New from the Institute for Free Speech
Lawsuit Aims to Restore Nonprofits’ Freedom to Speak About Candidates
A Wisconsin nonprofit filed a federal lawsuit yesterday that aims to stop a massive expansion of the Federal Election Commission’s (FEC) donor disclosure mandates for nonprofit groups that advocate the election or defeat of candidates. Only those donors who specifically intend to fund campaign expenditures can be constitutionally required to be reported to the FEC, the complaint explains.
Wisconsin Family Action (WFA) brought the lawsuit to secure its right to speak independently to the public about federal candidates in future elections. It has refrained from doing so out of concern that public reporting of the group’s general donors would suppress contributions and expose its members to harassment, threats, and other acts of retaliation. The group is represented in the case by Don Daugherty of the Institute for Free Speech, a nonpartisan First Amendment advocacy group that defends political speech rights, and Michael D. Dean, LLC.
“The FEC can’t condition the exercise of one First Amendment freedom on the sacrifice of another. Nonprofits have a right to speak about candidates, and Americans have a right to support nonprofits without being reported to the government,” said Institute for Free Speech Senior Attorney Don Daugherty…
The case is Wisconsin Family Action v. Federal Election Commission in the United States District Court for the Eastern District of Wisconsin, Green Bay Division. To read the complaint, click here. For future updates, visit our case page here.
Supreme Court
Election Law Blog: Lessig and Equal Citizens Group Make Another Run at Supreme Court, Arguing that States Can Limit Contributions to Super PACs Without Violating the First Amendment
By Rick Hasen
Read the cert petition, with the following question presented:
Petitioners are Alaskan citizens who challenged the Alaska Public Offices Commission’s (“APOC’s”) refusal to enforce Alaskan law regulating contributions to independent political action committees. APOC had defended its refusal on the basis of federal circuit court rulings that held such regulations violate the First Amendment. Petitioners had asked the Alaska courts to consider the original meaning of the First Amendment, to conclude that a majority of this Court would not affirm those circuit court decisions. The Alaska Supreme Court rejected the relevance of any argument from originalism and upheld APOC’s refusal.
The question presented in this petition is whether this Court should grant certiorari, vacate the judgment below, and remand (“GVR”) with instructions to weigh the arguments from originalism in determining whether the First Amendment permits the regulation of contributions to independent political action committees.
The Courts
Texas Tribune: Federal judge blocks Texas law that would stop social media firms from banning users for a “viewpoint”
By James Pollard
A federal judge on Wednesday blocked a Texas law that seeks to restrict how social media companies moderate their content and was championed by Republicans who say the platforms are biased against conservatives.
The law, signed by Gov. Greg Abbott on Sept. 9, would ban platforms with more than 50 million monthly users in the U.S. from removing a user over a “viewpoint” and require them to publicly report information about content removal and account suspensions. It was set to take effect Dec. 2.
In his ruling, U.S. District Judge Robert Pitman wrote that the First Amendment protects social media platforms’ right to moderate content and rejected the defendants’ argument that such companies are “common carriers.” Pitman also ruled that some aspects of the law were “prohibitively vague.” …
In a Wednesday press release, NetChoice President and CEO Steve DelBianco called the ruling a victory for free speech.
“[House Bill] 20 would unleash a tidal wave of offensive content and hate speech crashing onto users, creators, and advertisers,” he said in a statement. “Thanks to the decision made today, social media can continue providing high-quality services to Americans while simultaneously keeping them safe from irresponsible users and offensive content.”
Missoula Current: Lawyers argue over constitutionality of Montana’s Clean Campaign Act
By Keila Szpaller
Montana lawmakers collectively said they want clean campaigns, but U.S. District Judge Donald Molloy grilled a couple of lawyers Tuesday on whether one of the legislature’s expressions of that goal, the Clean Campaign Act, tramples on the right to free speech and equal protection, as an incidental political committee alleges.
In a brief hearing in U.S. District Court in Missoula, the judge asked if the statute could be fixed by taking out a specific section that created the problem: “And if not, how would you draft the statute?”
Generally, the “fair notice” statute requires candidates or political committees to provide opposing candidates with copies of campaign material intended for public distribution in the 10 days before an election, with some exceptions. The statute notes the times for distribution, including “if the material is disseminated by direct mail, on the date of the postmark.”
Lawyer Matthew Monforton, representing plaintiffs Montana Citizens for Right to Work… said the First Amendment doesn’t allow for one of the statute’s distinctions — an exception for ads that are endorsements as opposed ones that are negative.
“The First Amendment has a problem with the Legislature favoring negative ads or disfavoring negative ads,” Monforton said.
Nonetheless, the judge pressed the matter of whether the statute could be written in a way that was narrow enough to fortify clean campaigns without unduly squashing the right to free speech. He also noted the statute didn’t dictate or preclude the content of any ad; rather, it set a timeframe and a requirement to share material.
Congress
The New Republic: Chuck Schumer’s Daunting Quest to “Restore the Senate”
By Grace Segers
Several Democratic senators have held regular meetings with Schumer to discuss the next steps for action on voting rights, including a Wednesday confab in the majority leader’s office. Schumer pledged on Wednesday morning: “We’re going to get to voting rights this year.”
That timeline may be overly optimistic. Given everything else the Senate has to accomplish before the end of the year, a rules change may be one straw too many. “I don’t think you’re going to see this by the end of the year. There’s just too much stuff on the docket,” Senator Jon Tester told reporters after the meeting in Schumer’s office on Wednesday. But Tester, famously one of the most optimistic members of the Senate, also said that he believed progress had been made. “I think this is kind of like making a stew, it’s got to simmer for a bit.”
Senator Tim Kaine told The New Republic on Wednesday that the focus of the meetings was on figuring out how to pass the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act, knowing that these bills will not get sufficient Republican support. “We have to unify around a proposal that we can all agree to, but I think we’re making good progress on that,” Kaine said. When asked if Manchin was party to these conversations, Kaine said that all 50 Democrats were involved in the discussions on the next steps for voting rights legislation…
Although Democrats have not yet agreed to a rules change that would be acceptable to all, [Eli Zupnick, the spokesperson for the Fix Our Senate coalition,] expressed confidence that something could be accomplished before the end of the year.
“What we’re hearing from allies in the Senate is very encouraging: that there’s a lot of energy behind the idea that something needs to happen on voting rights,” Zupnick said.
The Media
By Mike Masnick
A few years ago the Washington Post (and a bunch of other newspapers) fought and won a fairly important 1st Amendment lawsuit to strike down as unconstitutional a Maryland law that required news organizations to publicly post information about the political ads they chose to carry. The district court and then the appeals court found that the law was pretty clearly unconstitutional:
“As the district court noted in a lengthy and thoughtful opinion, Washington Post, 355 F. Supp.3d at 272-306, the Act is a content-based law that targets political speech and compels newspapers, among other platforms, to carry certain messages on their websites. In other words, Maryland’s law is a compendium of traditional First Amendment infirmities.”
Specifically, the court found that the compelled speech aspect of the law was particularly problematic:
“Taken together, the Act’s publication and inspection requirements ultimately present compelled speech problems twice over. For one, they force elements of civil society to speak when they otherwise would have refrained[…]What’s more, the fact that the Act compels third parties to disclose certain identifying information regarding political speakers implicates protections for anonymous speech. Requiring the press itself to disclose the identity or characteristics of political speakers is a problematic step…”
Apparently, the editorial board of the Washington Post is wholly unfamiliar with this lawsuit and the fact that its own publication won this lawsuit just two years ago. Because in a new opinion piece, the Editorial Board of the Washington Post calls for nearly identical requirements for internet companies. Really.
International
Wall Street Journal: EU Pushes to Limit How Tech Companies Target Political Ads
By Sam Schechner
A bill proposed Thursday by the European Commission, the EU’s executive arm, would restrict online tech platforms from targeting political ads at individual users based on a list of categories that regulators deem sensitive, including their race, political beliefs and health status, without users’ explicit consent. But it stops short of a broader ban on so-called microtargeting based on personal information that some activists had demanded.
The bill would also impose broad new requirements on social-media companies to disclose more information about every political ad they run, including how widely viewed an ad is and what criteria are used to determine who sees it, including targeting via the use of third-party data…
The goal of the new rules, EU policy makers say, is to counteract what they describe as the negative effect on free elections and political debate that stem from highly targeted ads. Such ads can polarize political debates, they say. Researchers say they have been used to target specific groups of voters to discourage them from turning out to cast their ballot…
In the U.S., legislation seeking to reduce big tech companies’ power has started to gain traction in Congress.
Online political advertising has itself been the subject of debate. It has become a potent tool for political campaigns in the U.S., EU and elsewhere to reach hard-to-find voters.
Corporate Speech
Washington Times: Bipartisan majority turned off by virtue signaling of woke corporations and execs
By James Varney
A broad bipartisan majority of voters say corporate executives should spend less time virtue signaling on social issues and more on developing and selling their products, according to research from a strategic data analysis firm.
The Brunswick Group study, titled “The Talking Trap,” shows that most Democrats and Republicans are put off by “woke” messaging from C-suite offices.
Conversely, business executives say their social messaging is important and successful, indicating a sharp divide between business elites and consumers, according to the study, which involved voters and chief executives.
“We’ve always said that political speech and actions by senior executives is not part of a business strategy and detracts from shareholder value,” said Bill Flaig, a founder of the American Conservative Values Fund, an exchange-traded fund that refuses to invest in companies that publicly push woke agendas.
Concerns about corporations embracing liberal causes appear to be growing. The Republican chief financial officers of 15 states, led by West Virginia, sent a letter Tuesday to financial institution executives threatening to pull some $600 billion in assets from those that are blocking financing for oil and gas projects in the name of climate change.
The study is a part of Brunswick‘s “The Critical” series, which focuses on the intersection of business and politics.
Reuters: Record number of U.S. firms change tack on political spending after Jan. 6 attack
By Jessica DiNapoli
According to the study from the Center for Political Accountability, U.S. companies see new risks in political giving in light of the country’s hyper-partisan environment, leading corporations to either halt contributions or disclose them…
The new study found that 370 companies disclose some or all of their political spending, or ban at least one type of it, such as contributions to trade associations. That figure is up from 332 companies last year.
The Center for Political Accountability considers disclosure or outright banning of political giving a mark of top flight corporate governance policy, said Bruce Freed, the group’s president.
The study found that one of the biggest changes over the past six years among companies related to so-called “dark money” groups, which are tax-exempt organizations that influence politics. There was nearly a 100% increase from 2015 to 2021 in the number of companies who prohibit or disclose contributions to those organizations.
Lobbying
Daily Beast: Dark-Money Group Paid Former Trump AG to Ask for Pardons—and He Never Registered as a Lobbyist
By Roger Sollenberger
Kedric Payne, senior director of ethics who specializes in lobbying law at nonpartisan watchdog Campaign Legal Center, said the available evidence [regarding Former Trump acting attorney general Matthew Whitaker] suggests that “extensive paid lobbying” went unreported.
“Federal law requires disclosure from those who are paid to lobby for pardons,” Payne explained. “This matter raises red flags because there appears to be extensive paid lobbying, but no evidence of lobbying registration. The public has a right to full disclosure about who is lobbying our public officials.”
Paul S. Ryan, vice president of litigation at government watchdog Common Cause, pointed out that the laws surrounding lobbying for pardons specifically are fuzzy, and before Trump’s final months relatively untested. But he also noted that a number of Trump lobbyists saw fit to disclose that work.
“Other lobbyists tied to Trump have reported massive income lobbying the administration for pardons. Any failure by Whitaker to disclose hundreds of thousands of dollars received to lobby the Trump administration warrants close scrutiny,” Ryan told The Daily Beast.
Online Speech Platforms
Washington Post: Far right is using Twitter’s new rule against anti-extremism researchers
By Drew Harwell
Neo-Nazis and far-right activists are coaching followers on how to use a new Twitter rule to persuade the social media platform to remove photos of them posted by anti-extremism researchers and journalists who specialize in identifying episodes of real-world hate.
Advocates said they worry the new policy will suppress efforts to document the activities of the far right and will prove to be a gift to members of hateful movements eager to keep their identities concealed.
“It’s going to be emboldening to the fascists,” said Gwen Snyder, an anti-fascist researcher and organizer in Philadelphia…
On Tuesday, Twitter said its new “private information policy” would allow someone whose photo or video was tweeted without their consent to request the company take it down.
Twitter said the rule would help “curb the misuse of media to harass, intimidate and reveal the identities of private individuals, which disproportionately impacts women, activists, dissidents, and members of minority communities.”
The States
Sludge: NYC Public Campaign Financing Program Leveled the Playing Field: Report
By David Moore
The Brennan Center’s latest analysis of campaign finance data from the CFB underscores how much the city’s small-donor matching system succeeded in leveling the playing field. First, the voluntary match was overwhelmingly used: 97% of the women and people of color who won Council seats raised money through the program, according to the report. “We have seen more candidates running, more contributions collected, and more public funds paid to more candidates than in any previous election cycle,” Matt Sollars, CFB’s director of public relations, told Sludge.
The analysis also found that the system produced race and gender equity in fundraising across every competitive contest in primary elections, which are important because virtually every primary winner goes on to win the general election contest. This cycle, the data showed, women and people of color slightly outraised men and white candidates—women by 4%, candidates of color by 2%—with the authors finding that candidates overall relied to similar extents on public matching funds in their funding mix.
The program resulted in office seekers being matched so fairly, through campaign funding unlocked by small donations from city residents, that even in districts where the top two primary candidates were a man and a woman, or a white candidate facing off with a person of color, they had nearly the same amount to spend through the June 22 primary date. Whereas women and candidates of color running for Congress have faced historical disadvantages in fundraising, a Brennan Center report found last year, New York City’s small-dollar matching program offers far greater parity.
