The Courts

RealClearPolicy: A Chink in Big Tech’s Armor

By Adam Candeub and Rachel Bovard

Late last week, the 5th Circuit Court of Appeals proved a common sense but rarely actionable premise: the Big Tech companies, despite their claims to the contrary, do not have a divine right to rule in America. The laws — and the democratically elected lawmakers who write them – get first consideration…

The platforms are arguing what they always do: We’re special, so the laws that apply to other companies of a similar nature do not apply to us. But the 5th Circuit wasn’t buying it. The judges attacked the claim that Big Tech companies are not the public square – noting that the tech companies have claimed the mantle in testimony before Congress, and that the Supreme Court has also agreed with the characterization.

Congress

Roll Call: At the Races

By Stephanie Akin, Kate Ackley, and Mary Ellen McIntire

New commish: Senate Majority Leader Charles E. Schumer filed cloture on Dara Lindenbaum’s nomination to the Federal Election Commission, teeing up a final vote potentially on Tuesday. She would replace Steven T. Walther, who has been serving on an expired term.

Fox News: Democrats weaponize government when they don’t get their way

By Colin Reed

Never one to miss a political opportunity, the aforementioned Senator Whitehouse recently convened a hearing to rail against another bogey man of the left – so-called “dark money.” It’s a favorite topic for the Rhode Island Senator, notwithstanding the hypocrisy of dark money that benefits causes simpatico to him and other liberals.  

Naturally, Whitehouse’s solution involves a combination of more government and a further empowerment of the IRS, which should be a terrifying thought, given their track record. His real goal is exposing and harassing those who wish to exercise a right that the Supreme Court has deemed constitutionally protected.

[Ed. note: IFS founder and former FEC Chair Bradley A. Smith testified at the Senate Finance Committee Subcommittee on Taxation and IRS Oversight hearing. Read his testimony here.]

Free Expression

Knight Institute: Rereading the First Amendment

By Evelyn Douek and Genevieve Lakier

In this series of blog posts, we aim to complicate the false assumptions that underlie so much of the conversation about the First Amendment in contemporary social media debates. As we will show, the First Amendment is a mess of contradictions and ambiguities. Again and again, First Amendment precedents are invoked as standing for clear and sweeping rules. They become memes representing abstract principles that, as they get repeated, become increasingly divorced from the context in which they were formulated. But in fact, reading these iconic cases more closely—as we will in the series of posts that follow—shows the contingencies and complexities of their holdings…

Even if the cases were clear, the First Amendment has never been fixed. Indeed, the true story of the First Amendment is one of constant change and evolution…

The task ahead, therefore, is not simply to try to match old rules to new problems. Instead, it is to recognize the essentially ambiguous and contingent nature of First Amendment law (like all law), and to figure out which among the possible First Amendment futures will best safeguard democratic self-government, and whatever other values we think the First Amendment should protect. 

Reason (Volokh Conspiracy): Bryan Caplan on “Misinformation About Misinformation”

By Ilya Somin

Economist Bryan Caplan is one of the world’s leading experts on political ignorance and irrationality, author of the much-cited book, The Myth of the Rational Voter. In that work, he argues that misinformed voters are likely to be far worse than ones that are merely ignorant. Caplan takes the problem of political misinformation very seriously. But, in a recent post at his new substack blog, “Bet on It,” he explains that the root of the problem is often misunderstood. The real danger is not the spread of misinformation by politicians and other unscrupulous elites, but the willingness of irrational voters to believe it:

Online Speech Platforms

Washington Post (Technology 202): Elon Musk wants to save the ‘public square.’ Tech veterans have a reality-check for him.

By Cristiano Lima

Elon Musk says he wants to help rescue the digital “public space” by overhauling Twitter.

But in a new open letter to the tech mogul, a group of veteran social media safety professionals warn Musk that doing so will take a lot more work than offering generic pledges to uphold “free speech.” 

In a missive shared exclusively with The Technology 202, members of the newly formed Integrity Institute nonprofit organization told Musk that to achieve his goals, he will need to think a lot more deeply about how to actually implement those plans and to make thorny calls around harmful content that industry leaders have grappled with for years. And it won’t be as easy as granting everyone a digital podium. 

Washington Post: The midterms are here. Critics say Facebook is already behind.

By Naomi Nix

Facebook has not yet released a new public policy strategy for the November midterms to refresh and update its rules and tools to protect the elections, something it traditionally touts. And former employees, some of whom spoke on the condition of anonymity to discuss sensitive matters, said they worry that the social media company is already lagging far behind where it needs to be to prevent the spread of misinformation from hurting voters’ understanding and behavior in the primaries and general election…

Last week, more than 120 civil rights and advocacy groups pushed the CEOs of social media platforms including Facebook, Google’s YouTube, Twitter, TikTok and Snapchat to take more aggressive actions to curb election-related disinformation in the first national election day since the Jan. 6 insurrection…

One question facing Facebook for the midterms is whether to repeat a political advertisement blackout in the final days before the election. That was a new tactic introduced in 2020 aimed at preventing last-minute surprises during the campaign.

Candidates and Campaigns

Vanity Fair: Summer Lee, Declaring Victory In Pennsylvania, Puts Dark Money Democrats On Notice

By Abigail Tracy

Around seven weeks before Pennsylvania’s primary elections, Summer Lee commanded a lead of 25 points over rival Steve Irwin in the race for Pennsylvania’s 12th District, a blue stronghold encompassing Pittsburgh and its surrounding suburbs. It appeared that Lee, 34, a Black woman and progressive activist who currently serves as a Pennsylvania state representative, would make history. Then came the outside money. By election day, Democratic groups had dumped more than $2 million into the primary race to defeat Lee—dwarfing the outside money spent attacking Irwin, a mere $2,400…

Lee supporters knew her race would be a close one. “It took an unexpected turn,” Hannah Fertig, the independent expenditure manager for Justice Democrats, which endorsed Lee, told me Tuesday. “It’s pretty despicable…. As progressives, we are usually running at a monetary disadvantage. This race is no exception. Even though Summer has a broad coalition, we’ve really been having to deal with that surge of money from a group that didn’t exist a few months ago.” All said, nearly $4.8 million was poured into the race—a staggering figure for a primary…

But Lee backers are hailing her results as evidence that sometimes money isn’t everything.

Independent Groups

OpenSecrets: Dark money gets darker with less disclosure in the 2022 election

By Anna Massoglia

Overall, 501(c) groups poured more than $820 million into influencing 2020 federal elections — most of that from groups that do not disclose their donors…

One concern some have raised is that these dark money groups provide a vehicle for foreign interests to quietly influence U.S. elections.

At a Senate Judiciary Finance Subcommittee on Taxation and IRS Oversight hearing on “Laws and Enforcement Governing Political Activities of Tax Exempt Entities” on May 4, Sen. Sheldon Whitehouse (D-R.I.) emphasized the “concern of foreign money trying to influence our elections.”

“There’s a really big risk of foreign money. I saw it at the Federal Election Commission,” former FEC commissioner Ann Ravel told Whitehouse at the hearing, adding “the failure to have better disclosure in this situation is really significant.” …

Despite the risk, a 2020 report from the Government Accountability Office revealed that the IRS doesn’t check nonprofit tax records for signs of illegal foreign money in U.S. elections. The finding was used to justify a policy change under the former President Donald Trump’s administration that now enables 501(c) nonprofits — including politically active dark money groups – to no longer report donor names or addresses to the tax agency unless they are requested under court order or as part of an examination.

The Guardian:  Trump claims immigrants are voting illegally. The real problem is foreign fat cats funding US campaigns

By Robert Reich

If the identity of the speaker doesn’t matter and more speech is always better, what’s to stop foreign spending on US elections?…

The growing problem centers on three realities:

First, foreign investors now own a whopping 40% of the shares of American corporations. That’s up from just 5% in 1982.

Second, American corporations are spending hundreds of millions of dollars to influence elections – counting their separate corporate political action committees or personal donations by executives and employees. Much of this spending is through dark money channels that opened after the Citizens United decision.

Third, by law, corporate directors and managers are accountable to their shareholders, including foreign shareholders – not to America…

What to do about this? The Center for American Progress has a sensible proposal: it recommends that no US corporation with 5% or more of its stock under foreign ownership or 1% or more controlled by a single foreign owner be allowed to spend money to sway the outcomes of US elections or ballot measures.

Politico: Why Is Congress Broken? Because the Other Branches Are Doing Its Job

By Sarah Isgur

For those who believe that Citizens United undermined our campaign finance laws, Congress could change current law to make super PACs obsolete. The fact that Congress can’t get any of those changes passed is a political problem, not a legal one.

The States

ABC 7 Chicago: Fuel retailers sue over requirement to post about gas tax freeze, saying it compels political speech

By John O’Connor, AP

Illinois fuel retailers argued in a lawsuit filed Thursday that a requirement to post signs alerting consumers about a six-month freeze in the state motor-fuel tax unconstitutionally compels them to promote Gov. J.B. Pritzker’s reelection campaign.

The Illinois Fuel & Retail Association and two large fuel distributors filed the lawsuit in Sangamon County Circuit Court against the Illinois Department of Revenue, its director, David Harris, and others.

At issue is a sign retailers must post on each fuel pump beginning July 1 as a result of the General Assembly and Pritzker freezing the motor fuel tax from its scheduled automatic inflation adjustment of about 2.2 cents per gallon. Originally proposed for a year, the law ends the freeze after six months.

A sign no smaller than 4 inches by 8 inches must report this and add, “The price on this pump should reflect the suspension of the tax increase.”

Anchorage Daily News: A last-minute deal to restore Alaska’s campaign finance limits fell through. Here’s how.

By Nathaniel Herz

A last-minute deal in the state Legislature to restore donation limits to Alaska’s political campaigns collapsed Wednesday, allowing wealthy donors to spend unlimited sums on state elections this year as good government advocates contemplate a citizens initiative to reimpose the caps…

Alaska had some of the lowest political donation limits in the country — $500 per person, per year — until last summer, when a federal appeals court ruled that the caps unconstitutionally restricted free speech.

Republican Gov. Mike Dunleavy’s administration asked that the case not be reconsidered even when a judge called for a new hearing. And the governor later said he’s inclined to support unlimited donations, as long as they’re publicly disclosed.

One key opponent of campaign finance limits said Thursday he was pleased lawmakers didn’t restore caps this year. The result, he argued, is that more donations will go from donors directly to politicians, rather than to independently spending groups that are unaffiliated with candidates.

“I think the consequence will be that we’ll have a system that’s more responsive to the voters, and more transparent,” said attorney Robin Brena, whose firm represented the conservative activists who sued to remove the donation limits. “And I think those are good for our democracy.” …

But the new landscape for Alaska campaign contributions may not be permanent.

Many lawmakers still support reimposing higher limits than the ones the appeals court invalidated, making the subject likely to reappear during the next legislative session.