In the News
Wall Street Journal: Stormy Weather for Campaign-Finance Laws
By Bradley A. Smith
Not everything that might benefit a candidate is a campaign expense.
Campaign-finance law aims to prevent corruption. For this reason, the FEC has a longstanding ban on “personal use” of campaign funds. Such use would give campaign contributions a material value beyond helping to elect the candidate-the essence of a bribe.
FEC regulations explain that the campaign cannot pay expenses that would exist “irrespective” of the campaign, even if it might help win election. At the same time, obligations that would not exist “but for” the campaign must be paid from campaign funds.
If paying hush money is a campaign expense, a candidate would be required to make that payment with campaign funds. How ironic, given that using campaign funds as hush money was one of the articles of impeachment in the Watergate scandal, which gave rise to modern campaign-finance law.
When the FEC adopted these regulations, it specifically rejected a rule under which campaign contributions could fund an expenditure “related to” a candidacy. The FEC was concerned that would make it too easy for candidates to use campaign funds for personal benefit.
The Hill: Supreme Court can reinforce free speech with Rod Blagojevich case
By David Keating and Thomas Wheatley
[F]ederal courts around the country are interpreting two Supreme Court decisions differently…
When Supreme Court Justice Sonia Sotomayor was a Second Circuit appeals court judge, she explained how to resolve the high court rulings. Proof of an express promise isn’t necessary when the payment goes in the pocket of the official, such as cash or a gift.
But if a campaign contribution is made, the First Amendment demands a higher standard of an explicit promise. That’s common sense, but the judge in the Blagojevich trial failed to give the jury such instructions. Using a lower standard for criminal prosecutions for campaign contributions would deter many from donating or running for office. It would enable more politically-motivated criminal prosecutions that interfere with election campaigns.
In 2014, the Supreme Court said that the “First Amendment safeguards an individual’s right to participate in the public debate through political expression and political association. When an individual contributes money to a candidate, he exercises both of those rights.”
In that context, it makes sense to provide additional protections for campaign contributions. Not distinguishing the two gives politically-motivated prosecutors too much leeway, and could subject even small donors to criminal liability.
Internet Speech Regulation
TechCrunch: Twitter endorses the Honest Ads Act, a bill promoting political ad transparency
By Taylor Hatmaker
In a series of tweets from its public policy account, Twitter just announced its decision to back the Honest Ads Act, a piece of legislation introduced last year as a response to mounting evidence that Russia leveraged domestic social media platforms in an attempt to influence U.S. politics during the 2016 presidential election…
After initially avoiding a commitment to the bill, Facebook’s Mark Zuckerberg endorsed the proposal last Friday. “Election interference is a problem that’s bigger than any one platform, and that’s why we support the Honest Ads Act,” Zuckerberg wrote in a Facebook post addressing foreign election influence campaigns. “This will help raise the bar for all political advertising online.”
As the Cambridge Analytica scandal broke, the bill’s supporters saw an opportunity to apply pressure to the generally regulation-averse social media platforms, and that strategy appears to be paying off…
Warner called Twitter’s decision a “huge step forward” for the Honest Ads Act, adding that he hoped it would encourage Google to follow suit in supporting the bill’s mission to “bring accountability and transparency to online political ads.”
CBS News: Sen. Amy Klobuchar on Facebook hearing: “Not an end but a beginning”
By Emily Tillett
She said that Zuckerberg also agreed to comply with the Honest Ads Act, a bipartisan bill that would make online advertisers disclose who paid for ads, just as TV and radio advertisers do.
“They’re going to start putting out all their ads they get, political ads, post them with disclaimers — that’s a major change. But all of this we have to see what happens and if they actually do all this,” said Klobuchar.
As for Zuckerberg’s claim that his site is not a media company, Klobuchar said she doesn’t “buy that at all.”
“I think they are a media company, they make tons of money, billions of dollars in ads, just like you run ads on your commercial breaks, just like radio shows run ads, they are a media company,” she noted.
By Robby Soave
On Tuesday, the Senate Judiciary and Commerce, Science, and Transportation committees grilled Facebook CEO Mark Zuckerberg about the company’s insufficient efforts to protect users’ personal data.
In doing so, many of the senators betrayed a general lack of knowledge about how Facebook operates. Imagine trying to explain social media to your grandparents-this was essentially Zuckerberg’s task…
Throughout the hearing, Zuckerberg maintained that he wasn’t against regulation, “if it’s the right regulation.” However, he expressed concern that regulations aimed at preventing Facebook from functioning as a monopoly might backfire and simply make it more difficult for smaller firms to compete.
But senators on both sides of the political aisle were clear about their concerns-and more than willing to step in.
“If Facebook and other online companies will not or cannot fix their privacy invasions, then we are going to have to,” said Sen. Bill Nelson (D-Fla.). “We, the Congress.”
What Nelson and his colleagues largely failed to do was demonstrate that “we, the Congress” possess the requisite knowledge to regulate Facebook, or that those regulations would improve upon the policies Facebook would like to implement on its own. Ignorance breeds bad policy: consider the terrible Fight Online Sex Trafficking Act (FOSTA), passed by “we the Congress” recently, which has already dealt serious blows to free expression on the internet.
CNN: The biggest Black Lives Matter page on Facebook is fake
By Donie O’Sullivan
For at least a year, the biggest page on Facebook purporting to be part of the Black Lives Matter movement was a scam with ties to a middle-aged white man in Australia, a review of the page and associated accounts and websites conducted by CNN shows.
The page, titled simply “Black Lives Matter,” had almost 700,000 followers on Facebook, more than twice as many as the official Black Lives Matter page. It was tied to online fundraisers that brought in at least $100,000 that supposedly went to Black Lives Matter causes in the U.S. At least some of the money, however, was transferred to Australian bank accounts, CNN has learned.
Fundraising campaigns associated with the Facebook page were suspended by PayPal and Patreon after CNN contacted each of the companies for comment. Donorbox and Classy had already removed the campaigns…
Patrisse Cullors, a co-founder of the Black Lives Matter movement, told CNN that Black Lives Matter had, suspecting the page was a scam, contacted Facebook about removing it a few months ago…
She said fake fundraisers diminish the real work the movement does. “We rely on donors who believe in our work and our cause and that money will be used in a way that is respectful,” Cullors said.
“It’s important to remember the movement was organic and no organizations started the protests that spread across the country,” DeRay Mckesson, a prominent black activist, told CNN.
Congress
Tampa Bay Times: A bipartisan bill should end “zombie campaign” cash
By Editorial Board
Rep. Gus Bilirakis, R-Palm Harbor, and Rep. Kathy Castor, D-Tampa, are co-sponsoring the Honest Elections and Campaign, No Gain Act. The measure requires departing lawmakers to close their campaign accounts within two years, and it bans payments to family members once they leave office.
The bill is in response to a Tampa Bay Times/10News WTSP investigation in January that found about 100 so-called “zombie campaigns” – accounts left open by former politicians that were used to finance their lifestyles, advance their careers and pay family members…
Under the bill, the clock on the two-year period to wind down the campaign would begin the day after the qualifying deadline for the next election. That offers plenty of time for campaigns to settle any legitimate outstanding debts. Ex-lawmakers would be required to close campaign accounts before becoming lobbyists. As with current law, any unspent donations could be refunded to donors or given to charities or political parties. But the measure would bar candidates from transferring money into their own political action committees, which is allowed under current regulations.
FEC
Washington Free Beacon: Former FEC Chair Calls for Government Agency to Collect Social Media
By Joe Schoffstall
Ravel made the suggestions in a recent Atlantic essay titled “How the Government Could Fix Facebook” …
Under a section titled “Police Political Advertising” within the piece, the former chair told the publication that the definition of ‘election advertising’ should be expanded to help detect new disinformation campaigns that may not be found under the current definition. This could be established if the FEC were to create a “multifaceted test” to help determine if certain additional communications should fall under the category of election-related materials, Ravel said.
Ravel added that if the definition were to be expanded, a new government enforcement agency could be created to help the tech companies find questionable communications, which would also help the FEC.
“For instance, communications could be examined for their intent, and whether they were paid for in a nontraditional way-such as through an automated bot network,” The Atlantic writes of Ravel’s idea.
The agency could mirror that of the Financial Crimes Enforcement Network, which falls under the Treasury Department and tracks financial activities flagged by large institutions, Ravel said…
“The platforms could turn over lots of communications and the investigative agency could then examine them to determine if they are from prohibited sources,” Ravel told The Atlantic.
The States
Dallas News: Judge grants temporary injunction against McKinney electioneering ordinance
By Nanette Light
A state district judge has ruled in favor of a temporary injunction blocking a controversial McKinney ordinance governing electioneering.
A trial date has been set for May 14 to determine whether or not the injunction will become permanent.
According to the ruling, the city “has not demonstrated a compelling governmental interest justifying the enforcement” of the ordinance…
State law requires that campaign workers stay 100 feet away from a polling location.
But McKinney’s ordinance – unanimously approved last October – creates designated areas beyond that 100-foot zone where people can post or pass out political information outside some polling places. According to the ordinance, it “protects the health, safety and welfare of the citizens.” …
Attorney Joseph Nixon, who represents the campaign workers, has called McKinney’s law “the most unconstitutional ordinance I think any city’s ever passed.” He said the designated areas by the city prevent interaction with voters and unconstitutionally prohibit free speech.
Crain’s Business New York: Solid-blue New York could have business owners seeing red
By Will Bredderman
Stewart-Cousins has repeatedly sponsored the Fair Elections Act, which would lower fundraising caps and create a public-financing system for state campaigns similar to New York City’s. This is the holy grail for activists who say deep-pocketed campaign donors wield too much influence over state affairs. But polls show it is a low priority for voters, and when contributions begin pouring in to newly empowered Democrats, they may be disinclined to turn off that spigot and open one that allows insurgent candidates to receive public funds.
But the real estate industry might still see its contributing power curtailed because both factions of Senate Democrats have called for closing the LLC loophole, by which limited liability companies can donate as much to a campaign as an individual can. The provision allows a landlord or developer who controls multiple LLCs to give many times over, buying enormous influence in Albany.
Another Democratic bill would obligate corporations to seek shareholder approval for any political spending, but its prospects are uncertain.
Chicago Tribune: Conservative Illinois publications blur lines between journalism, politics
By Joe Mahr
Recently obtained documents and interviews show that an organization called Think Freely Media helped fund the operation that produced the article for the East Central Reporter’s website. As a nonprofit, Think Freely is forbidden by federal law from engaging in politics, and it has described the articles it funded as news.
But State Board of Elections records also show a political committee, Liberty Principles, paid the same private company to publish the story in a print newspaper and mail it. That group, which state law says must spend its money on politicking, has labeled such content political ads…
“She stated that the newspapers are in fact electioneering communications, as they expressly advocate for or against candidates even though the articles primarily don’t contain language saying ‘vote for, elect or vote against,'” an elections board hearing officer recounted in a May 2016 report. “She believes on the face of the articles it is clear that they are expressly advocating for particular candidates.” …
Timpone said the articles that appeared in the newspapers had already been published online with funding from Think Freely Media and were not political. The money from the political committee, Timpone told the Tribune, covered the cost of producing and mailing actual newspapers, which carried the same names as the websites funded by the nonprofit.
