEC wrote the narrowest rules possible without running afoul of the courts. The commission didn’t require all nonprofit groups that fund political ads for or against candidates to unmask their donors, as reformers had hoped it would. Instead, it only required this of groups that solicited funds specifically for that purpose…
So it was no surprise when, on October 15, the FEC released the latest campaign finance filings and all but a few politically active groups continued to hide their anonymous donors. For the period from September 18 (after the court ruling) to September 30, only four of the 17 political nonprofits with independent expenditures-that is, money spent on advocating for or against candidates-disclosed their donors, according to the CLC. Only one of those groups began revealing its donors after the FEC’s new guidance, suggesting that the guidance had little impact on dark money disclosures…
“Democratic Party officials say they oppose dark money,” the CLC’s Fischer said, “but so far a Democratic group (Majority Forward) is the biggest spender failing to disclose its donors in the wake of this pro-disclosure decision.”
Fundraising
New York Times: Republicans Hold Cash Edge Heading Into Final Stretch of the Midterms
By Kenneth P. Vogel and Rachel Shorey
Super PAC fund-raising was basically a draw, with the top 10 Democratic super PACs outraising their Republican counterparts $335.3 million to $335.1 million – washing away concern among Democrats that they could be swamped by a late tidal wave of cash from wealthy Republicans.
Overall, Democrats have outraised Republicans $1.29 billion to $1.23 billion, counting their respective top super PACs, national party committees and campaigns in targeted congressional races, according to an analysis of election commission filings covering the beginning of 2017 through the end of last month…
Mr. Bloomberg, who is considering a 2020 presidential campaign, is planning to spend $100 million to help Democrats capture control of Congress, a political adviser said, including $20 million he donated this month to Senate Majority PAC, the leading super PAC supporting Democratic Senate candidates.
His political adviser, Howard Wolfson, said: “Big money has traditionally sided with Republicans. But in this cycle you’ve seen some change with at least a couple of Democratic donors who are attempting to level the playing field a little bit, and we would certainly be prominent in that group.” …
Brian Baker, the president of a super PAC called Future45 and a political adviser to the Ricketts family, major donors to Republican and conservative causes, said that “it’s difficult to compete with the Democrats’ funding, but we are trying to help level the playing field so that their message isn’t the only one voters hear.”
The States
Santa Fe New Mexican: Ethics Commission is not all it’s cracked up to be
By Paul J. Gessing
The first argument against the ethics commission comes from the Office of the Secretary of State’s 2018 General Election Voter Guide:
Under existing law, multiple state agencies already have oversight over ethics matters affecting their respective branches of government. These include the State Personnel Office, the secretary of state, the attorney general, the Interim Legislative Ethics Committee and designated House and Senate ethics committees. Throw in the Office of the State Auditor and the Office of the U.S. Attorney for the District of New Mexico, and it’s quite clear that one more governmental entity involved in rooting out or prosecuting ethical violations isn’t necessary.
Then there’s the research. In 2013, two scholars from the University of Missouri conducted “the first systematic statistical evaluation of the effects of state ethics commissions on public corruption among state and local officials.” Their results didn’t offer any intellectual ammo for Constitutional Amendment 2’s backers:
* “Overall, we found no strong or consistent support for the common claims made by political actors that state ethics commissions are important policy tools for reducing political corruption.”
* “[T]he raw correlations and point estimates that we present indicate that state ethics commissions have only very weak, and possibly perverse, effects on public corruption.”
* “[I]t is reasonable to conclude that there is no support for claims that state ethics commissions, including bipartisan and nonpartisan commissions, serve to reduce political corruption.”…
Last month, the Institute for Justice sued the Oklahoma Ethics Commission for blocking the public-interest law firm from distributing a book to state legislators called Bottleneckers: Gaming the Government for Power and Private Profit.
Seattle Times: Corporate dollars gushing into Washington’s initiative campaigns spur push for new campaign-finance laws
By Joseph O’Sullivan
One Washington state lawmaker wants election ads by political-action committees to display logos of their corporate donors, and some kind of warning label.
Sen. Reuven Carlyle, D-Seattle, said he plans to push such legislation in light of the $46 million in corporate money spent so far this year on a pair of Washington ballot initiative campaigns…
On Tuesday, Carlyle and others opposing I-1634 announced a new push in Olympia to make sure citizens know who is funding the seemingly endless parade of election-season campaign advertisements.
The plan is to bring back a version of Senate Bill 5108, which would block political-action committees from getting 70 percent or more of their contributions from another single political committee, or a combination of such committees…
In this year’s legislative session, SB 5108 passed the Senate, but never got a vote in the state House. Sen. Andy Billig, D-Spokane, has sponsored that bill in the past, and in a text message Tuesday said he intends to bring it back.
Carlyle said wants to add provisions, likely to that legislation, to require the logos of corporate donors to be displayed on political ads, as well as some kind of warning label. He also wants to make the names of large donors to independent spending campaigns more prominent.
