In the News
Bloomberg Government: Kill the Zombies? FEC Mulls What to Do About Undead Campaigns
By Ken Doyle
The nonprofit Campaign Legal Center filed a rulemaking petition earlier this year proposing strict limits on what people who are no longer running for office can do with excess campaign cash.
The FEC announced it will begin in July to routinely review campaign committees linked to federal candidates who’ve been out of office for more than one election cycle. If expenditures appear to be for personal use, the FEC said it would follow up with additional questions…
Another nonprofit, the Institute for Free Speech, suggested the FEC use its existing enforcement power to clamp down on questionable spending by dormant campaign committees. “A rulemaking is premature,” said the comment letter from Allen Dickerson, counsel for the Institute.
New from the Institute for Free Speech
FEC Should Avoid Overburdening Online Political Ads
The Institute for Free Speech filed comments Friday with the Federal Election Commission (FEC) in response to the agency’s March 26 announcement proposing revisions to disclaimer regulations as applied to public communications over the Internet. The Institute’s comments remind the FEC not to overstep its authority and urge the Commission to adopt regulations that facilitate robust political and issue advertising online.
“The FEC should resist pressure to regulate the Internet with ill-fitting rules designed for other media. The FEC’s mandate is to enforce the campaign finance laws passed by Congress, and it should use that limited authority to craft clear, speech-friendly rules for Internet ad disclaimers,” said Institute for Free Speech Legal Director Allen Dickerson…
The Institute makes five specific recommendations: “[T]he Institute recommends that (1) the Commission require only the general disclaimers []; (2) explicitly apply the small item and impracticality exemptions to online advertisements; (3) excuse political advertisers from including disclaimers on the face of their communications where the relevant advertising platform will include identifying information, as a matter of course, within one-click of the advertisement; (4) in all cases, excuse full disclaimers in favor of the bare name of the sponsoring organization where the disclaimer would comprise more than 4% of the relevant advertisement, and fully excuse disclaimers where the organization’s name would also exceed that threshold; and (5) in such cases, require a copy of the excused ad to be included as an addendum to the relevant PAC or Independent Expenditure report covering that expenditure.”
By Allen Dickerson and Tyler Martinez
Congress has required disclaimers on a wide variety of core political speech, compelling would-be speakers to truncate their own message in order to convey the government’s preferred information. While there is little reason to believe these disclaimers add much to the national conversation, especially where they require poorly-written scripts that go far beyond identifying the speaker’s identity, these burdens have generally been considered manageable when applied to the paradigmatic big-budget broadcast advertisements Congress clearly envisioned and which the Commission habitually regulates.
But in other cases, Congress has provided-and the Commission has traditionally exercised-discretion to excuse these disclaimers where they overly-burden the speaker’s message while providing little value to the listener. Even in cases where a disclaimer can technically be included (there is no bar to printing disclaimers on a t-shirt or bumper sticker), the Commission has exercised common sense and permitted speakers to proceed without including a disclaimer.
The Internet has upended that consensus. Time and again, the Commission has been unable to agree that online speakers may be excused from including or modifying disclaimers where they are clearly impractical. This state of affairs was troubling enough when such small or brief advertisements were comparatively rare. But online advertisements now constitute a significant share of Americans’ paid political speech. Requiring disclaimers that will, in many cases, consume a substantial portion of a particular advertisement will impose significant burdens on these speakers. This is especially true for poorly-resourced individuals and groups relying on small or brief online advertisements precisely because they are cost effective.
Supreme Court
Wall Street Journal: I’m in Prison for Practicing Politics
By Rod Blagojevich
Did you know that an elected official asking for a campaign contribution is the same as a dirty cop asking a motorist for a cash bribe to tear up a speeding ticket? I never did. Yet that’s what a federal prosecutor told the jury during my second trial on bribery and extortion charges in 2011…
The jury in my case was instructed to infer a quid pro quo even though no favors were offered or exchanged. The prosecutor told the jurors that if they felt I’d had a belief, expectation or hope that I might receive a campaign contribution because of actions I took as governor, they had to convict me. It didn’t matter that no evidence existed that explicit promises had been made…
So today from prison, I am warning all candidates and elected officials to watch out. This new, lesser standard used against me to infer a quid pro quo can now be used against you, too. And the U.S. Supreme Court’s failure to take up this issue means the lesser standard has been accepted as law. The justices’ denial last month of my appeal request is catastrophic for me, and it will in all likelihood prove calamitous to some of you. Politically motivated prosecutors can now interfere with and undo free and fair elections.
The Courts
New York Daily News: Twitter ruling against Trump sends powerful First Amendment message
By Floyd Abrams
The 79-page ruling of federal Judge Naomi Rice Buchwald that President Trump may not block his critics from reading his tweets and responding to them on his webpage is one that could only have been issued against this President.
That has nothing to do with his views and certainly nothing to do with whatever political or social views Judge Buchwald may hold.
It is because he is the first President – the only President – to use Twitter as a means of officially communicating with the American public…
The consequences of the President’s decision to block his critics from direct access to his tweets are not in doubt. In fact, the President and those suing him-the Knight Foundation and others- formally stipulated that as a result of his blocking decision, his critics “cannot view the President’s tweets, directly reply to these tweets” or use his webpage “to view the common threads associated with his tweets.” There is also no doubt that the reason the President has blocked direct access of his critics to his tweets is nothing less than their political views are at odds with his own.
That was the basis for Judge Buchwald’s decision. There are aspects to it that are complex. But the core of the ruling is plain. A President who uses Twitter to pronounce many of his most critical decisions and defend them to the public cannot avoid his critics or deprive them of the chance to respond in the same place and at the same time as do his supporters. Judge Buchwald’s opinion is a powerful one that sends a powerful First Amendment message.
Reason: Is It Really Illegal for Trump to Block People on Twitter Now?
By Declan McCullagh
It’s a somewhat bizarre decision: The plaintiffs, represented by Columbia University’s Knight First Amendment Institute, are complaining about being blocked from following and interacting with Trump’s personal @realDonaldTrump account. They did not allege that the president-or anyone else in his administration-has prevented them from following actual official U.S. government accounts such as @POTUS, @PressSec, or @WhiteHouse.
It seems clear that @realDonaldTrump is a primarily a personal account. He created it eight years before taking office. He now uses it for non-governmental campaign purposes, such as urging people to vote for certain state politicians. He also uses it to complain about witch hunts, John Kerry, fake news, and of course the White House Correspondents’ Dinner-not one of which is an official position of the U.S. government…
The judge’s logic turns the traditional way of viewing the First Amendment on its head: Your right to free speech doesn’t extend to a right to make someone else, even a politician you have good reason to loathe, listen to you…
Another argument against the plaintiffs, which the U.S. Justice Department will surely make on appeal, is that it’s trivial to see @realDonaldTrump’s tweets even if you’re blocked. Simply log out of Twitter. Or use your web browser’s incognito mode. This won’t allow plaintiffs to participate in @realDonaldTrump’s discussion threads, but it will trivially allow them to read what the president is tweeting from his personal account.
Courthouse News Service: Pledge Protester Has Viable Claim Against High School
By Cameron Langford
A Texas mother who withdrew her daughter from high school because teachers harassed her for not standing for the Pledge of Allegiance has a viable free-speech claim, a federal judge ruled…
“The plaintiffs here have pleaded a plausible First Amendment free-speech claim based on Klein Oak’s discipline and harassment of M.O. in retaliation for her expressive conduct. Those allegations also support an equal-protection claim that M.O. was treated more harshly than other students based on her beliefs,” wrote Rosenthal, chief judge of the Southern District of Texas.
FEC
Cato: FEC, Please Don’t Make Social Media Worse Than It Already Is
By Ilya Shapiro and Reilly Stephens
Into the fray now steps the Federal Election Commission, which proposes to define for the first time how election ads on social media and other internet platforms will be regulated under the campaign finance laws. The FEC has put forward a pair of options, one of which would require as a default that online ads ahead to the same strictures as radio, TV, and newspaper ads, with very limited wiggle room to adapt disclaimers to the nature of internet platforms. An alternative proposal would allow more adaptation but still take up as much as 10% of a given ad as a default. Cato has submitted a comment, expressing our view that the FEC should give special weight to the burden on First Amendment rights imposed by excessive disclaimer requirements. As Justice William Brennan (no right-wing extremist) explained, “compelling the publication of detailed … information that would fill far more space than the advertisement itself would chill the publication of protected … speech and would be entirely out of proportion to the State’s legitimate interest in preventing potential deception.”
The proliferation of online media has democratized the marketplace of ideas as quickly as an electron speeds down a wire. Unfortunately, our regulatory state still moves at an analog pace. The FEC should thus tread lightly in imposing strictures that will hamper innovation and clutter our screens with information that does little to actually inform the few who would even take the time to read it. The right of citizens to communicate the message of their choice is at the core of the freedom of speech. Any burden placed on it must intrude as little as possible.
Internet Speech Regulation
ProPublica: What Facebook’s New Political Ad System Misses
By Jeremy B. Merrill, Ariana Tobin, and Madeleine Varner
The most obvious flaw in Facebook’s new system is that it misses ads it should catch. Right now, it’s easy to find political ads that are missing from their archive. Take this one, from the Washington State Democratic Party. Just minutes after Facebook finished announcing its launch of the tool, a participant in ProPublica’s Facebook Political Ad Collector project saw this ad, criticizing Republican congresswoman Cathy McMorris Rodgers… but it wasn’t in the database.
And there are others.
The company acknowledged that the process is still a work in progress, reiterating its request that users pitch in by reporting the political ads that lack disclosures…
The company admits it’s playing a “cat and mouse game” with people trying to pass political ads through their system unnoticed. Just last month, Ohio Democratic gubernatorial candidate Richard Cordray’s campaign ran Facebook ads criticizing his opponent – but from a page called “Ohio Primary Info.” …
Facebook has said it’s looking to flag both electoral ads and those that take a position on its list of twenty “national legislative issues of public importance”. These range from the concrete, like “abortion” and “taxes,” to broad topics like “health” and “values.”
Facebook acknowledges its system will make mistakes and says it will improve over time.
Reason: James Clapper Thinks Americans Are Dumb Enough to Vote for Trump Because of Facebook Ads
By Scott Shackford
In an interview this week with Judy Woodruff on PBS, Clapper makes it very clear how big a bunch of rubes he thinks Americans are. He believes not only that Russian interests attempted to influence the election-obviously true-but that they tipped the outcome.
This unprovable claim is based on the idea that Americans’ votes are easily manipulated. Clapper acknowledges that his former agency has not made such a formal determination, but
“as a private citizen, it’s what I would call my informed opinion that, given the massive effort the Russians made, and the number of citizens that they touched, and the variety and the multidimensional aspects of what they did to influence opinion and affect the election, and given the fact that it turned on less than 80,000 votes in three states, to me, it just exceeds logic and credulity that they didn’t affect the election, and it’s my belief they actually turned it.”
The evidence doesn’t really show that the Russian influence campaign amounted to much. As Reason’s Jacob Sullum has carefully detailed, the Russian social media campaign spending was a drop in the bucket when compared to overall online ad revenue, and the content seemed to focus on affirming preexisting beliefs. If it accomplished anything, it was to heighten already existing points of cultural conflict. It “exceeds logic and credulity” to think that this campaign of affirmation altered the election’s outcome. Especially when you remember that this didn’t happen in a vaccum: At the same time the Russians were buying Facebook ads, countless other groups were spending far more on election messages.
Congress
Illinois Quad Cities Dispatch-Argus: What makes Dems’ deal better?
By Rep. Cheri Bustos (D-IL 17th District)
This is a real plan to toughen and bulletproof our nation’s ethics laws, overhaul our campaign finance system and empower Americans to have their voices heard.
We’ll shut the revolving-door in Washington and curb the over-the-top influence of Washington lobbyists and big-money donors
We’ll fix our broken campaign finance system to combat the influence of big money that prevents hardworking everyday Americans from being heard.
We’ll usher in historic reforms to increase the power of small-dollar donors.
And, we’ll reverse the effects of the Citizens United decision that allows unlimited secret money to influence elections, like the single $25 million check to Speaker Paul Ryan’s Super PAC.
When we commit to a Better Deal for our Democracy, we can put government back on the side of working people again.
Independent Groups
CNN: Dark money tactics used in West Virginia’s primary could spread as midterm season heats up
By David Wright and Gregory Krieg
The play, which experts warn could set a roadmap for other groups seeking to avoid politically damaging disclosures, is actually pretty simple. Both the Mountain Families PAC and the “Duty & Country PAC” switched their FEC reporting schedules in the run-up to the vote, allowing them to delay making public the sources of their millions until after the primary, rendering the new information useless to voters who had cast their ballot nearly two weeks earlier.
“With these kind of campaign finance shenanigans, once the dam breaks, you can expect to see a flood of similar conduct,” said Brendan Fischer of the nonpartisan, nonprofit Campaign Legal Center. “Once one political operative figures out how to get around the law, you see others following suit.” …
The West Virginia tactics are reminiscent of a gambit pulled by Democrats in last year’s Alabama special Senate election. In that race, a Democratic super PAC called Highway 31 was able to avoid revealing its donors until after the results were in by claiming to have done all their spending on credit. They disclosed their donations — ostensibly made to pay off that debt — after the election.
Tax-Financed Campaigns
The Atlantic: Campaign-Finance Reform Can Save the GOP
By Reihan Salam
In a contest with a Democratic Party that commands supermajority support among the country’s affluent big-city professionals, a more blue-collar GOP anchored in the Deep South and the Rust Belt might well find itself consistently outgunned when it comes to raising money…
If it isn’t already the case that populist and nationalist candidates on the right find themselves at a disadvantage with wealthy donors, it will be soon. And that is why they ought to be eager for change…
In 2015, Seattle voters approved a measure that provided all registered voters with a $100 “democracy voucher” they could then use to support local candidates of their choice. Among other things, such a system greatly expands the universe of potential donors, which in turn could influence the agendas and sensibilities of aspiring elected officials. Representative Ro Khanna of California, an iconoclastic Democrat, has proposed a similar system for funding federal campaigns, in which voters would be issued $50 in “democracy dollars.” Under this system, candidates would be more than welcome to raise campaign funds exactly as they do today. But they would have the option to instead enroll in the democracy dollar system, in which case they would be barred from raising hard-money contributions…
Campaign finance reform has no purchase in a Republican Party led by Paul Ryan and McConnell. Once they leave the scene, however, it might strike populists and nationalists as indispensable.
NBC News: This is how to ultimately defeat the NRA
By Adam Eichen
There is little that can be done to limit NRA spending in elections; the Supreme Court has all but forbidden any regulations. We have another option, however: We can raise the financial influence of ordinary Americans to counteract NRA spending through public financing of elections – a Supreme Court-approved policy…
In 2015, Seattle voters approved a first-of-its-kind program that gives every resident four $25 vouchers that can be allocated to eligible municipal candidates. It went into effect for the 2017 election and the number of political donors more than tripled from the 2013 cycle. Many residents who had never given money to campaigns, such as the homeless, gave for the first time and saw their concerns taken seriously by candidates.
Studies have found that candidates in states with full public funding spend less time fundraising and more time talking to their constituents. Public financing also leads to increased diversity among candidates, elected officials, and donors – the latter of which is significant, considering that the current donor pool is overwhelmingly white, wealthy, and male.
Allowing candidates to be financially dependent on their constituents decreases the impact of NRA money and reduces the fear of NRA attack ads. Public financing will also allow more people who care about sensible gun laws to run for office.
Disclosure
The Hill: Companies face many dark perils when it comes to political money
By Bruce Freed and Karl Sandstrom
For years, we have advocated for companies to adopt transparency and accountability for their spending on politics. Scores of companies are disclosing their direct and indirect electoral spending now, an annual independent benchmarking study of the S&P 500 shows, because they understand the perils of secret political money.
These risks include reputational damage, potential for politicians to shake down a company for money, and the chance that a company will lose control over an “outsourced” payment to a trade association or other group that ends up supporting political activity in conflict with corporate values or business objectives, or possibly in illegal activity.
Executives whose companies have adopted this transparency and accountability have told us these actions also help bring thoughtful and deliberative review to political spending. This level of review apparently was lacking when senior AT&T and Novartis officials, whose retirements have been announced, had responsibility for retaining Cohen in 2017.
The States
Baltimore Sun: Maryland to regulate political ads on Facebook after Gov. Hogan lets bill become law
By Erin Cox
Maryland will begin to regulate political ads on Facebook and other social media sites beginning July 1 after Gov. Larry Hogan on Friday allowed a bill to become law despite his reservations that the measure could be found unconstitutional.
Facebook officials have called the law a “national model” and have been urging other states to approve the same measure…
Hogan said he feared the law may not withstand a constitutional challenge, which has been threatened by the Maryland-Delaware-D.C. Press Association.
The press association has said the law’s provision requiring websites to publish databases of political ad purchases violates free speech provisions of the First Amendment because the government cannot force newspapers to print anything…
“I am cognizant that there are opposing views on this issue, but ultimately I cannot sign a piece of legislation that could allow the government to coerce news outlets protected by the First Amendment to publish certain material,” Hogan wrote.
The governor said he was also concerned the law was too vague in regulating online posts that “relate” to a candidate, a provision he said might infringe on constitutionally protected political speech.
The law “casts a very wide net and I am concerned that groups that are simply exercising their constitutional rights of free speech will unsuspectingly be subject to regulation and possible criminal penalties for merely expressing a political opinion,” Hogan wrote. “Should the legislation survive what I expect will be a constitutional challenge on these grounds, I am hopeful that the General Assembly will remedy these deficiencies next session.”
Tampa Bay Times: Publix suspends political contributions amid statewide protests
By Steve Bousquet
Publix, facing consumer boycotts, student protests and threats to its wholesome image for its generous support of Adam Putnam’s bid for governor, announced Friday it is suspending all corporate campaign contributions immediately.
The popular retailer, facing a rapidly escalating public relations crisis fueled largely by social media and the debate over guns, issued a statement at the start of the three-day Memorial Day holiday weekend acknowledging the “divide” that it has caused by its unprecedented financial support of Putnam’s campaign.
“At Publix, we respect the students and members of the community who have chosen to express their voices on these issues,” the company said. “We regret that our contributions have led to a divide in our community. We did not intend to put our associates and the customers they serve in the middle of a political debate. At the same time, we remain committed to maintaining a welcoming shopping experience for our customers. We would never knowingly disappoint our customers or the communities we serve.”
