Free Speech

Reason: Wired Thinks Free Speech Has Been Tried and Failed

By Brian Doherty

The most casual gloss on the history of First Amendment litigation in America should make it obvious, especially for Trump- and GOP-haters, exactly how dangerous it is to casually toss aside the principle of legal protection for free speech.

Consider, for just a handful of examples, the Supreme Court cases Gitlow v. New York (1925), involving a man arrested for publishing a revolutionary “Left-Wing Manifesto”; Whitney v. California (1927), involving a woman prosecuted for helping found a Communist Labor Party; Stromberg v. California (1931), involving prosecuting people for displaying a red flag; and Near v. Minnesota (1931), involving prosecution for issuing a newspaper the state decided was merely “malicious, scandalous, and defamatory.”

The above limn what letting slip the principle of “no law” tends to mean in practice: state power deciding what people can say, how they can use their symbols, how they can criticize the powers that be, and how they can organize to affect politics.

Internet Speech

New York Times: Fake News and Bots May Be Worrisome, but Their Political Power Is Overblown

By Brendan Nyhan

How easy is it to change people’s votes in an election?

The answer, a growing number of studies conclude, is that most forms of political persuasion seem to have little effect at all.

This conclusion may sound jarring at a time when people are concerned about the effects of the false news articles that flooded Facebook and other online outlets during the 2016 election. Observers speculated that these so-called fake news articles swung the election to Donald J. Trump. Similar suggestions of large persuasion effects, supposedly pushing Mr. Trump to victory, have been made about online advertising from the firm Cambridge Analytica and content promoted by Russian bots.

Much more remains to be learned about the effects of these types of online activities, but people should not assume they had huge effects. Previous studies have found, for instance, that the effects of even television advertising (arguably a higher-impact medium) are very small…

Field experiments testing the effects of online ads on political candidates and issues have also found null effects…

[T]hose who want to combat online misinformation should take steps based on evidence and data, not hype or speculation.

FEC

Greeley Tribune: Rep. Ken Buck calls on President Trump to fill vacancies on election commission in bipartisan fashion

By Nate Miller

Rep. Ken Buck joined Washington Democrat Derek Kilmer on Wednesday in calling on President Donald Trump to fully staff the Federal Election Commission.

“The FEC plays a vital role in enforcing the rule of law for election campaigns,” Buck, a Republican from Windsor, said in a news release. “We want political candidates to follow the rules, but without a functional FEC, the rulebook isn’t even clear. I encourage the president to stick with precedent and nominate both a Democrat and a Republican to fill FEC vacancies at the same time.” …

A dozen other lawmakers joined Buck and Kilmer in calling on the president to fill the vacancies in a bipartisan manner, the release stated.

Wall Street Journal: Was the Payment to Stormy Daniels a Campaign Contribution?

By Julie Bykowicz and Joe Palazzolo

Ann Ravel, a Democrat who served on the elections body from 2013 to 2015 said the timing and circumstances around the payment makes it “obvious” it was campaign-related.

“The real issue here is coordination,” she said. “How did Michael Cohen know about the relationship if not from either the candidate himself or the campaign?”

Campaign-finance law restricts individuals to giving a maximum of $5,400 to a candidate’s campaign each election cycle. Additionally, donors can make contributions of any amount for independent expenditures so long as that money isn’t coordinated with the candidate.

Ms. Ravel said the FEC should continue investigating whether the payment should have been documented in campaign-finance reports and whether Mr. Cohen made an in-kind contribution well over that $5,400 limit.

Charlie Spies, a Republican campaign attorney not involved with Mr. Trump, said the payment to Ms. Clifford is “an expense that would exist irrespective of whether Mr. Trump was a candidate and therefore should not be treated as a campaign contribution.”

He dismissed the notion that timing matters. “There is no precedent to indicate that a personal expense becomes a campaign expense simply because it is temporally close to the election,” he said.

Reason (Volokh Conspiracy): Did Trump’s Lawyer Pay Stormy Daniels Out of His Own Pocket?

By Orin Kerr

All Cohen says is that he used his personal funds to “facilitate a payment of $130,000.”

To “facilitate”, the dictionary tells us, means to assist with or to make something easier. Given that, I would think that the most literal reading of Cohen’s statement is just that he used his own funds to arrange the payment. He’s not making any statement about whose $130,000 was paid. For example, if it took Cohen a few hundred dollars to set up an entity to pay Daniels, and to wire someone else’s $130,000 to her, then he would have been using his own personal funds to faciltate that payment. Sending on the money would be a transaction between two parties, Daniels and the entity Cohen set up, and there would have been no need to reimburse Cohen $130,000 because it wasn’t Cohen’s money that was sent.

Of course, there are other ways to read Cohen’s statement. There are enough ambiguities in it to drive a truck through. Maybe Trump just wrote a personal check to Cohen. Cohen was reimbursed, but not from Trump’s “organization” or “campaign.” At this point, we don’t know. And of course we also don’t know if what Cohen is now saying is literally true. Cohen’s “reputation for having a character for truthfulness,” to use an evidence law phrase, is lousy. But I just thought it worth pointing out that Cohen doesn’t even claim that he paid the $130,000 out of his own pocket, which is what the press seems to be reporting.

Disclosure

CNBC: NRA, Russia and Trump: How ‘dark money’ is poisoning American democracy

By Alex Tausanovitch and Diana Pilipenko of the Center for American Progress

[T]he Russia investigation is not just relevant to allegations of collusion, or even just to Russia. It is revealing a fundamental vulnerability in our political system – one that is being exploited by Russia, but that is also being exploited by others, foreign and domestic, who want to see American government serve their interests instead of the interests of the American public.

Fortunately, we know how to expose these bad actors. There are simple, commonsense steps that Congress, and even individual states, can take to restore transparency, accountability, and trust in how our country is run.

For example, legislators should require tax returns and other financial disclosures from presidential candidates and other high-ranking public officials; enhance campaign finance disclosure and eliminate conduits for foreign money by passing the DISCLOSE Act and the Honest Ads Act; and require greater corporate transparency in secrecy-prone jurisdictions like Delaware, Nevada, and Wyoming.

These are only some of the ways to fight back against political money laundering, more of which are detailed in a new Center for American Progress report.

The Media

Washington Post: Reporter found guilty of disorderly conduct in clash with police captured on video

By Justin Jouvenal

A reporter with a liberal media outlet was found guilty of misdemeanor disorderly conduct Tuesday over an October confrontation with police as he was attempting to cover then-Virginia Republican gubernatorial candidate Ed Gillepsie.

Shareblue Media’s Mike Stark claimed Fairfax County police officers mishandled the incident, part of which was captured on video and shows him being taken to the ground before his arrest. A Fairfax County General District Court judge imposed a $500 fine on Stark. A second misdemeanor charge for fleeing police was dismissed…

Stark said he was disappointed with the outcome and was weighing what to do next.

“I took it to trial believing I had the law on my side,” he said. “So I’m surprised at the outcome.”

On the video, Fairfax County police officers can be seen arguing with Stark, before he is pushed against a fence and then forced to the ground at a parade in Annandale, Va., on Oct. 28.

The incident began when an officer asked Stark to stay away from a van carrying Gillespie, the reporter said at the time…

An internal investigation into the incident is still underway.

Politico: Kelli Ward touts endorsement from fake-news site

By Jason Schwartz and Shawn Musgrave

The Arizona Monitor seems to be part of a growing trend of conservative political-messaging sites with names that mimic those of mainstream news organizations and whose favored candidates then tout their stories and endorsements as if they were from independent journalists. It’s a phenomenon that spans the country from northern New England, where the anonymous Maine Examiner wreaked havoc on a recent mayoral election, all the way out to California, where Rep. Devin Nunes launched – as reported by POLITICO- his own so-called news outlet, the California Republican.

Nunes disclosed his connection, albeit in small letters at the bottom of the site. But the most dangerous of these sites operate anonymously, with no bylines or masthead, experts say.

A particular problem, according to Kathleen Hall Jamieson, director of the Annenberg Public Policy Center at the University of Pennsylvania, is the way sites like the Monitor use traditional local newspaper names to add an air of legitimacy…

“This basically is an appropriation of credibility,” Jamieson said. “As the credibility of reputable news outlets is appropriated for partisan purposes, we are going to undermine the capacity of legitimate outlets to signal their trustworthiness.”

Candidates and Campaigns

CNBC: Cory Booker joins Kirsten Gillibrand and other Senate Democrats in rejecting corporate PAC donations

By Elizabeth Gurdus

Sen. Cory Booker, D-N.J., vowed in a Tuesday tweet to stop accepting campaign donations from political action committees with ties to for-profit corporations.

Booker, long rumored to be considering a presidential run in 2020, joins five other high-profile senators and potential presidential hopefuls such as Sen. Elizabeth Warren, D-Mass., and Sen. Kirsten Gillibrand, D-N.Y. Sen. Bernie Sanders, the independent Vermont senator who caucuses with Democrats, has also said he would stop taking donations from corporate PACs.

Democratic senators from solidly blue states are seizing the opportunity to take the moral high ground when it comes to campaign contributions and call for campaign finance reform. But vulnerable Democrats fighting to keep their Senate seats in states President Donald Trump won in 2016, such as Florida, Indiana, Missouri, Montana and Wisconsin, could fall under pressure to join their colleagues.

The States

U.S. News & World Report: Missouri Supreme Court Rules for Campaign Violation Fees

By Associated Press

The Missouri Supreme Court on Tuesday sided with the state Ethics Commission after it charged a former state lawmaker nearly $230,000 for campaign finance violations…

A 2013 commission decision said that Wright-Jones failed to accurately report a couple hundred thousand dollars in expenditures and contributions by state deadlines, received a double reimbursement for vehicle mileage from both the state and her campaign fund, and made more cash expenditures than allowed by law.

Wright-Jones was required to pay 10 percent of the fee initially, with the rest being waived if she filed additional campaign reports and didn’t violate any more campaign finance laws.

But Wright-Jones challenged the penalty, arguing in court that the charges amounted to unconstitutionally excessive fines. Her attorney, Bernard Edwards, Jr., argued that she should have been charged at most $1,000 per violation.

The high court disagreed…

Edwards said they’re reviewing their options.