In the News
Government Executive: Election Commission Regains Quorum and Resumes Full Duties, Facing a Massive Backlog of Work
By Courtney Bublé
The nation’s campaign finance watchdog regained a quorum on Wednesday, and thus the ability to carry outthe majority of its functions. Now commissioners must catch up on a vast backlog of work…
Erin Chlopak, director of campaign finance strategy for the Campaign Legal Center, told Government Executive on Thursday that while she would have liked the FEC to have regained a quorum before the 2020 elections–as other experts previously said– it’s “better late than never.” She hopes this has been an opportunity for the agency to “actually do its job,” especially on the matters of foreign inference and internet disclaimers…
Institute for Free Speech Chairman and former FEC Chair Bradley Smith also welcomed the news about the quorum. “The FEC’s temporary lack of a quorum was never a free pass for campaigns to ignore the law,” he said in aseparate statement to Government Executive. “Now that three new commissioners have been confirmed, the FEC can get to work on the backlog of cases. Hopefully, new blood can also make progress on long-pending issues at the Commission, such as a rule for online ad disclaimers.”
New from the Institute for Free Speech
Round-Up: 2020 Elections Demonstrate Money Doesn’t Buy Success at the Polls
By Alex Baiocco
Perhaps the clearest lesson to emerge from last month’s election results is that money can’t buy votes. Because the myth that political spending can determine electoral outcomes underlies many of the worst restrictions on political speech, the Institute for Free Speech often points out voters’ capacity to reject a candidate’s message even when that candidate spends far more than her opponent. Voters’ right to hear a candidate or speaker’s message and make up their own minds is a basic tenet of self-government. Yet every election season, politicians claim their opponents are trying to “buy the election.” Often, these complaints are followed by calls to impose more government control over political advocacy.
Below is a collection of notable reporting and commentary highlighting how this year’s election results add to the evidence undermining the myth that money buys elections.
Supreme Court
Law 360: Justices Told Calif. Donor Tax Info Law Needs Higher Scrutiny
By Daniel Tay
California’s law that charitable organizations must disclose their largest donors’ tax information should be subject to a higher level of scrutiny than the U.S. solicitor general recommended, the law’s challengers told the U.S. Supreme Court on Wednesday.
Law360: 9th Circ. Scrutiny Proper In Donor Privacy Row, Justices Told
The Ninth Circuit applied the correct level of scrutiny to California’s law requiring charitable organizations to disclose their largest donors’ tax information, the state told the U.S. Supreme Court, saying the U.S. solicitor general erred in suggesting otherwise. The standard of scrutiny that acting Solicitor General Jeffrey Wall asserted should be applied to the law is the same as the standard that the Ninth Circuit actually applied, California Attorney General Xavier Becerra told the justices in a supplemental brief filed Wednesday.
The Courts
Cato: A First Amendment Win For Pennsylvania Lawyers
By Walter Olson
Welcome news: citing the First Amendment, U.S. District Judge Chad F. Kenney of the Eastern District of Pennsylvania has enjoined the enforcement of a new Pennsylvania Supreme Court disciplinary rule providing that lawyers practicing in the state can face penalties if, among other things, they “knowingly manifest bias or prejudice” in the course of law practice. The latter is defined so broadly as to include presenting on issues of public concern at bar conferences, continuing legal education seminars and the like. The rules were challenged by Pennsylvania attorney Zachary Greenberg, who currently works as a program officer at the Foundation for Individual Rights in Education.
After confirming that Greenberg had standing to proceed with his challenge even though enforcement has not yet begun, the court went on to reject the idea that a professional-speech exception to the First Amendment allows for closer regulation of lawyers’ expression in this area, and further ruled that the restrictions were not only content-based but viewpoint-based, a finding nearly always fatal to speech restrictions. (Eugene Volokh has more on the opinion here.)
Congress
The Hill: Democrats urge Biden to address ‘infodemic’ of COVID-19 disinformation, misinformation
By Maggie Miller
Democratic lawmakers on Thursday urged President-elect Joe Biden to take immediate steps after taking office to combat the “infodemic” of disinformation and misinformation surrounding COVID-19.
“Understanding and addressing misinformation – and the wider phenomena of declining public trust in institutions, political polarization, networked social movements, and online information environments that create fertile grounds for the spread of falsehoods – is a critical part of our nation’s public health response,” the lawmakers wrote in a letter to Biden…
On Thursday, a separate group of House Democrats urged Biden to make addressing disinformation and misinformation a major priority once in office.
Members of the Congressional Task Force on Digital Citizenship led by Jennifer Wexton (Va.), Don Beyer (Va.), and David Cicilline (R.I.) sent a letter to Biden advocating for him to prioritize research, education and transparency to combat online foreign and domestic disinformation and misinformation threats.
“Disinformation and misinformation are not partisan issues,” the House Democrats wrote. “They affect our collective public health, safety, and democracy.”
The lawmakers asked that Biden take steps including launching a “multiagency digital democracy task force” to develop a federal strategy to combat online disinformation, along with funding media literacy programs, and to collaborate with foreign allied nations in fighting this issue.
FEC
New York Times: The Senate confirmed three people to the Federal Election Commission, restoring a quorum for the first time in months.
By Nicholas Fandos and Rebecca R. Ruiz
With the three new commissioners in place, the agency will have its full powers restored and all six seats filled for the first time since 2017. Awaiting the newly empowered body are some 400 pending enforcement cases…
Senator Roy Blunt, Republican of Missouri, who shepherded the nominations as chairman of the Rules Committee, conceded on Wednesday that Democrats and Republicans had struggled for months to reach an agreement on who and when to confirm.
“It’s a great step in the right direction,” he said.
Online Speech Platforms
Washington Post: The Technology 202: Facebook removes some pages appearing to coordinate to push health misinformation
By Cat Zakrzewski
Facebook just took down prominent pages that were directing their millions of followers to false claims about the coronavirus, the flu vaccine, and other health issues.
The social network late last night removed at least nine pages with massive followings after researchers from the nonpartisan think tank German Marshall Fund flagged them to be part of a coordinated network. These pages were pushing Facebook users to five “alternative” health sites, which have a reputation for repeatedly publishing false health claims.
The researchers found evidence of undisclosed business relationships among some of the Facebook pages and the misleading websites, suggesting the network aimed to drive traffic to the sites to increase ad revenue. GMF identified 20 pages that at times shared identical posts promoting the articles. Facebook is investigating the pages identified in the report and so far, not all pages have been taken down.
“These networks are turning disinformation into dollars-at the expense of people’s health,” said Karen Kornbluh, who directs GMF Digital and leads its Digital New Deal project, a campaign focused on improving the Internet.
Facebook said the pages it removed, which in one instance had more than 16 million followers, violated its spam policies.
Biden Transition
Knight First Amendment Institute: A First Amendment Agenda for the New Administration
When Joe Biden is inaugurated in January as the 46th president of the United States, his administration will confront a host of monumental challenges relating to the freedoms of speech and the press. The massive influence that technology platforms exert over the flow of information and ideas, the aggregation of vast amounts of personal data in government and private hands, the proliferation of spyware and its exploitation by authoritarian and other rights-abusing regimes, algorithmic discrimination, the scourge of disinformation-each of these presents urgent questions relating to our system of free expression. Addressing these questions will require sustained attention by the new administration, Congress, and the courts.
But there are steps the incoming Biden administration can take on its own, in its earliest days, to reverse, roll back, revise, or improve a range of executive branch practices and policies that are now undermining First Amendment protections and, in many cases, weakening our democracy. Here are 12 actions that the new administration should put at, or near, the top of its list.
Independent Groups
Yahoo News: The Hottest Campaign Ads on Twitter Didn’t Really Work: Study
By Sam Stein
At various junctures during the 2020 campaign an attack ad would pop online that had observers on Twitter buzzing about how devastating for Donald Trump it would be. Except, more often than not, the ads weren’t effective, at least not for the nominal point of the election: persuading on-the-fence voters to back Joe Biden.
That’s the conclusion the Democratic Party’s top super PAC reached after doing analytical research into a handful of spots that went viral on Twitter.
[Priorities USA] spent a good chunk of the cycle testing the effectiveness of ads, some 500 in all. And, along the way, they decided to conduct an experiment that could have potentially saved them tons of money. They took five ads produced by a fellow occupant in the Super PAC domain-the Lincoln Project-and attempted to measure their persuasiveness among persuadable swing state voters…
The idea…[was] to see if Twitter virality could be used as a substitute for actual ad testing, which took funds and time.
Candidates and Campaigns
Chatham Journal Newspaper: Let candidates control their message
By John Hood
In a free society, government can’t just tell people to shut up. Nor can government divide private organizations into categories, allowing some but not others to spend money on politics. Even if that were permitted under the First Amendment, powerful interest groups would simply purchase media outlets to protect themselves (keep in mind that many newspapers, including several in North Carolina, were originally founded for both partisan and commercial purposes).
Our current campaign-finance laws limit how much candidates can raise. That pushes political dollars into less-transparent, less-accountable places. Deregulation, combined with instant reporting of contributions, would help put candidates back in charge of their own races.
New York Times: ‘How Many Fact Checkers Do They Have?’
By Charlie Warzel
In the days after the election, several senior Biden campaign workers talked with me about their public confrontation with Facebook, the world’s biggest social media platform. They described the company as plagued by conflicting desires: to avoid claims of political bias; to avoid being blamed for the election results, as it was in 2016; and to publicize its election integrity efforts.
Facebook thought it was trying to be a neutral referee. But the Biden and Trump campaigns were playing entirely different sports. The result, the Biden camp felt, was a paralysis and an inconsistent application of Facebook’s rules that ultimately benefited Mr. Trump’s campaign.
Here’s some of what the campaign looked like from the trenches of the disinformation war.
Lobbying
Business Insider: Inside the powerful political machines that COVID-19 vaccine makers Pfizer, Moderna, and AstraZeneca have built in DC
By Dave Levinthal
The pharmaceutical companies vying for authorization of their COVID-19 vaccines have been developing more than a solution to the deadly virus.
They’ve also been busy building powerful political influence machines in Washington as they seek to sway federal policy and spending in their favor.
Pfizer, AstraZeneca, and to a lesser degree, Moderna, have together hired an army of lobbyists and contributed millions of dollars to political causes during 2019 and 2020, according to an Insider analysis of federal lobbying, campaign finance, and investment disclosure records, as well as data compiled by the nonpartisan Center for Responsive Politics and the Senate Stock Watcher…
In a statement to Insider, Pfizer said the company’s “work with policymakers included efforts to ensure that Americans have access to a potential COVID-19 vaccine regardless of whether or not they have insurance coverage and education initiatives to improve vaccine confidence.”
The States
Gotham Gazette: Public Matching Funds, A Crucial Campaign Lifeline, Are On The Way
By Martin Rather
We’ve never seen this many candidates before. There are more than 300 declared candidates for New York City Council running in 2021, along with more than 50 running for positions like Borough President, City Comptroller, and Mayor… These unprecedented numbers demonstrate an unqualified success for the city’s campaign matching funds program that has recently been improved to lower contribution limits and increase public matching dollars…
These public fund payments are crucial…[T]he funds pay for the distribution of important information via pamphlets, mailers, and digital advertisements that define and distinguish the candidates while informing the public…
The city’s matching funds program has already been proven to work. In the 2019 Public Advocate special election, small-dollar contributions went from about 25% of all funds raised to more than 66%, according to data from City Council Member Ben Kallos of Manhattan. That race drew 17 candidates, a harbinger of what was to come for 2021. New York City’s matching funds program means more candidates, better campaigns, and greater choices for voters at the ballot box.
