In the News

Journal Inquirer: Connecticut among worst states in free speech index

By Luke Wachob and Alex Baiocco

In a new Free Speech Index on political giving, Connecticut, along with 10 other states, receives an ‘F’ grade.

Connecticut’s limits are so low that individuals can give no more than $250 per election to a candidate for the House of Representatives. The state doesn’t adjust its limits for inflation either, meaning a citizen’s ability to support candidates will continue to decline. And while Connecticut has a program that doles out taxpayer dollars to campaigns in the hopes of bolstering candidates, these programs are easily gamed by savvy political actors and do little to change the makeup of legislatures or Connecticut legislators’ voting behavior.

The problems don’t end there. The state limits individual giving to political committees to $750 per year, and also limits the ability of groups and parties to support candidates.

In all the debate over what can go wrong when people give money to candidates, we rarely consider the benefits. Making a donation to a candidate or group with shared beliefs is one of the simplest and most effective ways for Americans to make their voice heard. These contributions fund campaign spending that raises awareness and interest in elections, especially among those least interested in government.

Contribution limits stand in the way of this process. They hinder candidates trying to spread their message and make it harder for voters to learn about the choices they’ll be asked to make on Election Day.

Perhaps most disappointing of all, they hobble political newcomers trying to shake up the system.

Internet Speech Regulation

Forbes: Google Pulls Washington Election Ads, Says It can’t Comply With New Rules

By Emma Woollacott

Google has pulled all state and local election ads in Washington state, saying its systems can’t cope with new disclosure rules.

The state Public Disclosure Commission recently approved new transparency rules which come into effect today. It requires platforms like Google to release details of political ads including the geographical locations and types of audience being targeted, as well as the number of views the ads receive.

The rules go further than those applying in most states, which only require the advertiser themselves to make this disclosure, without requiring it of platforms too.

And, crucially, Google’s expected to make this information available ‘as of the time when the advertisement or communication has initially received public distribution or broadcast’.

This wording – part of a public disclosure law that was originally enacted 45 years ago – makes sense when it comes to print advertising, but is rather harder to comply with in the case of online ads.

In practice, Google fears, it essentially amounts to a requirement for the real-time reporting of huge amounts of highly detailed data, which the company simply isn’t able to do. 

The Hill: Facebook’s ‘solution’ to political ads – your Social Security number – will bring more trouble

By Shoshana Weissmann and Paul Rosenzweig

To begin, the Social Security number (SSN) is a horribly ineffective way by which to authenticate identity. SSNs are so deeply compromised and so widely available to the public (often through criminal settings) that they can no longer be considered confidential… 

Facebook’s latest security measure also approaches the issue in an overly-broad manner by imposing requirements not just on political pages, but on the pages of news outlets…

But where and how is the line to be drawn? Expecting Facebook to perfect its differentiation of “news” and “not news” to the satisfaction of most – or even many – in an age in which every side shouts “fake news” at the other, and at every news outlet, is ridiculous…

It is nearly impossible for Facebook to draw the line perfectly between bad actors and those who do not misuse its features. This is why the platform applies its changes to all pages – punishing the class for the bad actions of a few students.

Unfortunately, Congress – an institution whose members largely misunderstand how bad actors used Facebook during the election – is putting enormous pressure on the platform to perfect this futile art. This is the same Congress that demands Facebook implement sweeping restrictions while decrying any instance where the speech it favors is caught up in the wide net.

Citizens United

The Nation: Artificial Persons: The Long Road to ‘Citizens United’

By David Cole

[S]hould courts deny the right of association, speech, or a free press to the NAACP, the ACLU, or The New York Times because these institutions are incorporated? It’s simply not evident on its face why the corporate form or the profit motive should be disqualifying with respect to many constitutional rights.

Nor is it wrong to treat a restriction on how much money can be spent on political-campaign speech as akin to a restriction on speech. A law that limited how much a person could spend each year on political magazines, newspapers, or books, for example, would plainly restrict speech rights, even though in form it regulated only money. Campaign-finance laws raise First Amendment concerns because they single out spending on speech of a particular kind-namely, concerning political campaigns. Indeed, given the inherent advantages of incumbency in electoral contests, there is nearly always a danger that restrictions on campaign spending will serve legislators’ self-interest…

The real problem with Citizens United lies not in the Court’s recognition that limiting corporate spending on political speech raises First Amendment concerns, but rather in its overly narrow conception of the permissible justifications for such limits. To say that speech is protected does not mean that it can’t be regulated, but only that the government must have very important reasons for doing so…

The problem with Citizens United is more nuanced: Its failure is not in its protection of corporate rights or its view of money as speech, but in its inability to recognize a broader set of justifications for limiting the distorting effects of concentrated wealth. 

The Courts

Reason: 4 Tips for Politicians With Social Media Accounts Who Don’t Want to Be Sued

By Jacob Sullum

U.S. District Judge Naomi Reice Buchwald’s reasoning is plausible in the context of the Supreme Court’s rulings on designated public forums, which cannot constitutionally exclude people based on their viewpoints. Public officials with social media accounts who don’t want to be sued for violating that rule can glean useful tips from Buchwald’s ruling:

It is still OK to ignore constituents who annoy you…

Keep it personal…

Don’t conduct official business on your “personal” account…

Don’t exclude people whose opinions offend you from a public discussion that is otherwise open to everyone.

Candidates and Campaigns 

CNBC: Campaign cash from long-distance donors floods competitive House primaries

By John W. Schoen

Much of the money so far has come from large contributions from long-distance donors who are hoping to shape the outcome of the midterm election. In this year’s 435 House races, nearly three-quarters of direct contributions larger than $200 so far have come from donors outside the candidate’s district, according to an analysis by the Center for Responsive Politics.

The bulk of that out-of-district money is flowing to a relatively small number of competitive races, including dozens of open seats where incumbents have retired or resigned. Since the current House was elected in November 2016, some 84 of the original members have departed or announced they won’t seek re-election this fall, according to the House press gallery.

A few dozen of those open seats have become prime targets for long-distance donors, both Democrats who are trying to win control of the House in November and Republicans who are trying to maintain their current majority.

The States

Kansas City Star: Missouri House drops effort to get documents from Greitens’ secretive nonprofit

By Jason Hancock

Lawmakers had asked Cole County Circuit Court Judge Jon Beetem to force Greitens’ nonprofit, called A New Missouri Inc., to turn over records they believe might demonstrate efforts to illegally circumvent the state’s campaign disclosure laws…

But on Wednesday, Mark Kempton – a former Pettis County prosecutor hired to serve as special counsel for a House committee that’s been investigating Greitens for months – wrote a letter to Beetem saying that the committee still believes “the requested records are relevant to its charge and should be produced for the committee and all Missourians to see.”

However, Kempton wrote, the committee has decided ask the judge to dismiss its petition to enforce the subpoena.

Kempton’s letter says the committee is “reviewing its options with respect to obtaining the requested records.” …

Gregg Keller is a veteran GOP political consultant and one of Greitens’ fiercest critics. He’s also an outspoken supporter of donors’ rights to anonymity, arguing that disclosure has the potential to chill speech through harassment and intimidation.

Greitens agreeing with him on that point doesn’t make the argument less valid, Keller said…

“Just because Greitens also believed in the constitutional rights of Americans to assembly and free speech,” he said, “in no way negates those essential rights of the people.”

Seattle Times: Google halts political ads in Washington state, citing transparency rules

By Jim Brunner and Christine Clarridge

Google stopped accepting political ads in Washington state on Thursday, just days after state Attorney General Bob Ferguson sued the company, along with Facebook, saying the tech firms are not obeying state law on political-ad transparency.

The company will reject ads related to ballot measures and state and local elections, according to an AdWords policy update posted on Wednesday. Google will send notifications to affected advertisers, it said.

The company said its move was not directly related to the state lawsuit, but cited ad transparency regulations related to a new state law that went into effect Thursday…

HB 2938, which altered a host of campaign-finance reporting requirements and enforcement procedures, was signed into law by Gov. Jay Inslee in March and went into effect Thursday.

In issuing regulations related to that bill, the state Public Disclosure Commission passed an emergency rule that clarified that digital ad companies like Google are subject to state law requiring them to maintain publicly available information about political ads, just like television stations and other media.

Miami Herald: Want to speak at a Miami Beach meeting? For business owners, that could cost $850

By Kyra Gurney

In Miami Beach, telling the City Commission what you think about a proposed law could set you back $850.

That’s because businesses owners who want to speak to public officials are required to register as lobbyists under county law and Miami Beach charges lobbyists a $500 registration fee plus $350 for each issue on which they plan to lobby. Most cities waive lobbying fees for business owners speaking on their own behalf.

While the Miami Beach fees might not be a problem for big businesses and the lobbying firms hired to represent them, the fees recently deterred several mom-and-pop business owners from speaking at a commission meeting…

Proposed legislation, which will likely be discussed at the June 6 commission meeting, would allow business owners and their employees to give testimony to the commission on their own behalf without having to pay.

Commissioner Ricky Arriola, who is sponsoring the legislation, said he sees the elimination of fees as both a free speech issue and a matter of the commission getting the necessary input to make good policy decisions.

“I think it’s bad policy to have a situation where you introduce legislation that affects a business or an industry and then you charge them $500 to come in and speak to you,” he said. “It seems ludicrous.”

“Any business concerned about a particular piece of legislation that’s going to affect them should be able to come in and speak about it,” he added. “We want to hear from these businesses so we can pass good laws, and if we have a registration fee that has a chilling effect on the information we receive, that’s going to lead to bad policy.”

Hartford Courant: The Ins And Outs Of Public Campaign Financing In Connecticut

By Neil Vigdor

The head of the agency in charge of Connecticut’s clean-elections program predicted that a record 300 candidates – from the governor’s race on down to legislative contests – could participate this year.

Michael Brandi, executive director of the State Elections Enforcement Commission (SEEC), said agency staff have been working nights and weekends to handle the deluge of applications…

Brandi predicted the cost for all candidates could reach $33 million, not including overtime for agency staff…

The price tag would have been even higher, but the two top Democratic contenders for governor aren’t participating in the program, election officials say.

The party’s endorsed candidate, Ned Lamont, is mostly self-funding his campaign, while the previously imprisoned Bridgeport Mayor Joe Ganim is not eligible for public funds because of his felony conviction for corruption. The savings is $1.2 million per candidate for the primary and $6 million to the party’s eventual nominee for the general election…

To prevent last-minute qualifiers from going on a spending spree, grant amounts will be reduced by at least 25 percent and as much as 60 percent this year.

“Nobody wants to receive less money,” said Brandi, who attributed the early surge in applications to the provision.

Reason (Volokh Conspiracy): Criminal Libel Laws Are Constitutional If They’re Limited to Deliberate Lies

By Eugene Volokh

There’s one case in the news now, the Robert Frese prosecution in New Hampshire, that involves an alleged libel of a police chief; the criminal complaint says that Frese had written “that Chief Shupe covered up for a dirty cop.” Lots of people are concerned, and understandably so, about prosecutions such as these. But under current law, criminal libel statutes are constitutional.

Just eight months after New York Times Co. v. Sullivan (1964), which sharply limited civil liability, the Supreme Court decided Garrison v. Louisiana (1964), a criminal libel case; and there, the Court concluded that criminal libel statutes (especially ones applicable to libels of public officials on matters of public concern) had to comply with the same rules as civil liability-mainly that the government had to show that the defendant’s statement was (1) false and (2) said with knowledge of the falsehood or reckless disregard of the possibility of falsehood. But though three Justices would have entirely abolished criminal libel prosecutions in such cases, the majority (led by Justice Brennan) did not…

New Hampshire’s criminal libel statute is indeed consistent with New York Times v. Sullivan…

Of course, for a guilty verdict the government would still need to show that the statement was false, that the speaker knew it was false, and that-implicit in the requirement of “false” “information”-the statement was fact and not opinion. In particular, one would need to see the context of the “Chief Shupe covered up for a dirty cop” allegation, to see what in context “covered up” and “dirty cop” meant.

But if these elements are shown, then criminal punishment would be authorized. Whether that’s good policy or not is a story for another post.

NPR Illinois: Money Machines: How Big Donors Dominate Campaign Funding In Illinois

By Mary Hansen

Illinois will host what could be the most expensive race for governor in U.S. history. The huge increase in campaign spending raises a lot of questions about the rise of big money in politics. Between now and the election, Illinois Issues will examine the impact in a series we’re calling Money Machines…

“Does money in politics matter? Well, yeah, it changes the debate. It can for sure have consequences,” said Tom Bowen, who is a Democratic strategist and fundraiser. “But if you’re right with the voters and you tell them that and you find your way to get your message out to them, you’re going to be fine.”

American Prospect: Dark Money and the Downfall of Eric Greitens

By Chisun Lee

At the Brennan Center, we have proposed a practical, constitutional roadmap that state and federal legislators can adopt to keep track of the activities of these groups. For nonprofits like A New Missouri, which are effectively controlled by an officeholder who uses most of the funds raised to promote a specific political agenda, we suggest two key reforms that are well-established components of anti-corruption law.

One is public disclosure of donors and their financial contributions to the nonprofit. The second is contribution limits for donors who have business interests in a state or municipality where the relevant officeholder holds power. Allowing elected officials to accept money from secret donors, including from people with actual business before them, opens the door to conflicted loyalties and corruption that can undermine merit-based governing-and the underpinnings of democracy itself.

As this latest Greitens scandal continues to unravel, the lesson for constituents and legislators alike is clear: “Just trust me” does not work as the guiding principle for officeholder-controlled nonprofits because they are a direct route to official power for a few wealthy donors.