Event
Liberty and Law Center: Emerging Issues in Free Speech: with Nadine Strossen and Eugene Volokh
Please join us for a conversation with two renowned First Amendment experts, Eugene Volokh (“The Volokh Conspiracy”) and Nadine Strossen (former president of the ACLU), who will discuss the future of free speech in the United States. The conversation will be moderated by Bradley A. Smith, founder and Chairman of the Institute for Free Speech, and former Chairman of the FEC. The conversation will be immediately followed by a reception to celebrate the launch of Scalia Law’s Free Speech Clinic.
Date: Wednesday, November 14
Time: 4:00 PM – 6:45 PM EST
Location: Antonin Scalia Law School
Register to attend here.
Congress
Roll Call: Democrats Win House Majority; Here’s What They’ll Do With It
By Lindsey McPherson
The central piece of the government overhaul package, which Democratic Leader Nancy Pelosi has been touting as a potential HR 1, is changing campaign finance laws designed to reduce the influence of money in politics…
Democrats already have several bills ready that could be quickly put into a government overhaul package. Those include the Government by the People Act, a campaign finance overhaul measure designed to incentivize small donations; the DISCLOSE Act…
The Senate, which will remain in Republican control, is unlikely to take up the full package, but there are perhaps a few items the two parties could negotiate compromises on, especially if President Donald Trump gets behind them. But more likely than not, the package will become Democratic messaging fodder heading into the 2020 election.
Supreme Court
Reason (Volokh Conspiracy): Is a Privacy Violation an “Injury”?
By Will Baude
Last week, the Supreme Court heard oral argument in an interesting and important class action case, Frank v. Gaos, about when lawyers can agree to settle a case on behalf of a class action by giving all of the money to a charity instead of the class. Today, however, the Supreme Court called for supplemental briefing on a different question — whether the named plaintiffs have suffered an “injury” sufficient to create standing under the Court’s doctrine. That question may prove to be even trickier.
The plaintiffs in Gaos complain that Google has unlawfully turned over information about their search histories. Before the Supreme Court’s decision in Spokeo v. Robins, some circuits, including the Ninth Circuit, had concluded that any violation of an individual statutory right was enough for standing. As the cases said, “Congress may enact statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute.” In Spokeo, the Court concluded that that formulation was incomplete, and that the right must also be “concrete” though it could nonetheless be “intangible.”
During the Frank oral argument, some justices became concerned that the plaintiffs in Gaos might not have standing, because they may have alleged little more than the illegal disclosure of their private search histories. While the justices batted around the possibility of a remand, the request for supplemental briefing suggests that the Court will decide the standing issue on its own.
Doing so, however, will require the Court to decide a somewhat tricky question about the nature of standing in privacy cases. Is the disclosure of previously private information itself a concrete injury? Or must the plaintiff allege that somebody else used that information against them in a particular way?
Online Speech Platforms
New York Times: Russia Seen Adopting New Tactics in U.S. Election Interference Efforts
By Reuters
People have been sensitized to look for completely false stories, and Facebook has been using outside fact-checkers to at least slow their spread on its pages.
“We’ve done a lot research on fake news and people are getting better at figuring out what it is, so it’s become less effective as a tactic,” said Priscilla Moriuchi, a former National Security Agency official who is now a threat analyst at the cybersecurity firm Recorded Future threat manager.
Instead, Russian accounts have been amplifying stories and internet “memes” that initially came from the U.S. far left or far right. Such postings seem more authentic, are harder to identify as foreign, and are easier to produce than made-up stories.
Renee DiResta, director of research at security company New Knowledge, said her company had compiled a list of suspected Russian accounts on Facebook and Twitter that were similar to those suspended after the 2016 campaign.
Some of them seized on the Brett Kavanaugh nomination to the Supreme Court to rally conservatives, while others used memes from the leftist Occupy Democrats…
Though jumping on existing bandwagons is easier than what Russia did in 2016, other new tactics have been more complex.
In the October indictment and an earlier operation uncovered by Facebook, records showed that the instigators used Facebook’s Messenger service to try to get others to buy advertisements for them and to recruit American radicals to promote real-world protests.
Those moves allowed the Russians to evade strengthened detection systems and blend in with the crowd.
The Courts
By Jacob Sullum
As I explained in my column today, and as McAvoy describes in his decision, there is strong evidence that Cuomo and Maria Vullo, superintendent of the New York State Department of Financial Services (DFS), are in fact threatening banks and insurers that dare to do business with organizations that oppose the governor’s gun control agenda.
In a press release last April, Cuomo said he was “directing the Department of Financial Services to urge insurers and bankers statewide to determine whether any relationship they may have with the NRA or similar organizations sends the wrong message to their clients and their communities.” Vullo was more explicit, saying “DFS urges all insurance companies and banks doing business in New York to join the companies that have already discontinued their arrangements with the NRA.”
Guidance memos that Vullo sent to banks and insurance companies that day communicated the same message, warning that “reputational risks…may arise from their dealings with the NRA or similar gun promotion organizations” and urging “prompt actions to manage these risks.” The next day, Cuomo tweeted: “The NRA is an extremist organization. I urge companies in New York State to revisit any ties they have to the NRA and consider their reputations, and responsibility to the public.”
The press release, memos, and tweet were quickly followed by consent degrees in which the companies that had managed and underwritten the NRA’s Carry Guard insurance program in New York not only agreed to pay fines for violations of state law but promised to stop doing business with the NRA. During this period, according to the NRA, Vullo’s department engaged in “backroom exhortations,” warning “banks and insurers with known or suspected ties to the NRA that they would face regulatory action” if they failed to cut ties.
PACs
Politico: Corporate PACs try to rebuild their reputations after midterms
By Lorraine Woellert
Corporate PACs are scrambling to polish their image after more than 100 candidates vowed during the midterms to reject campaign cash from the industry-linked donor groups.
The National Association of Business PACs – which lobbies for PACs – is finalizing a plan to convince lawmakers, candidates and the press that the real villain in politics is unchecked spending by super PACs and mystery donors, not the more-regulated fundraising committees attached to businesses and trade groups.
The group also will push lawmakers to raise the limits on how much corporate PACs can give to individual candidates from $5,000 to $10,000, caps that haven’t changed since 1974.
“I’m going to say something controversial: We believe there isn’t enough money in politics,” said Geoff Ziebart, executive director of NABPAC. “There’s so much money outside the control of candidates and parties, and Congress has been unwilling to address that.” …
Ziebart said NABPAC’s campaign will point out the major role played in the midterms by super PACs, which face fewer restrictions and have found ways to evade disclosure, and political nonprofits that have avoided revealing their donors…
“We don’t believe that the candidates themselves – and perhaps some of the people covering them – were fully informed about the differences between traditional business PACs and super PACs,” Ziebart said. “The lines were blurred, and that led an unfortunate number of candidates across the board to adopt an anti-corporate mantra.”
Political Parties
National Review: The Hollowing Out of American Political Parties
By Jonah Goldberg
After Watergate, there were more reforms, curbing the ability of the parties to raise and spend money freely. This led to the rise of political-action committees, which raise cash independent of the formal party structure. As Senator Mitch McConnell (R., Ky.) said during the floor debate over the McCain-Feingold campaign-finance bill in 2001: “We haven’t taken a penny of money out of politics. We’ve only taken the parties out of politics.”
Outside groups – the National Rifle Association, Planned Parenthood, unions, etc. – often do more to effectively organize voters around single issues or personalities than the parties do…
The Internet and cable TV have accelerated the eclipsing of parties. Opinion websites and TV and radio hosts now do more to shape issues and select candidates than the parties do…
Among the many problems with the rotting out of the parties is that the rot spreads. The parties are supposed to be where politics happens. McConnell’s point about money in politics is analogous to the larger trend. When you take political power out of the parties, other actors seize it…
This is why every Academy Awards ceremony is peppered with asinine political jeremiads, and why late-night-comedy hosts serve as de facto Democratic-party organizers.
It’s why people such as Jerry Falwell Jr., the president of Liberty University, act like social-gospel ward heelers. It’s why the cable-news networks spend so much of their time rallying voters in one direction or another. And it’s why countless pundits and allegedly objective reporters serve as unofficial political consultants.
It’s also why Donald Trump could leverage his celebrity to seize the GOP nomination, and why someone like Oprah Winfrey could be next.
Intimidation
Washington Post: ‘They were threatening me and my family’: Tucker Carlson’s home targeted by protesters
By Allyson Chiu
“I called my wife,” Carlson told The Washington Post in a phone interview. “She had been in the kitchen alone getting ready to go to dinner and she heard pounding on the front door and screaming. … Someone started throwing himself against the front door and actually cracked the front door.”
His wife, thinking it was a home invasion, locked herself in the pantry and called 911, Carlson said…
“Tucker Carlson, we are outside your home,” one person could be heard saying in the since-deleted video. The person, using a bullhorn, accused Carlson of “promoting hate” and “an ideology that has led to thousands of people dying.”
“We want you to know, we know where you sleep at night,” the person concluded, before leading the group to chant, “Tucker Carlson, we will fight! We know where you sleep at night!” …
Carlson said the protesters had blocked off both ends of his street and carried signs that listed his home address. The group called Carlson a “racist scumbag” and demanded that he “leave town,” according to posts on Twitter. A woman was also overheard in one of the deleted videos saying she wanted to “bring a pipe bomb” to his house, he said…
“Tonight you’re reminded that we have a voice,” a now-deleted tweet read. “Tonight, we remind you that you are not safe either.”
The host’s address, as well as the addresses of his brother and good friend Neil Patel, with whom he co-founded the conservative media site the Daily Caller, were shared in tweets from Smash Racism DC’s account…
Wednesday night’s events are the latest in a spate of harassment aimed at prominent politicians and media outlets, ranging from being heckled in restaurants to receiving packages containing explosive devices.
Fundraising
Politico: ‘I don’t regret a thing’: Democrats aim to keep small-donor boom going in 2020
By Maggie Severns
Stanfield, who is 70 and lives in Ponte Vedra, Florida, gave $2,000 in installments to the congressional candidate over the course of the campaign season using the online platform ActBlue, making her part of the throng of people who helped McGrath’s long-shot campaign far outstrip her Republican opponent’s fundraising, $7.8 million to $4.8 million…
ActBlue, in particular, allowed Democrats to raise gobs of money from Americans across the country rather than repeatedly hit up the same people in their states or districts. But it also is taking the decision on how to allocate campaign dollars away from Washington committees and super PACs and placing it in the hands of donors who, this cycle, helped boost some campaigns to victory but also bet goliath-sized sums on losing candidates like McGrath, who lost to GOP Rep. Andy Barr, Texas Rep. Beto O’Rourke and North Dakota Sen. Heidi Heitkamp…
Money did not always translate to victory Tuesday. Some Democrats – such as O’Rourke’s $70 million Texas Senate campaign – came close in what initially appeared to be near-impossible races. Other well-funded Senate Democrats found the money wasn’t enough to tip the scales. Sen. Claire McCaskill raised more than $35 million in her quest to win reelection in Missouri, but GOP opponent Josh Hawley defeated her, despite raising only $10 million…
“I am not one bit sorry. I wish I could have given more. I don’t regret a thing,” said Patricia Emerson, a therapist based in Palmdale, Calif., who donated at least $1,068 to O’Rourke – some of it in chunks as small as $5 at a time…
[T]he boom in small-dollar giving in the 2018 election cycle undeniably helped Democrats – who in past years have often struggled to keep up with Republicans’ cash drives – outpace their GOP counterparts. Democrats are estimated to have spent $2.5 billion in the midterms, compared to Republicans’ $2.2 billion, according to estimates compiled by the Center for Responsive Politics.
The Media
Courthouse News Service: White House Ban on CNN Reporter Casts Rocky Relationship in Spotlight
By Brandi Buchman
But does the suspension of Acosta’s badge run afoul of the First Amendment?
Robert McNamara, a senior attorney at the Washington, D.C.-based Institute of Justice, told Courthouse News this is where things get murky.
“In a First Amendment challenge, it depends on what kind of forum you’re dealing with. In a public forum, one set of standards applies to speech. In a limited public forum, which is what Acosta was in, there are certain restrictions that can apply,” McNamara said.
In a legal challenge, the government could argue the conference occurred in a limited public forum because it’s an arena people are not necessarily allowed to speak in without limits.
“The government could say we don’t allow people to speak freely here, but rather, they’re here to listen and report,” he said. “There might be a fight about that. There are hurdles to get over … the president can say it’s a limited but he would have to establish that.”
Media experts say Acosta will likely have his access restored by virtue of a 1977 D.C. Circuit ruling, Sherrill v. Knight. According to that ruling “the protection afforded newsgathering under the First Amendment … requires that this access not, be denied arbitrarily or for less than compelling reasons.” …
No matter how it shakes out with Acosta, McNamara said the average citizen should “always be concerned” about how powerful people interact with the media and how the government uses its power to shape national dialogue.
“You don’t have to come down on this dispute [between Acosta and the White House] one way or another to be concerned. There’s no more dangerous power the government has than to exercise its power around protected speech,” he said.
Candidates and Campaigns
Washington Post: The heyday of television ads is over. Political campaigns ought to act like it.
By Marc Levitt
[R]ecent research has sharpened our understanding of what political TV ads do – and, more important, what they do not do. One study from 2013 found that the “persuasive impact” of campaign communication “may end almost as soon as communication ends.” A 2013 Washington Post analysis found that even a significant increase in strategically chosen television spending would still have left Mitt Romney far short of winning the White House. In 2017, a pair of U.C. Berkeley and Stanford researchers concluded that traditional campaign persuasion tactics – including television advertising – have virtually no impact on voter choices in general elections. And a 2016 study determined that political attack ads are “never efficacious” at improving a candidate’s vote share…
[R]eality is more marbled than conventional wisdom suggests, and fundraising advantages do not always translate into victory. This year, underdog Andrew Gillum, the mayor of Tallahassee, won Florida’s Democratic gubernatorial primary despite being outspent on TV by several rivals. In Massachusetts’s 3rd Congressional District, Lori Trahan was outspent by two competitors before narrowly winning the Democratic primary. In another Massachusetts Democratic congressional primary, Boston City Councilor Ayanna Pressley upended Rep. Michael E. Capuano with about half of his spending and, as Politico reported, “Capuano ran two TV ads, both about his efforts to oppose Trump,” while Pressley had just “one TV ad that ran only on Spanish-language television,” for which she paid a relatively modest $17,000. In 2016, Jeb Bush and Hillary Clinton each took a turn in candidate Donald Trump’s maw, despite spending more on TV, in part because of Trump’s dominant share of news coverage online and off.
The States
Center for Responsive Politics: Many states pass campaign finance reform measures during midterms
By Kaitlin Washburn
During Tuesday’s midterm elections, a number of reform measures aimed at money-in-politics and ethics were on many states’ ballots. Here are the highlights from the ones that were passed or defeated.
County 17 Wyoming: Billboard May Not Be In Violation Of State Law
By Kevin Killough
A local anti-tax crusader has come into compliance with campaign disclosure laws on billboards he says he personally paid for. Though, the way Wyoming statutes are written, it’s not entirely clear he was violating any laws.
Bill Fortner paid for billboards that read, “You’re not friend of coal if you vote for the 1% tax.”
The billboards, which are electronic and cycle through a number of messages, originally had just that sentence in white lettering on a red background. Sometime [last] week, “Paid for By Bill Fortner” was added to the advertisement…
Will Dinneen, public information and communications officer with the Wyoming Secretary of State, said a message that is promoting a certain action on an existing ballot measure may trigger campaign finance disclosure laws.
“That would fall under electioneering,” Dinneen explained…
Dinneen said how the laws are interpreted on a county-level issue would be a question for the county clerk and county attorney.
Campbell County Clerk Susan Saunders said Wyoming law gets a bit murky when it comes to electronic billboards. State statutes specifically exempt some items from disclosure requirements, such as bumper stickers, pens, pencils, buttons, rulers…
There’s no specific mention of electronic billboards. However, Saunders said to the best of her knowledge, the electronic billboards would count as a paid advertisement. These advertisements are required to post a “paid for” line, with some exceptions…
Dinneen said, on a state level, this would probably fall under the independent expenditure rules and require a “paid for” line, even if a single individual paid for the advertisement.
