The Courts
North Jersey Record: NJ ‘dark money’ law faces first lawsuit challenging requirement to name secret donors
By Ashley Balcerzak and Andrew Ford
A libertarian advocacy nonprofit filed a federal lawsuit Tuesday challenging New Jersey’s newly signed “dark money” law that requires political groups to reveal their big-spending funders, legislation Gov. Phil Murphy signed despite earlier vetoing the bill and calling it “unconstitutional.”
Americans for Prosperity, a group founded by megadonor brothers David and Charles Koch, asked a federal judge for the U.S. District Court of New Jersey to prevent New Jersey officials from enforcing the law until the suit is decided and to declare the law unconstitutional.
“All Americans should be free under the First Amendment to choose how to share their beliefs,” Americans for Prosperity said in a statement. “This legislation could erode those foundational freedoms – making it harder for people to engage on the issues they’re passionate about, exposing them to potential retaliation, and, in doing so, insulating politicians from critique.” …
Americans for Prosperity says the law goes too far, beyond typical campaign finance rules that cover only election-related ads. New Jersey will now also make groups report funders for ads on ballot measures, legislation and policy-making, which grassroots groups say will prevent people from donating to them…
[E]ven good-government groups have expressed concern about how far New Jersey’s law reaches.
“In elections, voters need to know donors so they decide who to vote for and what interests are behind candidates, so they can hold them accountable for spending money on their behalf,” said Ian Vandewalker, counsel for the nonpartisan, nonprofit Brennan Center for Justice, which researches elections and voting rights issues. “But elections are special, and in the lobbying context, where nonprofits might be grassroots members getting together to appeal to the government for a specific policy, the same considerations don’t apply.”
The liberal American Civil Liberties Union has also threatened a legal challenge to the law if a cleanup bill is not passed.
Congress
The Hill: Tech giants pressed in House hearing on policing extremist content
By Emily Birnbaum
Representatives from Twitter, Google and Facebook on Wednesday said they are making efforts to invest more in technology and trained professionals who can deal with bad actors on their platforms.
But members of the House Homeland Security Committee pushed back on those claims, accusing the platforms of failing to take the issue seriously.
“They’re going to have to do more,” panel Chairman Bennie Thompson (D-Miss.) told reporters after the hearing…
But the hearing veered off track as the hours ticked on, with lawmakers raising concerns about a range of questionable content, including anti-vaccine misinformation and “deep fakes,” or videos that have been altered to make it appear that people are saying things they never said. Most Republicans on the committee brought up concerns that the companies are biased against conservatives, a claim that the representatives flatly denied.
And the conversation returned multiple times to the issue of freedom of speech and whether the companies should censor voices on their platforms.
During an exchange about anti-vaccine misinformation on Instagram, Facebook told lawmakers it has been working with top medical organizations to surface “authoritative” content about vaccines rather than remove the anti-vax content entirely.
“Years ago, required reading I had was the book ‘1984,’” Rep. Debbie Lesko (R-Ariz.) said in response. “And this committee hearing is scaring the heck out of me.”
“If somebody googles vaccines, the answer was, ‘Oh, we’re going to put over what the person is actually looking, for what we think is best,'” Lesko said. “Who are the people judging what’s best, what’s accurate? This is really scary stuff and really goes to the heart of our First Amendment rights.”
After the hearing, Thompson told reporters that he is unsure if the committee will pursue any legislative action, but said it’s an option if the tech giants continue to refuse to cooperate.
Reason: Incensed by Warrantless Border Searches of Americans’ Tech Devices? These Senators Have the Cure.
By Scott Shackford
Journalist Seth Harp shared a troubling story of warrantless border patrol searches of Americans coming into the country in a lengthy piece at The Intercept over the weekend…
For years now border agents have been demanding that Americans-including journalists-provide unfettered access to their devices and property without warrants or probable cause. Under President Barack Obama, for instance, there was a fivefold increase in warrantless border searches of tech devices….
This was a learning experience for Harp, but not for those who have long been warning about such unwarranted searches. The Electronic Frontier Foundation and the American Civil Liberties Union, for example, are currently suing over the practice, representing 10 U.S. citizens and one permanent resident.
Among those in Congress who have been raising alarms about this behavior are Sens. Rand Paul (R-Ky.) and Ron Wyden (D-Ore.), two men who regularly attempt to develop bipartisan coalitions to bolster Americans’ Fourth Amendment rights.
Wyden is using Harp’s story to highlight a bill that he and Paul have been trying to pass that would protect people like Harp, and the rest of us, too. The Protecting Data at the Border Act would require a warrant, based on probable cause, before a government official may access an American’s tech device at a border entry point and would forbid officials from denying Americans reentry to the country if they refuse to provide passwords or online account information. The legislation would also prevent border officials from holding Americans for more than four hours to try to convince them to cooperate.
Wyden first introduced this bill back in April 2017, and it went absolutely nowhere. He and Paul recently reintroduced the bill in May, along with co-sponsors Edward Markey (D-Mass.) and Jeff Merkley (D-Ore.). In the House of Representatives, Rep. Ted Lieu (D-Calif.) introduced a companion bill.
Broadcasting & Cable: New Bill Would Try to Take Foreign Money Out of Politics
By John Eggerton
A pair of powerful senators have introduced the Preventing Adversaries Internationally from Disbursing Advertising Dollars (PAID AD) Act.
The bill, backed by Sens. Amy Klobuchar (D-Minn.), ranking member of the committee overseeing elections, and Mark Warner (D-Va.), vice chairman of the Intelligence Committee, would amend federal election law to “prevent foreign nationals from purchasing broadcast, cable, satellite, or digital communications naming a candidate for office at any point in time, and prevents foreign governments and foreign lobbyists from buying issue ads.”
The Federal Election Campaign Act (FECA) already prohibits a foreign national from buying electioneering communications, the senators conceded, but they said the definition of “electioneering” is too lose and creates a loophole – one their bill would close.
Reps. Elissa Slotkin (D-Mich.) and Elise Stefanik (R-N.Y.) have introduced companion legislation in the House.
Reason: Ted Cruz Wants To Punish Google Because Execs Didn’t Vote for Trump
By Elizabeth Nolan Brown
Sen. Ted Cruz (R-Texas) has joined conservative counterparts like freshman Sen. Josh Hawley (R-Mo.) in threatening action against “Big Tech.” Unlike Democratic counterparts, who at least pretend their impulses are based on concern for concrete issues, Cruz and company seem to have no problem revealing the self-serving, corrupt, authoritarian nature of their proposals.
Hawley’s whole thing has been pushing social media regulation and free speech crackdowns based on his belief that a few big online companies have shown bias toward ordinary conservative users. Cruz is taking a less populist route, harping on how much money tech executives donated to Democrats versus Republicans and whether any of them voted for Dear Leader.
In a congressional hearing [Tuesday], Cruz grilled a Google executive on whether any of her colleagues had voted for Trump and whether any of them had donated to Trump’s 2016 presidential campaign. As a lot of folks have pointed out, this smacks of some super-corrupt and fascistic operating…
Meanwhile, Sen. Mark Warner (D-Va.)-whom you might remember from his absolutely insane leaked internet proposal last summer-and Hawley have teamed up on a weird, unworkable, ignorant-of-reality scheme to make tech companies tell every individual user what their personal data “is worth.”
Sen. John Thune (R-S.D.) wants to micromanage how search engines and web platforms display content, requiring them to offer algorithm-free experiences.
And Hawaii Democrat Sen. Brian Schatz suggested companies should face “legal and financial responsibility” when Washington doesn’t like the algorithms they use.
Online Speech Platforms
Washington Post: Twitter adds labels for tweets that break its rules – a move with potentially stark implications for Trump’s account
By Elizabeth Dwoskin and Tony Romm
Twitter has long said it is unlikely to take down politicians’ most vitriolic tweets – including President Trump’s – but it now plans to label them if they break its rules.
The new label applies to all verified political candidates and government officials with more than 100,000 followers, Twitter said Thursday. Before users can view the language in newly flagged tweets, they will need to click on a screen that says, “The Twitter Rules about abusive behavior apply to this Tweet. However, Twitter has determined it may be in the public’s interest for the Tweet to remain available.”
The company also said it will set up a special team tasked with enforcing the policy, and the notification label would appear only on rare occasions.
Twitter said it would deprioritize the labeled tweets in the company’s algorithms and search bar so that they would circulate to fewer people. The policy will go into effect immediately and will not apply to other influencers and leaders. It’s not retroactive…
[T]he new labeling policy comes amid persistent allegations from Republicans that leading technology platforms, most headquartered in liberal Silicon Valley, are unfairly silencing conservative voices online. The partisan battle is also playing out as a broader debate about how and when tech giants should be mediating free speech…
Because of its role in distributing news in real time, Twitter has been a staunch defender of the free speech rights of public officials. But during the past year, Dorsey has talked extensively about rethinking the company’s values with a different approach to the harm caused by certain tweets.
CNN: Mark Zuckerberg talks privacy and regulation
Facebook wants some help making hard calls. CEO Mark Zuckerberg rehashed his position on government regulation at the Aspen Ideas Festival on Wednesday. As the company has grown in size and spread around the world, it has had to make complicated decisions about balancing free speech and human dignity, or what rules to enforce around election advertising, Zuckerberg said.
He said Facebook is already doing everything laid out in the Honest Ads Act – which he called a “good floor” – but that he’d like those rules applied across the internet. He also mentioned the recent abortion referendum in Ireland, and how pro-life American groups targeted ads to Irish citizens. Ireland didn’t have a law on the books forbidding the practice, and said it was up to Facebook. “Overall the laws around election advertising are very out of date,” he said. He also called for more regulation around privacy and data portability.
Candidates and Campaigns
New York Times: How Mueller Can ‘Fix His Mistakes’
By Jed Handelsman Shugerman
After the president’s cavalier comments, Ellen Weintraub, chairwoman of the F.E.C., tried to bring some clarity to the issue…”It is illegal for any person to solicit, accept, or receive anything of value from a foreign national in connection with a U.S. election.”
The problem is that she didn’t clarify anything. What is “anything of value”? Any meeting with a foreign citizen? Any meeting about an opponent? Or if she was she talking only about opposition research, what counts as that versus protected speech?
No one knows. That’s why it’s urgent that Congress and the F.E.C. clarify the law to deter even more flagrant violations in 2020, while also saving the regulations from their own vagueness. Leaving the statute and regulations ambiguous on foreign meetings invites the Supreme Court to strike them down….
The law must provide clearer guidance. Campaigns must be able to meet with foreigners, even to discuss facts – yes, even “dirt” – about opponents. If a Russian source with evidence about Mr. Trump had met with a Clinton campaign official instead of with Christopher Steele, should that have been criminal? …
In reviewing the precedents, Mr. Mueller could have concluded narrowly – and rightly – that the Trump Tower meeting by itself rightly was not a prohibited “thing of value” and did not appear to be “opposition research.” However, when he later discussed “opposition research,” he should have clarified that even if such a category is hard to define, many kinds of research clearly cross the line.
Instead, he puzzlingly made a giant leap to imply that most opposition research – even by foreign governments – might be covered by the First Amendment. He conflated a valid point with an invalid point: The language of “anything of value” is indeed vague and arguably creates a chilling effect, and it should be applied carefully. Merely sharing readily available information must be protected speech. Nevertheless, information that is clearly “opposition research” as a significant spending of time and resources to oppose and to benefit candidates is not constitutionally protected, because the government has a compelling interest in limiting such corruption.
American Prospect: How’s This for a Radical Campaign-Finance Proposal? Follow the Existing Rules.
By Eliza Newlin Carney
While the party’s primary candidates have scrambled to outdo one another in “purity” pledges, from rejecting corporate PAC money to returning lobbyists’ donations, such promises are largely symbolic. Only a fraction of campaign receipts come from corporate PACs, and that money is fully disclosed and subject to strict limits in any case. As for lobbyists, so many operate outside the disclosure rules that any “ban” contains a giant loophole.
The bigger money-and the bigger threat to democracy-comes from ill-regulated, billionaire-backed groups like super PACs, secretive nonprofits, and candidate-party joint fundraising committees that skirt the contribution limits. Democratic presidential hopefuls have paid lip service to rejecting such players, but cash-flush progressive groups have already announced plans to spend tens of millions to defeat Trump, and no one expects the Federal Election Commission to lift a finger to enforce the rules…
The Democrat who solves progressives’ big-money paradox will need three things. One, a compelling message that taps voters’ anger over corruption as effectively as Trump did-however duplicitously-in 2016. Two, a robust policy platform that tackles the biggest actual threats to our system, including foreign money, secret spending, and unlimited contributions.
Three, a plan to follow both the spirit and the letter of the law. Given how thoroughly the FEC has abdicated its oversight role, this would be a surprisingly radical step. It would mean no wink-and-nod coordination between candidates and super PACs. It would mean no shadowy foundations and nonprofits that “educate” voters about policy issues while sucking up massive, undisclosed corporate donations. It would mean no joint fundraising committees that do an end-run around the contribution limits. And it would mean a lot more than many of the gimmicky purity tests now popular among Democrats.
Trump Administration
Washington Post: Trump signals U.S. government ‘should be suing Google and Facebook’
By Tony Romm
President Trump on Wednesday said the U.S. government “should be suing Google and Facebook and all that,” then wagered that “perhaps we will,” in a new broadside against Silicon Valley at a moment when it already faces heightened antitrust scrutiny in Washington…
In doing so, Trump also swiped at Google, claiming the search and advertising giant is “trying to rig the election.” He then claimed that Twitter has made it “very hard” for users to find and follow him. But Trump did not provide new evidence for his latest allegation that the companies exhibit bias against conservatives, which Google and Twitter long have vehemently denied.
“You may need legislation in order to create competition,” Trump said in response to a question about how his administration might proceed.
In response, Google spokeswoman Julie Tarallo said the company seeks “to be a trustworthy source of information for everyone, without any regard for political viewpoint.” …
This time, Trump’s comments came in response to a video posted online by Project Veritas, an organization founded by James O’Keefe that targets reporters and people it deems to be left-leaning. The video purported to show Google employees discussing politics in a way that suggested they specifically targeted conservatives…
Following Trump’s comments Wednesday, the White House announced it planned to convene “digital leaders” for a meeting on July 11, which spokesman Judd Deere described as a “robust conversation on the opportunities and challenges of today’s online environment.”
