In the News
Republican National Lawyers Association: The Real Effects of Citizens United
By Joshua Anderson
As we reflect on the last decade of Citizens United, it is important to cut through the hysteria of the current political climate and look at the real effects of this case. Former FEC Chairman Bradley A. Smith observed that:
Since Citizens United, party outsiders such as Mr. Trump and Bernie Sanders have risen to national prominence. And money hasn’t been able to buy elections as predicted. . . Hillary Clinton outspent Mr. Trump 3 to 1 in 2016.
Down the ballot, challengers have also greatly benefited from Citizens United, far more than incumbents, as Institute for Free Speech Research Director Scott Blackburn noted:
The five election cycles since Citizens United saw an average of 79 freshmen members of Congress. The five cycles prior to the decision saw just 55.
The much talked about “big corporate” contributions “buying” elections has not proved to be a reality.
Corporate political spending continues to be dwarfed by spending from other traditional sources. In the four cycles since the decision, for-profit corporate political spending has averaged around 1% of spending from all sources.
Supreme Court
Alliance Defending Freedom: Pro-Life Sidewalk Counselors Ask Supreme Court to Protect Their Rights
By Maureen Collins
The First Amendment protects every American’s right to speak freely. But an ordinance in Pittsburgh, Pennsylvania, bans pro-life advocates from speaking-or even praying-within 15 feet of the entrance of any abortion facility.
Not only is this law unconstitutional, it prevents women entering abortion facilities from hearing the helpful aid and alternative options these counselors have to offer. That’s why several sidewalk counselors in Pittsburgh have challenged this law in court since 2014. Today, their fight will continue as they ask the United States Supreme Court to hear their case…
The First Amendment is supposed to protect-in all public places-peaceful one-on-one conversations, the handing out of literature, and simple acts of prayer…
Pittsburgh’s law, passed in 2005, allows government officials to ban leafleting and other free speech around healthcare facilities, including abortion clinics. That sounds innocuous. But when the City enacted the law, the City Council’s chair-who sponsored the ordinance-explained at the official hearing that the real goal was “protecting” women “from unwanted communication,” i.e., sidewalk counselors offering alternatives to abortion.
The Courts
Courthouse News: Federal Judge Rules Wisconsin Governor Can Deny Right Wing Think Tank Press Access
By Joe Kelly
A federal judge Tuesday declined a conservative think tank’s demand that its reporters be allowed to attend Wisconsin Governor Tony Evers’ press events, finding that the Democratic governor has the latitude to deny the think tank access because it is not a bona fide news organization.
Calling itself “the free market voice for Wisconsin,” the John K. MacIver Institute for Public Policy filed suit against Evers in August, alleging that he and his staff targeted it and excluded MacIver News Service reporters from media events while extending invitations to liberal-leaning outlets in violation of MacIver reporters’ free speech and equal protection rights…
U.S. District Court Judge James Peterson, a Barack Obama appointee, denied MacIver’s motion for a preliminary injunction, arguing in a 20-page opinion that MacIver does not technically qualify as a news organization under the governor’s guidelines and that there is no evidence the governor was targeting right wing press such as MacIver for blacklisting…
“MacIver publicly brands itself as a think tank committed to ideological principles,” he wrote. “It engages in policy-driven political advocacy, including advocating for specific initiatives and policy approaches. It has a ‘news’ tab on its website, but it does not maintain a news-gathering organization separate from its overall ideological mission.”
Atlanta Journal-Constitution: Critic of lawmaker Ehrhart files federal suit over Facebook blocks
By Bill Rankin
A critic of state Rep. Ginny Ehrhart has filed a federal lawsuit against her because she blocked him from commenting on her legislative Facebook page.
In the suit, retired communications software executive Thomas Biedermann said his free speech rights and the rights of dozens of others were violated when they were blocked from Ehrhart’s official social media accounts. The lawmaker’s Facebook and Twitter accounts are public forums and should not discriminate against those with contrary views, the lawsuit said.
“Social media, especially in the pandemic, has become the soapbox for free speech,” Gerry Weber, Biedermann’s lawyer, said. “Shut that down, and you silence citizens’ criticism of government officials completely.”
Ehrhart, a Republican from Powder Springs, said her sites have a code of conduct and violations include profanity, obscenity, threats and sexual remarks…
Ehrhart did not say whether Biedermann had violated the code of conduct…
In a statement, Biedermann said freedom of speech should be protected on the social media accounts established by elected officials. He said he commented on Ehrhart’s Facebook page about her transgender surgery bill because he believed “credible, evidence-based science is crucial during the legislative process of open public debate.”
DOJ
New York Times: Problems in F.B.I. Wiretap Applications Go Beyond Trump Aide Surveillance, Review Finds
By Charlie Savage
An inspector general uncovered pervasive problems in the F.B.I.’s preparation of wiretap applications, according to a memo released Tuesday about an audit that grew out of a damning report last year about errors and omissions in applications to target a former Trump campaign adviser during the Russia investigation.
The follow-up audit of unrelated cases by the Justice Department’s independent watchdog, Michael E. Horowitz, revealed a broader pattern of sloppiness by the F.B.I. in seeking permission to use powerful tools to eavesdrop on American soil in national security cases. It comes at a time when Congress is debating new limits on the Foreign Intelligence Surveillance Act, or FISA…
In March, the House passed new curbs on FISA as part of a bill to extend three F.B.I. tools for national security investigations that expired on March 15. For example, the bill would push the FISA court to appoint an outsider to critique the government’s arguments when a wiretap application raises serious issues about First Amendment activity, which could include political campaigns.
Some libertarian-leaning senators of both parties have argued that the House bill falls short and that more new restrictions are necessary. One of them, Senator Ron Wyden, Democrat of Oregon, said on Tuesday that the new findings underscored the need for greater safeguards.
Privacy
Wall Street Journal: Government Tracking How People Move Around in Coronavirus Pandemic
By Byron Tau
Government officials across the U.S. are using location data from millions of cellphones in a bid to better understand the movements of Americans during the coronavirus pandemic and how they may be affecting the spread of the disease.
The federal government, through the Centers for Disease Control and Prevention, and state and local governments have started to receive analyses about the presence and movement of people in certain areas of geographic interest drawn from cellphone data, people familiar with the matter said. The data comes from the mobile advertising industry rather than cellphone carriers…
The data-which is stripped of identifying information like the name of a phone’s owner-could help officials learn how coronavirus is spreading around the country and help blunt its advance…
The growing reliance on mobile phone location data continues to raise concerns about privacy protections, especially when programs are run by or commissioned by governments.
Wolfie Christl, a privacy activist and researcher, said the location-data industry was “covidwashing” what are generally privacy-invading products…
“As true anonymization of location data is nearly impossible, strong legal safeguards are mandatory.” The safeguards should limit how the data can be used and ensure it isn’t used later for other purposes, he said.
Privacy advocates are concerned that even anonymized data could be used in combination with other publicly accessible information to identify and track individuals.
Wall Street Journal: Washington State OKs Facial Recognition Law Seen as National Model
By Ryan Tracy
Washington state adopted a Microsoft Corp.-backed law enshrining the most detailed regulations of facial recognition in the U.S., potentially serving as a model for other states as use of the technology grows.
Gov. Jay Inslee signed the law Tuesday allowing government agencies to use facial recognition, with restrictions designed to ensure it isn’t deployed for broad surveillance or tracking innocent people.
The law makes Washington’s policy stricter than many states that don’t have any laws governing the technology, but more permissive than at least seven U.S. municipalities that have blocked government from using it out of concerns about privacy violations and bias…
There are signs the Washington model is catching on in other states…
Police could use facial recognition for ongoing surveillance or real-time identification of people but they will need a warrant or court order first.
The law also includes checks on the technology. It can’t be used to make significant government decisions without “meaningful human review,” and government employees must be trained on the technology’s limitations.
A company providing it to the government has to allow for independent third-party testing of the system, checking for accuracy or bias.
Free Speech
Electronic Frontier Foundation: Government Needs Critics-Now More Than Ever
By Jason Kelley
In late December, only a few hundred people knew of COVID-19. Now it’s March-just 90 days later-and much of the world has had to learn about and adapt and respond to the deadly disease. Though the highly contagious virus seems impossible to ignore today, it’s in part thanks to whistleblowers and critics around the world sharing warnings and information that some governments responded to the pandemic when they did…
It’s rarely been more important for individuals to be able to speak out and share information with one another online than in this moment. In a crisis-especially under authoritarian regimes, and in the absence of a trustworthy press-free expression is critical for people to engage with one another. Under governments that dismiss or distort scientific data, it may even be life saving.
Online Speech Platforms
Washington Examiner: Google and Twitter ban ads that mention ‘coronavirus’ and ‘COVID-19,’ even helpful ones
By Paul Bedard
Several industries eager to educate the public about and promote their efforts to fight the coronavirus and the COVID-19 disease it causes are being blocked by Twitter and Google.
Both platforms have flatly told companies and trade groups that they will accept no advertising that includes a mention of “coronavirus” or “COVID-19,” a blow to firms trying to direct even helpful advertising to users thirsty for information about how to fight the virus.
Twitter and Google said that the decision to ban [the] ads…came after executives decided that they did not want to appear to be profiting from the crisis.
As a result, only official sources – a government office or official and nongovernmental organizations – will be able to push out promotions and ads that mention the virus.
But three representatives of industries involved in the fight said that they were not attempting to profit but only to tell the public about tools it can use to stay safe. And, they said, using advertising is the only way to field a national campaign.
“They are putting a huge filter around the virus message, one that favors the government,” said one representative…
“There are a great number of good actors within the private sector who want to share useful information or direct how people can help during this unprecedented crisis,” said a Republican strategist…
“No one is going to see their social media posts unless they pay to promote them. It would be helpful if these platforms would get out of the way or figure this out quickly because it’s only hurting these efforts,” added the strategist.
Candidates & Campaigns
New York Times: Biden Faces a Cash Gap With Trump. He Has to Close It Virtually.
By Shane Goldmacher
Joseph R. Biden Jr. is working the phones with top donors while cloistered in his Delaware home. His digital team is searching for the right tone to ask small contributors for cash during the sharpest economic downturn in their lifetimes. And his finance operation is plotting how to keep the checks coming when catered parties for big contributors are on hold – indefinitely.
Top Biden fund-raisers and donors, as well as campaign, super PAC and Democratic Party officials, described urgent efforts to reimagine the ways they raise money during a pandemic and global economic slowdown. And in nearly two dozen interviews, they expressed deepening concern that the downturn could choke off the flow of small online donations as millions of people lose their jobs…
Some top fund-raisers said the notion of thumbing through call lists of friends to raise money for politics during an unprecedented economic and health crisis was tone deaf. Others are simply focused elsewhere right now. They are investors who have seen their portfolios hammered, business owners trying to triage their holdings and take care of their employees, philanthropists with links to cultural institutions at risk of collapse, or even health care systems bracing for the virus’s full impact.
The States
City & State: Cuomo pulls back on proposed donor disclosures for nonprofits
By Kay Dervishi
Last-minute changes to the state budget roll back most of its provisions that would publicize donor information from all charities and other nonprofits, though it still allows their financial reports to be published under certain circumstances.
The latest state budget language also includes new provisions expanding oversight of nonprofits through the Department of State. Certain nonprofits, such as those who have spent more than $10,000 in communication endorsing or opposing legislation, will have to submit annual financial disclosure reports to the state agency. The agency will then examine the relationship between charitable nonprofits and political advocacy organizations, filed as 501(c)(4) tax-exempt nonprofits, who share staff, office space or supplies.
The Department of State will also have the authority to publish the financial reports of these nonprofits online if the contributions given to the political advocacy groups “is inconsistent with (their) charitable purposes,” though they will not divulge the names and addresses of individual donors. The department also will have the authority to decide not to publish the report if the disclosure results in “harm, threats, harassment” to donors. It’s not clear why this authority was entrusted to the Department of State instead of the state Attorney General’s Charities Bureau, which is responsible for nonprofit oversight, or the Joint Commission on Public Ethics, which regulates lobbying.
CalMatters: Watchdog to review rules letting California politicians raise money for charity
By Laurel Rosenhall
California’s political watchdog agency is rethinking state rules allowing elected officials to solicit donations to nonprofits, following a Calmatters investigation into millions of dollars raised by state politicians for charities controlled by them, their relatives or their staff.
The Fair Political Practices Commission has not yet proposed how the rules could change, but it’s making plans to begin gathering input from the public on an update to the regulations and laws that govern what are known as “behested payments.”
Such donations, made to charities at a politician’s request, have become an increasingly common way for California politicians to raise and spend money outside the limits of campaign finance law.
“We have a plan to take a look at this in a thoughtful and comprehensive way,” said commission chairman Richard Miadich. “It is something that is clearly on our radar and something we need to be focused on.”
