First Amendment
Reason (Volokh Conspiracy): The First Amendment and Tax Exemptions for “Hate” Groups
By Eugene Volokh
Many thanks for inviting me to testify about “How the Tax Code Subsidizes Hate.” The Tax Code indeed subsidizes hate, just as it subsidizes Socialism, Satanism, and a wide variety of dangerous and offensive ideas. Under the First Amendment, tax exemptions have to be distributed without discrimination based on viewpoint; that means that evil views have to be treated the same way as good views.
The Supreme Court has repeatedly made clear that tax exemptions can’t be denied based on the viewpoint that a group communicates…
The Court has also made equally clear that excluding speech that manifests or promotes “hate” is forbidden viewpoint discrimination. The Court said so unanimously in Matal v. Tam, which struck down a rule that excluded “disparag[ing]” trademarks from certain kinds of trademark enforcement benefits…
It’s possible that tax exemptions to advocacy groups might be allowed only for groups that support their arguments with “intellectual exposition” consisting of “a rational development of a point of view,” rather than merely “expres[ing] . . . emotions” (in the words of a 1983 D.C. Circuit decision, which the IRS has since adopted into its regulations). I’m not certain this is so; I think the Supreme Court may well conclude that this so-called “methodology” standard, like the “sufficiently full and fair exposition” standard, is so subjective as to provide too much room for deliberate or subconscious viewpoint discrimination…
[H]aving the IRS focus on the “methodology” of a group’s arguments is unlikely to effectively sort good advocacy groups from bad ones. But it would exacerbate the risk that government officials will succumb to the normal human impulse to apply the rules selectively to their political enemies.
FEC
Bloomberg: The Federal Election Commission Needs Commissioners
By Editorial Board
Inertia is powerful at the FEC, even when it’s fully staffed. No more than three commissioners may be from the same political party, which in practice has produced a great many 3-3 stalemates between Democratic and Republican members…
The FEC is weak by design. Congress didn’t want an aggressive cop on the campaign beat, and some of its reasons were democratically sound, if also self-serving. Elections, after all, should be decided by voters, not regulatory bureaucracies.
Still, the rules must be enforced if elections are to be fair – and seen to be fair. With the 2020 election fast approaching, it’s an inauspicious moment to disable the federal election watchdog – especially when the president’s personal lawyer is already busy soliciting campaign help from a foreign government and the U.S. attorney general has publicly equivocated about whether it’s improper for agents of hostile foreign nations to provide political dirt to U.S. campaigns…
In 2017, President Donald Trump nominated Texas lawyer James “Trey” Trainor III to serve on the FEC. The nomination went nowhere. Trump resubmitted it this year, but the Senate, which is not known to be overburdened by legislation, has not held a confirmation hearing.
The president should pick a full slate of new commissioners: three Democrats and three Republicans, chosen with careful input from senators of both parties. If that’s too much efficiency to ask of a haphazard White House, then add the FEC to the list of repairs facing the next president and the next Senate. With luck – and, let’s hope, a fair election – they’ll address it.
Talking Points Memo: The FEC Is Paralyzed. It Couldn’t Come At A Worse Time.
By Ciara Torres-Spelliscy
Back in March, there was a small glimmer of action from the FEC when it announced a settlement with a super PAC for violating a ban on foreign nationals’ spending in the 2016 election…
Yet any hope that the FEC would tackle Russian interference was dashed when the commissioners deadlocked on a key question in August.
The FEC could have looked into Russian agent Maria Butina and Russian official Alexander Torshin and their alleged involvement with the NRA during the 2016 presidential election, but it refused to investigate. The current chair of the FEC put out a statement expressing her frustration with the agency…
Earlier in 2018, the FEC deadlocked on new rules to prevent foreigners from spending in U.S. election. And for years, the FEC failed to move forward with any new rules to address dark money (instances when political donors are unknown).
Already hamstrung by the commissioners’ inability to come to any agreements, the FEC lost its quorum in August when one of its commissioners quit to join a private practice. Though the FEC was nearly inert before, it now legally cannot do many of its basic functions.
I’m scheduled to testify about this during a House committee on Wednesday. This is the first House oversight hearing on the FEC since 2011, so holding the hearing is a step in the right direction.
However, the impediment to strengthening campaign finance regulation does not lie in the House. It has already passed H.R. 1, an anti-corruption bill that includes several campaign finance reform measures and changes the makeup of the FEC.
The Media
Politico: Media’s legal defeats trouble First Amendment advocates
By Josh Gerstein
Some legal experts view the rulings as signs that the courts’ view of the media is beginning to change, with more judges embracing the notion that major news outlets are partisan combatants rather than engaged in a dispassionate search for the truth…
The recent rulings involved well-known, national media outlets: National Public Radio, The New York Times and Fox News. All the decisions evinced serious doubts about the media’s actions.
Last month, the 2nd U.S. Circuit Court of Appeals revived a lawsuit against the Times by Sarah Palin, the 2008 Republican vice presidential nominee and former governor of Alaska…
The following day, a federal District Court judge in Texas dealt a blow to NPR by rejecting the network’s motion to throw out a $57 million lawsuit challenging its reporting about efforts by a conservative investor, Ed Butowsky, to stir up interest in the death of Seth Rich, a Democratic National Committee staffer, and the unsubstantiated possibility that he leaked Democratic emails to WikiLeaks…
And earlier this month, the 2nd Circuit struck again, with a different panel of the same court breathing new life into a suit that Rich’s parents brought against Fox News alleging that the network conspired with Butowsky to concoct and publish false reports that their son had dealings with WikiLeaks…
“The days of the journalist as romantic hero are long over,” Floyd Abrams, the veteran press defender, told POLITICO.
“It’s true that there was a time in the 1970s and for some years thereafter … when we did seem to win all our cases and journalists were atop all sorts of prestige lists,” added Abrams, who filed an amicus brief backing the Times in the Palin appeal. “We might have won then some of the motions that we’ve recently lost. But the law remains, at its core, favorable and it’s not – certainly not yet – a time for concern.”
New York Times: The Growing Threat to Journalism Around the World
By A. G. Sulzberger
The current administration, however, has retreated from our country’s historical role as a defender of the free press. Seeing that, other countries are targeting journalists with a growing sense of impunity…
To give you a sense of what this retreat looks like on the ground, let me tell you a story I’ve never shared publicly before. Two years ago, we got a call from a United States government official warning us of the imminent arrest of a New York Times reporter based in Egypt named Declan Walsh. Though the news was alarming, the call was actually fairly standard. Over the years, we’ve received countless such warnings from American diplomats, military leaders and national security officials.
But this particular call took a surprising and distressing turn. We learned the official was passing along this warning without the knowledge or permission of the Trump administration. Rather than trying to stop the Egyptian government or assist the reporter, the official believed, the Trump administration intended to sit on the information and let the arrest be carried out. The official feared being punished for even alerting us to the danger.
Unable to count on our own government to prevent the arrest or help free Declan if he were imprisoned, we turned to his native country, Ireland, for help. Within an hour, Irish diplomats traveled to his house and safely escorted him to the airport before Egyptian forces could detain him…
Eighteen months later, another of our reporters, David Kirkpatrick, arrived in Egypt and was detained and deported in apparent retaliation for exposing information that was embarrassing to the Egyptian government. When we protested the move, a senior official at the United States Embassy in Cairo openly voiced the cynical worldview behind the Trump administration’s tolerance for such crackdowns. “What did you expect would happen to him?” he said. “His reporting made the government look bad.”
Online Speech Platforms
Facebook Newsroom: Facebook, Elections and Political Speech
By Nick Clegg, VP of Global Affairs and Communications
Speaking at the Atlantic Festival in Washington DC today, I set out the measures that Facebook is taking to prevent outside interference in elections and Facebook’s attitude towards political speech on the platform. This is grounded in Facebook’s fundamental belief in free expression and respect for the democratic process, as well as the fact that, in mature democracies with a free press, political speech is already arguably the most scrutinized speech there is…
We rely on third-party fact-checkers to help reduce the spread of false news and other types of viral misinformation, like memes or manipulated photos and videos. We don’t believe, however, that it’s an appropriate role for us to referee political debates and prevent a politician’s speech from reaching its audience and being subject to public debate and scrutiny. That’s why Facebook exempts politicians from our third-party fact-checking program…
Facebook has had a newsworthiness exemption since 2016. This means that if someone makes a statement or shares a post which breaks our community standards we will still allow it on our platform if we believe the public interest in seeing it outweighs the risk of harm. Today, I announced that from now on we will treat speech from politicians as newsworthy content that should, as a general rule, be seen and heard. However, in keeping with the principle that we apply different standards to content for which we receive payment, this will not apply to ads – if someone chooses to post an ad on Facebook, they must still fall within our Community Standards and our advertising policies.
Wall Street Journal: Political Campaigns Turn to Social-Media Influencers to Reach Voters
By Emily Glazer and Georgia Wells
Advocacy groups and campaigns, including those of President Trump and Democrats Kamala Harris, Bernie Sanders and Andrew Yang, are borrowing a well-worn tactic used by brands in hopes that messages from influencers-who can range from people with millions of YouTube subscribers to “microinfluencers” with smaller local followings-are the new celebrity endorsements.
Such messaging, the groups believe, could be more relatable and persuasive with voters than television ads or mailers, and cheaper than hiring celebrities…
The campaign of Ms. Harris, a Democratic presidential candidate and senator from California, has asked YouTube stars to promote her candidacy, offering invitations to her events or campaign T-shirts in exchange.
A public-relations firm working for Mr. Yang, an entrepreneur, paid people to create memes that were shared with influencers to promote his proposal to pay all Americans a monthly “freedom dividend.”
Mr. Sanders’s campaign has done one-off work with social-media influencers who reached out to help spread his message to their followers…
A person familiar with the matter said the Republican National Committee has identified and offered social-media training to “Rising Stars” who are already influencing conversations in their communities…
Portal A, a media firm that creates branded content for young viewers, worked with three influencers in swing states to make YouTube videos in the weeks before the 2016 election to encourage people to vote…
But it is still relatively fresh terrain, and the rules aren’t always clear. Influencers must disclose when a brand has sponsored a post, but the Federal Election Commission has made no such rules for political content.
When an Instagram dog account asked to be paid $750 for a post and two stories on the platform, NextGen PAC consulted its lawyer to see if it needed the account to include a disclaimer, Mr. Wessel said. The group determined that since there was no express advocacy for a candidate and the message was focused on getting out the vote, no disclaimer was needed.
Trump Administration
Center for Responsive Politics: Trump’s Ukraine call raises questions about campaign finance rules on foreign interference
By Anna Massoglia and Karl Evers-Hillstrom
Trump reportedly urged Ukrainian President Volodymyr Zelensky to investigate his potential 2020 opponent over an unsubstantiated claim that Biden blocked a Ukrainian investigation into his son’s business dealings in the former Soviet country. A whistleblower in the intelligence community reportedly said Trump urged Zelensky to work with Trump’s personal lawyer, Rudy Giuliani, to investigate Biden’s son in exchange for “promises.”…
Although the incident has some critics alleging a quid-pro-quo between Trump and Zelensky, campaign finance experts say there may already be evidence of a campaign finance violation…
“Certainly, the Ukrainian government spending money to investigate the family of Trump’s potential challenger would be of immense value to Trump’s reelection campaign, and requesting such a probe would bring the foreign national solicitation ban into play,” Brendan Fischer, director of federal reform at Campaign Legal Center, told OpenSecrets in an email.
“But ultimately, whether the president might face liability for campaign finance violations is separate from whether the underlying conduct is an appropriate use of power,” he added…
Some question Giuliani’s work for foreign clients while simultaneously serving as Trump’s personal attorney, saying it raises potential ethics issues and conflicts of interests.
In 2018, Senate Democrats asked the Justice Department to investigate whether Giuliani’s work conducting “a number of political and public relations activities on behalf of foreign” interests may have triggered disclosure requirements under the Foreign Agents Registration Act.
In August 2018, a leaked letter from Giuliani’s global consulting firm to the president of Romania revealed that he was paid to “lobby” a foreign government for policies contradicting U.S. State Department policy. Giuliani confirmed the payment’s existence to Politico but has not disclosed the amount.
Washington Post: Trump denies explicitly tying U.S. military aid to demand for Ukrainian probe of Biden
By Seung Min Kim, Felicia Sonmez and John Wagner
The nonprofit government watchdog group Common Cause also on Monday filed complaints with the Federal Election Commission and the Department of Justice on the matter. The organization accused Trump and Giuliani of illegally soliciting a political contribution from Zelensky and Ukranian officials by allegedly urging them to investigate Biden.
Fundraising
Campaigns & Elections: How American-Style Fundraising Is Changing Campaigns Abroad
By Jonathan Moakes
In most countries, especially in the developing world and transitional democracies, a fundraising culture has never existed. Political parties, particularly opposition parties, struggle to raise even the minimal sums necessary for running a basic campaign. Average citizens see the idea of making a political contribution as grubby and corrupt. In authoritarian and one party-dominant countries, they may also see it as dangerous and foolhardy, given the real possibility of reprisal from the ruling elite if word of the donation leaks out.
The lack of a fundraising culture in much of the world tends to help entrench ruling elites…
Now, however, there are some signs that it may be possible to do real political fundraising in a growing number of countries. There are several reasons for this. One is the rise of effective digital fundraising practices, particularly when they can be targeted at a country’s diaspora living in more prosperous places. In addition, as a new generation of leaders become more frustrated with entrenched governments, they seem to be more willing to take risks in asking high net-worth individuals for seed capital in order to bring change through enhancing the infrastructure of their campaigns.
Working with such leaders, we often find that a few fundraising basics can go a long way. In fact, we’ve seen strong initial returns from such fundamentals as the development of good lists, a disciplined system of call time, attention to detail and the different motivations of different world-be donors, and development of a comprehensive approach.
Such basics, linked to a party or a candidate with a compelling message, often generate surprisingly strong results. That’s especially true in countries where there’s an extensive, latent desire for change and progress.
Candidates and Campaigns
Boston Globe: Kennedy calls for so-called ‘People’s Pledge’ to limit outside money in Senate campaign
By Victoria McGrane
Representative Joseph P. Kennedy III challenged Senator Edward J. Markey and the two other Democrats running for Senate in 2020 to sign a so-called People’s Pledge to limit outside political groups from dumping money into what’s shaping up to be a divisive intraparty battle.
“This election will be decided by the people of Massachusetts. It’s their voices that should drive our debates, focus our agendas and set the terms of this race,” Kennedy said in a press release announcing the move.
Markey’s campaign “will review the proposal,” said senior campaign advisor John Walsh in a statement.
Asked what has changed since 2013, when Markey pushed his GOP opponent to adopt a similar pledge during a special election for Senate, campaign spokeswoman Mara Dolan would only say, “That’s our statement.”
The effort signals that Kennedy feels confident he can raise plenty of money on his own as he seeks to oust Markey. It also comes just days after a major environmental group pledged to raise $5 million on a campaign to bolster Markey’s reelection bid.
Kennedy also will try to use the pledge to play some defense. The four-term congressman will push to have the agreement preclude spending by the Democratic Senatorial Campaign Committee…
The other two challengers quickly accepted the proposal – while also using it as an opportunity to criticize the candidate who proposed it.
“Of course I support blocking any outside spending in this race. But I am disappointed that Congressman Kennedy and Senator Markey seem only interested in recycling old gimmicks when it’s convenient for them,” said Liss-Riordan.
Pemberton also agreed to sign the pledge while accusing Kennedy of hypocrisy.
“Voters are getting more and more frustrated with insider politicians who suddenly ‘see the light’ on special interest money when it suits their immediate needs,” he said.
The States
Capital Press: Food-makers fight record fine in Washington GMO case
By Don Jenkins
A trade group representing manufacturers has asked the Washington Supreme Court to overturn a record fine against the food industry for making anonymous donations to defeat a GMO-labeling initiative in 2013.
In an amicus brief filed last week, the National Association of Manufacturers argues lower courts were insensitive to internet-fueled reprisals that businesses face.
By funneling campaign contributions through an umbrella organization, food-makers preserved their right to band together and take political stands, according to the manufacturers.
“Without anonymity, speakers face boycotts, harassment, and even threats of violence, all for engaging in activity at the heart of the First Amendment’s protection,” the amicus brief states.
The Supreme Court will hear arguments Oct. 22 in Olympia on whether the Grocery Manufacturers Association violated the state’s election law by not naming the companies that spent $11 million to defeat the initiative…
The court also will decide whether to uphold the largest-ever fine levied in the U.S. for a campaign finance violation. An appeals court reduced the fine to $6 million from $18 million, but it still far exceeds any other election-law penalty.
Attorney General Bob Ferguson is seeking to restore the $18 million fine.
