Congress
The Hill: House to vote this month on legislation to combat foreign interference in elections
By Maggie Miller
The House will vote on legislation later this month aimed at limiting foreign interference in U.S. elections after a bipartisan report from the Senate Intelligence Committee this week called on Congress to take action on the issue…
House Majority Leader Steny Hoyer (D-Md.) announced the House will take up legislation that would require campaigns to report “illicit offers” of election assistance from foreign governments or individuals to both the FBI and the Federal Election Commission (FEC).
The legislation, known as the SHIELD Act and just introduced this week, also includes language designed to ensure that political advertisements on social media are subject to the same sponsor disclosure rules as ads on television and radio broadcasts…
The Senate Intelligence Committee report this week urged Congress to take action to ensure social media sites can’t be used to interfere in the next election. The report concluded that Russian actors took advantage of weakness in the platforms to influence the 2016 presidential election.
The Intelligence Committee report specifically highlighted the imposition of new regulations on transparency of ads as one of its recommendations for action.
The House Administration Committee is scheduled to mark up the SHIELD Act next week prior to the full House taking it up, with committee Chairwoman Zoe Lofgren (D-Calif.) among the bill’s key sponsors.
The Courts
Law360: NJ Legislative Leaders Seek Role In ‘Dark Money’ Bill Suit (paywall)
The leaders of the New Jersey Legislature asked a federal judge Thursday to let them in to a fight with a conservative advocacy group over a bill that would compel so-called dark money organizations to reveal their donors, about a week after the jurist blocked enforcement amid constitutional concerns.
Free Speech
Cato: Free Speech Is Not Killing Us
By John Samples
Andrew Marantz’s New York Times op-ed “Free Speech Is Killing Us” provokes but does not persuade…
Facebook and other companies create and enforce Community Standards that remove threatening speech or harassment. Section 230 of the Communications Decency Act protects companies from liability for restricting “access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” Far from allowing Facebook to “get away with the (glorification) of murder”, as Marantz bizarrely asserts, Section 230 makes it possible for the company to regulate the very speech he condemns.
We should keep in mind though that Congress is not the primary reason your Facebook feed does not look like 8chan. Facebook moderates content according to its Community Standards to maximize the number of users on the platform. The desire for profit, along with some sensible laws, is moving the companies toward an acceptable balance between speech and safety.
Marantz wants more… more government, that is:
Congress could fund, for example, a national campaign to promote news literacy, or it could invest heavily in library programming. It could build a robust public media in the mold of the BBC…If Congress wanted to get really ambitious, it could fund a rival to compete with Facebook or Google.
A campaign to increase news literacy might be a good thing in part because it would show that speech might be our salvation rather than our killer. But why must the government fund it? Wouldn’t the tech companies do a better job? Do we really think extreme speakers or listeners on 8chan would tune into federal “library programming” or a more heavily funded PBS? Finally, does Marantz realize that a publicly owned and managed “Facebook” would be prohibited by the First Amendment from removing the very noxious speech he condemns?
FEC
Fox News: GOP lawmaker requests FEC watchdog investigate chair’s ‘political’ statements
By Bradford Betz
The request by Rodney Davis, R-Ill. was outlined in a 4-page memo to FEC Inspector General Christopher L. Skinner. In it, Davis chastised FEC Chair Ellen L. Weintraub for using government time and resources for “ideological, and at times, political, purposes.” He recounted four instances where Weintraub had used FEC resources to publish her personal opinions on President Trump.
In a February 2017 statement issued on FEC letterhead, Weintraub requested the president show evidence of “alleged voter fraud in New Hampshire,” a reference to Trump’s claim that illegal voting had cost him the state’s four electoral votes in the 2016 presidential election. In a March follow-up letter, Weintraub reiterated that request.
In May 2017, Weintraub wrote a statement, again on FEC letterhead, rebuking Trump for his creation of an Advisory Commission on Election Integrity, saying: “Mr. President, take responsibility for your words. Document them if you can. Apologize to them if you have to. But don’t ship them off to a commission.”
Weintraub wrote a second letter to Trump about his New Hampshire voter fraud claims in August 2019 in a tone Davis described as “partisan snark.”
“To put it in terms a former casino operator should understand: There comes a time when you need to lay your cards on the fable or fold,” she wrote.
The letter was not hosted on the FEC website, but was drafted with the agency’s letterhead and appeared on Weintraub’s Twitter feed, according to Davis.
Davis also criticized Weintraub for appearances on CNN and MSNBC to “discuss matters outside the purview of the FEC.” On at least two occasions, Weintraub dismissed Trump’s claims as “conspiracy theories” that are “damaging to our democracy.”
Davis argued that Weintraub had violated the FEC’s nonpartisan position by failing to indicate “in any interview that she was speaking as a private citizen and not as Chair of the nonpartisan FEC.”
Because of her ostensible bias against President Trump, Weintraub “should publicly admit her political differences with the President, disclose her conflict of interest, and at the very least, recuse herself from voting on Matters Under Review involving the President,” Davis wrote.
Online Speech Platforms
Washington Post: A Facebook policy lets politicians lie in ads, leaving Democrats fearing what Trump will do
By Craig Timberg, Tony Romm and Drew Harwell
As Facebook cracked down on disinformation flooding its social media platforms, executives decided to codify a key loophole: Politicians remained free to lie at will – unbound by the rules designed to stop everyday users from peddling viral falsehoods.
This decision, put into place last year, has sparked a sharp backlash this week among Democrats, who complain that it gives President Trump free rein to use major social media platforms as disinformation machines. Sen. Elizabeth Warren (D-Mass.), a leading presidential candidate, made this point in a Facebook ad Thursday in which she joked that the company had endorsed Trump, adding that its policies allow “a candidate to intentionally lie to the American people.”
Warren’s ad was the latest salvo in a growing campaign by Democrats to pressure social media companies to curb Trump’s ability to push demonstrably untrue information on their platforms…
The Democratic complaints have emerged as a counterpoint to long-standing claims by Republicans, including Trump, that social media platforms and their mostly liberal workforces unfairly tilt the playing field against conservatives and their ideas…
The company’s exception for political speech also has fueled resentment among the Democratic campaigns fighting to win attention and combat falsehoods online. Calling on Facebook to “refuse to air baseless ads,” Sabrina Singh, a spokesperson for Sen. Cory Booker (D-N.J.)’s presidential campaign, said in a statement: “We should have all learned the lessons from 2016 and social media companies should have to bear more responsibility to prevent lies from being spread against anyone.”…
DNC chief Seema Nanda said in a statement that Facebook had missed an opportunity to ensure its platform was a place voters could rely on to learn the facts. “Trump has an utter disregard for the truth, and allowing his lies to go unchecked sets a dangerous precedent that could lead to further escalation,” she said.
National Review: Elizabeth Warren Is Wrong, and Facebook Is Right
By David French
Asking tech companies to police the truth of paid political ads opens a Pandora’s Box of potential bias and censorship. Moreover, it’s completely inconsistent with the general practice of television and radio advertising. As NBC’s Dylan Byers pointed out, the ad has also run on NBC, ABC, CBS, Google, YouTube, and Twitter. Asking corporations – including corporations who attempt to outsource fact-checking to independent fact-checkers – to referee the contents of political ads would result in an increased corporate thumb on the scales of American politics. It’s also inconsistent with American constitutional principles.
Yes, I know that Facebook is a private corporation and not subject to constitutional restraint, but I’ve long argued that tech companies should voluntarily adopt policies that are informed by First Amendment values, and Facebook’s policy is completely consistent with the First Amendment. For example, in 2016, the Sixth Circuit Court of Appeals upheld a permanent injunction against enforcement of Ohio’s political false-statements law, and – as the court noted – similar political false-statement laws have been struck down time and again. Indeed, in United States v. Alvarez, the Supreme Court declared that it “has never endorsed the categorical rule . . . that false statements receive no First Amendment protection.”…
One final note – I’m always intrigued at the level of fury applied to social media ads (especially ads on Facebook) over and above the fury applied to television and radio advertising. It’s as if people attribute near-mystical powers to Facebook ad targeting mechanisms. Don’t make that mistake. Facebook ads matter – like all ads matter – but they are not the magic keys that unlock the gates of the White House. There is no need to depart from the longstanding practice of dealing with campaign rhetoric through debate rather than censorship to face the challenge of false or misleading speech in online ads.
The Hill: Poll finds majority want government to play role in moderating social media
By Chris Mills Rodrigo
The majority of American social media users want the government to intervene in moderating content, according to a new poll released Wednesday.
Morning Consult’s survey found that 59 percent of self-described social media users think the government should play a role in regulating how platforms decide what content to keep up or delete.
The majority of all respondents also said they had “not too much” or “no confidence” in social media companies to remove harmful content, including false information, harassment, hate speech and offensive material…
Wednesday’s poll suggests some public support for removing Section 230.
Twenty-one percent of respondents said social media companies are always legally responsible for offensive content shared on their platforms, while 39 percent said they are sometimes legally responsible. Just 9 percent of respondents said companies are never legally responsible for the content.
Morning Consult surveyed 2,072 self-identified social media users between Aug. 21-24. The margin of error for the sample is 2 points.
IRS
The Hill: Bullock: IRS shouldn’t reduce donor reporting requirements
By Naomi Jagoda
Montana Gov. Steve Bullock (D), a 2020 presidential candidate, on Monday urged the IRS not to adopt proposed rules that would reduce donor reporting requirements for certain tax-exempt groups.
“I am deeply concerned that the proposed rule will further degrade transparency for so-called ‘dark money’ groups that spend money to influence elections,” Bullock wrote in formal comments to the IRS, which come after he successfully challenged a previous version of IRS guidance on this topic.
“Most concerning, the proposed rule threatens to invite foreign election influence and thwart the enforcement of state and federal prohibitions on foreign election spending,” he added. “Finally, the proposed rule will create additional hurdles for state revenue agencies and charity regulators charged with making state tax and compliance determinations.”
Bullock sent the comments in his official capacity as governor…
The IRS has said that it doesn’t need the names and addresses of the donors to carry out tax laws, and has also noted that the donor information, which is supposed to be kept private, has inadvertently been made public in the past…
“The need for the IRS and the states to be able to review the donor identifying information outweighs the minimal risks of inadvertent disclosure,” Bullock wrote.
Comments on the IRS’s proposed rules are due by Dec. 9.
The Media
Washington Post: The Technology 202: Facebook’s Biden decision highlights broader media struggle on political ads
By Cat Zakrzewski
But the problem isn’t unique to Facebook: The entire media industry – from other social media platforms to cable networks – is grappling with how to treat politicians’ ads that contain unproven allegations or false or misleading information.
“There’s been a lot of time and money spent on fighting Facebook in D.C., but that doesn’t mean that Facebook is the only platform we should be looking at here,” said Matt Wood, vice president of policy and general counsel at Free Press, a press freedom advocacy organization…
Broadcasters such as NBC, ABC and CBS have to comply with the Federal Communications Commission’s rules around political ads, which bar them from censoring candidates. Stations have largely interpreted this to mean if they must run ads from candidates, while they can fact-check and prohibit ads from Super PACs and other third-party groups.
Cable networks like CNN do not have to comply with these rules. And for its part, CNN refused to air the ad with misleading claims about Biden (which also called the network’s own anchors “media lapdogs”) because it did not meet its advertising standards. But many other media companies still allowed the ad. As NBC’s Dylan Byers noted, Fox News, MSNBC, NBC, ABC, CBS, Google and Twitter have not banned the ads…
Free Press recently released a statement criticizing Facebook’s political ad policy, and the organization has called for TV stations to also step up their fact-checking. “These laws come from an era when you had broadcast stations and newspapers.”
DOJ
Slate: The Arrest of Giuliani’s Ukraine Associates Shows How Much Trump Has Already Corrupted Our Elections
By Richard L. Hasen
The ban on foreign interference in American elections is justified by an interest in American self-government. We want those with the greatest stake in American democracy to be the ones who decide who will represent us in the most important offices of the land. Trump’s actions show that he doesn’t respect this idea of American self-government and surrounds himself with people who are willing to do whatever it takes to ensure his political goals are met.
And we can thank the Supreme Court for helping to make this sorry turn of events happen.
Shortly after the Supreme Court decided Citizens United v. Federal Election Commission in 2010, President Barack Obama warned in his State of the Union that the ruling could allow for foreign nations, acting through corporations and other entities, to try to influence the outcome of U.S. elections. Justice Samuel Alito, in attendance at the SOTU, mouthed that this was “not true.”
And Supreme Court Justice Brett Kavanaugh, when a lower court judge, upheld the ban on foreign spending in elections but interpreted it narrowly purportedly on First Amendment grounds to allow even more foreign influence in our elections.
Whether the latest revelations from Thursday’s indictments fit into another article of impeachment is uncertain at this early point. But what is certain is that the worry that those from the Founding Fathers to Obama have had about foreign interference is well taken.
Disclosure
Washington Post: We have no idea who is paying Rudy Giuliani
By Trevor Potter and Delaney Marsco
Rudolph W. Giuliani is not the secretary of state. In fact, he has no official position in President Trump’s Cabinet or administration. Yet he is traveling the world holding himself out as a U.S. government operative, engaging in some unknown amount of “unofficial” diplomacy and insisting his work is not only officially sanctioned by the president but also assisted by the State Department. The president’s “private lawyer” is not charging Trump for his services, but he and his law firm are known to have dozens of clients – including foreign entities – who are paying for whatever services they think Giuliani can provide for them.
That is a very convenient setup for Giuliani – but it leaves the public in the dark about the wealthy special interests who might be subsidizing his gratis work for Trump – or for whom he might actually be working while invoking Trump’s name and that of the State Department. Because Giuliani is not officially a federal employee, he can sidestep ethics obligations that would require transparency behind the foreign or domestic interests who are paying him…
Executive branch officials – even temporary or part-time ones, and including unpaid ones – must file regular financial disclosure reports. For senior officials such as those who meet with foreign leaders and make high-level foreign policy decisions, these reports are public record: Anyone can go to the Office of Government Ethics website and see who used to pay appointees’ salary before they went into government, who they might owe money to, their current sources of income and other financial details that can help the public uncover conflicts of interest. The regular disclosure of this information allows the public to see whether an official has a private financial interest they could advance through their public position and hold them accountable.
We do not have any of that financial information for Giuliani.
