In the News
The Hill: Record campaign spending for election is good for democracy
By Luke Wachob
Federal campaign spending for the 2018 midterm elections reached an estimated $5.2 billion. That would set a record for the most expensive midterm ever, surpassing 2014’s $3.9 billion total. It’s also sure to spark calls for new laws restricting money in politics.
Before we rush to regulate, however, it’s important to understand what political money does and doesn’t do. It’s also important to have context for how much there really is. For example, while $5 billion is a lot of money, the National Retail Federation estimates that Americans spent $9 billion on Halloween this year for costumes, decorations, candy, that sort of thing. Is it too much to spend roughly half that amount informing and persuading voters about the choices on their ballot?
Political spending is spread across many different races and candidates. All 435 seats in the House of Representatives are up for election this year, plus 35 of the Senate’s 100 seats. That’s more than 450 elections, featuring thousands of candidates, all trying to make their case to the voters. It’s no wonder the costs pile up. Much of this year’s surge in campaign spending was due to a record number of donations from women and small donors. Candidates on both sides of the aisle raised large sums, but Democrats in particular rode a wave of voter enthusiasm to unprecedented fundraising.
Campaign finance laws bar candidates from using donations for personal expenses. So these campaign funds cover staff, travel, polling, campaign materials, and other resources that can fuel a winning campaign. The more money a campaign raises, the more it can promote its message and educate voters. In that way, campaign spending can benefit democracy.
Fox News: The new Dem House majority plans ‘democracy reform’ vote right out the gate
By Fred Lucas
The package includes authorizing large-scale government-funded political campaigns… and altering the Constitution to scrap one of the left’s least favorite Supreme Court rulings…
Even if the sweeping reforms legislation isn’t enacted in the next two years, Democrats can put this on the public agenda as a campaign issue for 2020 and potentially as a model for states to adopt, said David Keating, president Institute for Free Speech, which opposes restrictions on campaign spending.
“It’s terrible for free speech and it would be a tax subsidy for politicians,” Keating told Fox News.
There is no draft language of precisely what H.R. 1 will say, but Keating is most concerned about the specifics behind a constitutional amendment to overturn the 2010 Citizens United ruling, in which the Supreme Court ruled that corporations and unions havethe First Amendment right to spend on elections.
“They are basically talking about repealing the First Amendment,” Keating said. “You can’t write a constitutional amendment just overturning a Supreme Court case. It has to have content, which would put Congress in charge of policing speech about Congress.” …
A federal matching system could also get out of hand, Keating said.
While some states have a public financing system for candidates, Keating said that only New York City has anything comparable to what Sarbanes is proposing. The fund is administered by the city’s Campaign Finance Board, which has come under scrutiny for allegedly becoming politicized.
“When you think of good government, you don’t exactly look to New York City,” Keating said.
Bridge Michigan: Republican bill would shield donors to ‘dark money’ groups in Michigan
By Riley Beggin
[Senate Majority Leader Mike] Shirkey’s bill would prevent state agencies – including the Secretary of State or Attorney General – from learning donors’ names.
“Even the threat of it has a chilling effect,” Shirkey said of donor disclosure…
Those who favor keeping donors’ identities private say that disclosure is a threat to individual donors’ free speech rights and can lead to threats that can reduce donors’ willingness to give.
“In this environment, it is more important than ever for individuals to have the option to speak collectively without the fear of reprisals and threats that too frequently result from having their names, addresses, and employer information posted on the Internet as a result of compulsory donor disclosure laws,” according to a report by the Cato Institute, a D.C.-based conservative think tank.
David Keating, president of the Institute for Free Speech, a nonprofit that favors less regulation of campaign money, said the bill is a good idea because it protects the anonymity of group members who might be politically targeted by state leaders.
“I think this is something that protects all sorts of views no matter what perspective they might be,” Keating said. “There’s some pretty scary stuff going on around the country where officials seem to be targeting organizations they don’t like and requiring this invasion of privacy.”
He cited a lawsuit in New York in which the National Rifle Association alleged the state is targeting insurers who participate in an NRA-branded insurance program, and a Maryland case in which newspapers challenged a law that required them to publish information about political ad buyers.
Instead, Keating said, campaign finance disclosure requirements should be made legislatively with public input.
The Courts
CNN: Judge orders White House to return Jim Acosta’s press pass
By Brian Stelter, Marshall Cohen, David Shortell and Jessica Schneider
The ruling by federal judge Timothy J. Kelly was an initial victory for CNN in its lawsuit against President Trump and several top aides. The suit alleges that CNN and Acosta’s First and Fifth Amendment rights were violated by last week’s suspension of his press pass.
Kelly did not rule on the underlying case on Friday. But he granted CNN’s request for a temporary restraining order. And he said he believes that CNN and Acosta are likely to prevail in the case overall…
Kelly made his ruling on the basis of CNN and Acosta’s Fifth Amendment claims, saying the White House did not provide Acosta with the due process required to legally revoke his press pass.
As Kelly began to offer his view on the components of CNN’s request, he said that while he may not agree with the underlying case law that CNN’s argument was based on, he had to follow it.
“I’ve read the case closely,” he said. “Whether it’s what I agree with, that’s a different story. But I must apply precedent as I see it.”
He left open the possibility that the White House could seek to revoke it again if it provided that due process, emphasizing the “very limited” nature of his ruling and saying he was not making a judgment on the First Amendment claims that CNN and Acosta have made…
CNN has asked the court for “permanent relief,” meaning a declaration from the judge that Trump’s revocation of Acosta’s press pass was unconstitutional. This legal conclusion could protect other reporters from retaliation by the administration…
Further hearings are likely to take place in the next few weeks, according to CNN’s lawyers.
Reason: The Backpage Scandal Isn’t What You Think
By Elizabeth Nolan Brown
[Backpage.com founders Michael Lacey and James Larkin] had good reason to believe that both the First Amendment and a federal statute were on their side. Under Section 230 of the Communications Decency Act, digital platforms don’t count as the speakers of things their users or commenters post. This means they can’t be convicted on state charges or sued in civil court for nonprotected speech-true threats, defamation, solicitations to commit crimes, and so forth-that their users might engage in. Voluntary efforts from the platform to curb or prohibit such content (by employing content monitors and automated filters, for example) don’t change that…
Lacey and Larkin were no strangers to suing, or getting sued by, the government. As the heads of New Times Inc. and later Village Voice Media, the men helped overturn Arizona’s law against advertising abortion services, found themselves the target of a federal antitrust investigation, and won $3.75 million from Maricopa County after a wrongful arrest ordered by Sheriff Joe Arpaio…
The political campaign against them came to a head in January 2017, when they were forced to appear before a Senate committee. In theory, the hearing was focused on the narrow question of whether Backpage had intentionally edited user posts in a way that would eliminate its protection under Section 230. In practice, “it was a star chamber experience,” Larkin says. “They didn’t have any interest in anything other than their political grandstanding.”
Now, at the state’s request, their criminal trial isn’t scheduled until 2020…
“This is the biggest speech battle in America right now,” Lacey says. “The First Amendment isn’t [just] about protecting the rights of The McLaughlin Group to speak their mind on television. This is specifically what the fuck it’s about. Unpopular speech. Dangerous speech. Speech that threatens the norm. Not only do we have that right, our readers have that right. The [Backpage] posters have that right.”
Online Speech Platforms
New York Times: Mark Zuckerberg Defends Facebook as Furor Over Its Tactics Grows
By Cecilia Kang, Matthew Rosenberg and Mike Isaac
On Thursday, Mark Zuckerberg, Facebook’s chief executive and chairman, held a conference call with reporters to discuss how the social network manages problematic posts and its community standards…
Yet even as Mr. Zuckerberg was making his case, a furor against his company was gathering momentum.
In Washington, Republicans and Democrats threatened to restrain Facebook through competition laws and to open investigations into possible campaign finance violations…
The outcry followed a New York Times article that raised questions on Wednesday about Facebook’s tactics in dealing with disinformation and other problems on its site, as well as the way it treats competitors and opponents…
Senator Amy Klobuchar, Democrat from Minnesota, said at a hearing on Capitol Hill that she planned to ask the Justice Department to investigate whether Facebook’s hiring of opposition research firms to influence politicians violated campaign finance rules.
Facebook: A Blueprint for Content Governance and Enforcement
By Mark Zuckerberg
Our research suggests that no matter where we draw the lines for what is allowed, as a piece of content gets close to that line, people will engage with it more on average — even when they tell us afterwards they don’t like the content.
This is a basic incentive problem that we can address by penalizing borderline content so it gets less distribution and engagement…
In the next year, we’re planning to create a new way for people to appeal content decisions to an independent body, whose decisions would be transparent and binding. The purpose of this body would be to uphold the principle of giving people a voice while also recognizing the reality of keeping people safe…
This is an incredibly important undertaking — and we’re still in the early stages of defining how this will work in practice. Starting today, we’re beginning a consultation period to address the hardest questions, such as: how are members of the body selected? How do we ensure their independence from Facebook, but also their commitment to the principles they must uphold? How do people petition this body? How does the body pick which cases to hear from potentially millions of requests? As part of this consultation period, we will begin piloting these ideas in different regions of the world in the first half of 2019…
While creating independent oversight and transparency is necessary, I believe the right regulations will also be an important part of a full system of content governance and enforcement…
Of course, there are clear risks to establishing regulations and many people have warned us against encouraging this…
Despite these risks, I do not believe individual companies can or should be handling so many of these issues of free expression and public safety on their own. This will require working together across industry and governments to find the right balance and solutions together.
Congress
The Verge: Bombshell Facebook report raises new campaign finance questions
By Makena Kelly
At a Senate Judiciary markup on Thursday morning, Sen. Amy Klobuchar (D-MN) said she would send a letter to Facebook and the Justice Department regarding concerns raised yesterday that the company might be violating campaign finance rules. Her criticism follows an explosive report from The New York Times [Wednesday] that documents how Facebook’s leaders handled the fallout of the 2016 election.
At the markup, Klobuchar said that she was concerned that Facebook reportedly hired an opposition research firm in the aftermath of the 2016 election “to go after its critics.” …
Later Thursday afternoon, Klobuchar, along with Sens. Richard Blumenthal (D-CT), Chris Coons (D-DE), and Mazie Hirono (D-HI), sent a letter addressed to Deputy Attorney General Rod Rosenstein asking for the Justice Department to “expand any investigation into Facebook and Cambridge Analytica to include whether Facebook – or any other entity affiliated with or hired by Facebook – retaliated against critics or public officials seeking to regulate the platform, or hid vital information from the public.”
At the Judiciary markup earlier in the day, Klobuchar said that she was concerned that if Facebook was taking actions against its critics, the company could be violating campaign finance rules. “Whether they hired someone to work on this, we don’t know what happened and it wasn’t reported in that fashion. It could also have other legal ramifications,” she said…
After [Wednesday’s] report, the presidential-hopeful might be looking to revamp her criticism and push harder for the Honest Ads Act. “I have tried very hard to get more support for this bill,” Klobuchar said. “I personally think post-election, this is an ideal time to move forward with this legislation. I appeal to my friends on the other side of the aisle.”
Roll Call: These Democrats Swore Off PACs. But Corporate Lobbyists Have a Plan
By Kate Ackley
Lobbyists for business interests say they’re implementing workarounds to get to know the 32 incoming freshman Democratic House members who have sworn off corporate political action committee dollars…
Instead of PAC dollars, corporate interests plan to rely on individual personal donations from their executives, lobbyists and other consultants, instead of the collective contributions from corporate PACs. In addition, lobbyists will be sure to attend meet-and-greets happening over the coming days and weeks with the new members.
Some lobbyists said they also would rely on policy partnerships with think tanks, grassroots activist organizations and charities – as well as shopping op-eds focused on specific lawmakers – for entree to the newly-elected members of Congress.
“It does put a premium on personal contributions, even from a corporate lobbyist perspective,” said Michael Williams, a former Democratic Capitol Hill aide who runs the Williams Group and is a partner in another lobbying enterprise called United By Interest.
The incoming lawmakers who have sworn off donations from corporate PACs, such as Democrats Abigail Spanberger of Virginia and Elissa Slotkin of Michigan, typically don’t reject donations from individual corporate executives and lobbyists, just not collectively from their corporate PACs.
Additionally, lawmakers who do accept corporate PAC money are hosting numerous receptions for their own donors this week to mingle with the incoming class of lawmakers.
“All the senior members and leadership are doing these meet-and-greets,” Williams said, noting that campaign cash is often an overrated path to connecting with lawmakers.
FEC
Courthouse News Service: Campaign Finance
The Campaign Legal Center filed a complaint with the Federal Election Commission on Wednesday, claiming the Super PAC MeToo Ohio illegally coordinated with failed Republican U.S. Senate candidate Jim Renacci’s campaign through a political consulting firm and kept voters in the dark about where its money was coming from.
