In the News
Wall Street Journal: House Democrats Say Shush
By Editorial Board
In a 13-page letter, the ACLU said that some of H.R. 1’s provisions “unconstitutionally impinge on the free speech rights of American citizens and public interest organizations.” Such measures, the group said, would silence “necessary voices that would otherwise speak out about the public issues of the day.” Indeed…
The bill covers groups that run ads about, say, climate change that refer to candidates but don’t endorse them. What this means, the ACLU says, is “advocacy groups speaking about the issues that matter most to them, like abortion or gun rights, may see no alternative but to steer far clear of the regulated zone to avoid penalties” or “mandatory disclosure of their private associations.”
H.R. 1’s provisions on disclosure veer into the absurd… The bill’s premise appears to be that voters are too stupid to sort out the motives behind the groups putting up such messages.
The Institute for Free Speech offers an example of these ever-longer disclosures. Imagine, for instance, that an “environmental group sponsors a 30-second radio ad calling on President Trump to reduce air pollution.” Here’s how the required disclaimer likely would unfold:
“Paid for by Americans for the Environment, cleanenvironment.org. Not authorized by any candidate or candidate’s committee.” Then the head of the organization must say: “I am Jane Doe, the President of Americans for the Environment, and Americans for the Environment approves this message.”
And then the ad would have to list the first and last names of the group’s top two financiers, even if their donations weren’t given directly for the advertisement. The group would need to list five donors if the ad appears on television.
Daily Caller: Dems Have Passed HR1 – And It Could Make Life A Lot Harder For AOC
By Eric Wang
[I]t has come to light recently that Ocasio-Cortez and a top campaign aide (now her chief of staff) controlled the Justice Democrats PAC during her campaign that separately raised millions of dollars. Only about 2.5 percent of that money was reported as having been spent on direct support for candidates. Much of that money went to a consulting firm the campaign aide owned and ran. An FEC complaint has been filed alleging the firm impermissibly obscured much of the PAC’s spending. Perhaps Ocasio-Cortez’s “dark-money funded campaign” wasn’t hypothetical after all.
Another FEC complaint alleges the consulting firm was used to pay Ocasio-Cortez’s boyfriend in violation of rules against “personal use” of campaign funds. Other questions have been raised over whether Ocasio-Cortez and her campaign aide’s control over the Justice Democrats PAC was illegal in and of itself, and which could prompt yet a third FEC complaint.
This brings us to another one of H.R. 1’s many dangerous provisions: politicization of the FEC and weakening of due process. H.R. 1 would restructure the current six-member bipartisan agency into a five-member agency susceptible to partisan control. The agency’s chairperson and general counsel also would have more power to launch investigations unilaterally…
Imagine if a Trump-appointed FEC chairperson were to unilaterally order an investigation into the allegations against Ocasio-Cortez. That’s not possible today, but H.R. 1 would permit a future chairperson to do just that. And even if it ultimately turns out Ocasio-Cortez has good defenses, the impartiality of a partisan-controlled FEC in fairly resolving the charges against her would be highly suspect.
By Featuring IFS Legal Director Allen Dickerson
News of foreign interference in elections and allegations of mismanagement have prompted lawmakers to take action. Executives from the largest and most popular technology companies have been called before congressional committees and accused of being bad stewards of their users’ privacy, failing to properly police their platforms, and engaging in politically motivated censorship. At the same time, companies such as Google and Amazon have been criticized for engaging in monopolistic practices.
Center for Individual Freedom: HR 1: An Act For the Politicians, Not the People (Audio)
David Keating, President of the Institute for Free Speech, discusses the First Amendment concerns and muzzling effects of proposed provisions in HR 1, the so-called “For the People Act,” and how the legislation is replete with provisions for the politicians.
Business Insider: A conservative group accused Alexandria Ocasio-Cortez of campaign finance violations, but experts say the charges are overblown
By Eliza Relman
Bradley Smith, a Republican former chairman of the Federal Election Commission, said the biggest issue is that the PACs and the LLC didn’t adequately disclose what they spent money on.
Smith argued there’s a possibility that the LLC sold its services to Ocasio-Cortez’s campaign at below-market rates and was then reimbursed by the PACs. And this, he said, would amount to an independent expenditure on behalf of the campaign, or an in-kind contribution, that exceeded legal limits.
“Somehow they’ve got to account for that,” Smith told INSIDER. “It looks like large contributions in excess of the legal limits to the Ocasio-Cortez campaign and other campaigns.” …
“There are phrases on the FEC’s approved list of phrases that should be used to describe fundraising activities and phone-banking activities. ‘Strategic consulting’ is not some magic phrase that covers everything,” [Paul Ryan of Common Cause] said. “But in the grand scheme of things, the FEC would consider such an inaccurate description of the purpose of a disbursement as a very minor violation.” …
“There are certainly ways that Brand New Congress could have structured this to be more transparent,” [Brendan Fischer of the Campaign Legal Center] said, adding that the set-up “put them in the situation where they could come close to skirting the line.”
While Smith said he’s confident the FEC will pursue an investigation, Ryan said he doesn’t believe the complaint contains sufficient evidence to satisfy the legal standard for a probe.
New from the Institute for Free Speech
Statement in Response to House Vote on H.R. 1
The Institute for Free Speech released the following statement in response to today’s vote in the U.S. House of Representatives to pass H.R. 1, which the Institute has dubbed the “For the Politicians Act”:
“The House majority approved what is effectively an omnibus bill for violating free speech. H.R. 1 would fund candidate political ads with tax dollars, silence advocacy groups and nonprofits, restrict political speech on the Internet, and grant control of the Federal Election Commission to a speech czar chosen by the president. The bill’s provisions range from unconstitutional, to unworkable, to just plain incomprehensible,” said Institute for Free Speech Chairman Bradley A. Smith.
“The bill subsidizes the speech of politicians and limits speech by Americans. That’s bad for the First Amendment and bad for our democracy,” said IFS President David Keating. “We commend Senate Majority Leader Mitch McConnell for his work to inform his colleagues about the threat to free speech from H.R. 1.”
For all of the Institute for Free Speech’s resources, analysis, and commentary on H.R. 1, click here.
ICYMI
Ed. Note: This page includes a compendium of resources from IFS and our allies, highlighting the First Amendment problems with H.R. 1.
H.R. 1
Washington Post: House Democrats pass H.R. 1, their answer to draining the swamp
By Mike DeBonis and John Wagner
The House on Friday approved a far-reaching elections and ethics bill – one that would change the way congressional elections are funded, impose new voter-access mandates on states, require “dark money” groups to publicize their donors and force disclosure of presidential candidates’ tax returns…
Democrats dubbed the bill H.R. 1, a designation meant to signal its place as a centerpiece of their congressional agenda. The measure, which has more than 500 pages, contains dozens of provisions favored by liberal advocacy groups, labor unions and other Democratic allies.
The bill is headed for a brick wall in the Republican-controlled Senate, where Majority Leader Mitch McConnell (R-Ky.) has dismissed it as the “Democrat Politician Protection Act” and made clear it will not get a vote. But Democrats and their allies believe passage of the bill Friday will build momentum for action in coming years if and when Democrats solidify control in Washington.
“If Mitch McConnell is the immovable object, H.R. 1 is the unstoppable force,” said Rep. John Sarbanes (D-Md.), the lead author of the bill. “We’ll keep pushing on it.”
A central provision establishes public financing for congressional elections, giving candidates as much as a 6-to-1 match for small donations to participating campaigns. Republicans have attacked the measure for funneling taxpayer money to political candidates; Democrats reworked the bill to tap fine revenue from people and companies found guilty of corporate malfeasance.
Another key campaign finance provision would require nonprofit “dark money” groups that engage in political activity to disclose their large donors – a provision that has generated opposition from the American Civil Liberties Union and other advocacy groups who argue that disclosure could chill free speech.
Fox News: House approves sweeping Dem election reform bill, amid First Amendment concerns
By Alex Pappas and Chad Pergram
The American Civil Liberties Union, in a recent letter to Congress, encouraged lawmakers to vote against the bill because of “provisions that unconstitutionally impinge on the free speech rights of American citizens and public interest organizations.”
“They will have the effect of harming our public discourse by silencing necessary voices that would otherwise speak out about the public issues of the day,” the ACLU wrote.
One concern of civil libertarians is the bill’s inclusion of the DISCLOSE ACT…
The ACLU said it supports making organizations report spending for public communications like TV ads that expressly call for the election or defeat of a candidate for office, but it worries the DISCLOSE ACT goes beyond that.
“These standards are unclear and entirely subjective, which will lead to confusion and, ultimately, less speech,” the ACLU said…
“Now, instead of getting money out of politics, the Democrats on this committee voted to pass a bill that will publicly fund – campaign travel, campaign dinners, and in some cases, the politicians themselves,” Illinois Rep. Rodney Davis wrote in an op-ed for The Hill.
CBS News: House passes H.R. 1, a sweeping anti-corruption and voting rights bill
By Brian Pascus
Even though McConnell has no intention of taking up the bill, he has spent a lot of time on the Senate floor in recent weeks railing against the bill as a massive Democratic takeover of state elections laws and an attempt to suppress free speech. Many have pointed to the fact that the ACLU opposes portions of the bill, warning that they unconstitutionally impinge on Americans’ free speech rights by forcing more disclosure of donors by special interest groups. Others have objected to the public financing program for elections which Republicans warn could cost the government billions…
The Senate majority leader referred to HR 1 as a “parade of horribles.” In particular, he has attacked the measure for restructuring the Federal Elections Commission from a six-member panel to a five-member panel, allowing one party to have three members, and the minority to have two. He also takes issue with the move toward public financing of elections, like the provision for a 6-to-1 government match for donations to presidential and congressional candidates.
Washington Post: House Democrats poised to endorse public financing of congressional campaigns
By Mike DeBonis
Taxpayer funding for elections would have been the “political kiss of death,” said Rep. Thomas Suozzi (D-N.Y.), a moderate. “People are not ready to have taxes raised for public financing.”
Tapping fines paid for corporate malfeasance is “a much more creative way of looking at it,” he added, but that has hardly dampened the GOP attacks…
The congressional system embedded in H.R. 1 does not contain any spending limits, though the amount of money it would ultimately provide to candidates could be constrained by the amount of revenue generated from fines. The Congressional Budget Office, reviewing an earlier draft of legislation, did not identify a precise cost for the program but said it “could exceed $1 billion over the next 10 years.”
Beyond the political attacks on the proposal, academic critics say it is unproven whether public financing achieves its proponents’ goal of creating a more equitable and responsive political system. One 2014 paper suggested that public financing reduces the advantages of incumbency but also produces more polarization.
John Samples, a Cato Institute vice president who has studied campaign finance reform proposals for more than two decades, pointed to the 2018 midterm elections, where scores of Democratic candidates tapped small-donor networks to fund successful campaigns. ActBlue, the largest Democratic small-donor network, sent a combined $1.6 billion to candidates in the cycle.
“The idea was, you had coordination problems or whatever, so you needed to bump up the small donors. But now small donor are actually very powerful,” Samples said. “So what’s the point?”
The existing Democratic advantage in small-donor giving, he added, creates a “PR problem” for the party: “What the bill is actually saying is, we’re going to take $5 billion or $6 billion from the public treasury and give it to the Democratic Party, essentially.”
National Taxpayers Union: Filling in Scoring Gaps on H.R. 1
By Demian Brady
The House of Representatives is beginning debate on H.R. 1, the “For the People Act of 2019,” a controversial campaign finance overhaul containing several new spending programs and unfunded mandates. The Congressional Budget Office (CBO) published its cost estimate last Friday. It found that the bill, as reported by the House Administration Committee, would increase outlays by $2.4 billion over the next five years. But CBO’s score misses several important elements. When taken together, these oversights would add billions more to the price tag of the bill.
Unfortunately, Congress failed to give CBO sufficient time to provide a complete estimate. It also provided the agency with a different version of the legislation to analyze than the one that Members of Congress will actually vote on this week. In addition, although CBO did provide a cost estimate for a provision in the bill establishing taxpayer-funded Congressional elections – a figure which is on the low end of expectations – it did not include the figure in its official score of the bill due to a technicality. All told, these and other irregularities are hiding more than $3.1 billion in additional costs associated with the bill.
First Amendment
ACLU: The Government Is Detaining and Interrogating Journalists and Advocates at the US-Mexico Border
By Esha Bhandari and Hugh Handeyside
On Wednesday, the NBC affiliate in San Diego revealed leaked documents showing that authorities – including U.S. Customs and Border Protection and the FBI – targeted these journalists and activists for scrutiny at the border and created a secret database containing dossiers that included their personal details, social media information, and descriptions of their migrant-related work…
The First Amendment bars interference with freedom of the press and doesn’t permit the government to retaliate against people based on their viewpoints. That means the government can’t single people out for punishment or harsher treatment simply because it disagrees with the messages they are conveying.
The reported facts in this case look like a First Amendment disaster. Department of Homeland Security officials created a list of activists, advocates, and journalists who were working with or reporting on the migrant caravan in order to flag them for lengthy detentions and questioning at the U.S. border. And it appears that many activists and lawyers were targeted solely because they engaged in speech and association that are at the core of First Amendment protections – namely, speaking out against government policies regarding treatment of asylum seekers or engaging in legal representation of asylum seekers.
DHS also singled out journalists who reported on migrant issues. Many journalists were subjected to lengthy questioning at the border about what they were reporting on and who they had spoken to. Some were even denied entry to Mexico, apparently at the behest of U.S. government officials…
The conduct of the U.S. government in retaliating against journalists and activists at the border is disturbing and unacceptable. We’re exploring all available options to hold it accountable.
Online Speech Platforms
Facebook: A Privacy-Focused Vision for Social Networking
By Mark Zuckerberg
Over the last 15 years, Facebook and Instagram have helped people connect with friends, communities, and interests in the digital equivalent of a town square. But people increasingly also want to connect privately in the digital equivalent of the living room. As I think about the future of the internet, I believe a privacy-focused communications platform will become even more important than today’s open platforms. Privacy gives people the freedom to be themselves and connect more naturally, which is why we build social networks.
Today we already see that private messaging, ephemeral stories, and small groups are by far the fastest growing areas of online communication. There are a number of reasons for this. Many people prefer the intimacy of communicating one-on-one or with just a few friends. People are more cautious of having a permanent record of what they’ve shared…
Public social networks will continue to be very important in people’s lives — for connecting with everyone you know, discovering new people, ideas and content, and giving people a voice more broadly. People find these valuable every day, and there are still a lot of useful services to build on top of them. But now, with all the ways people also want to interact privately, there’s also an opportunity to build a simpler platform that’s focused on privacy first…
I believe the future of communication will increasingly shift to private, encrypted services where people can be confident what they say to each other stays secure and their messages and content won’t stick around forever. This is the future I hope we will help bring about.
National Review: The Social Media Censorship Dumpster Fire
By David French
[T]wo important reports, one in Vanity Fair and the other in The Verge, document Facebook’s struggles to moderate “hate speech” while still preserving its open platform. The two stories complement each other perfectly. The Vanity Fair report is a top-down look at the company’s efforts to design policy, while The Verge reports from the trenches – taking a deep dive into the real life experiences of Facebook’s content moderators. Neither piece is remotely reassuring…
There are inherent costs when any company (or campus) that is intent on creating a marketplace of ideas turns its back on the accumulated experience of centuries of American free-speech traditions and jurisprudence. There are reasons, for example, why there is no “hate speech” category in American constitutional law. There is no workable definition that does not sweep too broadly. There are reasons why viewpoint neutrality is the hallmark of First Amendment jurisprudence. Censors can behave in unpredictable, arbitrary, and capricious ways – and no one has a sufficient monopoly on truth to serve as philosopher king over speech and debate.
Moreover – and this is important – social-media users have less grounds to demand censorship even than college students. College students, after all, can’t block or mute bad speech. They have to engage it, in person, in the classroom, quad, and dorm. They have to learn how to answer bad speech with better speech.
Social-media users, by contrast, have the ability to carefully regulate their own environment. They can block bad voices. They can limit who sees their posts, and they can limit what they see themselves. A user can create a custom experience that cleans out all the trash. Would it perhaps be a better investment by Facebook to train users in curating their own feeds? Instead, it’s empowering an army of would-be censors – outraged users who not only demand that they not see offensive content but also that no one else see it either.
CBS News: YouTube adds feature to fact-check viral conspiracy videos and fake news
By Sophie Lewis
YouTube is working to decrease the popularity of fake news and conspiracy theories on its platform by rolling out a new feature to fact-check videos on sensitive topics. But this new disclaimer will only show up in search results, not on the actual videos and YouTube will not be fact-checking individual videos.
“As part of our ongoing efforts to build a better news experience on YouTube, we are expanding our information panels to bring fact checks from eligible publishers to YouTube,” a YouTube spokesperson told CBS News Thursday. When users search for topics prone to misinformation, an “information panel” will pop-up to debunk or fact-check the search.
The information shown in the panels is provided by YouTube’s verified fact-checking partners, which have gone through an eligibility process and rely on the schema.org ClaimReview markup process. Panels may include terms such as “Hoax Alert!” and “FAKE” to alert users of the potentially incorrect content that may appear in search results.
But videos containing misinformation may still appear in the search results, and YouTube will not be fact-checking individual videos. The disclaimers will appear above videos and below the search topic, serving as a warning. The site is not removing videos, regardless of whether or not they contain false information. YouTube says that the ultimate goal is to provide context to users but still allow them to make their own decisions.
Candidates and Campaigns
National Review: Alexandria Ocasio-Cortez’s Monumental Hypocrisy
By David French
At the very least, hypocrisy abounds. It is simply stunning that Ocasio-Cortez would mount such a very high moral horse and berate witnesses at a congressional hearing while this “dark money” skeleton lurks in her closet. The very best possible read on her actions is that she read ambiguities into the law to her maximum advantage. A more realistic view is that she and her campaign chair (and now chief of staff) creatively evaded the obvious intent of campaign-finance law and will now rely on FEC gridlock and her enormous reservoir of progressive goodwill to skate straight through this scandal.
America’s byzantine campaign-finance regulations comprehensively and wrongly treat political speech as second-class speech, regulating it to a level that would likely shock the Founders. But these statutes and regulations are still binding. They’re binding on Donald Trump, and they’re binding on Alexandria Ocasio-Cortez. Moreover, PAC disclosure rules and contribution limits are not obscure elements of campaign-finance law. As Ocasio-Cortez herself demonstrated at length in her viral moment last month, they’re a highly visible part of the ongoing public debate.
It will be an interesting irony if the FEC concludes that Ocasio-Cortez’s unusual financial arrangements pass legal muster. The champion of transparency and the enemy of “dark money” would have pioneered a new way to enrich friends and allies and hide campaign activities from the public eye.
