Free Speech
Wall Street Journal: The Autocrat’s New Tool Kit
By Richard Fontaine and Kara Frederick
The next generation of natural language processing tools will become more sophisticated as advances in machine learning accelerate. Applied by the wrong regime, they can be combined with other data to assess an individual’s trustworthiness, patriotism and likelihood of dissenting…
Autocrats’ ability to spy on their citizens will be further enhanced by advances in artificial intelligence that make sense of enormous data sets… They will allow oppressive regimes to more efficiently collect information on their population’s speech and behavior, sift through massive data sets and quickly exploit the information.
One particular application of AI-facial recognition-could be as ubiquitous in a decade as smartphone cameras are today… Chinese police deployed facial-recognition glasses in early 2018, and Beijing-based LLVision Technology Co. sells basic versions to countries in Africa and Europe. Such glasses can be used to help identify criminals like thieves and drug dealers-or to hunt human-rights activists and pro-democracy protesters…
Until quite recently, it was easy to see the digital revolution as a great liberalizer, a way to transmit ideas faster than any would-be censor could react. The reality is turning out to be far more complicated.
The internet dispersed data, but new technological advances can concentrate its power in the hands of a few…
But we shouldn’t assume that the benefits will accrue only to repressive governments. When dictatorships sought in recent years to monitor their citizens’ online communications, the U.S. State Department and others sponsored encryption tools that allowed would-be dissenters to safely communicate. When regimes censored information and blocked access to key websites, circumvention tools cropped up to allow unfettered access.
The Courts
NBC News: Search warrant for Michael Cohen will be made public Tuesday
By Tom Winter and Adiel Kaplan
On Tuesday the public will see the search warrant that launched an April 2018 FBI raid on the home and offices of Michael Cohen, and may learn what made federal officials take an interest in the lawyer who was once President Donald Trump’s fixer.
Judge William Pauley III ordered Monday that prosecutors make redacted copies of the search warrant and the FBI’s search warrant affidavit available by Tuesday…
The FBI raided Cohen’s office and hotel suite on April 9, 2018, seeking information about payments the lawyer made to two women shortly before the 2016 election: a $150,000 payment to Karen McDougal, a former Playboy model who said she had an affair with Trump in 2006, and $130,000 to porn star Stormy Daniels, who also said she had an affair with Trump in 2006…
Typically, search warrant affidavits contain information about how an investigation was started, the potential crimes being investigated, and what information has been discovered so far that establishes the probable cause a judge needs to sign off on the search.
In the Cohen case, it is possible the search warrant discloses how investigators became aware of two payments to women that Cohen admitted were violations of campaign finance law, what crimes or information investigators had established early in their probe, and what items they sought to search and gather when they executed the warrant last April.
Details of any ongoing investigation may be redacted, on Tuesday.
H.R. 1
Sacramento Bee: ‘For the People’ is a censorship bill, plain and simple
By Ben Boychuk
The House of Representatives last week passed House Resolution 1, which Democrats cleverly dubbed the “For the People Act.” Vote against “the people” at your peril, Republicans! Which they did, and rightly so.
As reform measures go, HR 1 is a liberal’s dream, with a laundry list of measures intended to regulate the snot out of political campaigns. It imposes expansive new rules on what campaigns and their allies may say, as well as where, how and to whom they may say it.
Which makes the bill an abomination, constitutionally speaking.
The Constitution, being a document with a bias toward individual freedom, has a way of undermining all manner of wide-eyed and dangerous ideas disguised as “reforms.” The First Amendment says “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble.”
Although that generally comes with some long-recognized caveats and exceptions, HR 1 is an especially brazen attempt to eviscerate the spirit and plain meaning of the text…
The “For the People Act” would regulate any speech, at any time, “that promotes or supports the candidate, or attacks or opposes an opponent of the candidate.”
How is that not unconstitutional on its face?
HR 1 also requires groups to disclose their donors if they engage in speech that merely mentions a candidate in the context of a public policy discussion. How on earth is that in the public interest?
It’s chilling. As the ACLU put it, “Advocacy groups speaking about the issues that matter most to them, like abortion or gun rights, may see no alternative but to steer far clear of the regulated zone to avoid penalties.”
Congress
Washington Post: Democrats urge FBI probe of spa owner offering Trump access
By Mary Clare Jalonick, AP
In a Friday letter to the FBI, Democrats on the House and Senate judiciary and intelligence panels wrote that reports about Li Yang “raise serious counterintelligence concerns.” Yang’s company claimed it could provide Chinese clients with a chance to mingle and take photos with President Donald Trump, along with access to his private club in Palm Beach, Florida.
The Democrats said China has “frequently used non-traditional intelligence collectors and businesspersons to compromise targets” and asked for investigations into potential human trafficking, unlawful lobbying or campaign finance violations.
FEC
Wiley Rein Election Law News: The FEC’s Litigation Dilemma
By Lee E. Goodman
According to a recent article in Mother Jones (“Elections Commission Chief Uses the ‘Nuclear Option’ to Rescue the Agency from Gridlock,” Feb. 20, 2019), FEC Chair Ellen Weintraub has decided to use her vote to block the agency from (1) defending itself in lawsuits challenging dismissals of enforcement matters (at least those dismissals that the Commissioner disagrees with) and (2) conforming its enforcement actions to federal court orders remanding matters to the Commission for further action. So long as the six-member Commission is operating with only four Commissioners, the Chair’s vote amounts to a veto power in these litigation and enforcement decisions which, by law, require four affirmative votes. The Chair exercised this veto power in a recent case. The strategy has important short-term and long-term implications for the agency as well as for complainants and respondents.
Washington Post: Ted Cruz campaign inaccurately reported loans from Goldman Sachs, Citibank, FEC says
By Michelle Ye Hee Lee
The Federal Election Commission has fined the 2012 Senate campaign of Sen. Ted Cruz (R-Tex.) $35,000 for inaccurately reporting the source of more than $1 million in loans that came from Goldman Sachs and Citibank, according to records made public Friday.
Cruz’s campaign committee had reported to the FEC that the candidate loaned himself just over $1 million in “personal funds.” But the funds actually came from Goldman Sachs – his wife’s employer – and Citibank, the FEC concluded, according to a legally binding conciliatory agreement…
The Cruz campaign disclosed the loan accurately in personal financial disclosures filed with the Senate. But campaign committees must file separately with the FEC, reporting where their money came from and where it was spent.
The Cruz campaign has maintained that the reporting inaccuracy was an inadvertent omission…
The Campaign Legal Center and Democracy 21, organizations that advocate for greater regulation of money in politics, filed a complaint against the Cruz campaign after the New York Times reported the discrepancy in a separate article in 2016.
Tara Malloy, senior director of appellate litigation and strategy at the Campaign Legal Center, said Friday that the FEC’s decision underscored the importance of disclosure laws and requirements for candidates to reveal sources of their campaign money to the public…
“The whole point of the disclosure laws is to require full and timely disclosure,” Malloy said. “The point of disclosure is not to allow the candidate to pick and choose what they disclose and when they disclose the sources of financing.”
The Media
USA Today: Trump tweets: ‘Should Federal Election Commission and/or FCC’ look into ‘SNL’?
By Jayme Deerwester
“It’s truly incredible that shows like Saturday Night Live, not funny/no talent, can spend all of their time knocking the same person (me), over & over, without so much of a mention of ‘the other side,’ ” he tweeted Sunday. “Like an advertisement without consequences. Same with Late Night Shows……”
He continued, “Should Federal Election Commission and/or FCC look into this? There must be Collusion with the Democrats and, of course, Russia! Such one sided media coverage, most of it Fake News. Hard to believe I won and am winning. Approval Rating 52%, 93% with Republicans. Sorry!”
Trump first floated the idea of going after “SNL” in February 2017, tweeting that the show was “very unfair and should be looked into.” Later that year, he tweeted a suggestion that conservatives be given equal air time on late-night shows to express their own views…
But can Trump even do what he’s proposing?
“The short answer is no, it wouldn’t really work,” says Lata Nott, the executive director of the First Amendment Center at the Freedom Forum Institute in Washington, noting that the First Amendment trumps the president’s hurt feelings.
“The First Amendment protects us from government censorship or punishment for our speech. Going after a late-night show for making fun of a particular politician would be a clear violation of that,” she explains. “While there is a rule that requires broadcasters to provide equal time to opposing political candidates who request it, that’s about giving all candidates the opportunity to buy airtime.”
The bottom line is this, Nott says: “There’s no legal obligation for a late-night show to have an even ratio of jokes about Democrats and Republicans.”
Furthermore, Nott calls Trump’s repeated threats disturbing, because they indicate “a lack of understanding from him that the First Amendment applies across the board to content that you like and content that you don’t like.”
Corporate Governance
Harvard Law School Forum on Corporate Governance and Financial Regulation: Is it Time for Corporate Political Spending Disclosure?
By Cydney Posner
A new bill that has been introduced in the House, H.R. 1053, would direct the SEC to issue regs to require public companies to disclose political expenditures in their annual reports and on their websites. While the bill’s chances for passage in the House are reasonably good, that is not the case in the Senate. In the absence of legislation, some proponents of political spending disclosure have turned instead to private ordering, often through shareholder proposals. So far, those proposals have rarely won the day, perhaps in large part because of the absence of support from large institutional investors. But that notable absence has recently come in for criticism from an influential jurist, Delaware Chief Justice Leo Strine. Will it make a difference?
The history of efforts to mandate political spending disclosure through rulemaking is one of profound frustration for the proponents. Rulemaking petitions were filed with SEC in 2011 and 2014 to no avail, notwithstanding over a million signatures in support in one case. Some in Congress were so concerned that the SEC would take action on the petitions that specific prohibitions were included as part of Omnibus Spending Bills. But as discussed in this PubCo post, former SEC Chair Mary Jo White was firmly against any such undertaking, contending that the SEC should not get involved in politics, and her successor has not really addressed the issue.
Candidates and Campaigns
New York Times: She Extols Trump, Guns and the Chinese Communist Party Line
By Frances Robles, Michael Forsythe and Alexandra Stevenson
The Republican National Committee promised an “evening reception with Donald J. Trump” last March at his Mar-a-Lago resort in Palm Beach, Fla.
A contribution of $2,700 toward the president’s re-election would get you in the door. Two seats for dinner were on offer for $25,000. And there was a third option: for $50,000, dinner for two and a photo with Mr. Trump.
Cindy Yang was determined to get the photo.
But there was a hurdle. The invitation limited campaign contributions to $5,400 per person, so Ms. Yang, a Chinese immigrant who had set up a string of day spas in Florida and was active in groups backed by the Chinese government and Communist Party, needed others to chip in.
Over the weeks leading up to the event, at least nine people in Ms. Yang’s orbit, some of them with modest incomes, made donations at exactly $5,400. She ended up at the dinner…
One of the $5,400 political donations came from a 25-year-old woman who gives facials at a beauty school, in a strip mall in nearby Palm Beach Gardens that is owned by Ms. Yang’s family. Another $5,400 came from a woman who says she worked as a receptionist at a massage parlor owned by Ms. Yang’s husband. A third gift of $5,400 came from an associate of Ms. Yang’s who had been charged in 2014 after a prostitution sting with practicing health care without a license, police records show.
The receptionist, Bingbing Peranio, listed as a “manager” on her disclosure, spoke with a reporter about her relationship with Ms. Yang…
Asked if Ms. Yang had reimbursed her for the $5,400, Ms. Peranio said, “I do not want to answer that question.” Reimbursing someone for a political contribution or contributing in the name of another person is illegal.
Mother Jones: Head of Asian GOP Group Says He “Wouldn’t Rule Out” Illegal Foreign Donations to Trump
By Frances Robles, Michael Forsythe and Alexandra Stevenson
The head of a national organization of Asian American Republicans said he can’t “rule out” the possibility that Chinese citizens illegally used American straw donors to funnel cash to the Trump campaign at events in which his group participated.
“I always have this concern about compliance,” Cliff Zhonggang Li, the executive director of the National Committee of Asian American Republicans, told Mother Jones in an interview. “I don’t know if they contributed indirectly or not,” he said, referring to Chinese citizens.
Li has been a political mentor to Cindy Yang, 45, the massage parlor entrepreneur who, through a separate company she set up in 2017 with her husband, offered access to President Donald Trump and his family at Mar-a-Lago and in Washington. Li said he introduced Yang to a network of conservative-leaning Chinese Americans in Florida and elsewhere and worked closely with her from 2015 until last year…
Li said he did not know that wrongdoing occurred. And no evidence has emerged that Yang or any attendees or donors to the fundraiser violated campaign finance laws. But Li said that he believed Chinese executives who attended may have lacked green cards or US citizenship, and that he was concerned that some attendees might have funneled illegal donations through American straw donors…
Li said he is a worried the publicity Yang has received will increase the reluctance of Chinese Americans to participate in politics. And he said he wanted stress that any possible violations of campaign finance laws are not the norm in the community he works with.
Donors
Roll Call: Small-dollar donors could hold the balance in 2020
By Kate Ackley
More Americans are donating to candidates, particularly in small-dollar increments…
“It makes people feel empowered,” said Ellen Weintraub, the Democrat who chairs the Federal Election Commission, which regulates federal campaigns. “Even with one dollar, five dollars, they’re literally invested. A lot of people are feeling fed up and that government is not responsive to them, and they’re wanting to take back control of their government.” …
“Small-dollar fundraising is where the far left and far right come together. These are the true believers,” said Michael Toner, a former chairman of the FEC and onetime chief counsel of the Republican National Committee.
Though some political operatives worry that an uptick in small-dollar contributions could lead to further polarization among voters, Toner views it as a positive development.
“The increase in the total number of people making political contributions over the past 10, 15, 20 years has been one of the most positive developments in American politics,” said Toner, a partner in the law firm Wiley Rein. “A lot of these [small] donors are not going to be lobbyists in Washington. They’re not going to be corporate CEOs. They’re entering the system from a different vantage point. I think it’s very healthy.” …
Rick Hasen, a professor of law and political science at the University of California, Irvine and an expert in election and campaign finance law, said small contributions to political campaigns can be “somewhat democratizing.” Still, he said, it’s not the same as public financing, which uses anonymous taxpayer money to help fund campaigns.
The States
Boulder Daily Camera: Jena Griswold: Colorado needs campaign finance reform now
By Colorado Secretary of State Jena Griswold
Right now, in Colorado, a $50 contribution to a candidate is more transparent than a $50,000 contribution to an independent expenditure committee.
Coloradans’ voices are being drowned out by the well-connected, big corporations, and insiders. Massive and secret political spending is one of the biggest reasons that people lose confidence in government. Corporations and special interests should follow the same type of disclosure rules that candidates already do. And, at a time when foreign actors may be funneling money to engage in political activity, we must do more to protect the integrity of our elections and our democracy from bad actors.
It is time for Colorado to act. We need campaign finance reform now. Campaign finance reform is about making sure that everyone plays by the same type of rules; it is about giving voters the facts and making sure everyday people’s voices are heard. We must bring transparency to the millions and millions of dollars used to influence our elections. We can increase disclosure requirements of secret political spending, close coordination loopholes, and enforce the campaign finance laws we have.
As a state, we are already falling behind. States like Montana and Washington have taken action to modernize their campaign finance systems to require greater disclosure…
It is time for our state to pass meaningful campaign finance reform.
Courthouse News Service: NY Says Trump Foundation Misused Charitable Funds
By Josh Russell
Ramping up their criminal case against the Trump Foundation, New York prosecutors said new evidence shows President Donald Trump used foundation money during his 2016 presidential run – a violation of the bar against charities getting involved in political campaigns.
New York Attorney General Letitia James disclosed the evidence in a filing late Thursday in Manhattan Supreme Court, saying Trump urged supporters at his rallies to donate to the Donald J. Trump Foundation, and then gave his campaign total control over the disbursement of the donations, from choosing the recipients to the amounts and timing of the grants.
“This arrangement not only violated New York law, but also ran afoul of federal campaign finance law, turning a charity fundraiser into a campaign fundraiser and campaign rallies into opportunities for the candidate to dole out money the public had donated to a charity,” James wrote in a 19-page brief.
Seeking $2.8 million in restitution, plus $5.6 million in penalties, James said Trump’s charity “broke some of the most basic laws that apply to private foundations.”
