In the News
Business Insider: Democrats are plotting the death – and rebirth – of an impotent Federal Election Commission
By Dave Levinthal
[A]n emboldened, Democrat-led Congress would almost certainly attempt to reduce the number of FEC commissioners from six to five – similar to the makeup of the Federal Trade Commission and Federal Communications Commission – thereby nixing frequent deadlocks along ideological lines…
“Having an election commission under partisan control of the president’s party, which is what this would amount to, is a serious mistake,” said Bradley Smith, a former Republican FEC chairman and president of the Institute for Free Speech, a nonprofit that supports campaign finance deregulation.
Even though Democrats propose appointing an “independent” FEC chairperson alongside two Democrats and two Republicans as part of a reconstituted five-member agency, Smith suggested liberals may try to “pack” the agency with a left-leaning chairman all but guaranteed to take their side.
“It’s basically the same ol’, same ol’ – ‘how can we use campaign finance rules to harm our political opponents?'” Smith asked.
Michael Toner, another former Republican FEC chairman who’s now a partner at law firm Wiley Rein LLP shares the same concerns.
“There’s potential for partisan abuse,” Toner told Insider.
But Ellen Weintraub, a Democrat who’s served as an FEC commissioner since 2002, argues whether the commission functions well “all depends on who the commissioners are” – and not so much whether the panel has an even or odd number of members.
Supreme Court
SCOTUSblog: Justices send “Black Lives Matter” case back to lower court for new look
By Amy Howe
In their orders from last week’s private conference, the justices on Monday vacated the decision by the U.S. Court of Appeals for the 5th Circuit in Mckesson v. Doe, a case arising out of the Black Lives Matter movement, and sent the case back for another look – and with more information from state courts about state law. The petition for review was filed by DeRay Mckesson, a civil rights activist, who was sued (along with the BLM movement) by an unnamed police officer who was seriously injured by a “rock like” object thrown during a 2016 demonstration to protest the shooting death of Alton Sterling, who was killed by police officers in Baton Rouge, Louisiana. The officer does not contend that Mckesson threw the object or directed any violence; instead, the officer contends, Mckesson should be held responsible because he “knew or should have known” that violence would result from the demonstration, which he had organized.
After the the 5th Circuit allowed the lawsuit to go forward, Mckesson appealed to the Supreme Court. The case centers on whether the police officer’s lawsuit against Mckesson is barred by the First Amendment and the Supreme Court’s 1982 decision in NAACP v. Claiborne Hardware Co., which limited the NAACP’s liability for a nonviolent protest that it organized.
The Courts
Philadelphia Inquirer: As cases rise, Justice Department backs group seeking to overturn Philly’s ban on large, planned events
By Sean Collins Walsh and Jeremy Roebuck
The U.S. Justice Department on Friday threw its support behind a Philadelphia veterans group suing to overturn the city’s ban on large, permitted events during the pandemic, even as coronavirus cases surge here and across the state.
In a “statement of interest” filed in the case in federal court, U.S. Attorney William M. McSwain accused city officials of unconstitutionally discriminating against certain types of speech by banning large, planned events like the Mummers Parade, while not applying those same standards to spontaneous protests that have sprung up against racial injustice over the past five months.
“This is a case about more speech, not less,” he wrote. “It is also a case about Philadelphia’s double standard whereby it treats some types of speech … more favorably than others. There is no possible public health justification for this double standard.”
Digital News Daily: Trump Campaign Urges Judge To Dismiss Robotexting Suit, Says Law Was Unconstitutional
By Wendy Davis
President Trump’s campaign is urging a federal judge to dismiss claims that it violated a robotexting law, arguing that the law was unconstitutional when the messages were sent.
“The campaign cannot be held liable for violating a statute that was unconstitutional when it sent text messages during the 2015-2019 class period,” lawyers for the Trump campaign write in papers filed Friday with U.S. District Court Judge John Tunheim in Minnesota…
Lawyers for the Trump campaign now contend that the lawsuit should be thrown out due to a Supreme Court decision issued in July. That ruling centered on a 2015 decision by Congress to amend the law by creating a new exception for robotexts and robocalls aimed at collecting debts owed to the government.
Online Speech Platforms
Wired: The Senate Race That Could be Pivotal for America-and Wikipedia
By Benjamin Wofford
After beginning the year safely ahead in the polls, [Senator Joni Ernst of Iowa] now finds herself neck and neck with a political newcomer named Theresa Greenfield, the Democratic candidate. According to FiveThirtyEight, their race is notable for being the closest Senate contest in the nation, one of a small handful that could tilt the body toward Democratic control-which would, in turn, drastically shift the political fortunes of the next presidency.
But somehow, until very recently, none of that conferred any notability on Greenfield-at least, not as defined by the internet’s most important source of information. For nearly all of the 2020 election season, Greenfield has had no page on Wikipedia, which grants entries only to people who pass a certain threshold of noteworthiness. Greenfield, according to some of the more powerful editors on the site, didn’t make the cut…
[W]hen it comes to politics, Wikipedia developed a special standard, which in theory is applied equally to all: No challenger running for office automatically enjoys notability, no matter the race-even for US Senate. All candidates are inherently “non-notable” unless they have held previous elected office or have achieved notability in their private life…
In short, Wikipedia’s notability litmus test doesn’t just advantage political incumbents; it advantages the kind of people-insiders, celebrities, men-who already enjoy notable status in a social and economic hierarchy that others in politics may wish to democratize.
Vice News: These Are Facebook’s Internal Rules on Voter Suppression and Disinformation
By David Gilbert
Leaked copies of these documents [spelling out how its policies on voting and the election should be enforced] show that Facebook’s enforcement guidelines are causing more confusion for moderators. The distinction between what’s allowed and what’s not is, in some cases, very confusing…
Take, for example, these two comments, which are used as examples in the internal documents which were shared with VICE News:
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“Don’t risk contracting COVID, avoid the polling station today.”
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“If you want to guarantee catching COVID, go vote today!” …
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[I]f you post both comments on Facebook, only the latter one will be removed for breaching the company’s guidelines on voting misinformation, according to an internal Facebook document called “Known Questions” which is used as guidance for its moderators.
The internal documents also say that moderators should remove comments and posts that say, for example, “If you are [protected characteristic], your vote will not be counted.” But they should leave up posts and comments that say “If you are [protected characteristic], don’t bother voting, it won’t count.”
New York Times: What to Expect From Facebook, Twitter and YouTube on Election Day
By Mike Isaac, Kate Conger and Daisuke Wakabayashi
We asked Facebook, Twitter and YouTube to walk us through what they were, are and will be doing before, on and after Tuesday. Here’s a guide.
Techdirt: Your Problem Is Not With Section 230, But The 1st Amendment
By Jess Miers
Contrary to what seems to be popular belief, Section 230 isn’t what’s stopping the government from pulling the plug on Twitter for taking down NY Post tweets or exposing bloviating, lying, elected officials. Indeed, without Section 230, plaintiffs with a big tech axe to grind still have a significant hurdle to overcome: The First Amendment.
Candidates and Campaigns
Breitbart: Maine Radio Stations Add Disclaimer to Misleading Democrat Sara Gideon Campaign Ads
By Ashley Oliver
Multiple radio stations were forced to add a disclaimer to an advertisement sponsored by Maine Democrat Senate candidate Sara Gideon after it was brought to the radio stations’ attention that the advertisement, targeting Sen. Susan Collins (R-ME), was deceiving to the point that it could violate campaign laws.
The ad, airing on radio stations in the final days of the high-stakes Senate race, deceptively simulates an objective news report created by the radio stations when in reality it is a negative campaign ad paid for by Gideon’s campaign.
Center for Responsive Politics: Lindsey Graham gets more money from donors lacking disclosure than anyone else
By Karl Evers-Hillstrom
Senate candidates, mostly Republicans, are failing to report complete donor information for thousands of contributors accounting for millions of dollars in campaign cash.
Among all Senate candidates running in 2020, Sen. Lindsey Graham (R-S.C.) received the largest percentage of money from donors that were not assigned an occupation. His campaign doesn’t provide employment information for donors who gave a total of $6 million. That’s about 19 percent of his fundraising haul from large individual donors…
Graham’s relative lack of donor disclosure hasn’t stopped him from calling for an investigation into donations made through Democratic fundraising firm ActBlue, which has processed billions of dollars in donations to Democrats. Graham made those remarks last month as he was being outraised by his Democratic opponent Jaime Harrison in a heated Senate race that has the most candidate spending of any congressional race in history…
Republicans have seized on the fact that large numbers of ActBlue donors list themselves as “not employed.” That’s because the ActBlue donation portal asks donors whether they are currently employed, leading to retirees, students and homemakers to list themselves as “not employed.”
[Ed. note: Last month, IFS President David Keating wrote about the allegations against ActBlue on our blog.]
Salon: Trump’s top campaign strategist, Jason Miller, is hiding payments from Steve Bannon
By Roger Sollenberger
President Trump’s top campaign strategist, Jason Miller, has been paid tens of thousands of dollars a month through a third-party campaign vendor rather than taking a salary from the campaign, obscuring the flow of money and apparently concealing how much he makes – an arrangement campaign finance experts say is illegal.
Business Insider: Election Day is here. These are 11 things to know about the billions of dollars spent to buy your vote.
By Dave Levinthal
Feel bamboozled by the billions of dollars that have gushed through Election 2020 en route to this moment?
Don’t fret. It’s not you. Even the professionals are flummoxed.
“No rational person would have set up a campaign-finance system the way it is – it’s a hodgepodge of laws and court rulings and FEC decisions,” said Michael Toner, a former Federal Election Commission chairman who now leads the election law and government ethics practice at Wiley Rein.
Nevertheless, it’s our system. It isn’t going anywhere. And to ignore it is to ignore a ballroom blitz of hardcore partisans, special interests, and shadowy figures all trying to twist the race for the White House and control of Congress to their advantage.
To help Insider readers out, here’s our review of 11 burning money questions swirling around this election cycle – and what’s at stake:
Roll Call: 10 most vulnerable senators: Outspent Republicans overrun final list before election
By Bridget Bowman, Kate Ackley, and Stephanie Akin
With Republicans making up the majority of vulnerable senators, Democrats hold promising prospects of winning control of the chamber. If they fail, it won’t be for a lack of cash.
Almost all the most vulnerable GOP senators on this final list financed their campaigns on less money than their Democratic challengers. The exception is Georgia’s Kelly Loeffler, who filled the gap with $23 million of her own wealth.
The money to Democratic Senate challengers has helped fuel the costliest election cycle ever, estimated to hit $14 billion, according to a Center for Responsive Politics estimate. Outside groups, many from the GOP side to shore up lagging candidates, have invested $100 million, or more, in many of these Senate battlegrounds.
Washington Post: We’ve created cartoonish narratives about people in the opposite party. They’re not true.
By Amanda Ripley
If Joe Biden appears to win the election this week but President Trump claims it was stolen, what percentage of Republicans say they would condone physical attacks against Biden’s supporters? In a survey in October, only 3 percent of Republicans said violence would be justified…
But Democrats, asked to guess how Republicans would respond, predicted that 49 percent of Republicans would justify physical attacks against Biden supporters in that scenario…
Meanwhile, when Democrats were asked how they would respond to the reverse scenario, if Trump appears to win the election and Biden claims it was stolen, only 4 percent said they would condone physical attacks…
But here again, Republicans guessed that 52 percent of Democrats would, in fact, justify physical attacks against Trump supporters. That’s a 48-percentage-point chasm between reality and perception, almost identical to the Democrats’ perception gap.
Independent Groups
Election Law Blog: “Quasi Campaign Finance”
By Nicholas Stephanopoulos
The Duke Law Journal has just published this article of mine. Here’s the abstract:
Say you’re wealthy and want to influence American politics. How would you do it? Conventional campaign finance – giving or spending money to sway elections – is one option. Lobbying is another. This Article identifies and explores a third possibility: quasi campaign finance, or spending money on non-electoral communications with voters that nevertheless rely on an electoral mechanism to be effective. Little is currently known about quasi campaign finance because no law requires its disclosure. But its use by America’s richest and politically savviest individuals – the Koch brothers, Michael Bloomberg, and the like – appears to be rising. It also seems to skew policy outcomes in the spenders’ preferred direction.
After introducing quasi campaign finance, the Article considers its legal status. Is it like ordinary campaign finance, in which case it could be regulated fairly extensively? Or is it like garden-variety political speech, rendering it presumptively unregulable? One argument for pairing quasi and regular campaign finance is that they share several features – who bankrolls them, the tactics they pay for, the reasons they work – and so may serve as substitutes. Another rationale for conflation is that they may both cause the same democratic injuries: corruption, the distortion of public opinion, and the misalignment of public policy. Pitted against these points is the slippery-slope objection: If quasi campaign finance may constitutionally be curbed, what political speech may not be?
The States
Lafayette Daily Advertiser: Judge greenlights Lafayette government’s lawsuit against fake ‘antifa’ event creator
By Andrew Capps
Lafayette Consolidated Government can sue the creator of fake “antifa” events on Facebook in an effort to recoup the cost of the related police response, a state judge ruled Monday.
A pair of fake Antifa rally event pages posted on Facebook by comedian John Merrifield are not protected by the First Amendment, Judge Ed Broussard of the 15th Judicial District Court in Lafayette ruled Monday. He allowed the lawsuit for damages, filed in September by Lafayette Consolidated Government, to proceed.
Merrifield’s attorney Andrew Bizer said immediately after Monday’s hearing that he plans to appeal Broussard’s ruling to Louisiana’s Third Circuit Court of Appeal.
Broussard said Merrifield’s “First Amendment right was not applicable” to the events because they “imply illegal activity or violence,” referencing a state law that prohibits false statements that prompt an emergency response, which Adley argued the posts violated…
“The speech here was for peaceful protests, not a call for violent activities,” Bizer said.
“Even real antifa rallies are protected speech,” he added.
By Adam Steinbaugh
As the nation’s eyes turn to the swing state of Pennsylvania on Election Day, there’s one place they won’t see campaign signs: in students’ windows at Susquehanna University.
Last week, a cross-partisan group of student organizations – the university’s chapters of the College Democrats, College Republicans, and the libertarian Young Americans for Liberty – joined in an open letter objecting to the university’s mandate to remove their signs…
In response to this letter, Susquehanna’s administration countered that its status as a tax-exempt institution requires it to suppress student political expression…
Every election cycle (and sometimes after they conclude), FIRE sees universities and colleges make this same mistake, interpreting their obligations as tax-exempt entities as requiring the suppression of students’ partisan political expression.
Not so. As we explained in a letter to Susquehanna University on Friday – and as we explain every election cycle in our Policy Statement on Political Speech on Campus – students’ political expression is unlikely to jeopardize institutions’ tax-exempt status.
Salem Reporter: Political spending in Oregon could soon be reined in. Local legislative candidates aren’t sure how to do that
By Jake Thomas
Money could become less of a factor in elections in Oregon.
If voters approve Measure 107 Tuesday, the Legislature and local governments could regulate the amount of money that can be donated to those running for public office and allied political campaigns. The measure doesn’t specify the regulations but would open the path to cap spending on political campaigns while requiring political advertisements to include who paid for them.
Oregon is one of five states that don’t limit political donations. Revamping the state’s freewheeling system has eluded campaign finance reform advocates ever since the Oregon Supreme Court determined in 1997 that limits on political donations violated the state constitution.
But that could change. With little organized opposition, Measure 107 could pass. In April, the Oregon Supreme Court reversed itself and ruled that the Legislature and local governments can regulate political spending.
