In the News
Voice of America: Foreign Money Flows Into US Politics
By Brian Padden
[P]rivacy advocates say forcing the disclosing of the identity of donors to political advocacy groups would do more harm than good.”We have documented evidence of people [whose donations become public] being fired from their jobs, or companies not really wanting to fire them but feeling they had to because they were being boycotted or harassed. We have evidence of people being in some cases physically attacked,” said Brad Smith, the chairman of the Institute for Free Speech…
“It appears that Russians spent a couple hundred thousand on Facebook ads [during the 2016 U.S. presidential election]. And this has triggered this massive effort to find out the source and to start proposing all kinds of new legislation that imposes significant burdens on American citizens,” said Smith.
New from the Institute for Free Speech
Coalition Letter on Civil Rights Concerns about Social Media Monitoring by Law Enforcement
Social media has proven to be an invaluable tool for activists to connect and organize online. Powerful platforms have allowed movements like #BlackLivesMatter, #Not1More, and #MeToo to flourish and influence the national dialogue on issues that affect all Americans, including the most vulnerable people in the United States. But these services have also provided law enforcement with unprecedented power to monitor these growing movements and the people they represent.
Often covert and conducted without oversight, social media surveillance gives law enforcement agencies the ability to monitor and archive information on millions of people’s activities. This includes tracking people’s political actions, a practice that endangers activists and undermines our First Amendment rights to speech and association. This is particularly concerning given repeated recent reports of targeting and surveillance of Black protesters and activists, family separation protestors, and border groups by the FBI and Department of Homeland Security.
At the same time, few law enforcement agencies have publicly available policies showing how they use social media data on the communities they are supposed to protect. As with other surveillance in the United States, it appears that social media monitoring has been focused disproportionately on communities of color and other marginalized communities.
These monitoring tactics and law enforcement secrecy lead to civil rights and civil liberties harms. Here are six of the harmful impacts from social media surveillance that lawmakers and the public must take into account in any discussion about surveillance of social media users.
IFS Mourns the Passing of Donald G. Smith
By Brad Smith
All of us at IFS mourn the passing of Donald G. (Don) Smith this week. Through his family foundation, Don was one of the earliest IFS donors, and it was through the generous support of he and a handful of others that IFS was able to take flight back in 2005-06.
Don was a true believer in free speech and open debate. My first opportunity to talk with Don at length came when he invited me to New York to participate in a debate on campaign finance, one of many his foundation sponsored on a wide variety of topics. I don’t recall Don ever not coming down on the side of freedom, but he understood that there were multiple sides to every issue, and he always sought to persuade rather than bully or isolate. And then he’d buy his adversary a drink.
Though Don had become very successful, he was always low key, self-deprecating, and down to earth. He remembered where he came from – a picture of his family farm hung in his offices – and he was always grateful for the country and the freedom that made his success possible. Beyond that, I will simply endorse the comments of my friends Robert Levy and Larry Reed.
All of us at IFS offer our sincere condolences to all of Don’s family and friends.
ICYMI
City Journal: Free Speech Means Free Speech
By Bradley A. Smith
Presumably, under Twitter’s new policy, a campaign will be able to pay a celebrity $50,000 to tweet out an endorsement or mention. However, a candidate without celebrity fans will be unable to spend $5,000 to promote a tweet. The paid ad may be truthful, while the celebrity tweet may contain what Dorsey calls “unchecked, misleading information,” but only the former will be banned. Or will Twitter disable the accounts of celebrities who accept payments for their tweets, or who relay “unchecked, misleading information?” As determined by whom? …
Twitter’s new policy, and Dorsey’s explanation for it, demonstrate a muddled understanding of the purpose of speech. Dorsey worries that Twitter advertising might influence voters-but influencing people is the essence of speech in a free society, and persuading others is presumably why Dorsey sent out a tweet stream explaining himself. Removing a major source of low-cost political advertising from Twitter harms those who don’t yet have a large audience but are looking for an inexpensive way to reach voters and identify new supporters. By Dorsey’s logic, free speech should be allowed only when it is ineffective.
Free Speech
Axios: The free speech election
By Sara Fischer and Alison Snyder
Disagreements about how to apply the First Amendment to the speed and scale of social media are consuming the political debate this election cycle and cementing unprecedented levels of polarization…
In the Trump era, Republicans have found a way to leverage the loose freedoms of social media to gain an upper hand in some elections. Now, Democrats are demanding that big tech companies do something about it.
Speaking at an event in New York City Monday, Hillary Clinton said Facebook CEO Mark Zuckerberg “should pay a price” for what he is doing to democracy…
Almost every major Democratic presidential candidate has condemned Facebook for its political advertising policy, while conservatives for the most part have endorsed it, or stayed quiet.
Conservatives are instead focusing their political attacks on censorship, arguing that Democrats and liberal firms are out to censor their speech to voters…
The issue of hate speech has become another political flashpoint, with Democrats and Republicans sparring over whether their political perspectives are fair game online.
Minority advocacy groups have pushed Facebook to ban Trump’s ads around immigration that use nativist undertones and false ads that allege two Muslim members of Congress are “‘anti-Israel, anti-AMERICAN, and pro-terrorist.”
Meanwhile, Democrats on the campaign trail are calling for Section 230 of the Communications Decency Act, an internet provision that protects tech companies from liability for the content people post on their platform, to be reexamined…
The free speech debate is creating a hyper-polarized environment that candidates are exploiting ahead of the 2020 presidential election.
It’s also an entry point for politicians to talk about regulating Big Tech. Unlike with machine learning bias or anti-competitive behavior, the harm from lying in political ads is easy for voters to understand and legislators to act against.
Supreme Court
New Republic: The Political Corruption Legalized by the Supreme Court
By Matt Ford
Over the past 15 years, the Supreme Court has aggressively struck down campaign-finance regulations on First Amendment grounds. The system they’ve carved out of Congress’s efforts to constrain public corruption rests upon a series of assumptions that have proven laughable.
Joe Biden’s presidential campaign is experiencing a cash crunch of sorts, with only $9 million in the bank as of last month’s filing report…
His campaign’s most recent solution to these money woes was the creation of a super PAC. Federal law limits the amount of money that individual donors can give to a campaign, as well as to how much can be given to party organizations and traditional political action committees. But donors face no such restrictions when giving money to super PACs. There’s a catch, however: Candidates and super PACs are not allowed to “coordinate” their activities, lest that coordination become a means to skirt federal donation limits. The Supreme Court first articulated this divide in the 1974 case Buckley v. Valeo when it struck down federal limits on “independent expenditures,” concluding that the lack of coordination reduced the risk of quid pro quo corruption.
In other words, Biden and his campaign staff can’t create a super PAC themselves or personally ask donors to fund one. They are, however, permitted to take the steps the Biden campaign took last month: reveal to reporters that they’ve dropped their opposition to super PACs and let news outlets publicize that information…
Federal campaign finance laws are supposed to reduce the reality or appearance of corruption in American politics. In recent years, however, this regulatory regime has lent corruption a legal structure in which to flourish.
Congress
Office of U.S. Senate Majority Leader Mitch McConnell: Twitter’s Ban on Paid Political Speech Follows Anti-Speech Headwinds from Washington
U.S. Senate Majority Leader Mitch McConnell (R-KY) delivered the following remarks today on the Senate floor discussing the First Amendment: …
“Just a few days ago, on October 23rd, I explained how the threat of a heavy regulatory burden has already, quote, “frightened media platforms into rejecting political ads altogether. It’s a textbook example of policy designed to reduce the amount of free speech in this country.” End quote.
“And then, seven days later, here’s what happened: Twitter announced their platform will ban all political ads…
“Twitter’s announced policy would not level the playing field. It would only reinforce echo chambers. It would prevent a local candidate on a shoestring budget from using a small amount of money to promote a tweet so more of his neighbors can learn about his campaign. And it would seemingly reserve a special privilege for major media corporations while denying nonprofits the same opportunity.
“Such a policy would not bolster our democracy. It would degrade democracy. It would amplify the advantage of media companies, celebrities, and certain other established elites while denying an important tool to the Americans who disagree with them…
“Obviously, Twitter can set whatever policy they want. This is a private-sector company. But companies respond to incentives. It is easy to see the influence of Washington D.C. and leading Democrats behind this announcement.
“My Democratic colleagues have threatened to impose huge regulatory liability on platforms that run political ads. . .and now a prominent platform has preemptively decided that allowing certain kinds of political speech is more trouble than it’s worth.
“It does not serve our democracy for Democratic leaders to chill or suppress the free exchange of ideas through federal policy. And it does not serve our democracy for private-sector leaders to take away a crucial tool that helps less-prominent speakers make their case to the American people.”
Online Speech Platforms
CNBC: Elizabeth Warren slams Twitter for a policy that bans ads from groups fighting climate change
By Salvador Rodriguez
On Tuesday, Sen. Warren, who’s running for president, slammed Twitter’s new ad policy that bans political ads. In a series of tweets on Tuesday, the Massachusetts Democrat attacked the company for blocking organizations that are fighting climate change from running ads on the social network while allowing ads from companies like Exxon on the same topic.
Her criticism comes a week after Twitter said it would no longer allow political ads on its service, a policy that blocks ads from politicians, ads that refer to an election or candidate or ads related to politically-sensitive issues.
Twitter CEO Jack Dorsey responded to Warren with a tweet on Tuesday, saying that the company will announce the specifics of its new ad policies on Nov. 15.
Warren has been on a crusade against Big Tech throughout her presidential campaign. In March, she proposed the breakup of companies like Facebook and Amazon, and last month she criticized Facebook for its own political ad policies, which allow candidates to run ads that include false information.
Facebook CEO Mark Zuckerberg has defended his company’s political ads policy, saying in a speech at Georgetown University that “banning political ads favors incumbents and whoever the media covers.”…
Part of Twitter’s policy bans “ads that advocate for or against legislative issues of national importance (such as: climate change, healthcare, immigration, national security, taxes),” according to a tweet from Vijaya Gadde, Twitter’s lead for legal, public policy and trust and safety lead.
Gen (by Medium): Facebook’s Knee-Jerk Reaction Could Hand Trump the Election
By Tara McGowan
Last week, after Twitter announced its decision to ban political advertising from its site, a growing chorus of Democratic operatives and pundits began advocating for Facebook to follow suit. I’ll be blunt: A blanket political advertising ban on Facebook would have disastrous consequences for Democrats – and my friends on the left should reconsider advocating for such a move.
I’ve built my career working at the intersection of digital advertising and progressive politics. I also wholeheartedly believe in campaign finance reform and the critical need for the government regulation of Facebook. My organization, Acronym, builds digital infrastructure and runs progressive campaigns online…
If Facebook were to eliminate political advertising tomorrow, Trump would still be able to communicate with his supporters organically, while the Democratic nominee would be permanently resigned to a much smaller audience for the general election.
While organic reach on the platform is a huge advantage for any candidate, the ability to collect data about voters on Facebook through political ads, which a campaign can then use to reach those voters off Facebook and on other platforms, is an even greater advantage. Trump’s campaign has spent tens of millions of dollars amassing data on tens of millions of voters for this very purpose. Without political ads, no Democratic candidate or organization will be able to catch up.
On top of that, Democratic campaigns have historically relied on small-dollar, grassroots donors at a higher rate than their Republican opponents – and Facebook is the prime marketplace for finding new supporters to ask for money. Especially in an election year where one of the leading Democratic candidates, Elizabeth Warren, has sworn off large-dollar fundraising altogether, this would cut off a vital artery of cash to our side. It’s worth noting that while Warren has been one of Facebook’s biggest critics, she’s yet to call for a ban on political Facebook ads – because it could cripple her campaign.
FEC
Bloomberg: Empower the FEC to Fight Election Crime
By Editorial Board
Igor Fruman and Lev Parnas, two Soviet-born associates of Rudolph Giuliani, are charged with funneling $325,000 in foreign money into a super-PAC supporting President Donald Trump’s 2020 reelection campaign. Their indictment should serve as a warning about the threat of foreign manipulation of U.S. elections. It also proves the need for a functioning Federal Election Commission.
After a resignation in August, the six-seat commission is down to only three members. The commission needs four for a quorum, and requires a quorum to authorize investigations by its office of general counsel. So FEC lawyers can work on cases previously authorized, but they can’t investigate new ones until the president nominates, and the Senate confirms, at least one new commissioner.
Trump has nominated Texas lawyer James “Trey” Trainor III …
McConnell should immediately schedule hearings on the Trainor nomination. The commission needs another Republican to restore its partisan balance as well as to form a quorum. Then, he and Senate Minority Leader Charles Schumer should offer Trump five qualified nominees, enabling a clean sweep of old members (all of whose terms have nominally expired) by new replacements.
New York Times: GOP Files Complaint Against Possible McConnell Challenger
By Associated Press
The Republican Party of Kentucky has filed a complaint with the Federal Election Commission against a radio host who is considering a run to unseat U.S. Senate Majority Leader Mitch McConnell.
The complaint, filed Tuesday, seeks an investigation of Matt Jones, who has announced an exploratory committee to run as a Democrat in next year’s Senate race. Another Democrat, Amy McGrath , has already filed to run.
The complaint alleges Jones is already a candidate and is using his statewide sports radio show to promote himself. The complaint cites “egregious violations” of federal campaign finance law concerning corporate contributions…
The complaint alleges that iHeartMedia, the company that syndicates Jones’ radio show, is making “in-kind” contributions to his campaign by airing his opinions of McConnell on his show. The complaint also says Jones’ book publisher is paying for Jones to take a tour around the state.
“Mr. Jones used his radio show to broadcast the statewide tour, which serves to promote both his candidacy and his campaign-related book,” the complaint said.
Candidates and Campaigns
The Atlantic: Too Much Democracy Is Bad for Democracy
By Jonathan Rauch and Ray La Raja
Two filters are better than one. Electoral and professional perspectives check and improve each other. Each provides the other with vital information that otherwise would be missed. Among the reasons: …
Professional vetting checks the power of donors and the media. Thanks to court decisions such as SpeechNow.org v. Federal Election Commission, political fundraising and spending by independent groups effectively have no limit. Formerly compelled to seek funds from many establishment donors, candidates can now be bankrolled by quirky billionaires with pet agendas…
Among progressive candidates, it has become popular to abstain from raising money from deep-pocketed individuals and corporations, and instead to rely on small donations from grassroots supporters. Like many other observers, we value the participatory enthusiasm of small donors, yet there’s a troubling downside. Academic research suggests that small donors are not representative of the electorate. They are as extreme and polarized as large donors, perhaps more so. They are also skewed demographically compared with the rest of America: They are wealthier, whiter, and older.
Extremist candidates tend to do better at raising small-donor money, because they get the media’s attention by staking out bold (if unrealistic) positions and making attention-grabbing statements, many of which violate political norms. It is no coincidence that in the 2016 election, Trump shattered records, bringing in more money from small donors than Barack Obama did in his 2012 campaign and accumulating slightly more than both Clinton and Sanders combined.
Our point is not that small donations are necessarily bad or good. It is that small donations are more constructive in a system that provides professional vetting than in a free-for-all. Then there are the media, who have completely different incentives than political professionals when they evaluate candidates. The media prefer the novel, the colorful, and the combative, qualities that drive compelling narratives, not ones that make for effective governing. Restoring insider influence in the nominating process will not vitiate the role of the media in covering campaigns, nor should it. But it will help ensure that candidates are vetted for competence.
Los Angeles Times: ‘Deep fake’ videos could upend an election – but Silicon Valley may have a way to combat them
By Evan Halper
On Tuesday, leaders in artificial intelligence plan to unveil a tool to push back – it includes scanning software that UC Berkeley has been developing in partnership with the U.S. military, which the industry will start providing to journalists and political operatives. The goal is to give the media and campaigns a chance to screen possible fake videos before they could throw an election into chaos…
The worry that has gripped artificial intelligence innovators is of a fake video surfacing days before a major election that could throw a race into turmoil. Perhaps it would be grainy footage purporting to show President Trump plotting to enrich himself off the presidency or Joe Biden hatching a deal with industry lobbyists or Sen. Elizabeth Warren mocking Native Americans…
A new California law, AB 730, which takes effect in January, will make it illegal to distribute manipulated audio or video of a candidate that is maliciously deceptive and “would falsely appear to a reasonable person to be authentic.” There is a bipartisan effort in Congress to pass similar legislation.
Such bans, though, are legally precarious and could prove difficult to enforce in part because the line between a malicious fake and a satirical video protected under the 1st Amendment is a difficult one to draw…
A company like Facebook, for example, might not be able to distinguish between a deep fake and a run-of-the mill political video with real footage that has been legitimately and obviously altered for effect – maybe to highlight the candidate, or to make a satirical point…
And even if the detection technology turns out to be flawless, the reluctance of Facebook and other social media giants to take down even demonstrably false and misleading content threatens to limit its effectiveness.
The Media
Salt Lake Tribune: In historic shift, The Salt Lake Tribune gets IRS approval to become a nonprofit
By Matt Canham
The Salt Lake Tribune is now a nonprofit, an unprecedented transformation for a legacy U.S. daily that is intended to bolster its financial prospects during a troubling time for journalism nationwide.
The IRS approved the shift in a letter dated Oct. 29, deeming The Tribune a 501(c)(3) public charity. That means supporters can start making tax deductible donations now.
The move from a for-profit model was spurred by Tribune owner Paul Huntsman, who, in agreeing to turn Utah’s largest paper into a nonprofit, is giving up his sole ownership.
“The current business model for local newspapers is broken and beyond repair,” said Huntsman, who also serves as The Tribune’s publisher. “We needed to find a way to sustain this vital community institution well beyond my ownership, and nonprofit status will help us do that. This is truly excellent news for all Utah residents and for local news organizations across the country.”…
Other U.S. newspapers, such as The Philadelphia Inquirer and the Tampa Bay Times, draw support from nonprofits, and newspapers including The New York Times and Seattle Times benefit from foundations. No other legacy newspaper has made the full switch to nonprofit status…
The IRS accepted The Tribune’s application without limitation. That means The Tribune will continue to provide its full breadth of coverage on politics, the arts, religion, environment, sports, opinion and more.
The Tribune will, however, stop any endorsements of political candidates going forward as required by the law governing nonprofits, but the editorial board, which is separate from the news staff, will continue to opine on the big issues of the day. The change has no bearing on columnists or cartoonist Bagley.
The States
Common Dreams: ‘Historic’ Alaska Ruling Could Provide Roadmap to Defeating Citizens United
By Eoin Higgins
Anchorage Superior Court Judge William F. Morse ordered the state to impose limits on donations to political groups in Alaska, saying in the ruling (pdf) that the Alaska Public Offices Commission (APOC), which handles election enforcement, “should reinstate enforcement of the contribution limits at issue.” The decision is expected to head to the Alaska Supreme Court.
In a statement, election reform group Equal Citizens founder Lawrence Lessig said that the decision in favor of three Alaskan citizens contesting the unlimited donations was “historic.”
“This decision gives Alaskans and all Americans a chance to revisit those destructive decisions,” said Lessig, who helped develop the legal strategy for the case. “And it will allow us to continue to make our case that the Framers did not wish to see super PACs. Just the opposite: they would have despised the kind of corruption we have seen recently, and the Constitution gives states the power to eliminate it.” …
“It shows what we have known for many years,” said Lessig. “Citizens United did not create the super PAC; instead, unlimited donations have flown into independent groups because of incorrect interpretations by lower courts and state elections agencies.”
Equal Citizens chief counsel Jason Harrow said that Morse’s ruling provides a pathway to the U.S. Supreme Court via appeals. That’s an opportunity, Harrow said, that his group has been waiting for.
“The judge’s opinion said that ‘immediate review’ by the Alaska Supreme Court is appropriate in a case of this magnitude,” said Harrow. “We look forward to taking the case there and, hopefully, to the U.S. Supreme Court.”…
“We are confident we have a theory that the Constitution does not require the states to get out of the business of curbing unlimited donations to super PACs,” said Harrow.
North Jersey: ‘Dark money’ is poisoning our democracy
By Editorial Board
A recently signed “dark money” law in New Jersey would have forced the groups to file more detailed reports about donors two months after the election – but that law was put on hold by a judge in early October. Even that would not have allowed donors to be identified before January, which, of course, would have been no help to would-be voters…
Yet this growing dark money menace, and especially the groups’ ability to keep major donors’ names secret, is an obvious and willful threat to the democratic process.
Indeed, as much as the nation has been transfixed over the last several months by questions concerning Russia’s efforts to tamper with the 2016 presidential election, and what seems a constant threat by “foreign actors” to interfere with our democracy, the influence of dark money groups exerting influence in New Jersey represents a danger as well.
Even as the courts seem to continue to send mixed and confusing messages about campaign funding in general, there is absolutely nothing to keep such groups from identifying donors. What do these groups have to hide, anyway?
Allowing seeds of this sort of shadowy campaign influence to continue to take root and thrive in and outside the halls of our government puts our democratic institutions at risk and invites the worst possible impulses and outcomes from those we elect and trust to lead us.
San Francisco Chronicle: SF voters pass Prop. F, the ‘Sunlight on Dark Money’ measure
By Trisha Thadani
Prop. F is targeted at independent political action committees, which can raise an unlimited amount of money from corporations, unions and individuals. Those committees can then donate to individual candidate committees, which makes it less obvious who is behind the donations.
Campaign ads now will have to display the names and contribution totals of the top three donors giving $5,000 or more. If any of the top three donors is a committee, the ad must also show the name and the dollar amount contributed by each of the top two major contributors of $5,000 or more to that committee.
Political consultant Jon Golinger, co-author of the initiative, said the measure will also limit “pay-to-play” politics in City Hall by barring campaign contributions from any person or company with land-use decisions going before the city.
