In the News
Washington Examiner: McCain joins Dems to regulate Drudge, Google, Facebook political ads
By Paul Bedard
The Center or Competitive Politics, for example, “Though purporting to regulate Russia, in fact this regulates Americans. By imposing more broad burdens on Americans’ speech rights rather than targeting foreign interests interfering with our elections, their bill would make America look a little bit more like Russia.”
Center President David Keating said the $500 threshold could prompt websites to set minimum spending on ads much higher to pay for the new manpower they’d need to police ads. And that, he said, could kill small grassroots advocacy.
He also questioned the vague language that ads can’t be “purchased by a foreign national, directly or indirectly.” He said, “We don’t know what that means, but we would not be surprised to see groups opposed to free speech claim that such ads can’t be purchased by any publicly traded company as such companies have many, but an unknown number, of foreign owners.”…
Elections lawyer Eric Wang, with Wiley Rein in Washington explained to Secrets the concerns many have with the legislation.
First, he said, it is way too broad. “The Klobuchar-Warner-McCain bill purports to address a legitimate problem, but its means are misguided. Instead of specifically regulating Internet ads by foreign interests, the bill would regulate all speakers – the vast majority of whom are Americans.”
Milwaukee Journal Sentinel: High court’s progressives are skeptical – sometimes
By Paul Jossey
In the Supreme Court’s closely watched redistricting case, the Court’s progressive justices queried the counsel for the Wisconsin Legislature for unseemly motives, aware a favorable ruling would boost the state’s Republicans. As Justice Elena Kagan stated: Legislators think “often – not always – but often about [future] elections …and they use methods in order to ensure that certain results will obtain not only in the next one but eight years down the road.”
Yet these same justices dispel similar dubious motives in campaign finance cases. By deferring to legislators writing campaign rules, the justices miss the same interplay between law and the desire for power and reelection. Incumbents use both campaign rules and gerrymandered maps to preserve power…
That the Court should accept lawmaker estimates on their corruptibility via contribution or other speech limits is absurd. Applying economic principles to legislative behavior reveals that, not corruption, but self-preservation usually guides these limits.
By handicapping challengers, the limits themselves “corrupt” lawmakers by enabling safer districts. The court’s progressives would be wise to consider the motives of those writing the rules in future campaign finance cases.
CCP
In short, subject to a common-sense exception where disclaimers are simply not practical, the FEC already regulates the core of online electoral speech: express advocacy and communications by candidates, parties, and PACs. Going further would, by definition, regulate speech that is further afield…
Any expansion of the campaign finance laws, whether intended to regulate foreign nationals or not, will mostly impact American citizens and American companies. For that reason, expanding the “electioneering communications” regulatory regime enacted in the Bipartisan Campaign Reform Act of 2002, and rushing to place new regulatory burdens on small political ad buyers, would be a mistake.
It would be a mistake precisely because it would infringe upon the core activities-political speech and association-protected by the First Amendment. Given the relatively small amounts of money known to have been spent by foreign interests, any “effective” regulation would necessarily target small purchases-that is, precisely the small, grassroots activity most sensitive to, and most likely to be chilled by, heavy-handed governmental intervention. And because the majority of spending appears to have been spent on general discussions of political issues, it will be all too tempting to reach beyond advocacy for or against candidates and to instead impose restrictions on vague and subjective categories of speech “about politics.”
Court Should Dismiss FEC’s “Unlawful” Complaint Against John Swallow
Attorneys at the Center for Competitive Politics (CCP) and a former Federal Election Commission (FEC) chairman late yesterday asked a federal judge to dismiss the FEC’s case against John Swallow. The filing said Swallow broke no law and that the regulation cited in the complaint is illegal and violates the First Amendment.
Under federal law, it is unlawful for a person to donate funds to a federal candidate via another person – a so-called “straw donor.” The FEC does not allege that Utah resident John Swallow did this. Rather, the FEC claims that Mr. Swallow provided advice that helped another person violate the federal prohibition on contributions in the name of another. Mr. Swallow denies all of these allegations. But, perhaps worse, Congress never created secondary liability – the practice of holding one party legally responsible for helping another – for this type of campaign finance violation. Not only is the FEC pursuing Mr. Swallow for something he did not do, it is pursuing him for violating a law that does not exist.
CCP is representing Mr. Swallow in his fight against the FEC. In this effort, CCP’s attorneys are joined by former FEC Chairman Scott E. Thomas, a former Democratic appointee to the Commission.
The FEC claims that Mr. Swallow has violated 52 U.S.C. § 30122, which prohibits contributions made in the name of another. But that is not precisely correct. In fact, the FEC only alleges that Mr. Swallow helped or assisted another, namely Mr. Johnson, to violate 52 U.S.C. § 30122. Its theory, then, is one of secondary liability, and it relies entirely upon 11 C.F.R. § 110.4(b)(1)(iii), a Rule of the Commission’s own making. The statute itself is silent on secondary liability, and therein lies the problem. Because the FEC’s Rule has no basis in the statute, and because it was improperly promulgated, it has no legal effect and the FEC’s attempt to enforce it here is unlawful…
[T]he FEC’s case is further undermined because “[u]nique among federal administrative agencies, the Federal Election Commission has as its sole purpose the regulation of core constitutionally protected activity.” AFL-CIO v. FEC, 333 F.3d 168, 170 (D.C. Cir. 2003). As such, the Commission’s regulation in this area is subject to strict scrutiny. Under this heightened constitutional scrutiny, the government bears the burden of proving that the restriction is narrowly tailored to serve a compelling governmental interest. But there is no compelling governmental interest when a regulation attempts to go beyond fighting “quid pro quo” corruption to regulating speech and advice, especially when doing so is a “prophylaxis-upon-prophylaxis” measure layered on top of the ban on contributions in the name of another and contribution limits generally.
Free Speech
Washington Examiner: Free speech: Instead of fighting back, talk back with civil discourse
By Pooja Bachani
Disagreement is inevitable, but the answer to speech that challenges us is not censorship or violence. The only beneficial solution is more and better speech. Discourse will always yield greater results than antagonism. Ideas are made stronger through earnest consideration and critique. This premise is the philosophical foundation of the very universities on which these new battles over free speech are ironically occurring…
There is always a choice. The moment in which we are so ideologically challenged that we even appear afraid is the moment that requires the greatest level of self-awareness and understanding that the opportunity to learn something new might be present. While we cannot control the reactions we illicit from people, we can control our responses.
I ask that those responses be in the favor of civil discourse, especially in light of the First Amendment.
Internet Speech Regulation
Bloomberg: Lobbying Group for Facebook and Google to Pitch Self-Regulation of Ads
By Ben Brody and Bill Allison
A trade association whose members include Alphabet Inc.’s Google, Facebook Inc. and Twitter Inc. will pitch self-regulation instead of a proposed federal law requiring more disclosure for political advertising on their online platforms during a congressional hearing.
Prepared testimony from Randall Rothenberg, president of the Interactive Advertising Bureau, says that his group wants Congress’s support for a do-it-yourself approach “by which digital media companies will police their supply chains for bad actors, and provide greater transparency into who is putting what into their sites.”…
Rothenberg’s remarks, which were released by the office of subcommittee Chairman Will Hurd, argue that the complexity of serving ads to social media users and the large share of such ads that are purchased in automated systems make disclosure expensive and potentially ineffective.
He’ll also note that some ads identified as coming from Russian state actors didn’t mention any specific candidate — meaning they might not have been identified as needing disclosure. But broadening the definition of political ads to include some issue-oriented messages might raise First Amendment issues, according to Rothenberg’s testimony.
The Drum: Industry Opinion: Is the Honest Ads Act a viable solution for digital political advertising?
By Doug Zanger
Proposed last week, there appears to be support for the idea and spirit of the bill, though technology companies are beginning lobbying efforts to shape the regulations. In practice, however, what’s being proposed is likely not an easy fix and carries with it a large number of questions on its viability and complexity. Additionally, the prospect of infringing upon First Amendment free speech rights adds to an issue that has a highly opaque path forward.
With that in mind, The Drum asked professionals in the advertising and marketing business their thoughts on the bill as it begins its initial journey through the halls of government.
Jonathan Turley Blog: Former FEC Chair Calls For Crackdown on Internet “Disinformation” In Major Threat To Free Speech
By Jonathan Turley
In one of the most reckless and chilling attacks on free speech, the former chair of the Federal Election Commission (FEC) and Berkeley lecturer Ann Ravel is pushing for a federal crackdown on “disinformation” on the Internet…
The authors of the proposal see greater government regulation as the solution to what they describe as “informational deficits” in the largely free exchanges of the Internet. There is a far dosage of doublespeak in the article. Rather than refer to the new regulation as guaranteeing greater government control, the authors insist that “government regulations . . . improve transparency.” Rather than talk of government controls over speech, the authors talk about the government “nudging” otherwise ignorant readers and commentators…
I have been writing about the threat to free speech coming increasingly from the left, including Democratic politicians. The implications of such controls are being dismissed in the pursuit of new specters of “fake news” or “microaggressions” or “disinformation.” The result has been a comprehensive assault on free speech from college campuses to the Internet to social media. What is particularly worrisome is the targeting of the Internet, which remains the single greatest advancement of free speech of our generation. Not surprisingly, governments see the Internet as a threat while others seeks to control its message.
The Courts
Helena Independent Record: Donors once again much more limited in contributions to Montana candidates
By Amy Beth Hanson
Montana’s limits on direct contributions to political campaigns are justified in trying to prevent corruption or the appearance of corruption while still allowing candidates to raise enough money to run a campaign, the 9th U.S. Circuit Court of Appeals ruled Monday.
The decision overturned a ruling by U.S. District Judge Charles Lovell, who in May 2016 said the limits enacted by voters in 1994 restricted political speech…
Attorney Jim Bopp of Indiana said he planned to appeal the ruling, but hadn’t decided whether to ask a full panel of the 9th Circuit to reconsider the case or petition the U.S. Supreme Court to hear it. He has 10 days to seek an en banc hearing or 90 days to petition the high court…
“I’m very disappointed that the majority is not willing to apply the changes in the law that Citizens United has mandated,” that “only quid pro quo corruption can justify contribution limits,” Bopp said Monday. Under this ruling, you can “have your constitutional rights stripped from you because somebody can imagine that someone might do something wrong with those rights.”
Wall Street Journal: PragerU Sues YouTube in Free-Speech Case
By Ian Lovett and Jack Nicas
Prager University, a nonprofit that produces short, educational videos from conservative perspectives, is suing YouTube and its parent company, Google, claiming the tech giant is illegally censoring some of its content as part of a wider effort to silence conservative voices.
A lawsuit filed Monday evening in federal court in San Francisco says YouTube’s more than 30 million visitors a day make the site so elemental to free speech in the digital age that it should be treated as a public forum. The suit argues the site must use the “laws governing free speech,” not its own discretion, to make decisions about what to censor.
The nonprofit, known as PragerU, alleges that by limiting access to some of its videos without clear criteria YouTube is infringing on PragerU’s First Amendment rights.
The Nation: The Prosecution of Inauguration-Day Protesters Is a Threat to Dissent
By Chip Gibbons
Defense lawyers have described the government’s approach as “unprecedented,” its indictments as “littered with fatal irremediable defects.” Sam Menefee-Libey of the DC Legal Posse, a group of activists who provide support to the defendants, was more blunt, criticizing the cases as “blatant political prosecutions” designed to “chill resistance.”
The story of the J20 protesters should frighten anyone concerned about the future of both free assembly and dissent in the United States…
Meanwhile, compounding the concerns raised by the J20 prosecution are a series of parallel legal skirmishes that have been playing out around several warrants for information issued by the Department of Justice (DoJ). Lawyers and activists have charged that these warrants-which are part of the government’s attempt to prove that the protest was the result of planned riot-are dangerously overbroad and, as such, pose serious First Amendment challenges. Particularly in their initial forms, they have argued, the warrants could have resulted in a dragnet-style collection of electronic information related to political speech and organizing.
The States
Maryland Matters: Md. Campaign Finance Fund Is Almost Broke
By Meghan Thompson
The fund was created in the 1970s but its funding mechanism, a state income tax add-on, was stripped in 2010 due to lack of participation by candidates (until 2014, Republican Ellen Sauberbrey was the only prior participant, back in 1994). In 2014 both Hogan and Democrat Heather Mizeur used public finances for their campaigns, but Mizeur didn’t make it past the primary.
Mizeur collected about $780,000 in public funds. Between the Republican primary and the general election, Hogan used about $2.9 million in state money.
But following Hogan’s election, with no way to replenish the money that had been spent, the fund is almost barren.
In order to restore the fund he drained, Hogan signed a bill in 2015, sponsored by Del. Eric Luedtke (D) and Sen. Paul Pinsky (D) that reestablished the original source of funding – the income tax add-on – to replenish the account. The bill also required a variety of fines and late-fees collected by the Maryland State Board of Elections from candidates and other to be deposited into the fund.
But the new law simply didn’t replenish the fund quickly enough to be of any use this election cycle, and legislation since 2015 to secure an expanded and stable public campaign finance fund has gone nowhere.
