In the News
Roll Call: Massive voting and ethics bill faces first test in divided Senate
By Kate Ackley
As Democrats fume over Republican-crafted state laws putting new limits on voting, a Senate panel will take up a sweeping bill Tuesday that would try to use the federal government’s power to make voting easier nationwide.
Activists are using multimillion-dollar advertising and grassroots campaigns to push for the bill, applying pressure to some Democrats in the 50-50 Senate. But while the 800-page overhaul of election, campaign finance and ethics laws known as S 1 (HR 1 in the House) is likely to generate lots of heat at the hearing, there is not expected to be much action on changes to the measure in the Senate Rules and Administration Committee.
That’s because a power-sharing agreement reached by leaders of both parties at the start of the Senate term gave the Rules panel nine Democrats and nine Republicans and the committee cannot adopt amendments on a tie vote. As a result, any real action to modify the measure would happen on the Senate floor some time in the future.
“I’m expecting that this will end in a 9-9 vote on reporting it out, and then it will go to the floor,” said Fred Wertheimer, president of the advocacy group Democracy 21 that is pushing for the bill’s passage. He added that Senate Majority Leader Charles E. Schumer has committed to bringing the measure to the floor of the chamber…
David Keating, president of the Institute for Free Speech, which opposes the new campaign finance regulations, said he doesn’t expect any substantive changes to the bill
“I’m sure both sides will have amendments that will make it politically difficult for the other side,” he said.
Just the News: Governments can weaponize First Amendment to silence critics, groups tell SCOTUS
By Greg Piper
Anti-union and free speech groups are urging the Supreme Court to hear a challenge to a ruling in favor of the Pennsylvania School Boards Association (PSBA), whose members are public school districts.
The 3rd U.S. Circuit Court of Appeals found that PSBA sued activist Simon Campbell and Pennsylvanians for Union Reform (PFUR) expressly to make them stop filing embarrassing public records requests and pressuring members to leave the PSBA.
Though it determined the suit was “objectively baseless,” the 3rd Circuit upheld “petitioning immunity” for the PSBA. That means it has First Amendment rights to file lawsuits against individuals using their own First Amendment rights to criticize it.
The case has been pending at the Supreme Court for nearly two months yet has received little attention in legal communities. That may soon change: Erwin Chemerinsky, dean of the University of California-Berkeley Law School, recently joined the petitioners as counsel…
[A 2015 Supreme Court ruling that license plates are government speech] was invoked in a friend-of-the-court brief by the Institute for Free Speech, the only outside party to file in the pending case. It’s represented by prominent D.C. First Amendment lawyer Bob Corn-Revere.
He told Just the News the 3rd Circuit ruling “could have broad implications,” but the judicial doctrine on which it’s based has not been invoked much in situations like this…
“Governments do not have constitutional rights; they exercise powers limited by the Constitution,” the friend-of-the-court brief argues. The license-plate decision confirmed that “once speech is categorized as that of the government, the First Amendment does not apply.”
Public officials making statements pursuant to their duties — such as authorizing a lawsuit against their critics — can actually be constrained by the First Amendment as they exercise government power, the brief says.
“To suggest that government speech is both immune from, yet protected by, the First Amendment is a constitutional non sequitur.”
National Press Foundation: Understanding and Covering Campaign Finance – Part 2
Speaker: David Keating, President, Institute for Free Speech
When it comes to reporting on the influence of money on the political process, the landscape is constantly changing.
Pending voting rights legislation would also usher in major changes in campaign finance laws. The massive For the People Act – H.R. 1 – has gotten a lot of attention in 2021 for the changes it would make to voting and redistricting. But it would also rewrite campaign finance laws. David Keating, president of the Institute for Free Speech, which advocates for fewer regulations on campaign contributions, opposes provisions in H.R. 1, including the one changing the composition of the FEC. Keating said it would give the president’s party control – and with it the ability to go after political enemies. Right now, the FEC has a 50/50 balance.
Money influences politics. Just how much is the question. Keating urged reporters to be more skeptical about the clout of political money. So-called “dark money” is only about 5% of all campaign spending, he said. Big-spending candidates who have recently flamed out include Michael Bloomberg, Jeb Bush and Tom Steyer.
New from the Institute for Free Speech
Jack Dorsey’s Plan to Save the World… Maybe
By Margaux Granath
On March 25, the CEOs of Facebook, Twitter, and Google were subjected to a nearly five-hour hearing before two subcommittees of the U.S. House Energy and Commerce Committee about social media’s role in extremism and misinformation. The results left much to be desired from both members of Congress and representatives of three of the dominant tech platforms. Subcommittee members attempted to pigeonhole Mark Zuckerberg, Jack Dorsey, and Sundar Pichai into answering complex questions about everything from censorship of Christianity to vaccine misinformation on their platforms with a simple yes or no. (This prompted Twitter’s Jack Dorsey to ask his followers “Yes or No” in a poll halfway through the hearing.) Removing the nuance from these delicate and impactful issues does not bode well for the future of social media and free speech online – especially when Congress gets involved.
The Courts
The Hill: ACLU sues Florida over law targeting ballot initiatives
By Jordan Williams
The American Civil Liberties Union (ACLU) of Florida has sued the state over a newly-enacted law targeting ballot initiatives.
The lawsuit in a Tallahassee federal court argues that the law, Senate Bill 1890, “unconstitutionally abridges First Amendment freedoms of speech and associations by limiting contributions to committees sponsoring statewide ballot initiatives.”
The suit comes one day after Florida Gov. Ron DeSantis (R) signed Senate Bill 1890 into law.
The bill limits contributions to political committees that sponsor or oppose ballot initiatives at $3,000, according to its text. The limitation would no longer apply when the Florida secretary of state certifies that enough people have signed on to the measure being sponsored…
“If SB 1890 stands, the ACLU of Florida will not be able to propose and support future initiatives, because such initiatives will not be viable under SB 1890’s contribution limit,” the group wrote.
The ACLU further wrote that the contribution limit “unduly burdens free speech and association” and “unduly burdens Plaintiff’s First Amendment right to associate with others.”
Congress
RealClearPolitics: Here’s How S.1/H.R. 1 Could Silence You
By Sarah Ruger
The fight for marriage equality could have turned out very differently.
Imagine it’s 1989. Congress is about to pass a law forcing nonprofits to disclose their donors. The groups don’t get involved in elections, but they do call on elected officials to support or oppose specific policies — like marriage equality. The politicians who oppose it are the ones pushing this law. They want to see who’s really behind the so-called “radical homosexual agenda.”
Imagine how the advocates of marriage equality feel after the law passes. There aren’t many, but they’re running a nationwide campaign. A courageous few are publicly leading the cause, while many more are supporting it behind the scene, including through nonprofits. They’re quietly making space for others to join a groundswell of support.
They’re afraid. They know that public sentiment isn’t on their side (it will be more than a decade before support reaches even 26%), or at least that people aren’t ready to admit their true views. They know they have a long way to go. And they know they’ll never make it if the political class discloses their identity and puts them on trial in the court of public opinion.
Imagine how fast America turns on these brave people once they’re outed. Politicians on both sides of the aisle go after them. Republicans and Democrats alike denounce them for “undermining morality” or worse. They pressure employers to fire marriage-equality supporters (something that was already a regular practice), while getting their own political allies to pile on with insults and attacks. Violence against the LGBQT community, which was already bad, reaches new and horrible highs.
Imagine how the fight for marriage equality is lost.
National Review: The Democrats’ Threat to Donor Privacy
By Andrew Langer
Imagine a circumstance in the United States in which a $10 donation to someone’s legal-defense fund would prompt a television news crew to show up on your doorstep, with a reporter demanding to know why you gave to that cause. Or imagine a separate circumstance in the U.S., in 2021 no less, in which a $25 donation to that same legal-defense fund would result in your losing your job.
It sounds crazy — especially for a nation that prides itself on holding the principles of free speech, free expression, and freedom of association so sacrosanct that they make up the key tenets of the First Amendment. Yet here we are, in America, in 2021, and both of those scenarios happened in the month of April alone…
Both incidents underscore the enduring importance of donor privacy — and why this Congress’s H.R. 1, and the companion Senate bill, the DISCLOSE Act of 2021, are deeply troubling. In the name of greater “transparency,” both bills would force 501c(4) organizations (which the Left calls “dark money” organizations because of their ability to keep the names of their donors private, while still voicing opinions on public-policy issues) to publicly disclose their donors’ names. It is something that the Left has been after for years, mainly because they know that such disclosure can lead to the very kind of bullying mentioned above.
Bloomberg Government: Trump Campaign Fundraising Tactic Enters Congressional Spotlight
By Kenneth P. Doyle
A leading Democrat plans to introduce legislation to ban the practice of campaigns automatically collecting recurring contributions, following a unanimous recommendation by the Federal Election Commission.
Senate Rules and Administration Committee Chair Amy Klobuchar (D-Minn.) said Thursday she would introduce the measure in response to the election panel’s urging to combat the tactic’s proliferation.
“As we work to reform our campaign finance system, we must ensure that people who can only contribute small amounts are empowered to make their voices heard — but that will only happen if Americans trust that campaigns aren’t taking advantage of them through tactics like pre-checked recurring donation boxes,” Klobuchar said in a Wednesday evening statement, citing the FEC vote.
Klobuchar indicated she’ll introduce a stand-alone bill rather than fold it into a larger elections package the Rules Committee plans to consider Tuesday. That legislation (S. 1) is a Senate version of a measure the House passed by a party-line vote. It faces entrenched Republican opposition.
Bloomberg Government: Tech Targeted on Antitrust, Liability After Facebook’s Trump Ban
By Rebecca Kern
Lawmakers seized on Facebook’s latest political clash this week to renew a push to regulate large technology platforms, brandishing legislative threats to update antitrust statutes and limit a coveted liability shield to curtail the companies’ power.
The Facebook Oversight Board’s decision to uphold the ban on former president Donald Trump spurred Republicans to call for antitrust reform to break up big tech platforms such as Facebook Inc. that they say censor conservative speech, while Democrats pressed for solutions to stop the spread of misinformation and hate speech online.
“The latest decision by Facebook was essentially a Rorschach Test for both parties to see in it what they wanted to see,” said Carl Szabo, vice president and general counsel of tech trade group NetChoice.
The debate over holding technology platforms accountable can be separated into three approaches: breaking up big tech, limiting liability protections granted by Section 230 of the Communications Decency Act, and re-classifying the companies as utilities. Each approach faces its own challenges, above all will be attracting bipartisan support.
FEC
Washington Post: Close this FEC loophole that killed the case over Trump’s payment to Stormy Daniels
By Ellen L. Weintraub
Pretty much all the Stormy Daniels story needed was a murder. This week it got one, when news broke that Republican members had killed the Federal Election Commission’s hush-money case against former president Donald Trump with barely any explanation.
This action reaches beyond the FEC. Under current law, no court can overturn this decision…
So the man who directed and benefited from the hush-money scheme escapes accountability, as do the officials who let him off the hook.
Federal campaign finance law allows those who file FEC complaints to sue when they believe the commission has dismissed their complaint for a reason contrary to law, or if the agency fails to act on their complaint altogether. This serves as a check on the agency, and one that can cut through obstruction to get the law enforced.
But a 2018 decision in CREW v. FEC (CHGO) virtually destroyed the ability of the public — and the federal judiciary — to hold the FEC accountable.
The decision held that if FEC commissioners decline to pursue a complaint citing “prosecutorial discretion,” that cannot be challenged by any court.
This wouldn’t make much sense even if a majority of the commission discarded a complaint with a few throwaway words about discretion. But the rule holds even in this case, where just two of the six commissioners cited prosecutorial discretion.
Fortunately, at least some of this problem can be fixed. Another case, CREW v. FEC (New Models), could help repair the damage.
FCC
Reason (Volokh Conspiracy): Baltimore Prosecutor Asking FCC to Investigate TV Station for Criticizing Her
By Eugene Volokh
Here is the complaint letter, sent to the head of the FCC, signed by the Baltimore City State’s Attorney’s Office Communications Director:
This is a formal complaint requesting an investigation into the broadcasting practices and media content distributed by FCC-licensed station WBFF, a Baltimore City-based Fox News-affiliated network, specifically the content distributed to the public about the Baltimore City State’s Attorney’s Office (SAO), a government entity, and its lead prosecutor, State’s Attorney Marilyn Mosby that upon viewing could reasonably be categorized as blatantly slanted, dishonest, misleading, racist, and extremely dangerous.
Free Speech
The Hill: Free Speech Inc.: The Democratic Party finds a new but shaky faith in corporate free speech
By Jonathan Turley
After Facebook’s oversight board this week upheld the social media giant’s continuing ban of former President Trump, the response of Rep. Ilhan Omar (D-Minn.) captured the visceral joy of many on the left: She posted a series of laughing emojis.
Of course, Democrats insist they are not attacking free speech, just combating “disinformation.” After all, they say, private companies have every right to control speech — unless you are, say, a bakery opposed to preparing a cake for a same-sex wedding, or a company contributing to political causes. The current mantra defending Facebook’s corporate speech rights seems strikingly out of sync with years of Democrats and political activists demanding the curtailment of such rights.
When Masterpiece Cakeshop in Colorado refused on religious grounds to make a cake for a same-sex wedding, Sen. Elizabeth Warren (D-Mass.) denounced the bakery’s claim of free speech: “It was never about a cake — it’s about making sure no one has a license to discriminate against LGBTQ+ Americans.” When the Supreme Court ruled in the Citizens United case that corporations have free speech rights to participate in politics, Warren was appalled. She has long rejected the notion that corporations have the constitutional rights like individuals…
Notably, Warren felt that one company (Masterpiece Cakeshop) can be forced to speak while another corporation (Facebook) should be able to stop others from speaking. When Facebook barred Trump, Warren declared: “I’m glad that Donald Trump is not going to be on Facebook. Suits me.” House Intelligence Committee Chair Adam Schiff (D-Calif.) also celebrated and added: “Facebook must ban him. Which is to say, forever.”
The States
Atlanta Journal-Constitution: Kemp signs bill giving big-money donors more impact on key races
By James Salzer
Without any public notification from his office, Gov. Brian Kemp last week quietly gave his approval to a new law allowing state leaders to set up committees that could raise money during General Assembly sessions while lobbyists are trying to get legislation passed.
Senate Bill 221 — which was pushed by the Republican majority and opposed by Democrats — also allows new committees backing Kemp’s reelection and those of legislative leaders to raise and spend unlimited contributions from donors, essentially circumventing current limits on how much individuals, special interests and businesses can give to candidates.
“There is not going to be any limits on spending. There would not be a contribution limit,” said Rick Thompson, a member of the state ethic commission whose company has set up dozens of campaign committees and political nonprofits for candidates and organizations over the years.
Tampa Bay Times: Did DeSantis violate First Amendment with Fox News-only bill signing?
By Steve Contorno
Florida Gov. Ron DeSantis not only broke from decades of precedent on Thursday when he blocked all news outlets except Fox News from covering the signing of a voting bill into law. He also may have violated the U.S. Constitution.
That’s the opinion of First Amendment experts who told the Tampa Bay Times it is illegal for DeSantis to hand-pick which media can cover a public proceeding.
“The law leaves no question as to the impropriety of banning certain media while allowing only friendly media,” said Pamela Marsh, executive director of the First Amendment Foundation, an organization that advocates for open government and represents news organizations, including the Tampa Bay Times and the Miami Herald. “That is viewpoint and content discrimination.”
Penobscot Bay Pilot: Sen. Maxmin introduces bill to improve PAC finance laws
Senator Chloe Maxmin, D-Nobleboro, introduced a bill this week to improve Maine’s laws regarding spending by political action committees.
LD 1621, “An Act To Reform Payments to Legislators by Political Action Committees,” was the subject of a public hearing before the Legislature’s Committee on Veterans and Legal Affairs…
LD 1621 would make changes to the laws governing payments to a legislator by a political action committee (PAC) if the legislator is a principal officer or treasurer of the PAC or is one of the people primarily responsible for raising contributions or making decisions for the PAC.
