In the News
Oregonian: Don’t limit free speech with campaign contribution limits
By Luke Wachob
Successful political campaigns have simple ingredients: a message voters believe in, a candidate they can trust, and enough resources to get the word out by Election Day. A constitutional amendment to restrict campaign giving would throttle candidates just when they need to ramp up…
Knee-jerk political analysis sees contribution limits as a straightforward measure to reduce corruption. Yet there is no correlation between a state’s contribution limits and public corruption. Politicians just have too many other ways of abusing their power. Instead, limits make it harder for campaigns to get off the ground and get their message out.
Even an enormous donation cannot buy an election. Oregon proved that last year, when Nike co-founder Phil Knight donated $2.5 million to Republican gubernatorial candidate Knute Buehler. Gov. Kate Brown won re-election anyway, pulling in over 100,000 more voters than Buehler. Supporters of contribution limits use the Knight donations as a rallying cry, but they really demonstrate that limits aren’t necessary. In fact, they suggest that limits might backfire.
What if Oregon imposed limits, and a multibillionaire like Knight jumped in the race himself? He could spend his millions freely while his opponents, unlike Gov. Brown in 2018, would face a hard cap every time a supporter wanted to contribute. Gov. Brown may not have received seven-figure contributions from an individual like Knight, but she received plenty of five and six-figure contributions that would likely be illegal under any limits the Legislative Assembly may pass.
The proposed constitutional amendment contains other threats to free speech, too. It calls for state and local governments to be able to limit contributions and expenditures that “influence the outcome of any election….” The vague term “influence” could be easily exploited to restrict speech regulators don’t like. After all, who gets to decide what actions “influence” the outcome of an election?
Fox News: Dems subvert democracy to win elections, embracing fascism as they resist Trump
By Jason Chaffetz
Earlier this month we saw a Democratic House member publicly dox those who donate to President Trump, resulting in harassment to lives and livelihoods. Businesses like Soul Cycle and Equinox have become the subject of boycotts for merely having an investor who donates to the president’s campaign. All of this has a chilling effect on free speech.
Democrats included speech restrictions in their signature legislation of the 116th Congress. H.R. 1 places new restrictions on campaign speech.
The Institute for Free Speech said in a statement: “For advocacy groups, unions, and trade associations, several of the limits proposed in H.R. 1 would operate as a total ban on speech.”
The bill empowers the head of the Federal Election Commission to act as a sort of speech czar and allows for partisan control of that body.
First Amendment
The Atlantic: Don’t Use These Free Speech Arguments Ever Again
By Ken White
What speech should be protected by the First Amendment is open to debate. Americans can, and should, argue about what the law ought to be. That’s what free people do. But while we’re all entitled to our own opinions, we’re not entitled to our own facts, even in 2019. In fact, the First Amendment is broad, robust, aggressively and consistently protected by the Supreme Court, and not subject to the many exceptions and qualifications that commentators seek to graft upon it. The majority of contemptible, bigoted speech is protected.
If you’ve read op-eds about free speech in America, or listened to talking heads on the news, you’ve almost certainly encountered empty, misleading, or simply false tropes about the First Amendment. Those tired tropes are barriers to serious discussions about free speech. Any useful discussion of what the law should be must be informed by an accurate view of what the law is.
I’ve been trying for years to point out these tropes, with mixed success. Because hope prevails over experience, I’m trying again. Here are some misstatements, misconceptions, and bad arguments about the First Amendment you will encounter regularly in American media. Watch for them, and recognize how they distort the debate over speech.
Independent Groups
Center for Responsive Politics: New ‘dark money’ group devotes multi-million dollar budget to ads helping Democrats
By Anna Massoglia
House Majority Forward was quietly incorporated in March but operated under the radar until its public launch in July as a new 501(c)(4) arm of House Majority PAC, the Democrats’ flagship super PAC for congressional races that is closely aligned with Democratic House Speaker Nancy Pelosi…
Ad buys account for more than 94 percent of the fledgling dark money group’s planned spending, according to HMF’s estimated budget…
Although HMF’s budget allocates exactly half of its estimated revenue to advertising, ads make up nearly the entirety its planned spending before the end of the year.
The North Carolina ad does more than just name-drop a candidate, ending with Dan McCready’s name above the word “CONGRESS” and a reminder to “VOTE SEPTEMBER 10TH.”
A spokesperson for the group told OpenSecrets it will report the ad to the FEC as its first independent expenditure. The FEC did not have any independent expenditures by HMF on file within 48 hours after the ads were slated to air as is required, but the group’s spokesperson says the disclosures will be filed…
In addition to North Carolina, HMF kicked off an ad blitz in California and New Mexico, giving an early boost to freshmen Reps. Mike Levin (D-Calif.), T.J. Cox (D-Calif.) Harley Rouda (D-Calif.) and Xochitl Torres Small (D-N.M.). Because the ads are framed as issue advocacy praising or attacking candidates using artfully crafted language that stops short of explicitly advocating for or against their election, they are not required to be disclosed to the FEC outside of the window before elections…
The new dark money group and the affiliated House Majority PAC have kicked off a cozy relationship, with HMP’s website even initially including a since-removed disclaimer that it was paid for by the super PAC.
Trump Administration
CNN: Federal officials raise concerns about White House plan to police alleged social media censorship
By Brian Fung
Officials from the Federal Communications Commission and the Federal Trade Commission have expressed serious concerns about a draft Trump administration executive order seeking to regulate tech giants such as Facebook and Twitter, according to several people familiar with the matter.
In a closed-door meeting last month, officials from the two agencies met to discuss the matter with a US Commerce Department office that advises the White House on telecommunications, the people said.
A key issue raised in the meeting was the possibility the Trump administration’s plan may be unconstitutional, one of the people said. The draft order – a summary of which CNN obtained this month – proposes to put the FCC and FTC in charge of overseeing claims of partisan censorship on social media. But critics of the idea, including some legislators and policy analysts in the tech community, say it amounts to appointing a government “speech police” in violation of the First Amendment.
“This executive order would be the most transformative action related to the purpose of the FCC since the Telecommunications Act of 1996,” said Blair Levin, a former FCC chief of staff during the Clinton administration. “This would give the FCC more power over content than it’s ever had.”…
[O]fficials have periodically signaled their reluctance to become an effective moderator of political speech.
Asked last November by Republican Senator Ted Cruz how the FTC could address allegations of conservative censorship, FTC Chairman Joseph Simons said it wasn’t clear the his agency “should be addressing that at all.”
Candidates and Campaigns
Axios: U.S. laws don’t cover campaign disinformation
By Joe Uchill
There is no U.S. law that prevents candidates, parties or political groups from launching their own disinformation campaigns, either in-house or through a contractor, so long as foreign money isn’t involved. It’s up to individual candidates to decide their tolerance for the practice…
Broadly, U.S. campaign finance laws don’t regulate free social media accounts. Even a vast network of inauthentic bot and troll accounts would likely be treated as a protected form of political speech.
“The Federal Election Campaign Act does not address this situation,” said Charles Spies, the leader of Clark Hill’s global political law practice. He noted that an aggressive prosecutor might try to find clever ways to apply seemingly unrelated statutes – just as they might for any other action that seems wrong but has no directly applicable law.
The only firm rules are the boundaries political actors set for themselves…
Axios reached out to the parties to see if they took active stances on the issue.
“The DNC does not hire outside entities to generate inauthentic content, and we advise campaigns against engaging in these activities,” Democratic National Committee chief security officer Bob Lord told Axios.
The Republican National Committee did not respond to several requests for comment.
Meanwhile: Campaigns can act in ways the national party does not endorse, and political committees, in turn, can act in ways the candidates do not endorse.
But if the buck stops with the current batch of candidates, there’s some reason for concern.
Among campaigns contacted for this story – 5 top Democrats and the Trump campaign – none responded with a firm policy regarding the use of phony accounts or how they would respond if supporters used them.
The States
Albuquerque Journal: NM’s new campaign rules let party pros pick the winners
By Editorial Board
According to an AP story in the Journal July 30, legislation signed by Gov. Michelle Lujan Grisham earlier this year included, among many (largely positive) changes, the creation of so-called “legislative caucus committees.”
These committees essentially allow the top-ranking official from each party of both the House and the Senate an unprecedented amount of power by allowing them to establish funds that can make unfettered non-cash contributions to individual political campaigns. Political parties now have the same ability, thanks to the new law.
House Speaker Brian Egolf, D-Santa Fe, has heralded the change as a boost for first-time candidates and newly elected officials – political newbies who may not have a war chest or much fund-raising savvy.
Sounds good, until you look a little closer.
A campaign finance reform advocate calls the move a “power grab by legislative leadership.” A donor who bumps up against New Mexico’s newly instituted $5,000 limit for a candidate is now able to turn around and donate far more to a caucus committee or political party.
How much more? A tidy $25,000 per donor in the primary, another in the general election. All to a committee that can give unlimited in-kind donations to a candidate. And in-kind donations can go a long way: legal services, printing, polling, food for campaign workers, etc. It’s a neat workaround to donation limits via a middleman with everything to gain by controlling which campaigns succeed and fail.
Daily Star-Journal: ‘Liberty Alliance USA,’ tied to old Greitens allies, says it will stir GOP’s grassroots
By Jack Suntrup St. Louis Post-Dispatch
“Liberty Alliance USA was formed in order to grow the conservative movement in Missouri now and for decades to come,” said Chris Vas, the organization’s executive director. “We were not created to support any specific candidates in the next election.”…
Current Missouri GOP leadership claims no connection to the Liberty Alliance.
Jean Evans, the party’s executive director, said in a statement the Missouri GOP “remains the only organization in the state dedicated to promoting the conservative cause and electing Republicans from the courthouse to the White House.”
She added, “In recent years, poorly-crafted campaign finance reforms have created a system that allows anyone with $5 to create a PAC to push their own personal political agenda.
“I have not spoken to anyone affiliated with the group,” she said. “It would not be appropriate for me to speculate on the goals or agenda of any particular group.”
