In the News
The Hill: Supreme Court needs to defend the First Amendment for Alaskan voters
By Allen Dickerson and Zachary Morgan
A group of Alaska voters are asking the Supreme Court to invalidate the state limits on political contributions. By far the largest state in the country in size, Alaska imposes the lowest limit on donations to statewide candidates. Alaska residents can give just $500 for each election cycle to gubernatorial candidates, who have to campaign across a state stretching hundreds of thousands of square miles.
For comparison, consider the next most northern state and the fourteenth largest state in the country, which is Minnesota. The Land of 10,000 Lakes is less than a seventh of the size of Alaska. However, its residents can give eight times more financial support to statewide candidates than Alaskans can. Minnesota is no outlier as its campaign contribution limits rank in the middle of the pack compared to other states.
In a world where campaign finance is most often viewed through the lens of the wealthiest donors and the biggest spenders, the case Thompson v. Hebdon asks an unusual question. Can limits ever be too low to be constitutional? The Supreme Court has answered yes before. In the case Randall v. Sorrell, it struck down limits in Vermont that allowed donors to give no more than $400 to a statewide candidate and no more than $200 to a candidate for state representative over two years. Adjusted for inflation, that $400 limit would be higher than the limit in Alaska today.
However, the Supreme Court ruling in Randall established a complicated test with two steps and five factors that lower courts have struggled to apply. As a result, how hard courts look at campaign finance restrictions depends on where you live. No fewer than four appellate courts have staked out different approaches to this area of law.
SCOTUSblog: Thursday round-up
By Kalvis Golde
At The Hill, Allen Dickerson and Zachary Morgan argue that a new petition offers a chance for the Supreme Court to overturn a campaign finance law in Alaska, “by far the largest state in the country in size,” which “imposes the lowest limit on donations to statewide candidates.”
Reuters: Koch-founded charity asks for Supreme Court help to keep donor list secret
By Alison Frankel
The Americans for Prosperity Foundation, a libertarian nonprofit founded by Charles and David Koch, filed a petition this week at the U.S. Supreme Court, asking the justices to review a 2018 ruling by the 9th U.S. Circuit Court of Appeals that would require Americans for Prosperity and other California-registered charitable foundations to disclose their major donors to the California Attorney General.
AFPF’s lawyers at Quinn Emanuel Urquhart & Sullivan are positioning the case as an opportunity for the Supreme Court to reaffirm a principle it clearly articulated in 1958’s NAACP v. Alabama: If a state attempts to interfere with the First Amendment right, it has to show that it has narrowly tailored its action to serve a compelling state interest. In the NAACP case, the Supreme Court struck down a demand from the Alabama AG for the names of NAACP members. AFPF contends that its major donors, like NAACP members in 1950s Alabama, would face harassment and threats of physical violence if they were exposed. The 9th Circuit decision, according to AFPF, unjustifiably compromises the First Amendment rights of donors to advocacy groups…
It’s worth noting that AFPF’s amici in its unsuccessful bid for en banc review included the NAACP Legal Defense and Education Fund, in addition to a bevy of right-leaning groups…
[T]he Supreme Court has already turned down a previous petition, by the Center for Competitive Politics [now Institute for Free Speech], challenging a 2015 9th Circuit ruling that upheld the charitable donor disclosure requirement…
I expect we’ll see a lot of amici backing AFPF, considering that conservative groups and some state AGs turned out in force both at the 9th Circuit for AFPF and in the Supreme Court when the Center for Competitive Politics challenged California’s disclosure requirement.
New from the Institute for Free Speech
Facebook’s Ad Policy is Being Weaponized
By Scott Blackburn
Facebook recently removed an ad run by the Trump campaign…
The Trump campaign ad above was reported to Facebook by Judd Legum, the founder of ThinkProgress – the self-described progressive news site. Legum says he specifically searched for ads by the Trump campaign that violated Facebook’s ad policy…
After Legum’s request, Facebook took down the ad. Legum is agitated that Facebook isn’t taking down more of Trump’s campaign ads, claiming that “Facebook’s neglect is putting us at risk of a 2016 repeat.”…
But Legum, despite his nakedly political motives, is technically correct. This ad does violate Facebook’s ad policy – in particular, Section 12, which prohibits ads that “contain content that asserts or implies personal attributes…” …
In practice, this policy means that Texas Democrats can’t run ads asking Latinos to join them in fighting against the President’s rhetoric. Jews for Bernie can’t ask members of the Jewish community to support their preferred candidate. The National Black Republican Association can’t ask other African Americans to join their cause…
The “personal attributes” prohibition is just one of thirty different rules that Facebook uses to justify banning ads. Some of those are perfectly reasonable (an ad must go to a functioning landing page). Some of them are arbitrary, but relatively clear about what you can and cannot do (you can’t sell tobacco or sex toys on Facebook). But many of the rules are so obviously vague that they can be read to prohibit nearly any ad. Ads must not contain “shocking,” “sensational,” or “disrespectful” content; they can’t be “deceptive” or “misleading;” ads can’t have “bad grammar.”
All of this is a long way of saying Facebook’s ad rules can, if the moderators so choose, justify the banning of any political ad…
If their rules don’t change, 2020 will become an election of ad tattletales, and Facebook will be in the unenviable position of attempting to explain why, given their own standards, they are leaving any political ad up at all.
The Courts
Montana Public Radio: Free Market Group Sues Bullock Over ‘Dark Money’ Rule
By Corin Cates-Carney
An Illinois advocacy group is suing Montana Gov. Steve Bullock over one of his trademark campaign finance policies targeting so-called ‘dark money’ in politics.
The lawsuit announced Wednesday asks a federal judge to strike down Montana’s nearly year-old policy that requires certain businesses seeking contracts with the state to disclose donors and spending on elections.
The filing in U.S. District Court in Montana says Illinois Opportunity Project plans to send thousands of mailers to Montana voters in the final months of the state’s 2020 race for governor.
“This case is about the First Amendment,” says Daniel Suhr, an attorney with the Liberty Justice Center, which is representing Illinois Opportunity Project in the case…
In its legal filing the group wrote that it hopes to urge Montana candidates not to support campaign finance policies like those of Gov. Bullock…
The executive order he signed in June 2018 makes state agencies require potential contractors who sell more than $25,000 in services or $50,000 worth of goods to disclose money given to candidates, political parties or other groups paying for electioneering communication…
The lawsuit this week says Bullock’s order requiring certain government contractors to reveal their political spending violates free speech and privacy rights.
The Liberty Justice Center’s Daniel Suhr says political donors could be harassed or retaliated against because of their support for certain issues, and that the First Amendment to the U.S. Constitution protects anonymous issue advocacy.
The court filing argues that if Bullock’s Executive Order remains state policy the Illinois group will “chill its own speech and not engage in its desired communication.”
FEC
Politico: FEC chair summons Facebook, Twitter, Google to disinformation session
By Nancy Scola
The chair of the FEC is summoning Facebook, Google and Twitter to a meeting next month on digital disinformation amid concerns that new forms of Russian-style social media manipulation will target the 2020 election.
“The goal of the symposium will be to identify effective policy approaches and practical tools that can minimize the disruption and confusion sown by fraudulent news and propaganda in the 2020 campaign,” reads the invitation sent by the office of FEC Chairwoman Ellen Weintraub, a Democrat, and obtained by POLITICO.
The day-long Sept. 17 event is also slated to involved academics, journalists and representatives from both Democratic and Republican political organizations, according to the invitation, with the session focused on “fighting the disinformation that risks further corroding our democracy.”
Facebook and Twitter plan to send representatives to the session, the companies confirmed to POLITICO. A Google spokesperson did not immediately comment.
While Russian election interference has been a central focus since the 2016 election, the event will address growing concerns about home-grown disinformation, too, according an FEC official familiar with the event, who requested anonymity to discuss the session, which has not yet been made public.
“Under the First Amendment, we don’t ban false statements in advertising and social media, but there’s a difference between the right to speak and the right to be disseminated” online, the official said.
New York Times: The Election Watchdog That Can’t Bark
By Editorial Board
Sure, presidents are busy people, but in the interest of safeguarding democracy, President Trump needs to move a neglected item toward the top of his to-do list: put forward nominees to fill the vacancies at the Federal Election Commission – and push the Senate to confirm them…
The president should never have let the situation reach this point. One Democratic seat has been vacant since April 2017, a Republican seat since February 2018. Mr. Trump has tapped only one nominee, Republican Trey Trainor – whose nomination in September 2017 has been effectively ignored by the Senate majority leader, Mitch McConnell…
The way commissioners typically get confirmed is for the president, in consultation with congressional leaders, to refer nominees in pairs, one from each party. This reduces the incentive for either team to stonewall. Mr. Trump’s sending up a lone name was considered posturing, and no one seriously expected Mr. McConnell to act. With the agency now facing paralysis, the White House must huddle with lawmakers to find nominees that everyone can live with, and the confirmations need to be fast-tracked…
The president could submit up to six nominations. On top of the vacancies, the terms of the three remaining commissioners have expired, though they can stay on until their successors are confirmed. But at the very least the vacancies should be filled so that America’s elections monitor can get back to work.
First Amendment
By Jacob Sullum
On the same day last month that a federal appeals court ruled that Donald Trump’s blocking of irksome critics on Twitter violated the First Amendment, former New York state legislator Dov Hikind sued Rep. Alexandria Ocasio-Cortez (D-N.Y.), arguing that she had committed the same constitutional sin by blocking him. Yesterday, Columbia University’s Knight First Amendment Institute, which filed the lawsuit that led to the ruling against Trump, asked Ocasio-Cortez to cut it out.
“We understand from news reports that you may be blocking some Twitter users from your @AOC account because of the views they have expressed,” Jameel Jaffer, the institute’s executive director, writes in a letter to Ocasio-Cortez. “This practice is unconstitutional, and we are writing in the hope of dissuading you from engaging in it.”
In addition to the ruling against Trump by the U.S. Court of Appeals for the 2nd Circuit (which includes New York), Jaffer cites a January ruling against Phyllis Randall, chair of the Loudoun County, Virginia, Board of Supervisors. In that case, the U.S. Court of Appeals for the 4th Circuit held that, because Loudon used her “Chair Phyllis J. Randall” Facebook page for official purposes and opened it to comments by the general public, the “interactive component” of the page qualified as a “public forum” under the First Amendment. The court upheld a federal judge’s decision in favor of a local gadfly whom Randall had blocked after he posted a comment suggesting that members of the Loudon County School Board had taken official actions that benefited their relatives.
Echoing Trump and Randall, Ocasio-Cortez argues that her @AOC Twitter account is personal, not official. But in light of the principle established by the 2nd Circuit and 4th Circuit cases, Jaffer says, that argument does not hold water.
Supreme Court
Washington Post: Senate Republicans tell Supreme Court not to be ‘cowed’ by Democratic senators
By Robert Barnes
All 53 Republicans in the Senate urged the Supreme Court on Thursday not to be “cowed” by a brief from a handful of Democratic senators…
In a letter to the court’s clerk, the Republicans said the brief filed by Sen. Sheldon Whitehouse (D-R.I.) and four other Democrats “openly threatened this court with political retribution if it failed to dismiss the petition as moot.”
The justices “must not be cowed by the threats of opportunistic politicians,” said the letter, drafted by Senate Majority Leader Mitch McConnell (R-Ky.)…
“The Supreme Court is not well. And the people know it,” Whitehouse wrote in the brief. “Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’ ” The phrase is from a poll question with which a majority of Americans agreed.
Whitehouse said the brief was meant to caution the court about the public’s perception of the institution.
“The response to our brief from Republicans and the partisan donor interests driving the court’s polarization shows exactly why it’s time to speak out,” he said in a statement Thursday. “They want us to shut up about their capture of the court; we will not.”
Congress
Wall Street Journal: Big Tech’s ‘Innovations’ That Aren’t
By Senator Josh Hawley
There’s no question that Silicon Valley and the three or four corporate behemoths that dominate it have made it easier to share information. But the modern smartphone, the search engine and the digital social network were invented more than a decade ago. What passes for innovation by Big Tech today isn’t fundamentally new products or new services, but ever more sophisticated exploitation of people.
To monetize older innovations, the dominant platforms employ behavioral scientists to develop interface designs that keep users online as much as possible. Big Tech calls it “engagement.” Another word would be addiction…
At the same time, the dominant tech companies’ market concentration is stifling competition that might bring truly new and rewarding innovation. Want to raise money for a venture to challenge Facebook or Google? Good luck. The best pitch for a startup is a pitch for getting purchased by one of the tech giants a few years in. If they won’t buy you, they’ll just copy you.
Americans shouldn’t settle for this stagnation. It’s time we demanded more of Big Tech than it demands of us. That’s why I’ve proposed banning the “dark patterns” that feed tech addiction. I’ve introduced legislation to provide consumers a legally enforceable right to browse the internet privately, without data tracking. I’ve advocated stepping up privacy safeguards for children and requiring tech companies to moderate content without political bias as a condition of civil immunity. And I’ve advocated more competition to spur real innovation for real people…
To the masters of Big Tech, I say: Raise your sights. If you want to be leaders for this country in this century, earn it. Build tools that enrich lives, strengthen society, create good-paying jobs, and improve productive capacity.
The Media
Wall Street Journal: Trump Steps Up Criticism of Fox News
By Michael C. Bender and Joe Flint
As Mr. Trump’s re-election campaign approaches, one of his chief concerns, according to his political advisers, has been the campaign’s surrogate operation: Which men and women will appear on television to defend his decisions and promote his candidacy. Mr. Trump has long viewed Fox News as part of that effort, the advisers say.
Many of Mr. Trump’s social media posts mirror segments on Fox News, or are real-time reactions to topics discussed by the network’s anchors. Fox News, sister network Fox Business and Fox-owned local TV stations have received about 30% of the 262 interviews he has given as president, according to a tally from Martha Kumar, director of the White House Transition Project.
More than 15 men and women have been affiliated with both the Trump administration and Fox News, and another half-dozen current or former administration officials have connections to Fox Business Network or Fox Corp…
He is also increasingly bifurcating the network into allies and opponents. White House aides said Mr. Trump uses the trappings of his office to wield influence and ensure friendly Fox anchors remain that way…
The most frequent Twitter handle mentioned on Mr. Trump’s feed since he became president-aside from mentions of himself and the White House-is that of Fox & Friends, the network’s flagship morning program that has provided positive coverage of the White House, according to the Trump Twitter Archive website.
But while these shows maintain some of the network’s highest ratings, some companies have pulled advertisements from the programs due to controversial comments that hosts have made. Media watchdog groups also target these Fox News shows with the aim of encouraging boycotts.
Meanwhile, weekend and daytime anchors who present a more nuanced picture of the administration are targeted by Mr. Trump.
