First Amendment
New York Times: The Government Had to Approve This Op-Ed
By Mark Fallon
Between the time I wrote these words and the time that you are reading them, a team of government censors decided how much of what I wrote you would get to see. Fortunately, it was cleared without redactions. But I haven’t always been so fortunate.
There are millions of others like me who face this scrutiny as present and former employees of the armed services and a dozen other government agencies, from the C.I.A. and F.B.I. to the State and Energy Departments…
Whenever we want to write about even the nonsensitive aspects of our service and experience, we have to submit our manuscripts and articles for prepublication review by the government. We have to do this even after we retire.
I spent 31 years in sworn duty to support and defend the Constitution of the United States, and I’m pretty sure this is not how the First Amendment is supposed to work. That’s why I have joined in a lawsuit with four other former federal employees seeking to block the government from enforcing this review process in its current form.
I joined the Naval Criminal Investigative Service in 1981. At that time, despite the Cold War obsession with national security, service members and intelligence officers rarely had to submit their writings before publication. Two years later, President Ronald Reagan issued a directive that would have subjected millions of government employees to prepublication review. That directive was so controversial, and so obviously at odds with free speech values, that Congress held hearings, and Mr. Reagan rescinded it.
In the years since, however, 17 military and civilian agencies have instituted their own prepublication review regimes, according to an analysis by the A.C.L.U. and the Knight First Amendment Institute at Columbia University, which are representing us in our lawsuit.
Independent Groups
Politico: Black leaders blast Dem war on super PACs
By Maggie Severns
Top black donors and operatives are calling on fellow Democrats to abandon their push against super PACs, arguing that one of Democrats’ most popular 2020 talking points will ultimately cut off much-needed resources for candidates of color.
In a letter obtained by Politico, The Collective PAC – which helps elect black candidates to office – asked major liberal groups like Indivisible and Democracy for America to stop calling for Democratic presidential contenders to distance themselves from single-candidate super PACs. Such groups play an important role in electing candidates of color, they argued, especially in primaries, when the Democratic establishment has often overlooked black contenders and left it to outside donors to bolster their campaigns.
“Whether intentional or not, the effect of what you are calling for is to shut down the one reliable source of revenue for engaging voters of color and for supporting candidates of color,” wrote Quentin James and Stefanie Brown James, the founder and co-founder of The Collective PAC. “One of the few sources of funding for the work to engage voters of color and support candidates of color has come from Super PACs.” …
[N]ew candidates can need help from outside groups and wealthy supporters in order to break into a campaign, prominent black fundraisers argue…
“While the entire progressive movement eventually coalesced behind the historic and inspiring gubernatorial candidacies of Stacey Abrams, Andrew Gillum, and Ben Jealous last year, the bandwagon was much emptier, and the cupboards much more bare during their primary campaigns,” James and James Brown of The Collective PAC wrote. “Just a handful of organizations, like ours, built support for the campaigns of those African American leaders and much of the support from that work came from Super PACs created by people of color.”
Congress
Wall Street Journal: Senate GOP Moves to ‘Nuclear Option’ on Appointees
By Andrew Duehren
Senate Republicans will invoke the body’s so-called nuclear option Wednesday and use a simple majority to change the chamber’s rules for confirming many presidential appointees.
Democrats opposed a procedural vote on the proposed change Tuesday, prompting Republicans to move to unusual procedural tactics to reduce the amount of time the body takes to process district-court nominees and many executive appointments…
Confirming conservative judicial appointees has been a centerpiece of Mr. McConnell’s tenure under Mr. Trump.
The resolution would permanently cut the amount of debate after a nominee clears a cloture vote from 30 hours to two hours. Nominees to circuit courts, the Supreme Court and cabinet-level executive positions are exempt from the proposed change.
The Senate instituted a similar limit on post-cloture debate under then-Senate Majority Leader Harry Reid, a Democrat, but the change was temporary and has since expired.
Democrats have called the latest rules change a power grab that will diminish the Senate’s ability to vet nominees…
Republicans can move forward with the proposal under the Senate’s “nuclear option” to change the body’s rules with a simple majority. The GOP controls the chamber with 53 members, and the party may move to change the body’s rules as soon as this week.
“Republicans have been very clear that we have the votes to do it ourselves,” said Sen. James Lankford (R., Okla.), one of the author’s of the proposed change. “We have 51 votes.”
Washington Post: House panel votes to authorize subpoenas to obtain full Mueller report
By Rachael Bade
A House panel voted Wednesday to authorize subpoenas to obtain special counsel Robert S. Mueller III’s full report on Russian interference in the 2016 presidential election, laying down a marker in a constitutional power struggle that could end up in the courts.
The House Judiciary Committee voted 24-17 along party lines to authorize its chairman, Rep. Jerrold Nadler (D-N.Y.), to subpoena the report and underlying documents of Mueller’s probe from Attorney General William P. Barr…
The much-anticipated move to compel the Justice Department to release the report comes one day after Barr missed a House-imposed deadline to turn over the nearly 400-page document. Barr told lawmakers last week that although he could not meet their Tuesday deadline, he promised to deliver a redacted version of Mueller’s findings by mid-April, if not sooner.
That’s one of the reasons Nadler is not expected to issue a subpoena immediately, giving Barr a few days to comply with Democrats’ requests.
But Democrats, who are leaving for a two-week congressional recess next week, have made clear redactions are unacceptable and sought to give their chairman the tools needed to respond at any moment…
The Judiciary Committee on Wednesday also approved subpoenas for five former White House aides: former White House counsel Donald McGahn; former chief strategist Stephen K. Bannon; former communications director Hope Hicks; former chief of staff Reince Priebus.
Online Speech Platforms
Washington Post: How fighting political disinformation could collide with the First Amendment
By Deanna Paul
Efforts to safeguard against election interference have ignited concerns over First Amendment protections and censorship and brought a new wave of criticism, often pitting citizens, top lawmakers and tech giants against one other.
Evaluating the responsibility of social networks such as Facebook and Twitter, and the human and algorithmic choices they make about the voices heard, and what they are able to say, will be a vital part of maintaining American confidence in the election system heading into 2020, says Jameel Jaffer, director of the Knight First Amendment Institute.
“They shape and distort public discourse through their decision-making,” Jaffer said. “But how do those decisions affect the integrity of the democratic process?”…
Politicians across party lines will complain of bias when a platform makes a decision averse to them, even if the decision is correct. In 2020, the role of these networks will emerge as a bipartisan issue, not just a Republican problem led by Trump.
“We are flying blind,” said Tom Glaisyer, managing director of the Democracy Fund’s Public Square Program, “and are unable to understand the level of misinformation and the malevolent actors that exist.”
Given their scale and role in public discourse, platforms, he suggested, need to do more than ameliorate the problem. They have a “burden and responsibility.”
Glaisyer added, “They need to think deeply about how they operate in a manner that supports our democracy.”
Competitive Enterprise Institute: Move Slowly and Establish Rules: Facebook’s Call for Regulation
By Iain Murray
First, attempts to regulate “harmful content,” which Zuckerberg defines as “terrorist propaganda, hate speech and more,” runs into age-old questions about speech. Who defines what is harmful? Zuckerberg suggests third-party standard-setting bodies, a regulatory “baseline,” with online platforms responsible for enforcement…
As for election integrity, it is strange that Zuckerberg should make this such an issue given that studies (such as this one from Stanford) suggest that the much-hyped “fake news” phenomenon had little effect on the 2016 election. Similarly, Facebook’s own investigation into Russian meddling in the 2016 Brexit referendum in the UK found that the Internet Research Agency, the Russian government’s biggest troll farm, placed three ads at a cost of 97 cents during the campaign.
Zuckerberg, however, argues that regulation should identify “political actors” and cover “information campaigns” as well as candidates. Furthermore, it should apply all the time rather than just during campaigns. This would drastically chill political speech by subjecting issue-specific campaigns that work to change political opinion over a long time horizon to election law, with its detailed reporting requirements and spending limits. Imagine the effect this would have had on the Human Rights Campaign’s efforts to legitimize gay marriage, for example…
Many of the policies Zuckerberg proposes are unconstitutional in the U.S. Others are simply bad policy. Yet, all of them, if enacted globally, could have catastrophic consequences for liberty, free speech, and democracy.
FEC
Center for Public Integrity: At The Federal Election Commission, No Watchdog For The Watchdogs
By Dave Levinthal
[T]he lack of an inspector general means no one is watching the election watchdog – at a time when few feel the FEC is functioning effectively, even as its missions are evermore important. The FEC’s struggles are set against the backdrop of an accelerating chase for presidential campaign cash and prominent political money scandals – alleged porn actress hush-money payments and foreign infiltration among them.
Scammers are also increasingly preying on vulnerable Americans who are misled into believing they are supporting a candidate or cause – an issue the FEC has struggled to address.
Some in Congress are growing impatient.
“I intend to ask for their plan to fill longstanding and important vacancies at the commission, including the inspector general position,” said Rep. Zoe Lofgren, D-Calif., chairwoman of the Committee on House Administration, which has FEC oversight responsibilities. Lofgren is a co-sponsor of H.R. 1, a sweeping ethics reform bill that calls for an FEC overhaul, and has promised to soon conduct the first oversight hearing on the FEC since 2011.
Sen. Amy Klobuchar of Minnesota, the ranking Democrat on the Senate Committee on Rules and Administration, “strongly supports the swift hiring of a new inspector general at the FEC,” said her spokeswoman, Elana Ross. (The office of committee Chairman Roy Blunt, R-Mo., did not return requests for comment.)
FEC Chairwoman Ellen Weintraub, a Democrat, says she expects the commission will select an inspector general soon, either on a permanent or “acting” basis. Petersen, the Republican vice chairman, concurred.
Fox News: Alexandria Ocasio-Cortez hit with FEC complaint for alleged ‘subsidy scheme’
By Andrew Keiper
The crux of the complaint, which was given exclusively to Fox News in advance of its filing Wednesday, accused Ocasio-Cortez and her campaign manager, Saikat Chakrabarti, of overseeing a “shadowy web” of political action committees (PACs) that allowed them to raise more cash than they could have legally. It also alleged that a limited liability company (LLC) was created to avoid federal expenditure requirements by offering Ocasio-Cortez and other Democratic candidates political consulting services at a price so low that the company apparently shut down before the election was even over.
The complaint named Ocasio-Cortez, Chakrabarti (now her chief of staff), the Justice Democrats PAC, the Brand New Congress PAC and Brand New Congress LLC as the overlapping entities that aimed to “subsidize cheap assistance for Ocasio-Cortez and other candidates at rates far below market value.” …
In a May 2018 blog post, the Justice Democrats PAC admitted it was offering services at a rate that would never turn a profit, and that was exactly the point.
“[The] goal of creating the LLC was not to make a profit,” the post read, “and as such, we made our prices as low as possible while still satisfying the FEC’s requirement that we are charging something reasonable because, again, if we weren’t we would essentially be doing heavily discounted work for candidates and that is illegal and immoral since fighting dark money is literally what we want to do.”…
Backer said he expected the gridlock at the FEC and planned to sue if his complaints sit for 120 days and litigation is allowed under law.
Trump Administration
The Federalist: 5 Ways Federal Agencies Could Botch Trump’s Executive Order On Campus Speech
By Casey Mattox
For all that has been written about it, the actual EO is quite limited. It states simply: “It is the policy of the Federal Government to: (a) encourage institutions to foster environments that promote open, intellectually engaging, and diverse debate, including through compliance with the First Amendment for public institutions and compliance with stated institutional policies regarding freedom of speech for private institutions.”
It then states that to advance this policy: “the heads of [12 different federal agencies with covered grants to universities] shall, in coordination with the Director of the Office of Management and Budget, take appropriate steps, in a manner consistent with applicable law, including the First Amendment, to ensure institutions that receive Federal research or education grants promote free inquiry, including through compliance with all applicable Federal laws, regulations, and policies.”
That’s it. The EO merely requires agencies to “take appropriate steps” to “encourage institutions” to promote free speech and debate. The challenge will come as the agencies seek to put flesh on these bones.
Many campus free speech advocates appreciate the president’s engagement on this issue but express concern about how the EO’s implementation could lead to unintended negative consequences. That’s for good reason. While there are certainly other ways agencies could seek to implement the EO, here are just a few possible ways that, if agencies aren’t careful. an EO intended to protect free speech on campus could unintentionally diminish it.
The States
Washington Times: Privacy protected in Mississippi
By Reps. Jerry Turner and Mark Baker
There is broad public support for individual privacy protections. Especially in Mississippi, where independent polling of regular voters showed 81 percent supported legislation to protect privacy. Only a mere 11 percent would oppose “a law in Mississippi that protects the personal information of individuals who donate to causes and charities of their choice.”
This 11 percent was well coordinated when they tried to shut down H.B. 1205 – a bill we introduced, and the privacy protections it provides to protect the charitable giving of all Mississippians. This attack isn’t just an attack on the bill, it’s an attack on the principles of free speech.
This now law – thanks to Gov. Phil Bryant – protects charitable organizations and individuals from the government requesting their private information. For government agencies already possessing private information, this law requires that agency receive written consent from the individual before releasing any information. It also doesn’t upend the federal tax code, which is important for the existing structure of charitable organizations.
But most importantly, this law protects those who might have their private information targeted and revealed without their consent. Publicizing information about private charitable giving makes people give less to charity. But providing restitution will rightfully combat the efforts of those interested in making your information public. These public reveals chill the free expression of individuals…
The debate is either for government lists of people and their beliefs, or against. We must ask: Do you want to be on a government list like this?
