In the News
Washington Examiner: The 2020 election could see record lows for ‘dark money’ influence
By Bradley A. Smith
Dark money could be trending toward a record low this election cycle. It’s a development the media has been suspiciously silent on.
“Dark money” is a pejorative label for campaign spending by groups that are not political committees. Many of these are well-known nonprofit organizations like the Chamber of Commerce and the League of Conservation Voters. Because electing candidates is not their main purpose, they are not required to publicly report their donors the way a political committee does.
The Supreme Court ruled that nonprofit groups, labor unions, and corporations could spend money in support or opposition to candidates in 2010. Since then, these groups have usually accounted for about 3% to 5% of total campaign spending. So far in 2020, however, that number is under 1%.
Data from the Federal Election Commission shows that more than $6.2 billion was spent on federal campaigns from the start of 2019 through the end of July. Dark money totaled about $20.8 million during the same period. That’s a whopping 0.3% of the total.
NCSL: Where Money and Free Speech Intersect Webinar
Thursday, Sept. 3, 2020, 2 p.m. ET/ 1 p.m. CT/ Noon MT/ 11 a.m. PT
With technological advancements, an evolving legal landscape, and changing political tactics, how are states ensuring transparency at the same time they’re protecting free speech? Learn about state efforts to regulate money in politics (whether on the campaign trail or in the legislature) and when those efforts bump into free speech.
Moderator:
-Senator Daniel Ivey-Soto, New Mexico
Speakers:
-Bradley Smith, Institute for Free Speech
-Danielle Caputo, Issue One
-Christi Zamarripa, NCSL
New from the Institute for Free Speech
CREW v. FEC‘s Impact on Independent Expenditures and Donor Privacy, Explained
By Bradley A. Smith
Over the past few years, Citizens for Responsibility and Ethics in Washington (“CREW”) has been on a targeted lawfare campaign against the Federal Election Commission…
One of CREW’s longstanding white whales has been Crossroads Grassroots Policy Strategies, the money pit run by Karl Rove that managed to light millions of dollars of donor cash on fire in fruitless efforts to elect people like former Ohio Treasurer Josh Mandel to the U.S. Senate in 2012.
Crossroads GPS, whatever its flaws, conducted much of its business back in the early 2010s. In particular, it sought to protect the privacy of its donors by relying on a longstanding FEC regulation that said only donors giving for the purpose of a particular independent expenditure needed to be disclosed in connection with that expenditure. This wasn’t a controversial interpretation of the regulation. The language is quite clear, and the FEC’s Office of General Counsel agreed that Crossroads was protected by its terms.
CREW disagrees with this regulation and seeks greater disclosure from nonprofit groups (and less privacy for donors to nonprofits generally). But, as the court noted on page 15 of its opinion, rather than seek to open a rulemaking before the Commission, it went after Crossroads itself. This end-run around the Commission’s regulatory apparatus found success in late August, in a 2-0 opinion written by Chief Judge Sri Srinivasan of the D.C. Circuit…
That decision found that the FEC’s regulation was invalid because it conflicts with Congressional guidance. And with that regulation gone, an important question arises: precisely which donors to an organization making independent expenditures must now be reported?
New Research: No Rise in Corruption Since Citizens United
The Institute for Free Speech published new research today finding no evidence of increased public corruption following the Supreme Court’s 2010 ruling in Citizens United v. Federal Election Commission. The report analyzes federal public corruption data from the nine years before and after the decision.
“Citizens United opened up new avenues to speak about campaigns. Critics never proved their claim that more speech would lead to more corruption. With this research, we find that public officials have not become more corrupt in the decade since Citizens United,” said Institute for Free Speech Research Director Scott Blackburn.
The Institute’s report, authored by IFS Research Intern Alec Greven, compares independent expenditures before and after Citizens United to public corruption prosecutions over the same period. It examines both for a federal relationship and a relationship in states most affected by the decision…
“The Citizens United decision is not correlated to an increase in corruption. As independent expenditures rapidly rose on the national level, public corruption prosecutions declined. A similar trend is observed in the states. If you isolate states that were most affected by Citizens United, the data show that those states experienced a steeper decline in corruption,” the report explains.
To read the report, click here.
Has Citizens United Increased Corruption? An Examination of Public Corruption Prosecutions
By Alec Greven
The Citizens United decision is not correlated to an increase in corruption. As independent expenditures rapidly rose on the national level, public corruption prosecutions declined. A similar trend is observed in the states. If you isolate states that were most affected by Citizens United, the data show that those states experienced a steeper decline in corruption.
These findings are in line with similar academic research…
Most importantly, however, there is simply no evidence of a causal relationship between Citizens United and increases in public corruption. Corruption levels are generally unaffected by independent political expenditures. Campaign finance laws, by their very nature, limit the freedom of individuals to engage in political activities. This limitation, otherwise disallowed by the First Amendment, rests on the necessity of preventing corruption. Government officials should be careful to only implement coercive laws when those laws actually target corrupt behavior. The absence of any link between independent expenditures and corruption indicates either no relationship or one where increased speech through independent expenditures actually benefits society. In light of these findings, we should be very cautious before we take any action to overturn or undermine Citizens United. Additionally, critics of Citizens United should re-evaluate their beliefs about the relationship between independent expenditures and corruption until further evidence is found.
FEC
Statement Of Chair James E. “Trey” Trainor III On The Dangers Of Procedural Disfunction
A dangerous paradigm shift is happening in federal campaign finance law that is threatening Americans’ free speech rights. The careful balance stuck by Congress when it created the Federal Election Commission (“FEC”) is being tilted by outside groups taking advantage of the FEC’s unique administrative enforcement and judicial review procedures by seeking private enforcement of the federal campaign finance laws and using the courts to get their preferred policy positions enacted. The Commission’s expertise is ignored, its prosecutorial role is subverted, and the clear separation of powers set forth in the Constitution are being tested. Free speech is being chilled. As I explain below, the system designed to protect free speech is being weaponized.
Washington Post: Network of news sites must register as a political committee due to Democratic links, complaint alleges
By Michelle Ye Hee Lee
A new complaint filed Thursday with the Federal Election Commission alleges that a national network of local media websites must register as a political committee because of its ties to a Democratic-aligned group.
Courier Newsroom, which includes seven news sites concentrated in presidential swing states,is backed by ACRONYM, a politically active nonprofit run by Democratic strategist Tara McGowan.
Federal election laws and regulations do not apply to media outlets unless they are “owned or controlled by” a political party, committee or candidate and are acting as a media outlet rather than a political one.
But the complaint, filed by Americans for Public Trust, a watchdog group affiliated with former Nevada attorney general Adam Laxalt, a Republican, alleges that Courier Newsroom is not eligible for that exemption and that the media group failed to register as a political group and report its donors and expenses as is required of political groups under federal law…
The FEC’s media exemption is applied broadly to account for First Amendment activity, to make sure that anti-corruption rules designed for political candidates and groups do not infringe upon the freedom of the press, legal experts say.
The FEC’s test hinges on whether the entity is a bona fide news outlet that is producing and disseminating the news to inform the public even if it has a political tilt, rather than a political group acting on behalf of a party or candidate.
FCC
Protocol: The FCC asked for public comments on Trump’s Section 230 executive order. Here’s what people said.
By Emily Birnbaum
Hundreds of comments flooded the Federal Communications Commission’s website this week as companies, trade groups, advocacy organizations, passionate individuals and possibly bots scrambled to weigh in the future of Section 230 ahead of Wednesday’s deadline.
As is typical with any regulatory process, many of those comments are identical to one another and appear to be copy-and-pasted from some original source. But rifling through the filings provides an illuminating glimpse into how the fight over tech’s prized legal protection is playing out following Trump’s social media executive order, which he signed in May.
Here’s a rundown of the most notable comments from big players – and from someone pretending to be one.
Online Speech Platforms
The Verge: Facebook will stop accepting new political ads a week before the US presidential election
By Casey Newton
Facebook will stop taking new political advertising in the United States in the seven days leading up to the election, CEO Mark Zuckerberg said today as part of a series of steps the company is taking to protect against election interference…
Candidates and political action committees will continue to be able to buy ads that have already received at least one impression by October 27th, the company said. They can also choose to target those existing ads at different groups or adjust their level of spending. But they won’t be able to launch new creative campaigns – a hedge against candidates spreading misinformation during a particularly fraught moment in the company’s history…
Other steps announced by Facebook today include: ….
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Removing posts that contain “clear misinformation” about COVID-19 and voting.
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Adding a link to accurate information about COVID-19 to posts that attempt to discourage people from voting by invoking fears about the disease.
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Adding a label to any candidate or campaign post that attempts to declare victory before the results are official. The label will direct users to information from Reuters.
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Adding a label to posts that attempt to cast doubt on the outcome of the election.
The company also said it would expand its policies against voter suppression to include “implicit misrepresentations” about the process, even if they don’t discourage voting. The statement “I hear anybody with a driver’s license gets a ballot this year” will no longer be allowed under the expanded policy, Facebook said.
Bloomberg: Facebook Says It Can Block Content to Avoid Regulatory Risk
By Sarah Frier
Facebook Inc. on Tuesday told users it can take down or block any content that could increase regulatory or legal risks for the social media giant around the world — even if the content itself isn’t illegal.
The broad language of a global change to its terms of service, which takes effect Oct. 1, gives the U.S. giant room to do whatever it deems necessary to maintain its business objectives in a shifting regulatory environment.
Facebook said the change allows it to block people and publishers in Australia from sharing news, pushing back against a proposed law forcing the company to pay media firms for their articles. But a company spokesperson said the tweak applies globally.
“We also can remove or restrict access to your content, services or information if we determine that doing so is reasonably necessary to avoid or mitigate adverse legal or regulatory impacts to Facebook,” the smartphone notification sent to users Tuesday read.
The update stands in contrast to Chief Executive Officer Mark Zuckerberg’s public statements about the importance of free speech.
The Hill: Facebook removes GOP lawmaker’s post for inciting violence
By Cristina Marcos
Rep. Clay Higgins (R-La.) suggested in a Facebook post on Tuesday that armed demonstrators in his state should be met with force, leading the social media platform to remove it for breaking its policies against inciting violence.
Candidates and Campaigns
ABC News: DHS withheld July intelligence bulletin calling out Russian attack on Biden’s mental health
By Josh Margolin, Lucien Bruggeman, Will Steakin, and Jonathan Karl
In early July the Department of Homeland Security withheld publication of an intelligence bulletin warning law enforcement agencies of a Russian scheme to promote “allegations about the poor mental health” of former Vice President Joe Biden, according to internal emails and a draft of the document obtained by ABC News.
The draft bulletin, titled “Russia Likely to Denigrate Health of US Candidates to Influence 2020 Election,” was submitted to the agency’s legislative and public affairs office for review on July 7. The analysis was not meant for public consumption, but it was set to be distributed to federal, state and local law enforcement partners two days later, on July 9, the emails show…
That was nearly two months ago. But the bulletin was never circulated.
In a statement to ABC News, a DHS spokesperson confirmed that the product was “delayed,” explaining that it failed to meet the agency’s standards…
“We are hearing concerns being raised publicly that, in this administration, intelligence community reporting is being modified or blocked for political reasons — or to not anger the president,” said John Cohen, an ABC News contributor and the former undersecretary for intelligence at DHS under President Barack Obama.
“By blocking information from being released that describes threats facing the nation,” Cohen continued, “it undermines the ability of the public and state and local authorities to work with the federal government to counteract the threat.”
