New from the Institute for Free Speech
The Connection between Tax Financing of Political Campaigns and Free Speech
By Joe Albanese
Tax-financing programs impinge on free political speech and association rights in numerous ways. First, it is crucial to remember that contributing money to political candidates is a protected form of free speech. The Supreme Court has said for decades that giving money to candidates is an important way of expressing political support both symbolically and substantively. After all, money is essential to speaking about politics: from publishing books and newspapers, to purchasing ads on TV or the Internet, to buying a pen and paper to write a letter.
When the government funds candidates, taxpayers are forced to pay politicians they may vehemently disagree with…
[E]ven though these programs fork over money to politicians, they also routinely place arduous restrictions on participants: limits on campaign spending, restrictions on the sources or levels of private fundraising, onerous reporting requirements, and the like. Such conditions would likely be unconstitutional if they weren’t voluntary preconditions for receiving government funding, but some candidates feel that they have no choice but to opt for taxpayer subsidies to fully compete with their opponents or to avoid charges that they’re “dirty” as a result of not running under “clean elections.” The rising costs alone of communicating to a growing number of voters means that tax financing restrictions make exercising free speech harder than it would be in a fully voluntary system.
Internet Speech Regulation
By Tony Romm
[T]he Senate’s bipartisan plan would cover ads about office-seekers as well as so-called issues ads, which touch on major, national debates, perhaps around healthcare, immigration or gun control.
But the Internet Association argued that Congress should “improve transparency and disclosure of online election advertising without creating requirements that would discourage legitimate stakeholders from actively engaging in the political process or limit political speech.” It also urged them against “vague definitions” of what constitutes an ad in the first place. And while the group didn’t actually say anything issues ads, its proposal appeared to suggest that it doesn’t support such regulation.
Otherwise, the tech group urges Congress to “consider measures that could strengthen the government’s existing authority to prevent foreign interference in U.S. elections.” Even as it supports greater disclosure, it said it would oppose legislation “requiring that personal information about individuals who purchase advertising be disclosed publicly.”…
“Proposals that would hold platforms liable for advertisers’ claims could discourage platforms from carrying ads from individual citizens or legitimate groups that aren’t well known or established,” the organization said.
Los Angeles Times: Want to attack foreign election meddling? Hold internet ads to the same standard as radio and TV
By Editorial Board
What the measure would do is require internet companies to maintain records not just of election-related advertisements but also of ads related to “a national legislative issue of public importance.”
There are two problems with this provision, however. First, it’s a disproportionate response to the possibility that Russians or other foreigners may be violating U.S. election law. While foreigners are prohibited from spending money on election-related advertising, the Federal Election Commission and the courts have said they are allowed to subsidize “issue ads.”
A more serious issue is that, unlike radio and television stations, internet platforms aren’t “public” entities operated under a government license. There may be 1st Amendment problems with subjecting them to the same record-keeping requirements that are imposed on radio and TV stations.
The fact that Congress has limited power to regulate online forums for political speech doesn’t mean that social media companies can’t act on their own to be more vigilant about manipulation of their platforms by foreign actors, whether it take the form of deceptive advertising or “fake news.”
Bloomberg: Here’s Why It’s So Hard to Regulate Political Ads on Social Media
By Joshua Brustein
[D]rawing a line around political activity on social media is tricky no matter who is wielding the pencil. That’s partially because it’s hard to define what counts as political activity, and also hard to define what counts as advertising…
And regulations on broadly defined political speech become more likely to run into objections that they’re restricting freedom of expression…
Tech platforms are communication laundering operations, allowing messages to enter the system as advertising, only to transform into what Silicon Valley refers to as “organic” communication. A Facebook message from a political group could start its life as a regular old organic post, turn into an ad when the group pays to show it to people of certain demographics, then cease to be an ad when those targeted users start reposting it for their own friends to see…
Alex Howard, deputy director of the Sunlight Foundation, an advocacy group focused on political transparency, said lawmakers should pass new rules on political advertising, but with the full realization that they’re only dealing with a small slice of the issue. . . “The intricacies of dealing with unpaid speech are going to be difficult for our entire lives,” said Howard.
The Courts
Public Policy Legal Institute: Ninth Circuit Tees Up Latest Challenge to Citizens United and McCutcheon
The Ninth Circuit panel in Lair v. Motl, upheld Montana’s limits on campaign contributions to state officeholders, rejecting a constitutional challenge that the limits violated the First Amendment. Since Citizens United, the Supreme Court has held that the Government’s only interest strong enough to overcome the First Amendment’s freedom to speak during political campaigns was preventing quid pro quo corruption…
The key question in Lair was what evidence the Government needed to show that quid pro quo corruption was likely to occur; did they need to show that corruption had actually occurred, or that it was imminent, or just likely, or even just possible? The Lair majority said even less was required; to sustain a law governing campaign-related speech against a constitutional challenge, the Government need only show that quid pro quo corruption was just not “illusory,” or not “implausible.” …
Ninth Circuit Judge Carlos Bea dissented strongly, noting that Supreme Court decisions require more than just some hypothetical corruption threat, that there be some realistic quid pro quo corruption threat…
The Lair case was filed by Jim Bopp, a legendary attorney whose cases have included many of those leading to current Supreme Court precedents in this area. Bopp vowed to appeal the Ninth Circuit decision.
The Hill: GOP threatens weekend work on judicial nominees
By Jordain Carney
Senate GOP leadership wants to clear four picks this week for the circuit courts – which are second in line to the Supreme Court – amid pressure from conservatives to pick up the pace.
Senate Majority Leader Mitch McConnell (R-Ky.) warned that Republicans would confirm all of the nominees, even if it meant keeping lawmakers in town through a rare weekend session.
“We’ll confirm all of them this week no matter how long it takes,” McConnell said from the Senate floor…
In addition to a final vote on Trevor McFadden to be United States district judge for the District of Columbia, McConnell has teed up four circuit court picks: Amy Barrett to be U.S. circuit judge for the 7th Circuit, Joan Larsen to be U.S. circuit judge for the 6th Circuit, Allison Eid to be U.S. circuit judge for the 10th Circuit and Stephan’s Bibas to be U.S. circuit judge for the 3rd Circuit…
Trump currently has 149 vacancies in the federal judiciary to fill, with nominations currently made for 50 of those spots.
IRS
Townhall: Fact Check: No, New IG Report Doesn’t Prove IRS Targeting Scandal Was a Right-Wing ‘Myth’
By Guy Benson
The latest TIGTA report is a supplemental document that does not deny or dispute the accepted and established premise that conservative groups were unequally targeted. In fact, it quotes extensively from a 2015 bipartisan Senate report, as well as a previous internal IRS review…
According to IRS-furnished numbers, right-wing groups were far less likely to get approved for tax-exempt status than left-wing groups (46 percent vs. 100 percent), and were subjected to much more burdensome (and occasionally outrageously invasive) scrutiny. Conservative groups were also forced to wait much, much longer for official determinations than their liberal counterparts…
The numbers tell the story, as do the DOJ settlements, and the admissions and apologies (both in 2013 and 2017) from the IRS itself…
The IRS-provided data cited earlier references between 104 and 248 targeted conservative organizations. And the DOJ just settled with 41 of them.
Free Speech
Wall Street Journal: Colleges Should Protect Speech-or Lose Funds
By Frederick M. Hess and Grant Addison
Almost every week brings a new campus controversy: a college speech code that goes too far, an invited speaker shouted down by students, a professor investigated for wrongthink…
Here’s a straightforward idea that would be easy to put into practice: Require schools to assure free speech and inquiry as a condition of accepting federal research funding…
Because universities build in usurious rates of overhead on this money-in some instances, upward of 50% goes to underwrite salaries and facilities-these are some of the most prized funds in academia. It would be easy for Washington to require schools to protect free speech before the cash can be disbursed….
Leveraging federal money is one way to discourage campus speech restrictions. Federal research funds should come with contractual provisions that obligate the recipient schools to guarantee open discourse. Colleges should be required to offer assurances that their policies do not restrict constitutionally protected speech or expression and that they will commit to safeguarding open inquiry to the best of their ability. Violating such assurances would be grounds for loss of funds and render the school ineligible for future research dollars.
Independent Groups
New York Times: Black Executives Join Forces, Forming a PAC to Back Them Up
By Kate Kelly
Ronald Kirk, a former mayor of Dallas and a lawyer who served in the Obama administration, had the bluntest message. “You’re wasting your money,” he recalled saying. “My advice is: Get organized.”
It was a crystallizing moment. Many attendees had long been part of an informal group of friends and associates who raised money for philanthropies or policy issues on an ad hoc basis…
The 10 or so core organizers, who meet every other Sunday in Manhattan, have hired a lawyer to get the paperwork ready but haven’t started to raise money. They plan to create three structures: a “super PAC” to run political ads or host events; a federal PAC to support candidates; and a 501(c)(4) group, or social welfare nonprofit, that will do a mix of the two.
“What we’ve been doing is just writing checks for years, and we don’t know what happened” once the money was received, Mr. Phillips said…
Some likely donors in the broader network want to see dedicated staff and a clearly defined action plan before they get involved. Others question whether a PAC that doesn’t support a particular party can make a difference.
The organizers have consulted with Mr. Kirk about the best legal structure. They met with senior black politicians and set up brainstorming sessions with think tanks in Washington.
The States
CBS Philly: Proposal To Provide Public Financing For Philly Campaigns In Limbo
By Pat Loeb
A bill that would provide public funding for local campaigns was debated in a Philadelphia city council committee last week, but – despite having some fans – the idea was put on indefinite hold. It was not the cost alone that doomed the bill.
Finance Director Rob Dubow led off testimony, saying the bill would put a strain on the city’s already limited discretionary spending.
“The proposal before the committee today would require approximately $6.2 million,” Dubow said…
One reason the proposal might have lost popularity is an internal analysis of who on council would benefit most. Co-sponsor Helen Gym wins by a landslide. She’d get more than $200,000 under the proposal, compared to a modest $5,000 for Councilwoman Jannie Blackwell, at the other end of the list.
