In the News
Committee on House Administration Republicans: Why Disability Rights Organizations, Free Speech Advocates, 135 Non-Profits, & Others Oppose H.R. 1
State election administers, former Federal Election Commission (FEC) members, disability rights and free speech advocates, non-profits, small business advocates, and others write in opposition to H.R. 1, the For the Politicians Act…
H.R. 1 is opposed by the Institute for Free Speech: “On behalf of the Institute for Free Speech, I write to express serious concerns about the devastating effect H.R. 1 would have on Americans’ freedom of speech and assembly rights. Labeling this bill the “For the People Act” is Orwellian. In reality, H.R. 1 would subsidize the speech of politicians while suppressing the speech of the people. Significant portions of the bill would violate the privacy of advocacy groups and their supporters – including those groups who do nothing more than speak about policy issues before Congress or federal judicial nominees – limit political speech on the Internet, and compel speakers to recite lengthy government-mandated messages in their communications instead of their own speech.”
CLICK HERE to read their full letter.
Former FEC commissioners oppose H.R. 1 because it weaponizes the commission by altering the current bipartisan makeup stating, in part, “We write out of deep concern for the threat that the self-styled “For the People Act” (H.R. 1 and S. 1 in the current Congress, hereinafter the “FPA”) poses to the long-standing bipartisan structure of the Federal Election Commission (“FEC”)-a concern based on our many years of experience as commissioners of the FEC…
CLICK HERE to read their full letter.
Perlman & Perlman LLP: Schedule B Disclosure Cases Head to the Supreme Court – Is Donor Privacy Threatened?
By Seth Perlman
In 2010, the California Registry of Charitable Trusts began issuing deficiency letters to charities demanding that they submit their Schedule B as part of their annual registration renewal. The Registry sent about eight thousand Schedule B deficiency letters to various charities, creating a de facto requirement that the tens of thousands of charities registered in California must annually submit Schedule B to the State in order to renew their registrations. California assured the charities that the confidential donor information contained in Schedule B would remain confidential and would not be publicly disclosed. Despite such assurances, litigation brought by the Center for Competitive Politics (now the Institute for Free Speech), Americans for Prosperity Foundation and the Thomas More Law Center uncovered at least 1,778 Schedule Bs that the Registry had posted online. In one notable instance involving a well-known controversial cause, the Registry posted the Schedule B for Planned Parenthood Affiliates of California, Inc. which included the names and addresses of hundreds of large donors.
Supreme Court
Philanthropy Roundtable: The Supreme Court’s Chance to Rule for Donor Privacy
By Elizabeth McGuigan
This week, The Philanthropy Roundtable filed an amicus brief with the U.S. Supreme Court in the case Americans for Prosperity Foundation v. Becerra. Drafted by the legal team at firm Morgan, Lewis & Bockius LLP, the brief supports Americans for Prosperity Foundation and the Thomas More Law Center in their consolidated fight against California’s unconstitutional demand for nonprofit donor names, addresses and contribution amounts…
The Supreme Court has the opportunity to confirm once again the right of Americans to choose how and where to spend their charitable dollars. Donor privacy is essential to a vibrant civil society, and unwarranted state incursions into private charitable giving will chill the exercise of First Amendment freedoms which ensure that donors may give to any philanthropic causes without fear of harassment and retaliation.
Congress
Office of Senator Mitch McConnell: Why are D.C. Democrats Desperate to Rewrite Election Law Before Voters Next Decide Their Fates?
U.S. Senate Republican Leader Mitch McConnell (R-KY) delivered the following remarks today on the Senate floor regarding H.R.1:
“Yesterday evening, House Democrats re-passed their plan to give Washington D.C. unprecedented power over the way our nation conducts elections…
“Democrats are also coming after Americans’ free speech.
“The Federal Election Commission was set up after Watergate to be a bipartisan panel by design. The FEC intentionally needs bipartisan consensus to throw a penalty flag.
“Washington Democrats want to scrap that. Their bill would convert the FEC into an odd-numbered, partisan body. And this partisan FEC would get even greater scope to nose around in even more of Americans’ speech and activities.
“The bill also tramples on citizens’ privacy with new mandates that would intensify ‘cancel culture’ and help mobs harass people for their private views.
“Even the left-wing ACLU condemns this part of H.R. 1. Quote: ‘it could directly interfere with the ability of many to engage in political speech about causes that they care about and that impact their lives.’ End quote.
“That’s right: House Democrats have swung so far to the anti-free-speech left, they’ve even lost the ACLU.
By Marisa Schultz
Democratic Rep. Bennie Thompson, of Mississippi, joined with all Republicans late Wednesday to vote against the House Democrats’ top legislative priority…
Thompson’s vote was surprising since he was a co-sponsor of [H.R. 1] along with the rest of the Democratic caucus. But Thompson said Thursday his constituents weren’t supportive of the election overhaul, so he stood with them rather than his colleagues.
“My constituents opposed the redistricting portion of the bill as well as the section on public finances,” Thompson said in a statement to Fox News. “I always listen and vote in the interest of my constituents.”
The legislation requires states to establish independent redistricting commissions to carry out the once-a-decade redrawing of congressional districts in an effort to avoid partisan gerrymandering. The bill also establishes a new public financing system for congressional and presidential elections to incentivize small-dollar donations.
The legislation would create a 6:1 match for each grassroots contribution to a candidate up to $200. For example, a $200 donation to a House candidate would garner a $1,200 match in public funds for a total contribution of $1,400.
The public match program would be funded by a new 4.75% surcharge on criminal and civil penalties and settlements that corporations pay to the U.S. government. The nonpartisan Congressional Budget Office estimated this week the new revenue stream would generate about $3.2 billion over 10 years.
Reason: Government, Not Big Tech, Is the Biggest Threat to Free Speech
By Eric Peterson
[H.R. 1] tackles a host of questions involving campaign finance, political speech, and online speech, and its effects would all but silence citizens’ abilities to speak about and criticize politicians and their policies. In fact, the 40 pages of the bill borrowed from the “Honest Ads Act” would censor more online political speech than anything those working in Big Tech have dreamed up.
Among the host of new requirements contained in the legislation is government-compelled speech on paid political content or content created by paid employees. Essentially, traditional online ads, or even memes, would require lengthy text disclosing what organization created the ad. These disclosures would have to include the sponsor’s name and give a means for the viewer to find the sponsor’s street address, telephone number, and website URL, and say that the ad is not authorized by any candidate or candidate’s committee.
Imagine seeing a policy-related meme with a large government-mandated disclaimer slapped on it, wrecking your view.
These requirements would not just apply to graphic formats but to audio and video content as well.
Reason: Democrats Demand Social Media Users Talking Politics Disclose Certain Foreign Connections
By Elizabeth Nolan Brown
The lingering effects of “Russian influence” hysteria are still being felt. While Facebook is ending a ban on political advertising that was enacted amid moral panic about overseas influence in U.S. elections, Democrats in Congress are still pushing regulations and restrictions based on the idea that simply seeing foreign people’s speech about U.S. issues and elections is bad for feeble-minded Americans and dangerous to our democracy…
On Wednesday, the House passed a measure to require all politics-related social media posts from “an agent of a foreign principal” to bear a disclaimer saying as much.
The Foreign Agent Disclaimer Enhancement (FADE) Act of 2021, introduced by Rep. Abigail Spanberger (D-Va.), passed the House yesterday as part of a larger voting rights and election-related bill called the For the People Act…
Enforcing the new disclosure requirement would require a huge investment in federal law enforcement apparatuses to monitor and investigate social media platforms.
Meanwhile, the potential for preventing or chilling all sorts of perfectly benign political speech would be huge, as would the potential for abuse by whatever party or administration is in power.
Washington Post: House Democrats pass sweeping elections bill as GOP legislatures push to restrict voting
By Mike DeBonis
Republicans sought to highlight and attack various provisions of the bill, with a particular focus on the public campaign financing provision that would provide a 6-to-1 federal match for small-dollar donations raised by congressional candidates.
Democrats argued the bill would reduce the influence of wealthy donors. Although they were careful to construct the system to be funded out of corporate-fine revenue – not out of direct taxpayer funds – that did not stop the GOP attacks.
Rep. Rodney Davis (Ill.), the top Republican on the House Administration Committee, argued that Democrats were “laundering” corporate money that under existing campaign finance law cannot fund federal political campaigns. And, he said, the corporate-fine revenue would be better spent filling the federal crime victims compensation fund, which is where federal fines and penalties are typically deposited.
“All 50 state attorney generals have told us that this vital Crime Victims Fund is nearly depleted, but instead of plussing it up, here we are today funding our own campaigns,” he said.
National Taxpayers Union Foundation: Filling in Scoring Gaps on H.R. 1: 2021 Edition
By Demian Brady
The House [rushed] to a vote on H.R. 1, the For the People Act of 2021, without waiting for a complete cost estimate from the Congressional Budget Office (CBO). The report CBO published last week showed that the bill would increase spending by $2.2 billion over ten years while increasing a mix of fines and tax revenues by $3.2 billion. But that estimate only examined the direct spending and revenue provisions included in the proposal. There is at least $5.4 billion in additional spending just through FY 2026 that would add to the net deficit impact of H.R. 1.
SEC
Wall Street Journal: The Culture Wars Are Coming to the SEC
By The Editorial Board
At Tuesday’s confirmation hearing, Sen. Pat Toomey pressed Gary Gensler on the scope of the SEC’s authority to regulate politics…Mr. Gensler seemed to reserve the right to impose such politicized disclosure requirements, even when the information is “financially insignificant.”
Mr. Toomey asked about political contributions, with the example of Apple using a tiny fraction of its revenue for political advocacy. Is that the business of the SEC? Mr. Gensler said yes-“last year’s proxy season I think shares with us that many investors, well over 40% of investors in those proxy votes, actually think that would be material to get such information.”
Mr. Gensler’s standard suggests that if a large number of activist investors want to know certain information for political reasons-even if the information has no bearing on a firm’s balance sheet or business risks-then the SEC may compel firms to disclose it.
Online Speech Platforms
New York Times: Facebook Ends Ban on Political Advertising
By Mike Isaac
Facebook said on Wednesday that it planned to lift its ban on political advertising across its network…
Attitudes around how political advertising should be treated across Facebook are decidedly mixed. Politicians who are not well known often can raise their profile and awareness of their campaigns by using Facebook.
“Political ads are not bad things in and of themselves,” said Siva Vaidhyanathan, a media studies professor and the author of a book studying Facebook’s effects on democracy. “They perform an essential service, in the act of directly representing the candidate’s concerns or positions.”
He added, “When you ban all campaign ads on the most accessible and affordable platform out there, you tilt the balance toward the candidates who can afford radio and television.” …
“The ad ban was something that Facebook did to appease the public for the misinformation that spread across the platform,” said Eileen Pollet, a digital campaign strategist and founder of Ravenna Strategies. “But it really ended up hurting good actors while bad actors had total free rein. And now, especially since the election is over, the ban had really been hurting nonprofits and local organizations.”
Washington Post: New Duke paper calls Washington to increase transparency around online political ads
By Cat Zakrzewski
[A] new Duke University paper published today says a persistent lack of transparency in online political ads is preventing researchers from studying how that changed campaign spending, or impacted individual campaigns…
Duke researchers want Washington to change rules so that political organizations have to report how advertising agencies are spending on their behalf. Currently political campaigns have to disclose that they paid an agency or consulting firm, and researchers can’t see how those firms are spending the money.
This makes it challenging for researchers to tell whether [social media platforms’ recent political] ad bans were effective – and how they impacted political discourse. “There’s so much PR and regulatory risk that platforms are closing off political advertisers in ways that potentially have a negative effect on political speech,” said Matt Perault, a co-author of the report and former director of public policy at Facebook.
Perault said the goal of the report is to “shed some light on a set of solutions that the government and platforms could consider that would address some of the challenges but facilitate the good of political advertising.” …
The report also calls on the Federal Election Commission to ensure that there’s greater standardization and specificity in how campaigns report their online ad spending, and for the agency to release these disclosures in a more timely fashion so they can be studied more effectively by researchers…
In addition to changing regulations at the Federal Election Commission, Brennen and Perault call for Congress to pass an updated version of the Honest Ads Act…
Protocol: The most engaging political news on Facebook? Far-right misinformation.
By Issie Lapowsky
In the months before and after the 2020 election, far-right pages that are known to spread misinformation consistently garnered more engagement on Facebook than any other partisan news, according to a New York University study published Wednesday.
The States
Lincoln Journal Star: Nebraska lawmakers spar over bill targeting ‘dark money’ in politics
By Paul Hammel, Omaha World-Herald
A state senator expressed frustration Thursday about why a legislative committee has refused to advance a bill concerning transparency of “dark money” expenditures on political campaigns.
“I want to know what you guys are scared of, why you can’t put this out on the floor,” state Sen. Carol Blood of Bellevue told the Government, Military and Veterans Affairs Committee…
The senator is sponsoring a proposal that would require independent groups that send campaign-related mailers or buy advertisements within 30 days of an election to report who they are, how much they’ve spent and in what campaigns they’ve spent money. It also would require reporting of anyone who has contributed more than $250 to such electioneering…
But two senators on the committee expressed skepticism about the bill.
Sen. John Lowe of Kearney said that entities could just form new “shell corporations” to hide their involvement. Sen. Steve Halloran of Hastings questioned whether LB8 would put any dent in negative and dirty campaigning and doubted that people would look up the information if it was made available.
The ACLU of Nebraska also opposed the bill, saying it would infringe on free speech rights by, among other things, allowing fines if a group didn’t report its expenditures within 48 hours, as required by the bill…
Blood said that at least 21 other states have reporting requirements for independent expenditures, including Colorado, Missouri and South Dakota…
Blood said she wasn’t pushing for a debate on LB8 this year, but she will next year.
Gothamist: Is NYC’s Expensive Campaign Finance Program Worth The Cost?
By Cindy Rodriguez
New York City’s Campaign Finance Board recently doled out $37 million in matching funds to candidates running for public office, the highest in the CFB’s history. Their 8-to-1 matching program is supposed to level the playing field and encourage campaigns to rely on small donors instead of big money and special interests. But in two different special elections in Queens, several candidates received tens of thousands of dollars in public financing and only a few hundred votes, leaving some to question whether, during a financial crisis, city taxpayer money should be spent differently.
“I’m concerned that we are wasting a tremendous amount of public funds for people to have vanity projects,” said Patrick Jenkins, a political consultant and District Leader in Queens.
He pointed to the race for a city council seat in a district that includes Fresh Meadows, Briarwood and Jamaica Estates where one candidate, Mujib Rahman, received $131,320 in matching funds but only 192 votes, less than 3% of all ballots.
Tampa Bay Times: Gov. DeSantis’ unconstitutional attack on social media
By Ben Sperry and R.J. Lehmann
DeSantis’ Transparency in Technology Act, which has support from House Speaker Chris Sprowls, R-Palm Harbor, and Senate President Wilton Simpson, R-Trilby, proposes fines of up to $100,000 a day for sites that “de-platform” candidates for office…
The effort would not be the first time that the state has tried to tell media companies what sort of political speech they must carry. But there’s every reason to believe this one would end exactly like a prior one did: by being struck down by the U.S. Supreme Court…
In the 1974 decision Miami Herald Publishing Co. v. Tornillo, the court upheld the newspaper’s First Amendment right to editorial discretion, whether that discretion be over the choice of material, limits on length and content, or how “fairly” they chose to treat public issues and public officials. None of these matters, the court unanimously found, may be regulated by the government without violating the First Amendment…
There is no obligation for [tech companies] to carry speech they don’t wish to carry, which is why DeSantis’ proposal is certain to be struck down.
Arc Digital: The New War on Woke
By Jeffrey Sachs
“Unlawful propagation of divisive concepts.” That’s the subheading of a bill now under debate in New Hampshire. If passed, it would prohibit public school teachers, professors, or state contractors from endorsing certain ideas the legislators think are harmful.
What’s a divisive concept? Well, suppose a college wants to bring in a paid speaker who says America is fundamentally racist. Banned. Or perhaps you’re a law professor who believes that race-based affirmative action is a good policy. Banned as well. Maybe you want to teach that society confers a special status or privilege on white people, or even that a particular white person has privilege because of his or her race. Controversial? Of course. But legal? Not if the bill’s sponsors have their way…
Similar bills are being debated in West Virginia and Oklahoma. Meanwhile in Georgia, a GOP representative has ordered every public college and university to prepare a list identifying which courses are teaching students about concepts like “privilege” and “oppression.” Faculty there say it’s already having a chilling effect.
