In the News
Wall Street Journal: Celebrate the Citizens United Decade
By Bradley A. Smith
‘Last week,” President Obama declared a decade ago, “the Supreme Court reversed a century of law that I believe will open the floodgates for special interests-including foreign corporations-to spend without limit in our elections.”
Mr. Obama was wrong in almost every respect about Citizens United v. Federal Election Commission, which the court decided on Jan. 21, 2010. Hysterical predictions about Citizens United-then-Rep. Ed Markey, among others, compared it to Dred Scott-haven’t held up.
Contrary to Mr. Obama’s assertion about a century of law, Citizens United overturned portions of McCain-Feingold, a campaign-finance law that wasn’t even 10 years old, and another law from 1947. Those laws prohibited unions and corporations, including nonprofits, from voicing support for or opposition to candidates for federal office.
Citizens United didn’t affect the longstanding ban on corporate contributions to candidates, and it didn’t legalize foreign political spending in the U.S. Most Russian online ads in 2016 would have been protected under the First Amendment even before Citizens United, because the ads didn’t urge a vote for or against a candidate.
Far from handing power to the 1%, Citizens United unleashed rapid political diversification. Since the ruling, the White House or Congress has changed parties in every federal election except 2012. Twenty eighteen saw the highest midterm voter turnout in a century. Small-dollar donors are more coveted than ever. Donald Trump raised more money from donors who gave less than $200 than any candidate in history.
Washington Times: ‘Dark money’: 10 years in, Democrats learn to love Citizens United despite outward opposition
By Stephen Dinan
“None of the catastrophic predictions have come true,” said Bradley A. Smith, a former Federal Election Commission chairman and founder of the Institute for Free Speech. “There’s more competition than ever. We’ve had five elections since Citizens United. In four of them, either the presidency has changed hands or one of the houses of Congress has.”…
In March, the federal circuit appeals court in Washington, citing the Citizens United case, ruled that if corporations had a right to unlimited political speech, then so must political action committees.
Thus was born the Super PAC…
Mr. Smith, who worked the appeals court case, known as SpeechNow.org v. FEC, says the ruling was the logical outcome, calling anything else “untenable in conjunction with the First Amendment.”…
Some warnings from 2010 have not been borne out.
For starters, the flood of money from major companies seeking to buy elections has not come to pass. CRP says businesses feared a public backlash from that kind of involvement with politics…
Mr. Smith says dark money is also not as important in elections as many might believe, amounting to perhaps 4% of total political spending.
Whatever the numbers, Mr. Smith says it’s tough to argue Citizens United broke politics…
Voter turnout was also up in the two most recent national elections, Mr. Smith said: “This claim it would frustrate voters is just not true.”
What has undoubtedly occurred is a loss of power for the political parties themselves.
Politico: Citizens United, ten years later
By Zach Montellaro
The crush of new election spending – and this isn’t even including the so-called “dark money” nonprofits, groups that don’t disclose their donors and which have spent $963 million in the last decade, according to a report from OpenSecrets’ Karl Evers-Hillstrom – have fundamentally changed how elections are conducted, moving power away from the national parties (and candidates) to these outside groups. An OpenSecrets tally found that, in the last decade, outside spending has surpassed candidate spending in 126 congressional races, something that only happened 15 times in the prior decade.
The decision itself has also sparked a fairly deep division in politics between those who celebrate the ruling on First Amendment grounds, and those who abhor the influx of money in politics. “Citizens United opened up new and useful avenues for speech. Americans are speaking more now than ever before,” Scott Blackburn, the research director of the Institute for Free Speech, wrote in his reflection on the 10-year anniversary. The group, which was founded by former FEC commissioner Bradley Smith (who long pushed for loosening campaign finance restrictions), supports the Citizens United and later decisions.
Blackburn also notes that the vast majority of spending still comes from candidates and political parties, which are still governed by contribution limits. He also argued that the ruling was about protecting “political speech in its purest form” (the group Citizens United wanted to advertise and sell an anti-Hillary Clinton film before the 2008 primaries).
The Hill: Citizens United decision weathers 10 years of controversy
By Alex Gangitano
Democrats blasted the [Citizens United] decision, warning of the impact of corporate money flooding into elections. But the ruling also opened the door for labor unions and nonprofits to ramp up their campaign spending…
“What we saw was that Americans across the country were really fed up with the amount of money in elections. They saw it getting worse and worse. They understood how bad Citizens United was and there really was this passion for overturning it,” president Tiffany Muller told The Hill. “It was such a terrible, terrible decision and it had disastrous consequences.”…
“Ten years ago the U.S. Supreme Court vindicated the free speech rights of individuals and associations spending independently on elections,” John Samples, vice president of the libertarian Cato Institute, told The Hill…
“While Citizens United hasn’t resulted in a flood of corporate cash ‘drowning out’ ordinary voices, it has allowed new, often very important, voices to be heard,” Scott Blackburn, research director at the Institute for Free Speech, wrote in a report for the anniversary. “The decision not only protects the right to speak, but it protects the right of Americans to hear those voices.”
Supporters of Citizens United note that while Democrats are vowing to reject money from corporate interests they are still accepting donations from labor unions and other nonprofits.
The Courts
Wall Street Journal: New York Tries Again to Muzzle Pro-Life Groups
By Nicole Ault
[The National Institute of Family and Life Advocates] is now suing New York state officials over legislation that undermines the ability of its Empire State member centers to hire workers who support their mission. The law “violates our very reason for being,” says Anne O’Connor, Nifla’s vice president of legal affairs.
At first glance the so-called boss bill, which Gov. Andrew Cuomo signed in November, sounds like a pleasant push for worker protection. It bars employers from discriminating based on an employee’s “reproductive health decision making” and requires that employee handbooks outline workers’ rights under the law. In practice, however, Nifla’s New York members are no longer legally allowed to make personnel decisions in line with their values. According to its website, Nifla “exists to protect life-affirming pregnancy centers that empower abortion-vulnerable women and families to choose life for their unborn children.” Under the boss bill, Nifla’s members can’t ask of their own staff what they ask of those they serve…
Along with free exercise of religion, the plaintiffs contend, the boss bill tramples on freedom of association and speech and unfairly targets pro-life and religious beliefs-an argument with greater teeth following Becerra, says Denise Harle, legal counsel at Alliance Defending Freedom, which represents the plaintiffs. In a concurring opinion in Becerra, Justice Anthony Kennedy cited the “serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression.” Quite plausibly, the government requiring pro-life organizations’ handbooks to tell women they can get abortions constitutes such viewpoint discrimination.
Bloomberg: Courts Urged to Enforce Campaign Finance Law as Regulator Idles
By Kenneth P. Doyle
A watchdog group seeking to unmask hidden campaign donors is turning to the courts as a last resort to enforce federal campaign finance laws.
Hoping to bypass the paralyzed Federal Election Commission, the Citizens for Responsibility and Ethics in Washington filed a lawsuit in September after the FEC lost a quorum of at least four commissioners needed to vote on enforcement matters. It targets the commission’s failure to act on alleged disclosure violations by two federal super political action committees that funneled almost $6.4 million to aid the 2016 election of Republican Eric Greitens as Missouri’s governor.
If successful, the legal strategy could help CREW and other groups press for for more transparency and enforcement of other rules in an election year expected to see record campaign spending, even if the commission continues to be hobbled.
“If the FEC is broken, which it clearly is, there’s a backup” that private parties can use to enforce campaign finance laws, said Stuart McPhail, a lawyer for CREW. It would be better to have a functioning, effective commission to enforce the law, he said, but absent that, these private lawsuits aim to show there’s a path for campaign finance enforcement regardless of what the FEC does.
CREW has sought to enforce federal disclosure laws against super PACs it said had “deep ties” to Greitens.
Citizens United
Boston Globe: Citizens United was a triumph for free speech
By Floyd Abrams
No speech is as protected under the First Amendment as political speech and no political speech is as important as speech advocating whom to vote for, or against, for president. That is why the ACLU responded to the Citizens United ruling by explaining that it could “not support campaign finance regulation premised on the notion that the answer to money in politics is to ban political speech.”
Yet because some of the money that funded Citizens United came from corporations, its political advocacy was silenced at the very time it could have had the greatest impact…But just as individuals could not constitutionally be limited in the amounts they could expend on political speech, neither could corporations.
Much of the public response to the Citizens United ruling was apoplectic. People who fully supported controversial Supreme Court rulings that, under the First Amendment, Nazis must be allowed to march and American flags to be burned, were appalled that corporations could play a serious role in the electoral process. The New York Times, itself owned by a corporation that was then the owner of this newspaper, spoke for many when it denounced the ruling on the ground that it would “thrust politics back to the robber-baron era of the 19th century” by allowing “corporations to use their vast treasuries to overwhelm elections.”…
But nothing of the sort has occurred in the 10 years since the court’s ruling.
Washington Post: The legacy of ‘Citizens United‘ has been destructive. We need campaign finance reform.
By Fred Wertheimer
As long as Citizens United stands, political money corruption will continue in Washington unless federal candidates are given a new way to finance their campaigns that frees them from the iron grip of influence-seeking funders. The court’s rulings, and its newly enhanced conservative majority, present serious hurdles to addressing many of the ills of our current campaign financing system. But there are ways to mitigate the damage and dramatically improve the flaws of the current system.
Last March, with the support of a coalition of more than 145 organizations, the House passed H.R. 1, an unprecedented package of democracy reforms. The reforms included a new, alternative financing system: a small-donor, public-matching funds system for presidential and congressional candidates. A companion measure to H.R. 1 is sponsored by 47 senators.
This new system would empower ordinary Americans to counter political influence money by matching their contributions up to $200 with public funds at a 6-to-1 ratio. This system would allow candidates to run for federal office without being dependent on influence-seeking funders, whose impact would be greatly reduced. The costs of the new system would be borne not by taxpayers, but by corporate lawbreakers paying a small surcharge on the penalties and fines they pay to the government for violations of law.
Salon: Money, politics and Justice Anthony Kennedy: Revisiting Citizens United
By Michael T. Morley
As an election law scholar who has litigated campaign finance cases, including in the U.S. Supreme Court, I believe Citizens United is a straightforward application of free speech principles and, like Kennedy’s jurisprudence as a whole, reflects a balance of conservative and liberal legal conclusions…
Kennedy’s opinion in Citizens United blended conservative concern for free speech with a more liberal focus on transparency…
Citizens United ended unnecessary restraints on political expression and gave voters access to a wider range of election-related information. It also afforded corporations a fair chance to present their perspective on elections that could have tremendous consequences for them…
Critics claim Citizens United allowed corporate America to buy elections.
The central question in the case, however, was whether corporations could spend money to engage in election-related speech. It remains illegal for corporations to contribute money to candidates, political parties or traditional political action committees (PACs).
The Hill: 10 years later, Americans stand opposed to Citizens United
By Leah Field
In the 10 years since Citizens United, the biggest effect to the political system has been to “engage and empower the very wealthiest Americans, across the political spectrum,” according to an article in the Los Angeles Times. The Brennan Center for Justice says the ruling created a new political landscape that “favors the super rich above all others.”
In 2000, approximately $1.6 billion was spent on congressional elections. In 2018, the number had jumped to $5.7 billion. Total individual donors to Super PACs grew from $299 million to $1.1 billion in just the two years from 2014 to 2016. Total spending in the 2020 elections is projected to top $10 billion. The proliferation of campaign spending has turned into a political arms race that compels the two major political parties and candidates for elected office to seek donors who can cut the biggest checks and appease their ultra-wealthy donors by passing favorable legislation, regardless of how it affects their constituents or the American people at large…
While the Citizens United ruling has proved disastrous for our democratic self-governance, its effects are unifying Americans of all political persuasions, who see the effects of a big money system that drowns out their voices in a cacophony of cash from wealthy mega-donors. The cross-partisan movement that is now fomenting embodies the same energy that has led to systemic change in our nation’s past-and it’s calling for the only solution that will address the Supreme Court’s wrong decision in Citizen United: passing a constitutional amendment.
USA Today: Obama was right, Alito was wrong: Citizens United has corrupted American politics
By Tiffany Muller
The court’s naive view of our electoral process set the stage for 10 years of billions of dollars corrupting our politics and dictating national policy on everything from the cost of prescription drugs to climate change to gun violence…
Our campaign finance system was broken long before Citizens United, but it has given a bullhorn to wealthy donors, who already had the loudest voices in the room. The overwhelmingly white, male and older donor class has become even more homogeneous. This elite set of Americans has scored political power on a magnitude not seen since the Gilded Age…
It’s not hyperbolic to state that the success of our democracy depends on our ability to restore guardrails that protect against the influence of big money and corruption in our elections. A constitutional amendment to overturn Citizens United is a good place to start. That process isn’t quick, but it must be a priority.
In the short term, new laws could blunt the impact of the decision. Last year, the House passed the For the People Act (H.R. 1), the most sweeping package of anti-corruption reforms since Watergate. It has not even received consideration in the Senate. This bill would bring undisclosed “dark money” into the light, allow candidates to run for office on the strength of grassroots support by creating a small-donor matching program, and strengthen oversight over and accountability of federal officials.
Philanthropy
Washington Examiner: How policymakers are threatening philanthropy in 2020
By Patrice Lee Onwuka
In 2018, people in the United States donated an incredible $428 billion to charity. The U.S. is the most charitable nation on earth. Unfortunately, this might not be the case for long. And 2020 could be the turning point thanks to two concerning trends within philanthropy and policy that could curb the amount and effectiveness of charitable giving.
The first threat to philanthropy is forced donor disclosure. As many as 28 states are expected to consider laws next year that would require nonprofit organizations to share a list of their donors with the government. This effort is one way policymakers seek to control the charitable sector.
The ability to give anonymously has been around since our country’s founding. Americans choose to give anonymously for a variety of reasons. Some do not want to be solicited again by the same recipient or from others. For many Christians, Mormons, Jews, and other devout donors, religious beliefs require that they give anonymously. Some donors simply derive pleasure from giving and not being thanked. Others fear physical harm to themselves or their families. In addition, some anonymous donors fear harassment, retaliation, or boycotts from others who disagree with the causes they support. All of these donors have a right to privacy.
Online Speech Platforms
New York Times: Facebook Political Ads: Which States Are 2020 Democrats Betting On?
By Nick Corasaniti and Quoctrung Bui
With the ability to target voters in a much more sophisticated way, generating direct responses or donations, Facebook has become the go-to platform for digital messaging.
“The ability to see exactly where campaigns are spending their money online, and with what messages they’re driving to which voters, gives us an unprecedented window into a campaign strategy,” said Tara McGowan, the founder of Acronym, which provided the Facebook ad data. “We can see exactly what voters campaigns are prioritizing and where they see their path to victory.”
While it’s likely that voters reached in a given state were geographically targeted by a political campaign, it is also possible that they overlapped with other target audiences in the same area. For example, if a campaign ran an ad to a custom list of its most dedicated supporters, and some of those people lived in Iowa, it could look as if Iowans were specifically targeted, when in fact the ad was meant for a different audience.
The Facebook data also shows how a candidate was able to break through debate qualification thresholds set by the Democratic National Committee. Tom Steyer, the self-funding billionaire with no political experience, has been ubiquitous on the early state airwaves, spending more than $51 million on television, which has helped him climb up the national and early state polling ladder, one of the debate criteria.
Breitbart: Florida GOP Leader Will Introduce Bill to Fight Social Media Censorship
By Allum Bokhari
My Florida State Senator and GOP Leader Joe Gruters will announce a bill next week that will allow Floridians to sue social media companies that censor their political speech, and will restrict the ability of social media companies to use “hate speech” policies as a legal defense for censorship.
The bill will be announced at a press conference on January 21 at 3:00 p.m. est at the State Capitol building in Tallahassee.
The bill, which can be read in full at the Florida Senate website, awards a minimum of $75,000 in damages against social media companies that: “Deletes or censors the user’s religious speech or political speech; or uses an algorithm to disfavor or censure the user’s religious speech or political speech.”
The bill also prohibits social media companies from using “the social media website user’s alleged hate speech as a basis for justification or defense of the social media website’s actions at trial.”
Damages may be mitigated if a social media company “restores from deletion or removes the censoring of a social media website user’s speech in a reasonable amount of time.”
The provisions of the bill only apply to religious and political speech. It will not apply to cases where a social media user has been censored for speech that “calls for immediate acts of violence, is obscene or pornographic in nature, is the result of operational error, is the result of a court order, comes from an inauthentic source or involves false personation, entices criminal conduct, or involves bullying minors.”
The Hill: Pelosi rips ‘shameful’ Facebook behavior, accuses it of intentionally misleading users
By Rebecca Klar
House Speaker Nancy Pelosi (D-Calif.) slammed tech giant Facebook on Thursday, accusing the social media company of abusing technology to mislead users and calling its behavior “shameful.”
“The Facebook business model is strictly to make money. They don’t care about the impact on children, they don’t care about truth, they don’t care about where this is all coming from, and they have said even if they know it’s not true they will print it,” Pelosi said at a press conference.
“I think they have been very abusive of the great opportunity that technology has given them,” she added.
Pelosi’s comments came in response to a question about whether Facebook CEO Mark Zuckerberg or other tech executives, largely based in or near Pelosi’s San Francisco-area district, have too much power…
“I think what they have said, very blatantly, very clearly, is that they intend to be accomplices for misleading the American people with money from god knows where,” Pelosi said Thursday.
“They have been very irresponsible … I think their behavior is shameful,” she added.
Candidates and Campaigns
Townhall: Bernie Responds to ‘Fair Question’ About Apparent Campaign Finance Violations
By Cortney O’Brien
Sen. Bernie Sanders (D-VT) wasn’t called a hypocrite at a recent candidate forum with New Hampshire Public Radio, but the hosts came awfully close…
“You’ve been very critical of the role of undisclosed money and Big Money in politics,” one of the moderators noted of the presidential candidate at Sunday’s forum. It’s even right there on his official campaign website: Get Corporate Money Out of Politics.
Having said that, she then referenced an Associated Press report that Sanders has heavily benefited from a tax-exempt political nonprofit he helped launch called Our Revolution. So far it’s taken in $1 million from undisclosed donors. Some of those donations have exceeded the Federal Elections Commission limits…
Groups like Our Revolution must keep their activities separate from their preferred candidates, the AP explains. But because the group was founded by Sanders, he’s in tricky territory.
“How do you square your statements on that with the existence of this large group?” the moderator asked the candidate.
“Fair question,” said Sanders. “We have a broken campaign finance system.”
“The function of Our Revolution was to generate grassroots political activity, to get people involved in the political process and I think they’ve done a very good job at it,” Sanders added. “Legally – and in fact, I have nothing to do with them – they operate absolutely independently of our campaign.”
Financial Times: Joe Biden calls for social platforms to be liable for content
By Hannah Murphy
Joe Biden launched a stinging attack on Mark Zuckerberg on Friday for allowing false political advertising on Facebook, calling for the law that shields internet platforms from being held liable for user-generated content to be “revoked immediately”. Mr Biden…said that Section 230 of the Communications Decency Act, which has long protected social media groups from legal action if users post illicit content, should be abolished. Instead, both Facebook and its founder should be “submitted to civil liability” for the posts that appear on its apps, the former vice-president said, in the same way that a newspaper would be for its content.
In the strongly worded interview published in the New York Times, Mr Biden also raised the possibility that, given revelations that some Russian disinformation campaigns ran adverts in the lead-up to the 2016 election, Mr Zuckerberg’s laissez-faire approach may have “amounted to collusion that in fact caused harm that would in fact be equal to a criminal offense”. The call to fully repeal Section 230, the first to be made by a US presidential hopeful, is likely to prompt strong opposition from all social media platforms, who would be required to overhaul the way they moderate content, or face penalties.
It comes days after the embattled social media group said it would not alter its political advertising rules to ban misleading adverts or the practice of microtargeting narrow groups of users on the platform, despite growing pressure from Democrats to make changes. “[Section 230] should be revoked because [Facebook] is not merely an internet company,” said Mr Biden, who has so far positioned his campaign as business-friendly. “It is propagating falsehoods they know to be false, and we should be setting standards not unlike the Europeans are doing relative to privacy.”
The States
Charleston Gazette-Mail: WV Senate advances bill to prohibit state from disclosing identity of some nonprofit donors
By Lacie Pierson
The West Virginia Senate on Monday passed a bill that would prevent the government from releasing information about people who donate to certain nonprofit organizations.
It was the second year in a row senators approved the measure that would prevent the state government from releasing information about who donated money to certain nonprofit organizations, sometimes called 501(c) organizations for the section of federal law that defines those groups.
Senate Bill 16, also called the “Protect Our Right to Unite Act,” was approved on a 34-0 vote with no debate.
“The purpose of this bill is to protect the membership and voter information from agencies of the government and from public disclosure by agencies of the government, except where is necessary,” Senate Judiciary Chairman Charles Trump, R-Morgan, said.
ACLU West Virginia has supported the bill. It’s policy director, Eli Baumwell, on Monday applauded the bill, saying it “reaffirms the vital freedom of association.”
“The groups that people join are none of the government’s business,” Baumwell said.
Washington Post: Okla. senators want MAGA license plates- which might violate federal campaign finance rules
By Katie Mettler
State Sens. Nathan Dahm and Marty Quinn proposed new specialty license plates this week that would read “Make America Great Again” and “Keep America Great,” the two rallying slogans that Trump has used in his 2016 and 2020 bids for the White House, respectively.
The Trump-themed license plates, if approved by the state legislature, would be added to a list of 98 other specialty designs that Oklahoma drivers can choose to purchase for $35. Of that upfront amount, $20 goes to the designated organization that matches the theme of the vanity plate, which includes mostly nonpolitical groups and issues…
The MAGA and “Keep America Great” plates would not directly fund the president’s reelection bid, the two senators said. Instead, the fees associated with the purchase would be split between two veterans groups, the Warriors for Freedom Foundation and the Folds of Honor Foundation…
[T]he proposal could still violate campaign finance laws if the state uses taxpayer dollars or resources to make the plates.
“These are political slogans,” said Richard Briffault, a professor at Columbia Law School. “This has the look and feel of using state resources to support a political candidate, which seems improper…and possibly illegal.”…
A spokesperson with the Federal Election Commission said the senators had not submitted an Advisory Opinion Request with the office, which determines whether proposed activities are in compliance with federal campaign finance law and FEC regulations.
