The Courts
Arkansas Democrat-Gazette: Arkansas Supreme Court Justice Goodson loses bid to silence ad attack
By John Moritz
Arkansas Supreme Court Justice Courtney Goodson on Thursday lost her effort to mute attack ads that have blared across television stations and filled voters’ mailboxes in the final weeks of her re-election bid, as a federal judge ruled that halting the ads would “impermissibly restrain future speech.”
The ruling, by U.S. District Judge Brian Miller, came a day after Goodson took the stand and testified that at least one of the claims about her — that she had requested a raise in 2017 — was false.
That claim was made in campaign mailers that had already been sent by the Republican State Leadership Committee, a Washington, D.C., group that supports Goodson’s opponent, attorney David Sterling.
But the larger issue in Goodson’s suit dealt with the committee’s TV ads with different allegations — that Goodson took “lavish” gifts and donations from trial attorneys who appeared before the Supreme Court. Those ads have continued to air ahead of Tuesday’s election.
“At their core, the allegedly defamatory campaign advertisements concern political speech in the days leading up to an election,” Miller wrote. “Imposing any prior restraint on election-related speech should be approached with extreme caution.” …
Goodson filed several similar defamation lawsuits ahead of the May primary against broadcasters in Little Rock, Fayetteville and Fort Smith, which had been airing ads bought by another Washington group, the Judicial Crisis Network. Judges in state courts split on the merits of those suits.
Congress
NBC News: Facebook, Google and Twitter shine light on campaign ads – but only so far
By David Ingram
On Friday, two senators said they had sent a letter to Facebook CEO Mark Zuckerberg, urging him to address loopholes in the social network’s archive of political ads.
“Free and fair elections require both transparency and accountability which give the public a right to know the true sources of funding for political advertisements in order to make informed political choices and hold elected officials accountable,” Sens. Amy Klobuchar, D-Minn., and Mark Warner, D-Va., wrote in the letter.
The senators sent a separate letter to Larry Page, CEO of Google’s parent company Alphabet, in April urging him to be more transparent about political ads.
Klobuchar and Warner are sponsors of legislation known as the Honest Ads Act that would require sellers of online ads to meet some of the same political ad requirements as radio and television companies. Facebook and Twitter have backed the bill.
Regulatory Review: It’s Time to Modernize Election Laws
By Anna Lee Whisenant
In a recent paper, Anthony Gaughan of Drake University Law School explains that current campaign finance law rests on four pillars: limits on the contributions individuals and organizations can make to campaigns and political parties; bans on foreign donations; disclosure of the identity of all campaign contributors; and the Federal Election Commission’s (FEC) enforcement of the first three pillars.
When Congress passed the current set of campaign finance laws, it aimed not only to decrease the role of money in elections but also to avoid the appearance-and reality-of corruption in elections. But Gaughan argues, the law’s four pillars no longer effectively achieve the goals Congress intended to achieve. He says that the 2016 election exposed just how much the current law falls short.
For example, contribution limits, implemented to keep a politician’s success from hinging on fundraising ability, actually hurt lesser-known candidates in 2016, Gaughan argues. Because celebrity candidates already have name recognition and a social media following that lesser-known candidates do not, lesser-known candidates have to work harder to get the same publicity celebrity candidates get for free. After all, Donald Trump received an estimated $6 billion in free media coverage throughout his campaign, not to mention the value he enjoyed from being able to reach out to over 13 million Twitter followers…
Gaughan suggests that contribution limits should be eliminated, or at least “raised dramatically.” Twelve states have no contribution limit, and he claims that there is “no evidence that states without contribution limits have a higher incidence of public corruption cases.” He argues that increasing contribution limits will “enhance the ability of candidates of ordinary means to compete against celebrity and millionaire candidates.”
Independent Groups
Harvard Law Review Blog: Following the New Soft Money
By Daniel P. Tokaji
Campaign finance law is as much a product of the U.S. Supreme Court as of Congress. For more than four decades, the Court has actively superintended campaign finance regulation through its interpretation of the First Amendment. The ultimate consequence of the Court’s free speech decisions is to enhance the voice of the wealthy while stifling the voice of working people. This imbalance is likely to get worse after last year’s decision in Janus v. AFSCME, which can be expected to further erode the political influence of labor unions. This post explores campaign spending in this year’s congressional elections in the context of the Court’s First Amendment decisions, which helped create an unequal and dysfunctional system that will continue to diminish our democracy for years to come.
A few years ago, Renata Strause and I wrote a report called The New Soft Money. We used this term to describe the nominally “independent” spending in federal election campaigns through super PACs and other outside groups, which increased dramatically after Citizens United v. FEC…
Current law limits contributions to candidates and parties, but – thanks to the Court’s First Amendment decisions – can impose no limit on outside groups that engage in “independent expenditures.” The result is exactly what you would expect: a sharp increase in the amount of money flowing through outside groups. Outside spending outpaced political party spending in 2012, and has continued to rise in the years since…
An examination of spending in the current cycle suggest that things are getting worse. Data collected by the Center for Responsive Politics show that outside spending is up considerably in the 2018 cycle, compared to the last midterm elections in 2014.
Wall Street Journal: Bloomberg Cash Fuels Democratic Push in Election’s Final Days
By Reid J Epstein
Former New York City Mayor Michael Bloomberg’s Independence USA super PAC is spending more on television advertising in the campaign’s final week than all of the GOP candidates in the 82 most competitive races combined…
Small-donor dollars and benefactors like Mr. Bloomberg have helped Democrats erase the GOP’s traditional fundraising advantage in congressional races. Democratic candidates and their allied super PACs and are outspending Republicans on television in the final week in 54 districts. GOP candidates and their allies are outspending Democrats in 29 districts.
Democratic candidates in the most competitive races are spending $29.2 million over the campaign’s last week, while GOP candidates are spending $16.9 million. The three major Democratic super PACs, including Mr. Bloomberg’s group, are spending $50.1 million in the last week, while the top three GOP super PACs are spending $34.8 million.
“The biggest challenge we have to overcome is the green wave of money coming against our candidates,” said Corry Bliss, the executive director of the House GOP’s super PAC, the Congressional Leadership Fund. “If you had told me last year that Democrats would have this much money to spend I would have laughed at you.”
Center for Responsive Politics: Anyone can make a super PAC – even prisoners and kids who can’t vote
By Kaitlin Washburn
Since a landmark 2010 federal court decision on campaign finance rules, super PACs have been dominating the campaign finance world.
These independent expenditure-only committees are able to raise and spend unlimited amounts of money for or against any political candidate – as long as they aren’t directly donating that money to a campaign or coordinating spending with candidates.
These super PACs wield massive financial power and influence in elections. Just this cycle alone, super PACs registered with the Federal Election Commission (FEC) have received over $1.3 billion and have spent $695 million.
By comparison, the Democratic and Republican parties are far behind that total. This cycle, the Democratic Party has raised $802 million and the Republican Party has raised $859 million.
For something with so much power over American elections, there must be specific requirements and regulations for who can own and operate a super PAC, right? Wrong. By following a few simple steps, basically, anyone can be the proud owner of a super PAC – including 14-year-olds and prisoners.
“The FEC has not kept pace with the change in modern campaigns,” said Corey Goldstone from the Campaign Legal Center. “This is due to vague rules that are the result of a bitter partisan divide among its commissioners that make it hard to agree to investigate even the most obvious crimes.”
The Center for Responsive Politics identified eight super PACs created by people who can’t participate in elections. Some of these super PACs were started by teenagers who can’t vote, while others were formed by people sitting behind bars.
Online Speech Platforms
Motherboard: Pentagon Wants to Predict Anti-Trump Protests Using Social Media Surveillance
By Nafeez Ahmed
The United States government is accelerating efforts to monitor social media to preempt major anti-government protests in the US, according to scientific research, official government documents, and patent filings reviewed by Motherboard. The social media posts of American citizens who don’t like President Donald Trump are the focus of the latest US military-funded research. The research, funded by the US Army and co-authored by a researcher based at the West Point Military Academy, is part of a wider effort by the Trump administration to consolidate the US military’s role and influence on domestic intelligence.
The vast scale of this effort is reflected in a number of government social media surveillance patents granted this year, which relate to a spy program that the Trump administration outsourced to a private company last year. Experts interviewed by Motherboard say that the Pentagon’s new technology research may have played a role in amendments this April to the Joint Chiefs of Staff homeland defense doctrine, which widen the Pentagon’s role in providing intelligence for domestic “emergencies,” including an “insurrection.”
ProPublica: How Big Oil Dodges Facebook’s New Ad Transparency Rules
By Jeremy B. Merrill
Although Facebook now requires every political ad to “accurately represent the name of the entity or person responsible,” the social media giant acknowledges that it didn’t check whether Energy4US is actually responsible for the ad. Nor did it question 11 other ad campaigns identified by ProPublica in which U.S. businesses or individuals masked their sponsorship through faux groups with public-spirited names. Some of these campaigns resembled a digital form of what is known as “astroturfing,” or hiding behind the mirage of a spontaneous grassroots movement. In most cases, Facebook users would have to click on the ad and scrutinize the affiliated website to find any reference to the actual sponsor.
The 12 ad campaigns, for which Facebook received a total of more than $800,000, expose a significant gap in enforcement of its new disclosure policy, and they cast doubt on Chief Operating Officer Sheryl Sandberg’s assurance to the U.S. Senate in September that “you can see who paid for” ads. Adopted this past May in the wake of Russian interference in the 2016 presidential campaign, Facebook’s rules are designed to hinder foreign meddling in elections by verifying that individuals who run ads on its platform have a U.S. mailing address, governmental ID and a Social Security number. But, once this requirement has been met, Facebook doesn’t check whether the advertiser identified in the “paid for by” disclosure has any legal status, enabling U.S. businesses to promote their political agendas secretly.
“Facebook and other social media platforms that allow political advertising must do more to provide transparency to Americans on the source of the content on their platforms,” U.S. Sen. Catherine Cortez Masto, a Nevada Democrat, told ProPublica.
Wall Street Journal: Hate Speech on Live ‘Super Chats’ Tests YouTube
By Yoree Koh
Like other popular social-media platforms, YouTube has struggled to draw the line between cracking down on hate speech and allowing freedom of expression. The company relies on a sprawling ecosystem of “creators” to supply a steady flow of content to the world’s most popular video site, where they get access to special benefits and resources on the platform.
Super Chat was launched last year to further encourage those creators to produce more content and attract more viewers. Paid comments receive special treatment: The video host often reads the comment out loud on air, and it gets pinned to the top of the fast-moving chat thread. The more someone pays, the longer the comment stays featured at the top of the chat box…
After a BuzzFeed article in May detailed the popularity of Super Chats among white nationalists and other far-right personalities, YouTube said it had started using machine-learning technology that can detect hateful comments and put them on hold for further review. The company doesn’t disclose how much it makes from Super Chats overall.
When YouTube temporarily suspends a channel for a violation, that creator often appears as a guest on a like-minded person’s channel until the ban is lifted. The problem for YouTube, said this researcher, is that “YouTube is going to be continuously trying to apply a technological fix to what is a social problem.”
Candidates and Campaigns
Politico: House Dem candidates snag free rent
By Scott Bland
House Democrats have exploited campaign finance law to pay rent for dozens of campaign offices used by their candidates in 2018 – an arrangement that’s further padded the party’s massive financial advantage in the midterms even as Republicans cry foul.
A number of House Democratic candidates haven’t paid a dime to rent the buildings where they based their campaign operations, according to a POLITICO review of Federal Election Commission records. Others rented space earlier this year but suddenly stopped some or all of the payments after winning their primaries. In their place, the Democratic Congressional Campaign Committee picked up the tab…
The spending on 52 offices around the country, known internally as DCCC “Battlestations,” comes from a special fund established under a 2014 law that the DCCC can only use to maintain party headquarters buildings – not for other conventional campaign activities. The FEC has never issued regulations interpreting the law and saying exactly how the “headquarters funds” can be used, or whether this use of them is appropriate.
Despite the lack of regulatory certainty, the DCCC’s Battlestations sprouted up around the country before this election. The move came with the blessing of the committee’s lead attorney, Marc Elias, who helped congressional leaders write the law that established the party building funds…
The arrangement has frustrated Republicans who believe House Democrats are playing fast and loose with campaign finance law, abetted by a sclerotic FEC that rarely cracks down on potential violations.
“Every cycle it seems they’re writing new rules for themselves, and it’s insanely frustrating because they also yell so much about reforming campaign finance,” one Republican official said.
Campaign Finance Institute: Women in Competitive House Races Are Outraising Male Opponents
The year 2018 saw a record number of women candidates competing in major party primary elections*, with another record number making it through to next week’s general election. An analysis by the Campaign Finance Institute of pre-general election reports from the Federal Election Commission (FEC), combined with data on gender provided by the Center for American Women and Politics at Rutgers University, shows that these candidates have been very successful in raising funds for the general election, especially in competitive races.
As a result, it is likely that the next Congress will set yet another record, for the number of women members. Currently there are eighty-four female members of the House. In next week’s election, eighty-two races have female candidates whose elections are considered to be safe or likely. This includes sixty-nine incumbents and thirteen open seat candidates. Thirty-four competitive races feature a female running against a male. In these competitive incumbent/challenger or open seat races, women are outraising their male opponents, on average, by more than $500,000 each ($3.67 to $3.13 million).
The Media
Axios: NBC, Fox News, Facebook pull controversial Trump anti-immigration ad
By Zachary Basu
NBC, Fox News and Facebook have pulled a controversial anti-immigration ad paid for by President Trump’s campaign. CNN, meanwhile, refused to air the ad at all, calling it “racist.”
The backdrop: The 30-second ad, a shorter version of a clip Trump tweeted last week, depicts undocumented Mexican immigrant Luis Bracamontes, who received the death penalty for murdering two police officers in 2014. Unlike Trump’s tweet, the ad does not falsely blame Democrats for letting Bracamontes into the country, but it does attempt to connect Bracamontes and his crimes to the migrant caravan traveling through Mexico to the U.S. border…
What they’re saying:
CNN: “CNN has made it abundantly clear in its editorial coverage that this ad is racist. When presented with an opportunity to be paid to take a version of this ad, we declined. Those are the facts.”
NBC: “After further review we recognize the insensitive nature of the ad and have decided to cease airing it across our properties as soon as possible.”
Fox News: “Upon further review, Fox News pulled the ad yesterday and it will not appear on either Fox News Channel or Fox Business Network,” a spokesman told CNN.
Facebook: “This ad violates Facebook’s advertising policy against sensational content so we are rejecting it. While the video is allowed to be posted on Facebook, it cannot receive paid distribution,” a spokesman told The Daily Beast.
Fundraising
HuffPost: 2018 Midterm Spending Setting A Record Thanks To Small Donors, Women And Billionaires
By Paul Blumenthal
The historic spending is driven by unprecedented fundraising from Democrats, the current minority party in Washington, who are raking in huge sums from small donors, record donations from women and, yes, gigantic super PAC donations from billionaires…
That unexpectedly high increase in campaign spending stems from Democratic Party small donors and women infuriated by the election of Donald Trump as president. The jump in campaign donations, particularly in the form of contributions under $200, began early in Trump’s administration as activists sought to organize early to defeat him and his Republican Party in the midterm elections
“It is voter energy,” said Carolyn Fiddler, communications director for the liberal blog Daily Kos. “This low-dollar fundraising energy started in 2017 with special elections. That started to tip us off that this cycle was going to be different than any cycle before.”
Current Democratic candidates for the House and Senate have raised a combined total of $1.2 billion, compared with $790 million for Republicans, according to the Center for Responsive Politics. That huge gap can be partly explained by the $310 million raised by Democrats from small donors – $215 million more than the $95 million in small-dollar donations to Republican candidates…
Women have historically donated to political campaigns at much lower rates than men. That has radically changed in 2018, according to data collected by the Center for Responsive Politics. Women have donated a total of $398 million in disclosed contributions above $200.
The States
U.S. News & World Report: State and Local Citizen Initiatives Put Democracy on the Ballot
By Susan Milligan
Should Measure 1 pass, it would be the most sweeping anti-corruption package [North Dakota] has ever adopted, addressing the use of campaign cash, legislator conflicts of interest and transparency, ethic experts say.
The ballot initiative is among two dozen in states and localities across the nation aimed at reforming or protecting the nation’s democracy, according to a detailed assessment by the good government group Common Cause. Some tighten ethics rules or attempt to control money in politics…
Aside from North Dakota, initiatives in Florida, Long Beach, California, Missouri, New Mexico and South Dakota address ethics in government, imposing various new rules on what lawmakers can do – largely preventing them from lobbying whole in office and for a period after leaving office – and creating ethics panels to monitor corruption…
Campaign finance is also on the ballot: Baltimore and Denver voters will consider measures to create some kind of public financing for local campaigns. New York City’s initiative would strengthen its public financing law, while Massachusetts voters will consider a measure to create a 15-member citizens panel to advocate for the reversal of the 2010 Citizen United v. Federal Elections Commission Supreme Court decision, which allowed corporations and labor unions to make unlimited expenditures to influence campaigns. Phoenix has a ballot initiative that would require groups that make expenditures in city elections to disclose their donors to the public.
Wall Street Journal: NYC Initiatives Seek to Curb Campaign Contributions and Board Term Limits
By Katie Honan
The first proposal would slash the maximum amount of a contribution a candidate running for a city office could accept. For citywide office races, it would go from $5,100 to $2,000 for candidates participating in the city’s matching funds program. For New York City Council candidates, the maximum would drop from $2,850 to $1,000.
If the proposal passes, the city will also give $8 to a candidate for every dollar raised until the campaign reaches a certain threshold. The matching funds will be accessible to candidates much earlier in their campaigns than under the current rules.
