Internet Speech Regulation

Reuters: Momentum builds in U.S. for disclaimers on internet election ads

U.S. regulators on Thursday kicked off a process that could result in mandatory disclaimers on election ads that appear on social media, a reaction to anonymous, Russia-linked ads on sites such as Facebook ahead of the 2016 U.S. elections.

The Federal Election Commission voted 5-0 to begin drafting rules that would impose disclaimers. The commission previously declined to require such labels after Facebook Inc and Alphabet Inc’s Google complained they would be impractical.

“Disclaimers on paid digital and internet-based advertisements are one tool identified as a mechanism for exposing foreign-paid advertisements,” three Republican members of the commission said in a written motion…

Facebook, Google and Twitter have responded by proposing self-regulation of advertising, while also expressing a willingness to work with U.S. lawmakers and saying they would like the election commission to provide clarity on when disclaimers are required.

The Hill: FEC must keep the Internet a place for free minds, free speech

By Dan Backer

Broadening Internet regulations is a bureaucrat’s solution in search of a problem. As outlined in the Federal Register, the FEC already requires a disclaimer for any “public communication” that is “placed for a fee on another person’s website.” This includes paid express advocacy – any paid communications “advocating the election or defeat of a clearly identified candidate.” Whenever an individual, corporation, labor union, or political committee “pays a fee to place a banner, video, or pop-up advertisement” on another’s website, they are engaging in “public communication” that requires a disclaimer. 

The FEC’s energy would be better spent enforcing the laws already on the books, not proposing new red tape that will do nothing but keep law-abiding Americans away from political speech…

The Internet must be left largely unregulated to preserve it as a convenient, inexpensive, and easily accessible tool for the robust exercise of free speech. The Internet’s unregulated nature is, at least in part, its charm. Even the FEC has recognized as much, describing the Internet as “a bastion of free political speech, where any individual has access to almost limitless political expression with minimal cost.”

IRS

NBC News: The IRS needs to crack down on super PACs’ unlawful political spending

By Sen. Sheldon Whitehouse

Good-governance groups have long pointed out that the 2010 Citizens United decision by the U.S. Supreme Court allows outside entities to spend an unlimited amount of anonymous money on our elections, corrupting the process.

That’s true in practice: In the wake of the decision, special interests, like conservative oil and gas magnates Charles and David Koch, began funneling money into dark money organizations created under section 501(c)(4) of the tax code to spend in elections.

But under the law, these tax-exempt 501(c)(4) groups must be set up “exclusively … for the promotion of social welfare” – which, according to the IRS’s own regulations, “does not include direct or indirect participation or intervention in political campaigns on behalf of or in opposition to any candidate for public office.”

The problem isn’t that the IRS can’t regulate these groups; it’s that Republican lawmakers, who disproportionately benefit from this spending, successfully pressured the agency into not scrutinizing conservative organizations as a result of an incomplete report that suggested they had been targeted for improper investigation in the first place.

Supreme Court

CNN: The newspaper ad that changed everything

By Jonathan Peters

In March 1960, The New York Times published a paid ad from a group supporting Dr. Martin Luther King Jr., setting off a chain of events that would change the role of the press in America and help shape our public discourse for decades…

In its decision March 9, 1964, the Supreme Court reversed the jury award and brought libel law into the First Amendment’s orbit. Justice William Brennan Jr. wrote the majority opinion and opened by saying that the Court had considered the case “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” …

Brennan discussed the Sedition Act and said it had “first crystallized a national awareness of the central meaning of the First Amendment” — the right to criticize the government. He also noted the Sullivan case’s civil rights context, calling the ad “an expression of grievance and protest on one of the major public issues of our time.

Then, critically, Brennan reasoned that “[e]rroneous statement is inevitable in free debate … and must be protected if the freedoms of expression are to have the breathing space that they need to survive.” 

Wall Street Journal: Trump Adds Five to List of Candidates for Supreme Court Vacancies

By Louise Radnofsky

President Donald Trump announced Friday he was putting five more individuals on his list of candidates to fill any future Supreme Court vacancy…

Two of the newcomers, Amy Coney Barrett and Kevin Newsom, were recently confirmed as circuit court judges in the Chicago-based Seventh Circuit and Atlanta-based 11th Circuit respectively…

Another new name, Brett Kavanaugh, is a judge long known for siding with conservative arguments on the U.S. Court of Appeals for the District of Columbia Circuit.

Britt Grant, a 2017-appointed justice of the Supreme Court of Georgia, and Patrick Wyrick, a 2017-appointed justice of the Supreme Court of Oklahoma, were also among the additions released by the White House Friday afternoon.

The White House didn’t suggest a Supreme Court vacancy is imminent, and there are no public signs any justice is preparing to step down.

The Hill: Don’t blame me for Hillary Clinton’s decision to hijack the DNC

By Shaun McCutcheon

The case causing all this buzz is McCutcheon v. FEC, a suit that I brought in 2012 arguing that the cap on aggregate campaign donations for individual donors was a violation of free speech and unconstitutional. The Supreme Court of the United States ultimately agreed with me…

My case simply says that an individual should not have to choose between which political issues he or she chooses to advance in an election cycle… 

In addition to limits on how much a person could donate to an individual candidate, Congress had also indirectly put limits on how many candidates a person could donate to. If an individual donor wanted to give the maximum to each candidate, they could only give to 18 total candidates. Seeing as how there are 535 positions in Congress, I felt it was wrong to put such an arbitrary cap on how an individual chose to voice their support…

Under McCutcheon v. FEC, an individual donor is simply not capped in the number of candidates and political causes that he or she wants to contribute to. The Hillary Victory JFC was maybe able to raise more money than they would have if aggregate limits were still in place because the donors in on the scheme might’ve had to write smaller checks, but it is outrageous to suggest that striking down aggregate limits allowed hijacking of the DNC to occur.

Congress

CNBC: Two bills in Congress could impact Google and Facebook ad sales

By John Shinal

Dubbed SESTA, the Stop Enabling Sex Traffickers Act, it would take away a key legal defense that internet companies have enjoyed since 1996…

Because the legislation launched by Portman, a Republican, deals with the most unsavory underbelly of the internet, few have talked about it – except for the Electronic Frontier Foundation, the Columbia Journalism Review and other advocates of free speech online.

Those organizations point out that repealing what’s called the exemption of Section 230 of the 1996 Telecom Act could have an unintended and dire consequence.

It could cause Google and Facebook to restrict the uploading of legally-risky content to their sites and give them de facto market control over internet speech…

Portman’s bill has gotten less attention than another introduced by Senator Amy Klobuchar of Minnesota and backed by other Democrats…

That bill, the Honest Ads Act, has the support of more than 30 members of Congress…

The Klobuchar bill, introduced in October, sits with the Senate rules committee and has not been put to a committee vote, let alone cleared one, as Portman’s bill has.    

Washington Post: The House tax bill unleashes a dangerous avalanche of campaign cash

By Editorial Board

Moneyball politics took a great leap forward when the Supreme Court opened the door to campaign contributions from corporations and unions in the 2010 case Citizens United v. FEC. Now the Republican-controlled House has passed a tax bill that, should it become law, would unleash another tidal wave of change…  

What the House bill really amounts to is throwing open an entirely new channel for campaign money to politicize churches, charities and foundations. Today, so-called super PACs are a massive force in politics, spending more than $1 billion in the 2016 election cycle. Such super PAC donations must be disclosed to the Federal Election Commission and are not tax-deductible. What if these donors are tempted to give their money to a 501(c)3 organization that beckons with a tax deduction and no disclosure? The givers won’t hold back. Churches and church-affiliated groups generally don’t even have to file IRS returns, so there will be no information about who these contributors are. Other 501(c)3 groups do file, but the donors are not disclosed to the public. The politicized churches, charities and foundations could become the latest vessels for dark-money politics. The House language is not in the Senate legislation, but it could survive to a conference.  

Candidates and Campaigns

Just Security: The Trump-Russia-WikiLeaks Alliance and Campaign Finance Laws

By Bob Bauer

I thought that these Twitter exchanges unquestionably deepened the campaign’s legal exposure to liability for aiding illicit foreign national activity in U.S. elections. It seemed to me, as I wrote, that “the facts and circumstances here are without precedent” and that “it is hard to imagine that any truly neutral analyst informed about the law would conclude otherwise.” And yet there are highly knowledgeable scholars and observers who do not apparently see things this way.

Skeptics included experts such as Paul Ryan and Rick Hasen. Ryan saw nothing especially powerful in the contacts: no evidence, as far as he was concerned of “anything of value” that the campaign solicited or received from the Russians via Wikileaks. He believes that compared, say, to the revelation of the Trump Tower meeting, the Trump Jr.-WikiLeaks exchanges to be “small potatoes.”Hasen has doubted that Wikileaks’ activity was even part of the legal story. He sees it as potentially a foreign media organization operating like any other news entity in receiving and distributing information from various sources, including the Russian government…

This difference turns on how any new evidence is evaluated-either more or less in isolation, or in relation to others within the emerging picture of the Russian-Trump campaign alliance.

Center for Responsive Politics: Democratic women running more, giving more money heading into 2018

By Doug Weber

While historically men have dominated campaign finance contributions, women have been an important source of money for some candidates – female Democrats in particular.

In 2016, Hillary Clinton got 52 percent of her individual contributions from women..

There is an increase in both the number of Democratic women running for House seats and financial support from female donors to Democratic candidates overall. Republican House candidates meanwhile have seen a slight decline in the percentage of contributions from women.

Also this cycle, nine Senate candidates – all of whom are either Democrats or caucus with Democrats – have received the majority of their individual contributions from women. In the 2008 cycle, only one Senate candidate – Democrat Jack Nelson-Pallmeyer of Minnesota – received a majority of their contributions from women.

The States

Brennan Center: Off-Year Election Takeaways for Money in Politics

By Beatriz Aldereguia and Natalie Giotta

Nineteen candidates for the Virginia House of Delegates — some incumbents and some challengers — signed a pledge from the national organization Every Voice to prioritize opposing Citizens United, enacting election contribution limits, and passing legislation to incentivize everyday citizens’ participation in Virginia politics. Ralph Northam, Virginia’s Governor-elect who has called for caps on campaign donations and a ban on corporate, made the same pledge to fight big money…

If Washington State officials need a good model, they should look no further than their own largest city, Seattle. In 2015, Seattle passed a landmark public financing scheme, under which each voter in the city receives four “Democracy Vouchers” totaling $100 that can be assigned to their preferred candidate for city office…

Legislators should recognize that Citizens United and other recent Supreme Court cases do not hamstring them from enacting meaningful change. Small donor public financing, contribution limits, and campaign finance disclosure are still very much on the table.