In the News
Wall Street Journal: 2020 Democrats Call for End to Self-Fundraising, Private Donors
By Joshua Jamerson and Julie Bykowicz
Former Vice President Joe Biden, Sen. Bernie Sanders of Vermont, Sen. Elizabeth Warren of Massachusetts and Sen. Amy Klobuchar of Minnesota all support mandatory public financing for federal elections, which would limit campaign spending and prohibit outside financial support-including self-funding. The idea would likely require a constitutional amendment, as the Supreme Court has in two major decisions enshrined political spending as free speech…
Campaign finance experts across the ideological divide agree that restricting the amount of money a candidate can spend on his or her own race isn’t permissible. The Supreme Court’s 1976 decision in a case called Buckley v. Valeo held that it is unconstitutional to limit a candidate’s spending of his or her own money in her own election. (The current public-financing system aligns with that ruling because it is optional.)
Bradley Smith, a law professor and Republican former member of the Federal Election Commission, said that the Supreme Court had enshrined self-funding campaigns as “valuable speech activity.”
“It is the epitome of free speech, to spend your own money to promote your own values,” he said. “Not too much more to say about it.”
New from the Institute for Free Speech
Albuquerque Voters Say No to Subsidizing Political Candidates
By Tiffany Donnelly
On Election Day, Albuquerque residents registered their opinion on a ballot initiative that, if approved, would have forcibly used their tax dollars to finance local political campaigns. In a 51-49 vote, Bernalillo County voters rejected the measure.
Deceptively named the “Democracy Dollars” program, the initiative would have provided registered voters with $25 in taxpayer-funded vouchers to donate to eligible political candidates. Advocates claim the program would decrease the influence of wealthy donors, increase competition, and broaden political participation.
In reality, the tax-financing scheme would do just the opposite.
When Seattle passed its own “Democracy Voucher Program” in 2015, proponents similarly insisted that the vouchers were the key to reducing “big money” in politics. But now, just two years after implementing the program, the Seattle City Council has been flooded by more political spending than ever before. Business and labor PACs raised more money for the 2019 council elections than was spent by independent committees in all previous council races combined, since at least 1995. Advocates said the possibility of receiving a large number of small donations would incentivize candidates to focus on ordinary people instead of the wealthy. But in fact, in 2017, only 3.4% of the issued vouchers were used, while total campaign spending increased by 60%. Hardly the deluge supporters expected.
The Courts
The Fulcrum: Regulation of online political ads violates the First Amendment, federal appeals court rules
By Sara Swann
A Maryland law intended to prevent foreign election interference by regulating online political advertising has been struck down by a federal appeals court.
At a time when controlling the surge of misleading campaign spots on social media and news sites has proved easier said than done, Maryland was the first state to expand disclosure mandates. Its General Assembly enacted a law in time for the closing months of the 2018 midterm campaign requiring such platforms to publish information about ad purchases and keep records for the state to review.
But a three-judge panel of the 4th Circuit Court of Appeals says the law unconstitutionally singles out political expression for special scrutiny and promises a “chilling effect” on free speech. The unanimous ruling on Friday, upholding a federal trial judge’s position, is the latest in a series of federal judicial decisions against efforts to regulate campaign financing…
Online platforms were also ordered to keep detailed records about the content of the ads for inspection by the Board of Elections. The records had to include the candidate or ballot issue the ad referred to, whether the ad was supportive or opposing, a description of the geographic locations where the ad was disseminated and a description of the audience that received or was targeted…
The court cited Google’s decision to stop hosting political ads in Maryland last year as one example of the law’s “chilling effect.” Several other publishers promised to do the same if the law was upheld.
DOJ
Wall Street Journal: What Horowitz Actually Debunked
By Daniel Henninger
Whatever the Horowitz review of four FBI Foreign Intelligence Surveillance Act applications and its Crossfire Hurricane investigation did or did not “debunk,” the report is mind-boggling, shocking and damning. It is page after page-indeed, paragraph after paragraph-detailing gross errors of judgment and violations of FBI investigation protocols…
From reading this report, it is clear that what has had the attorney general in a seething white heat has little to do with defending Donald J. Trump and a lot to do with protecting John Q. Public.
The abuses identified in the Horowitz report-by the Crossfire Hurricane team and others at FBI headquarters-are a potential threat to the civil liberties of any American who becomes a target. In a better world than we’ve got now, the press-or some of it-would step back from the Trump-Barr obsessions and revisit its historic role of protecting individual freedoms from such raw, unaccountable government power. The Horowitz report contains at least 19 references to the status quo’s threat to “constitutionally protected activity,” notably the “First Amendment.”
Wall Street Journal: William Barr on Why He Disagrees With the IG Report’s Conclusions
By Gerard Baker
BAKER: The report does make clear there were concerns about that and discussions at very high levels within the FBI as to the sensitive information-
MR. BARR: What is the basis you have for looking into something? And what are reasonable steps to take, taking into consideration the weight of the evidence that’s prompting you to do that, the alternatives available, and exactly what you were trying to accomplish, and also the sensitivity of the area involved here, a political campaign-core First Amendment activity.
First Amendment
The Guardian: Fox host lambasts Trump over ‘most sustained assault on press freedom in US history’
By David Smith
A leading host on Fox News, a conservative network notorious for its loyalty to the White House, has lambasted Donald Trump for mounting the most direct attack on press freedom in American history.
Chris Wallace, widely admired for breaking ranks from Fox colleagues by putting tough questions to administration officials, delivered his most stinging critique yet of the US president at an event celebrating the first amendment.
“I believe that President Trump is engaged in the most direct sustained assault on freedom of the press in our history,” Wallace said to applause at the Newseum, a media museum in Washington, on Wednesday night.
“He has done everything he can to undercut the media, to try and delegitimise us, and I think his purpose is clear: to raise doubts when we report critically about him and his administration that we can be trusted. Back in 2017, he tweeted something that said far more about him than it did about us: ‘The fake news media is not my enemy. It is the enemy of the American people.'”…
The veteran broadcaster added: “Let’s be honest, the president’s attacks have done some damage. A Freedom Forum Institute poll, associated here with the Newseum, this year found that 29% of Americans, almost a third of all of us, think the first amendment goes too far. And 77%, three quarters, say that fake news is a serious threat to our democracy.”
FIRE: UPDATED: FIRE statement regarding executive order on campus anti-Semitism
By FIRE
UPDATE, 12/11/19: The text of the executive order is now publicly available. The order directs federal agencies charged with enforcing Title VI to “consider” the IHRA definition of anti-Semitism and its accompanying examples, both of which may apply to core political speech protected by the First Amendment. While the order is couched in language intended to paper over the readily evident threat to expressive rights, its ambiguous directive and fundamental reliance on the IHRA definition and its examples will cause institutions to investigate and censor protected speech on their campuses. Having spent 20 years defending speakers from across the political spectrum, FIRE knows all too well that colleges and universities will rush to punish student and faculty speakers in an attempt to avoid federal investigation and enforcement.
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According to news reports, President Trump will sign an Executive Order directing the Departments of Education and Justice to employ a specific definition and examples of anti-Semitism in evaluating institutional responses to alleged violations of Title VI of the Civil Rights Act. If true, the Executive Order would threaten freedom of expression on campus.
AdExchanger: 5 Questions For Political Ad Disclosure Advocates
By Jordan Lieberman
What does expenditure disclosure mean?
Nearly all political professionals agree that disclosure with digital advertising is a good idea. What that means is open to wide interpretation.
Should disclosure imply a “Paid for” disclaimer, which puts campaigns on par with direct mail? Should it refer to the publishing of client data in a searchable database, which meets and exceeds what the FEC requires for federal campaigns? Going further, should vendors be required to expose their entire tech stack or even markup by listing every sub-vendor? The most extreme example is Washington state, whose policy requiring commercial advertisers to disclose details such as who paid for political ads and the cost went so far that the largest platforms pulled out of the state.
Regardless of the outcome, there needs to be far more education before enforcement. During the last campaign cycle, an election law enforcement official from a midwestern state mistakenly asked to see our FCC disclosures for digital ads. It was surprising because we don’t file digital ads with the FCC, but the election official didn’t understand that. Of all the people who should understand the rules governing political digital ads, he should be near the top.
Citizens United
Brennan Center: How Citizens United Reshaped Elections
By Tim Lau
While wealthy donors, corporations, and special interest groups have long had an outsized influence in U.S. elections, that sway has dramatically expanded since the Citizens United decision, with negative repercussions for American democracy and the fight against political corruption…
A 5-4 majority of the Supreme Court sided with Citizens United, ruling that corporations and other outside groups can spend unlimited money on elections.
In the court’s opinion, Justice Anthony Kennedy wrote that limiting “independent political spending” from corporations and other groups violates the First Amendment right to free speech. The justices who voted with the majority assumed that independent spending cannot be corrupt and that the spending would be transparent, but both assumptions have proven to be incorrect.
With its decision, the Supreme Court overturned election spending restrictions that date back more than 100 years. Previously, the court had upheld certain spending restrictions, arguing that the government had a role in preventing corruption. But in Citizens United, a bare majority of the justices held that “independent political spending” did not present a substantive threat of corruption, provided it was not coordinated with a candidate’s campaign.
As a result, corporations can now spend unlimited funds on campaign advertising if they are not formally “coordinating” with a candidate or political party.
Newsweek: Is the Anti-Democratic Decade Finally Drawing to a Close?
By Robert Reich
We’re coming to the end of what might be called the anti-democracy decade. It began January 21, 2010, with the Supreme Court’s shameful decision in Citizens United vs. Federal Election Commission opening the floodgates to big money in politics with the absurd claim that the First Amendment protects corporate speech.
It ends with Donald Trump in the White House, filling his administration with corporate shills and inviting foreign powers to interfere in American elections.
Trump is the consequence, rather than the cause, of the anti-democratic surge. By the 2016 election, the richest 100th of 1 percent of Americans-24,949 very wealthy people-accounted for a record-breaking 40 percent of all campaign contributions. That same year, corporations flooded the presidential, Senate and House elections with $3.4 billion of donations. Labor unions no longer provided any countervailing power, contributing only $213 million.
Big corporations and the super-wealthy lavished their donations on the Republican Party because Republicans promised them a giant tax cut if they won. As Lindsey Graham warned his Republican colleagues “financial contributions will stop” if the GOP didn’t come through.
The anti-democracy decade has been hard on American workers…
Even if Citizens United isn’t reversed by the Supreme Court or defanged by constitutional amendment, a principled Congress and decent president could still rescue our democracy.
Washington Post: Capitalism is broken. It’s time for something new.
By Katrina vanden Heuvel
[C]apitalism is undermining democracy. In the Citizens United era, the amount of money in politics has exploded, resulting in elected officials from both parties who are more beholden to wealthy donors – and their business interests – than ever before. Corporate concentration is reducing competition and rendering both workers and consumers increasingly powerless against rising plutocracy. And this is happening as the forces of private equity and big tech conspire to annihilate the local and independent journalism that is vital to maintaining a democratic society.
It doesn’t take a socialist to see capitalism’s corrosive impact on democracy. In fact, South Bend, Ind., Mayor Pete Buttigieg, a former McKinsey consultant who was forced on Monday to finally agree to disclose his campaign bundlers,used to recognize it earlier in the campaign, saying, “There’s tension between capitalism and democracy, and negotiating that tension is probably the biggest challenge for America right now.”…
[C]apitalism is destroying nature. As corporate lobbyists work to dismantle the regulatory apparatus, the companies they represent are irrevocably harming our environment, our health and our collective future…
American politics is finally having a long-overdue debate about how to respond to these trends. Many of the ideas being discussed in the presidential race are undoubtedly part of the solution.
FEC
Washington Post: Conservatives hit Colorado’s Hickenlooper with FEC complaint
By Nicholas Riccardi, Associated Press
A conservative watchdog group filed a complaint Wednesday with the Federal Election Commission alleging that Democratic Senate candidate John Hickenlooper improperly used footage from ads shot for his 2014 reelection campaign as Colorado governor in a video in August.
The Foundation for Accountability and Civic Trust alleges that the use of the prior footage amounts to a donation from Hickenlooper’s gubernatorial campaign to his new Senate bid that was never reported to the FEC. The brief clips of Hickenlooper in a factory and talking to patrons of a brewpub he founded are publicly available on the website of Hickenlooper’s media strategist. But the complaint alleges that they are still copyrighted and therefore an “asset” whose transfer should have been reported.
The complaint is the second one filed against Hickenlooper as the former governor explored running for federal office. Last year, as he was gearing up for a presidential bid, a Republican group filed a complaint with the Colorado Ethics Commission over Hickenlooper’s use of private planes as governor. FACT was once run by Matthew Whitaker, who briefly served as U.S. attorney general in the Trump administration, though the group says it has filed complaints against both Democrats and Republicans.
[Hickenlooper’s] campaign on Wednesday said that it followed normal, legal practice in using the footage and that the complaint is groundless.
Fundraising
OpenSecrets News: Corporate PAC cash takes a winding route to Democratic Senate challengers rejecting it
By Karl Evers-Hillstrom
Democrats’ narrow path to taking the Senate in 2020 goes through a handful of well-funded challengers, most of whom are banking on a pledge that worked wonders for the party during the 2018 midterms.
The top Democratic challengers want voters and donors alike to know they are rejecting corporate PACs…
For non-incumbents, the pledge to reject corporate PACs is a largely symbolic gesture to indicate a candidate wants to get big money out of politics. The pledge doesn’t become a sacrifice until they’re elected to Congress, as corporate PACs give almost all of their money to incumbents to curry favor with lawmakers…
After getting thwacked by those no-PAC Democrats last year, Republicans intend to portray Democratic Senate hopefuls as hypocritical and dishonest with voters on the subject of corporate PACs in 2020…
Top Democrats, like Republicans, fund their leadership PACs partly from PACs representing powerful corporations. One-third of money going to Democratic leadership PACs comes from business PACs associated with corporations, trade associations and other business interests…
Business PACs give upwards of 90 percent of their money to incumbents, so these Democratic challengers aren’t losing much of anything by rejecting their checks. Still, their incumbent opponents certainly have an advantage…
And many of the House candidates who rejected corporate PACs in 2018 are now incumbents, meaning they are passing up hundreds of thousands of dollars to stick by their pledge. Many of them are top recipients of leadership PAC money.
The Hill: Democrats spend big to put Senate in play
By Reid Wilson
For years, Democrats have complained that Republicans have benefitted from outside groups that are not legally required to disclose their donors, so-called dark money organizations that grew out of the Supreme Court’s decision in the Citizens United v. FEC case.
But now it is Democrats who are using those same laws to funnel money through innocuously named groups that do not have to disclose the identities of their donors.
Virtually all the money spent on television advertising so far this year has come from dark money groups…
Those groups are spending early in hopes of framing the races that will develop over the course of the next year…
Running early advertising “is a good strategy and, budget allowing, necessary in the current volatile environment, whether it is for an incumbent, challenger or open race,” said Craig Varoga, a longtime Democratic strategist…
“Early spending has an effect, no question. They begin framing the narrative before some of our guys can afford to communicate,” said Mike Slanker, a Nevada Republican strategist who guided former Sen. Dean Heller‘s (R) campaign as Heller weathered a barrage of attacks for more than a year before Election Day 2018. “Since it is harder to reach folks these days with the number of cord cutters increasing, it takes longer to get messages through than it used to. You have to start earlier.”
Online Speech Platforms
Vox (Recode): Facebook’s political ad problem, explained by an expert
By Peter Kafka
For years, political advertisers ignored Facebook (along with most of the internet) but that’s not the case anymore: Digital political ad spending may approach $3 billion in 2020 – about a third of the money politicians and their campaigns will spend in 2020…
As Facebook defends its ad policy, Twitter has announced that it will ban all political ads, and Google has announced that it will limit targeting for its political ads. Facebook seems very unlikely to ban political ads altogether, but it has signaled that it may make other changes that might make its advertising machine less effective, in some ways, when it comes to politics.
If all of this sounds confusing to you, you’re not alone. That’s why we’ve asked former Facebook executive Alex Stamos to help out.
Stamos spent three years as Facebook’s chief security officer, helping the company fend off all kinds of attacks.
But after leaving Facebook in 2018, Stamos has become a sort of Facebook attacker, offering a steady stream of criticism of the company and its leadership – for instance, he would like CEO Mark Zuckerberg to step down.
Stamos has also been a loud and consistent voice calling on Facebook, and other digital advertising companies, to make a very specific reform: He wants them to place limits on the microtargeting, or hypertargeting, they offer political ad buyers.
Candidates and Campaigns
The Week: Bloomberg and Steyer are showing money doesn’t matter much in politics
By Bonnie Kristian
To date, FiveThirtyEight estimates Steyer has dropped around $46 million on TV ads. And yet, per the RealClearPolitics average, he is polling at all of 1.7 percent.
With numbers like that, does campaign cash matter anymore?
Conventional wisdom, especially in the post-Citizens United era, holds that access such a massive war chest is access to victory – that money is a corrupting force in politics which allows corporations and rich individuals to buy power in a way the poor and middle class struggle to replicate, even with collective action…
This conventional wisdom isn’t entirely wrong. It would require a bizarre and willful naivete to pretend money has no effect in politics, that Americans are universally diligent voters who make sure they give each candidate an equally fair shake. If you’re running a remotely viable, national campaign for president, you do need millions of dollars. Note that in all of the last 10 presidential elections, the candidate who spent more in the general won – except, that is, for President Trump, who was substantially outspent by Clinton in 2016 and also received less support from single-candidate super PACs…
Another, bigger lesson is that money doesn’t function in presidential politics (smaller races can work very differently) as it did in the past…You cannot buy your way to the top five in a crowded primary field. Even name recognition and basic biographical awareness is increasingly difficult to purchase if voters simply are not interested in you and your message, while candidates who generate legitimate grassroots enthusiasm can attract a large following on a relatively small budget.
The States
Tennessean: Appeals court tosses Tennessee laws that created a donation blackout for nonpartisan PACs
By Adam Tamburin
Tennessee laws barring nonpartisan political action committees from donating to candidates within 10 days of an election violate the state constitution and cannot stand, an appeals court found Thursday.
The ruling from the Tennessee Court of Appeals reinforces an earlier judgement from Nashville Chancellor Ellen Hobbs Lyle, and will end the donation restrictions facing nonpartisan PACs.
State campaign finance laws had created a 10-day blackout period when those PACs couldn’t give to a candidate. But PACs controlled by a political party still could.
The group Tennesseans for Sensible Election Laws argued that the law created a double-standard that unfairly penalized nonpartisan groups while giving political parties a leg up.
The Court of Appeals agreed with that argument, ruling against the state.
Attorney Daniel Horwitz, who represented Tennesseans for Sensible Election Laws alongside attorney Jamie Hollin, cheered the decision.
“Political parties cannot lawfully censor non-partisan speakers while reserving special treatment in the political process for themselves,” Horwitz wrote in a statement. “Tennesseans for Sensible Election Laws is proud of this historic First Amendment victory, which makes Tennessee’s democratic process just a little bit freer for everyone.”
City & State: Is the state Legislature delegating, or derelict?
By Andrew Sidamon-Eristoff
The legal issue is clear: Did the Legislature’s delegation of power to the commission violate the state constitution?
Opponents of the commission argue that Article III of the state constitution vests the power to make laws in the state Legislature alone. Acknowledging that the Legislature routinely delegates to administrative agencies authority to adopt rules “filling in the details” necessary to implement public policy, they assert that such delegation is permissible only when limited in scope and that agency rules must be consistent with public policy as established by the Legislature via a duly enacted statute. Similar, or higher, standards should apply to delegations of legislative power to independent bodies that are not administrative agencies with rulemaking authority. In sum, the opponents contend that the Legislature impermissibly granted the commission authority to make, rather than implement, legislative public policy.
The commission’s defenders counter that the delegation was both constitutional and consistent with longstanding practice. They argue that the commission’s enabling statute reflected the Legislature’s affirmative policy decision to establish a public financing program and contained appropriate criteria to guide and limit the commission’s discretion in executing that policy. The defenders also note, with evident relief, that the state’s highest court recently declined to review a lower court’s decision that upheld the Legislature’s creation of an independent salary commission endowed with arguably similar authority.
Seattle Times: Spending on Seattle elections doubled, led by Amazon. Now council member wants to ‘get big money out of politics’
By Daniel Beekman
Massive contributions to unrestricted political committees drove spending on Seattle City Council candidates to more than double this year compared with the council’s last major round of elections.
Councilmember M. Lorena González noted the spike Wednesday as the committee she chairs began considering her nationally watched proposal to limit contributions to independent political-action committees (PACs).
Such PACs today can raise and spend as much as they want, as long as they don’t coordinate with candidates, and they spent $4 million for and against the Nov. 5 general-election candidates in Seattle’s seven council races, according to Dec. 3 data presented by council staff.
That’s six times more than such PACs spent on Seattle’s general-election candidates in 2015, when all nine of the council’s seats were up for grabs…
Spending by independent PACs accounted for about 55% of the total this year, up from 20% in 2015.
González’s legislation would, among other provisions, cap contributions to most independent PACs to $5,000. Dubbed the “Clean Campaigns Act” by the council member, the legislation would make an exception for groups using money from many small donors to make large PAC contributions…
The proposal is backed by reformers who hope to see such a law upheld by the U.S. Supreme Court…They want to challenge the idea that the 2010 Citizens United case, which greatly expanded spending by PACs, also prohibits limits on donations to those PACs.
