ICYMI
Presidential Nominating Convention Accounts’ Expenditure Limit: A Cap on Political Expression
By Heather McGuire
While individuals may only contribute $35,500 per year to a national party committee, individuals may contribute $106,500 per year to a convention committee.Despite being able to receive larger contributions, 52 U.S.C. § 30116(a)(9)(A) places a $20,000,000 aggregate expenditure limit on convention committees with respect to any single convention.
In 2016, the DNC spent $16.6 million and the RNC spent $10.6 million on their respective presidential nominating conventions. This year, the DNC and RNC accounted for the usual convention costs that tend to rise slightly each cycle with inflation. Then, a pandemic arrived, and the parties were forced to bear the added cost of executing a first-of-its-kind, COVID-19-safe, digital operation from multiple venues. Those added costs will likely be tacked onto the price tag of a traditional convention format that was scrapped just months prior as a result of the pandemic. It is very much within the realm of possibility that each national party hits the $20,000,000 expenditure limit at some point in the next several election cycles…
Section 30116(a)(9)(A)’s $20,000,000 cap unconstitutionally limits national parties’ ability to engage in political expression. Further, it disincentivizes convention committees from raising as much as they can; why raise more money than you are allowed to spend?
Donor Privacy
Newsweek: Why Is ‘Dark Money’ Any Worse Than ‘Dark Journalism?’
By Mark Weaver
Over the last decade, a new epithet has made the rounds of the perpetually perturbed: “dark money.” A calmer descriptor is anonymous political advocacy. Those who frequently use the term “dark money” fancy that such funds are shelled out by evil special interests plotting to undermine American democracy with creepy political commercials and mailers that twist the truth. The term was coined by a left-leaning special-interest group, itself plagued by scandals. The fact that this group obscures the source of much of its funding through donations laundered through other shadowy special-interest groups is a reminder that irony will always be in style.
Nonetheless, repeating the phrase “dark money” like an incantation, several state lawmakers, judges and city councilors are proposing new laws that would criminalize anonymous speech intended to influence policy or politics. This newish trend of government commissars forcing sponsors of political speech to be named is dangerous and ahistorical.
The tendency to target people based on unpopular views has bloomed out of control and is responsible for people losing their jobs and, in some cases, having their lives threatened. Doxxing-the pernicious practice of releasing private information on the internet as an intimidation tactic-grows more common every year. And political donors are ripe targets.
If we’re genuinely interested in discussing the best policy ideas for our nation, the advocate of the proposal ought to be immaterial. The despicable among us may offer a few great ideas, and the noble may suggest some clunkers. The person backing a proposition is much less relevant than the merits of the notion itself. Either a policy helps to solve a problem within the scope of government, or it doesn’t.
Supreme Court
Politico: Cruz, Cotton, Hawley headline Trump’s additional 20 potential Supreme Court picks
By Caitlin Oprysko and Josh Gerstein
President Donald Trump on Wednesday added 20 names to his existing list of 25 potential picks to fill a future Supreme Court vacancy, including Republican Sens. Ted Cruz, Tom Cotton and Josh Hawley…
“Our cherished rights are at risk,” Trump said from the Diplomatic Reception Room of the White House, speaking of the November election…
The “radical justices” appointed by a hypothetical Biden administration, Trump claimed, would “erase the Second Amendment, silence political speech and require taxpayers to fund extreme late-term abortion.”
Congress
Politico: Tech world bites back at GOP-led Section 230 bill
By Alexandra S. Levine
The tech sector has swiftly come out against Senate Republicans’ bill introduced Tuesday afternoon that would narrow online platforms’ legal protections when they take down user-posted content. Industry groups were quick to suggest that the proposal from Senate Commerce Chairman Roger Wicker (R-Miss.), Senate Judiciary Chairman Lindsey Graham (R-S.C.) and Sen. Marsha Blackburn (R-Tenn.) would violate the First Amendment while hindering efforts to secure elections and fight medical misinformation – fears that hit home during the tumultuous 2020 presidential race and a global pandemic. (Wicker said the bill is aimed at addressing alleged anti-GOP bias in tech; there are notably no Democratic co-sponsors on the bill.)
“This bill would thwart social media’s ability to remove Russian or Chinese election interference campaigns, misinformation about COVID-19, and cyberbullying from their services,” said Carl Szabo, vice president and general counsel at NetChoice, which counts Facebook, Google, Twitter and TikTok as members. “Furthermore, the bill would prevent online services from removing the very content Congress demands they remove – notably medical misinformation and efforts to undermine our elections,” Szabo said. Elizabeth Banker, deputy general counsel for the Internet Association, added that the trade group has “serious First Amendment concerns with this bill.”
Education Department
Politico: In crackdown on race-related content, Education Department targets internal book clubs, meetings
By Michael Stratford
The Education Department plans to scrutinize a wide range of employee activities – including internal book clubs – in search of “Anti-American propaganda” and discussions about “white privilege” as it carries out the White House’s demand that federal agencies halt certain types of race-related training.
In an internal email this week obtained by POLITICO, the department ordered a review of agency contracts for diversity training and “internal employee activities” to root out topics such as “critical race theory” or materials that suggest that the U.S. is an inherently racist country. The crackdown comes as the department implements a government-wide directive the White House issued Friday to stop what it called “un-American propaganda training sessions” about race…
The Education Department’s move to restrict discussions among employees also comes as Education Secretary Betsy DeVos finalized a new policy this week aimed at promoting free speech in other venues.
DeVos’ rule, which was finalized Wednesday, cuts off some Education Department funding to public universities that run afoul of the First Amendment or private universities that violate their own speech policies.
Independent Groups
Washington Times: Political groups’ ‘dark money’ spending set to exceed $1 billion since Citizens United decision
By Ryan Lovelace
Political groups’ “dark money” spending soon will exceed $1 billion reported to the Federal Election Commission since the Supreme Court’s Citizens United decision in 2010 that ensured political spending was protected speech…
Former Rep. Zach Wamp, a Tennessee Republican who left Congress in 2011, said the “dark money” issue was originally portrayed as a problem for Republicans, but it has become a bipartisan crisis.
Mr. Wamp, who works with campaign finance watchdog group Issue One, said that in the 2018 campaign cycle, 54% of all dark money went to Democrats, 31% of dark money went to Republicans, and 15% was nonpartisan.
“The whole thing is so muddy now that nobody thinks there are any rules, nobody even attempts to comply,” Mr. Wamp told reporters. “There’s not only direct coordination between the campaigns and the outside groups, sometimes the family members are running the two, sleeping even in the same bed, and they say, ‘We’re not coordinating,’ which is just impossible.” …
Anna Massoglia, researcher at Center for Responsive Politics’ OpenSecrets.org, told reporters much of the cash being spent is not recorded by the FEC.
“In addition to what’s being reported to the Federal Election Commission and more traditional campaign finance filings that people would really know to check, we’re seeing millions of dollars funneled into digital advertising by dark money groups, which is subject to less stringent requirements than a lot of TV and radio ads,” Ms. Massoglia told reporters.
The Hill: Alaska group backing independent candidate appears linked to Democrats
By Reid Wilson
A new outside group formed to support an independent candidate running against Sen. Dan Sullivan (R-Alaska) appears linked to prominent Democratic super PACs in Washington, D.C….
Independent Alaska, an independent expenditure committee formed Sept. 3, appears set to purchase advertising on behalf of Al Gross, a surgeon and commercial fisherman running as an independent against Sullivan…
The arrangement is similar to an outside group that sprang up to run ads promoting an arch-conservative candidate in Kansas, former Secretary of State Kris Kobach (R). That group, Sunflower State, later revealed in campaign finance reports that it had been funded by the Senate Majority PAC, the largest Democratic super PAC…
It is not uncommon for groups like the Democratic and Republican Governors Association to open state-specific political action committees. Doing so gives them the chance to run advertisements that are paid for by generic-sounding groups, rather than partisan organizations.
It is less common for Senate-specific groups to run such advertisements – though this is at least the third time this year that a super PAC has created a state affiliate. The Senate Leadership Fund, the largest Republican super PAC, created a special PAC to boost a liberal candidate in North Carolina against former state Sen. Cal Cunningham (D), the favored candidate of national Democrats.
Online Speech Platforms
Axios: Zuckerberg to “Axios on HBO”: “Just wrong” to say Facebook driven by conservatives (Video)
By Mike Allen and David Nather
Mark Zuckerberg told “Axios on HBO” that it’s “just wrong” to consider Facebook a right-wing echo chamber, even though conservative voices top the platform’s most-engaged content.
“It’s true that partisan content often has kind of a higher percent of people … engaging with it, commenting on it, liking it,” Zuckerberg told Axios.
“But I think it’s important to differentiate that from, broadly, what people are seeing and reading and learning about on our service.”
With social media feeding online rage across the political spectrum, Zuckerberg said there’s a “meme” out there “that says … our algorithm is just trying to find things that are going to kind of enrage people somehow, and that that’s what we try to show people. And that’s not actually how our systems work.”
When I reminded Zuckerberg how much hate is on Facebook, he replied: “If you look in the country right now … a lot of people … are very exercised and I think, frankly, for a lot of good reasons. And we have real issues.”
“I think sometimes there is a fine line between an important level of high energy around an important issue and something that can kind of tilt over into causing harm.” …
Zuckerberg said he’s not ready to move against anti-vaxxers the way he did against COVID misinformation: “If someone is pointing out a case where a vaccine caused harm or that they’re worried about it – you know, that’s a difficult thing to say from my perspective that you shouldn’t be allowed to express at all.”
The Atlantic: What I Learned in Twitter Purgatory
By Kate Klonick
For the past five years I have researched and written about the rules that govern online speech and how they are enforced…
The tweet that had landed me in social-media jail was one I’d sent the night before. I have been co-hosting a daily live-streamed show with Atlantic contributing writer Benjamin Wittes since the beginning of the pandemic, and our guest last Tuesday night had been the writer Molly Jong-Fast. In the midst of the show, she had had a sotto voce conversation with her spouse, who had reached on camera to try to take a plate away. Jong-Fast had jokingly responded, “If you take that I will kill you,” before turning back to the camera and smilingly saying, “Working at home is a delightful adventure.” Although her response was funny in the moment, my quotation of it in a tweet didn’t exactly capture the humor.
But I wasn’t suspended from Twitter for telling a bad joke. Because I’d included the words I will kill you, I was banned for violating Twitter’s rules about incitement to violence…
But I am in a better position than most users to potentially make trouble for the company. Not only do I study speech rules for a living, but I also talk to a lot of journalists about content moderation. Because of my professional focus, I also have an unusually high level of access to people at the company. Which is presumably why, less than an hour after suspending my account, the company reinstated it.
Despite all the shininess of new technology, so often getting suspended accounts or deleted posts restored works the good old-fashioned way: via influence, power, connections. It’s an unfair system that favors elites and disfavors the average user who doesn’t know someone at a technology company, or a government official, or someone with 100,000 followers.
Pew Research: Americans think social media can help build movements, but can also be a distraction
By Brooke Auxier and Colleen McClain
Social media platforms are important for political and social activists. But while most Americans believe these platforms are an effective tool for raising awareness and creating sustained movements, majorities also believe they are a distraction and lull people into believing they are making a difference when they’re not, according to a new Pew Research Center survey.
Overall, eight-in-ten Americans say social media platforms are very (31%) or somewhat (49%) effective for raising public awareness about political or social issues, according to the survey of U.S. adults conducted July 13-19. A similar share (77%) believes these platforms are at least somewhat effective for creating sustained social movements.
Smaller shares – though still majorities – say social media are at least somewhat effective in getting elected officials to pay attention to issues (65%), influencing policy decisions (63%) or changing people’s minds about political or social issues (58%).
Candidates and Campaigns
Bloomberg: Did Postal Chief Violate Campaign Finance Laws? (Podcast)
Hosted by June Grasso
Campaign finance law expert Meredith McGehee, the executive director of Issue One, which advocates for stronger campaign finance laws, discusses the allegations that Postmaster General Louis DeJoy pressured his former employees to donate money to Republican political candidates and then reimbursed them using company money.
The States
Courthouse News: Texas Attorney General Urges State Bar to Reject Anti-Bias Rule
By David Lee
Texas Attorney General Ken Paxton warned the State Bar on Wednesday against further consideration of an American Bar Association anti-bias rule that deems discrimination based on gender or sexual orientation as professional misconduct, claiming the rule violates attorneys’ free speech and religious rights.
Paxton, a Republican, made the warning one day before the State Bar of Texas’ board of directors is to consider whether to refer ABA Model Rule 8.4(g) to an internal committee for possible adoption.
The rule deems it professional misconduct for a lawyer to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of … sexual orientation, gender identity, marital status, or socioeconomic status in conduct” relating to practicing law.
Paxton concedes that attorneys’ free speech rights can be limited inside the courtroom and outside when speaking about a pending case, but claims the anti-bias rule “extends far beyond the context of a judicial proceeding” to restrict speech “in any instance” regarding practicing law.
“The broad nature of the rule could apply to an attorney’s participation in a continuing legal education panel discussion, authoring a law review article, or informal conversations at a bar association event, among other things,” Paxton’s two-page letter states. “In other words, Model Rule 8.4(g) will suppress thoughtful and complete exchanges about complex issues.”
Delaware News Journal: Wilmington women indicted on hate crime charges after viral MAGA hat theft
By Xerxes Wilson
Olivia Winslow and Camryn Amy, both 21 and from Wilmington, were indicted by a New Castle County grand jury on Tuesday on charges of second-degree robbery, second-degree conspiracy, endangering the welfare of a child, third-degree assault, attempted third-degree assault, offensive touching and felony hate crimes.
In a video posted on social media, Winslow and Amy were seen damaging signs and taking a red MAGA hat from a group of Trump supporters protesting the nomination of former Vice President Joe Biden…
A young boy in the video can be heard saying, “That’s somebody else’s hat,” after Winslow appears to pick it up off the ground and throws it.
“Call 911,” the boy says to his mother as the two women walk away with the hat.
Later in the video, a man attempting to get the hat back appears to be punched by the second suspect, who later throws the hat over a fence…
Delaware law states that a person is guilty of such when they commit a “crime for the purpose of interfering with the victim’s free exercise or enjoyment of any right, privilege or immunity protected by the First Amendment to the United States Constitution, or commits said crime because the victim has exercised or enjoyed said rights.”
Delaware Attorney General Kathy Jennings, whose office pursued the indictment against the women, said in a written statement Tuesday that “harming another person – let alone a child – because of the expression of their views betrays the principles on which our country was founded.”
New Hampshire Union Leader: Exeter poll workers shocked when woman removes shirt, votes topless
By Jason Schreiber
Voters at the Exeter polls got an eyeful Tuesday when a woman who was told she couldn’t wear a politically themed shirt whipped it off and voted topless.
The unidentified woman cast the bare-breasted ballot after showing up at the Talbot Gymnasium polls wearing a shirt with images of President Donald Trump and the late Sen. John McCain and the legend “McCain Hero/Trump Zero.”
Town Moderator Paul Scafidi told the woman…that she would have to remove the shirt or cover it up because of laws against electioneering inside polling places…
Exeter voter Andrea Shine got a good laugh as she watched things unfold.
“I think we all kind of needed it. With everything going on in the world, it’s like, who cares?” she said.
