In the News
RNLA: Senate Confirms 3 New FEC Commissioners
By Elizabeth Bradford El-Rassy
Allen Dickerson and Sean Cooksey will join Chairman Trainor in respecting the rule of law, due process, and free speech rights – fulfilling a vital role of the Commission that Democrats in the past have hampered by failing to fill enough seats to conduct meaningful business.
Both Dickerson and Cooksey were praised on Twitter upon their confirmation. The importance of the two new commissioners being added to the FEC was noted by many.
ICYMI
Round-Up: 2020 Elections Demonstrate Money Doesn’t Buy Success at the Polls
By Alex Baiocco
Perhaps the clearest lesson to emerge from last month’s election results is that money can’t buy votes. Because the myth that political spending can determine electoral outcomes underlies many of the worst restrictions on political speech, the Institute for Free Speech often points out voters’ capacity to reject a candidate’s message even when that candidate spends far more than her opponent. Voters’ right to hear a candidate or speaker’s message and make up their own minds is a basic tenet of self-government. Yet every election season, politicians claim their opponents are trying to “buy the election.” Often, these complaints are followed by calls to impose more government control over political advocacy.
Below is a collection of notable reporting and commentary highlighting how this year’s election results add to the evidence undermining the myth that money buys elections.
The Courts
Reason (Volokh Conspiracy): President Trump’s § 230 Executive Order Doesn’t Do Enough To Be Challengeable
By Eugene Volokh
So Judge Trevor N. McFadden held Friday, in Center for Democracy & Technology v. Trump (D.D.C.) (see also a similar earlier decision, Rock the Vote v. Trump (N.D. Cal.)).
[The Executive Order] is most notable at this point for what it does not do. It imposes no obligation on CDT (or any other private party), but it merely directs government officials to take preliminary steps towards possible lawmaking. CDT’s claimed injury is not concrete or imminent and is thus insufficient to establish Article III standing. Even if CDT managed to clear the standing hurdle, it faces redressability and ripeness problems too….
Order 13,925 expresses the Trump Administration’s policy that “[f]ree speech is the bedrock of American democracy” and that “large online platforms, such as Twitter and Facebook, as the critical means of promoting the free flow of speech and ideas today, should not restrict protected speech.” The Order asserts that “[o]nline platforms are engaging in selective censorship.” It explains that § 230(c) of the Communications Decency Act-which, as relevant here, provides immunity from liability to online platforms for restricting some content on their sites-should be clarified…
There’s more, for which you can read the opinion.
Courthouse News: White House Assault on Diversity Training Gets Eye of Federal Judge
By Matthew Renda
A federal judge will ponder whether to award a nationwide injunction preventing the Trump administration from dictating how federal contractors should engage in diversity training.
“I have not decided whether or not I am going to issue an order,” said U.S. District Judge Beth Labson Freeman during a virtual hearing in San Jose federal court Thursday.
Despite being undecided, Labson Freeman singled out aspects of President Donald Trump’s executive order and subsequent briefing provided by U.S. Department of Justice attorneys that she thought may contain potential violations of free speech.
“I think this notion that you can prevent contractors from talking about matters of race or sex outside the context of diversity training, but you can talk about them otherwise … I was actually quite offended by this, I think it’s so wrong,” the judge said…
[T]he Diversity Center of Santa Cruz and other LGBTQ advocacy groups say the executive order’s application to federal contractors illegally demands these groups restrict their speech and in some cases act contrary to the fundamental mission of their organization.
Congress
AppleInsider: Bill introduced to strip Section 230 protections from the internet
By Mike Peterson
A bi-partisan bill has been introduced that would remove Section 230 legal protections from companies that “engage in certain manipulative practices” but in practice, would strip the protections from nearly every internet venue with user interaction…
The Break Up Big Tech Act of 2020, introduced Wednesday by Rep. Tulsi Gabbard (D-HI) and Rep. Paul Gosar (R-AZ), seeks to strip companies of those protections if they take supposed actions like “acting as publishers and censoring certain users.”…
More specifically, the legislation would remove Section 230 protections from online companies that perform the following activities.
-Selling and displaying targeted ads without a user’s consent
-Collecting data for “commercial purposes other than the direct sale of the interactive computer service.”
-Acting as a marketplace by “facilitate the placement of items into the stream of commerce.”
-Employing digital products intended to “engage and addict users” to the service.
-Acting as a publisher by using algorithms to moderate or censor content without opt-in from users
The Media
Fox News: Acting US defense secretary’s chief of staff Kash Patel files $50M defamation lawsuit against CNN
By Brian Flood
Kash Patel, the chief of staff to Acting Secretary of Defense Christopher Miller, has filed a $50 million defamation lawsuit against CNN and several of its top reporters, claiming the liberal network published false statements and promoted “unfounded left-wing political narratives” by painting Patel as a pro-Trump conspiracy theorist seeking to smear President-elect Joe Biden.
The complaint filed on Friday in Virginia Circuit Court named CNN reporters Barbara Starr, Zachary Cohen, Ryan Browne, Alex Marquardt and Nicole Gaouette as defendants, in addition to the network itself. It claims CNN “deliberately or recklessly conveyed a false message” to sensationalize the “news” and humiliate Patel.
Patel, who was previously a top aide to Rep. Devin Nunes, R-Calif., and a Trump advisor, claims CNN published a series of articles from Nov. 24 through Dec. 4 penned by the defendants that “contain a series of false and defamatory statements” about him, according to the complaint.
Nonprofits
Politico: In final years at Liberty, Falwell spent millions on pro-Trump causes
By Maggie Severns
After shocking many in the evangelical movement by endorsing Donald Trump over other Republicans for the 2016 presidential nomination, Liberty University President Jerry Falwell Jr. pumped millions of the nonprofit religious institution’s funds into Republican causes and efforts to promote the Trump administration, blurring the lines between education and politics.
The culmination of his efforts was the creation of a university-funded campus “think tank” – which has produced nopeer-reviewed academic work and bears little relation to study centers at other universities – that ran pro-Trump ads, hired Trump allies including former adviser Sebastian Gorka and current Trump attorney Jenna Ellis to serve as fellows and, in recent weeks, has aggressively promoted Trump’s baseless claims of election fraud…
Liberty’s actions, detailed for the first time by POLITICO, suggest the university is pushing the boundaries of its status as a nonprofit organization under section 501c(3) of the federal tax code, which forbids spending money on political campaigns. Liberty’s actions also go well beyond the traditional role of a university as a politically neutral institution of higher learning…
The IRS, however, has been reluctant to monitor donations and other activities that may reflect political agendas at institutions like Liberty. The reasons are multifold: A lack of resources, the 2013 Tea Party scandal – in which the IRS was accused of unfairly targeting conservative groups – and, more recently, because of the Trump administration, tax experts said.
Online Speech Platforms
TK News by Matt Taibbi: The YouTube Ban Is Un-American, Wrong, and Will Backfire
By Matt Taibbi
Start with the headline: Supporting the 2020 U.S. Election. YouTube in its company blog can’t even say, “Banning Election Conspiracy Theories.” They have to employ the Orwellian language of politicians – Healthy Forests, Clear Skies, “Supported” Elections – because Google and YouTube are now political actors, who can’t speak plainly any more than a drunk can walk in a straight line.
The company wrote Wednesday:
Yesterday was the safe-harbor deadline for the U.S. Presidential election and enough states have certified their election results to determine a President-elect. Given that, we will start removing any piece of content uploaded today (or anytime after) that misleads people by alleging that widespread fraud or errors changed the outcome of the 2020 U.S. Presidential election… For example, we will remove videos claiming that a Presidential candidate won the election due to widespread software glitches or counting errors.
This announcement came down at roughly the same time Hunter Biden was announcing that his “tax affairs” were under investigation by the U.S. Attorney in Delaware… Information suggestive of money-laundering and tax issues in China and other countries was in the cache of emails reported in the New York Post story blocked by Twitter and Facebook…
If you want a population of people to stop thinking an election was stolen from them, it’s hard to think of a worse method than ordering a news blackout after it’s just been demonstrated that the last major blackout was a fraud. Close your eyes and imagine what would have happened if Facebook and Google had banned 9/11 Truth on the advice of intelligence officials in the Bush years, and it will start to make sense that Trump voters in Guy Fawkes masks are now roaming the continent like buffalo.
The Verge: Twitter briefly restricts Trump’s disputed election tweets
By Kim Lyons
It looked like Twitter was adding further restrictions to President Trump’s Twitter account on Saturday, as some users noticed the ability to like, retweet or reply to his tweets with “disputed” labels was not working. Copying the URL to one of the disputed tweets also appeared to be disabled, and quote-tweets were not appearing in search results.
Some users were able to access and like Trump’s tweets – several Verge staffers confirmed they could engage with “disputed” tweets by clicking through the warning label- but others on Twitter could not.
A Twitter spokesperson said in an email to The Verge on Saturday that the platform “inadvertently took action to limit engagements,” on Trump’s tweet and had since reversed the action. Tweets that violate Twitter’s Civic Integrity Policy “will continue to be labeled in order to give more context for anyone who might see the Tweet,” the spokesperson said.
Buzzfeed News: Facebook Profits As Users Are Ripped Off By Ad Scams
By Craig Silverman and Ryan Mac
A BuzzFeed News investigation has found that in relentlessly scaling its ad juggernaut – which is projected by analysts to bring in $80 billion this year – Facebook created a financial symbiosis with scammers, hackers, and disinformation peddlers who use its platforms to rip off and manipulate people around the world…
This year it took money for ads promoting extremist-led civil war in the US, fake coronavirus medication, anti-vaccine messages, and a page that preached the racist idea of a genocide against white people, to name a few examples…
Interviews with current and former Facebook employees and company documents seen by BuzzFeed News paint a picture of an ad business built with the same lax controls and outsourcing of critical moderation work that has caused Facebook to become a fount of disinformation, foreign influence operations, hate speech, and harassment…
In the weeks leading up to election day, Facebook moved some of its ad monitors off their usual tasks to focus on helping political advertisers buy as much inventory as they wanted before its ban on new ads took effect a week before Nov. 3. They were also told to restore disabled political ad accounts whenever possible. One document seen by BuzzFeed News told contractors that approving requests from election advertisers asking to increase the limits on their Facebook ad spends was their “highest priority.”
“My takeaway is we wanted to allow political advertisers to spend as much as possible, as quickly as possible, and deal with the policy questions later,” said the person with insight into Facebook ads enforcement…
“Their only job is to protect Facebook from fraud, not to protect users from fraud.”
Biden Transition
Bloomberg: Biden Administration Will Create Position to Reach Conservatives
By Jennifer Jacobs
The Biden administration plans to create a position to find common ground with conservatives, said Louisiana Congressman Cedric Richmond, a senior adviser and director of the Office of Public Engagement for the president-elect.
“Right now I’m trying to set up the office and I’m actually looking at establishing a position that reaches out to conservatives — because it’s about moving forward. We cannot stay where we are,” Richmond said during the Wall Street Journal’s CEO Council on Monday night.
He said the office’s goal was to forge connections with all Americans, regardless of their political affiliation. “We’re not elected just to help Democrats or urban cities or minorities,” he said. “We were elected to help this entire country and that means reaching out to conservatives, that means reaching out to rural areas, reaching out to people who didn’t vote for us.”
Candidates and Campaigns
By Greta Kaul
The outcome of the U.S. House race in Minnesota’s Fifth Congressional District, between incumbent Rep. Ilhan Omar and challenger Republican Lacy Johnson, wasn’t exactly in doubt on Election Day…
But despite the fact that a Republican faces long odds at best in the district, Congressional District 5 was the Minnesota Congressional race that saw the most fundraising by candidates in the run-up to the November election: nearly $18 million. The bulk of that money was raised by Johnson…
According to Federal Elections Filings that cover the race from its start through November 23, Johnson raised $12.1 million, more than any other candidate for Congress in Minnesota, and significantly more than the $5.7 million Omar raised…
“This is something that we’ve seen happen a number of times, when there is an incumbent like Ilhan Omar who is so prominent, and in some circles, controversial,” he said. “The people who are running against these candidates often massively outraise them despite the fact that there is little to no chance of a Republican winning.”
Business Insider: Donald Trump’s campaign finally paid this Wisconsin city’s police bill. But others – from El Paso, Texas, to Erie, Pennsylvania – are still getting stiffed.
By Dave Levinthal
But to date, Trump’s presidential committee has refused to honor police and public safety invoices from at least 15 different municipalities, each of which hosted a Trump campaign rally sometime in the past five years, Insider previously reported.
The collective tab is more than $1.82 million – at a time when the COVID-19 pandemic has forced municipal governments to slash their budgets in sometimes draconian fashion…
But Trump’s team does not formally acknowledge those police bills as debts despite a federal campaign finance law that requires political committees to publicly disclose all campaign debts – even ones they dispute.
Those omissions prompted Rep. Bill Pascrell, a Democrat from New Jersey, to file a complaint in October 2019 with the Federal Election Commission against the Trump campaign.
The complaint is still pending because the FEC has for most of this year lacked enough commissioners to enforce campaign laws or fully investigate potential violations. The agency is poised to regain a full complement of six commissioners for the first time since early 2017 after the Senate this week confirmed three new members.
The States
Albuquerque Journal: Ethics panel files lawsuit seeking disclosure of group’s donors
By Dan Boyd
The New Mexico Ethics Commission on Friday filed a lawsuit aimed at forcing a group that spent more than $130,000 on political advertisements in hotly-contested Democratic legislative primary election races to disclose its donors.
The lawsuit – the first of its kind filed by the Ethics Commission since its creation this year – could be a test case for a law amended in 2019 that requires more “dark money” disclosure for election-related expenditures.
Jeremy Farris, the Ethics Commission’s executive director, said Friday the lawsuit was filed in state District Court after the Council for a Competitive New Mexico refused to comply with a demand letter sent by the commission a day earlier.
“I think this is dark money … and that’s exactly what’s required to be disclosed under the Campaign Reporting Act,” Farris told the Journal.
However, the Council for a Competitive New Mexico has argued its donors do not have to be disclosed since their donations do not meet the state’s Campaign Reporting Act’s definition of a contribution.
“The Secretary of State’s office acknowledged that an ambiguity in the law prevents them from forcing donor disclosure here, so it is unfortunate that the Ethics Commission is taking an aggressive position contrary to the secretary and the commission’s approach to other similar organizations,” the group’s Washington, D.C.-based attorney Charles Spies said in a Friday statement.
He also said the Council for a Competitive New Mexico was reviewing the lawsuit and evaluating its legal options.
By Michael Bonner
The Massachusetts Supreme Judicial Court on Thursday upheld Gov. Charlie Baker’s use of emergency executive orders to close certain businesses, implement curfews and make other changes in response to the COVID-19 pandemic.
In a 41-page decision authored by Justice Elspeth Cypher, the state’s highest court wrote that Baker’s declaration of a state of emergency did not infringe on other branches of state government or violate residents’ First Amendment rights.
“The emergency orders do not unconstitutionally burden the plaintiffs’ right to free assembly because reducing the dangers of COVID-19 is a significant government interest, and because the emergency orders are content neutral and narrowly tailored, and they leave open alternative channels of communication,” Cypher wrote.
The Seattle Times: Natural-gas ads shouldn’t have gone on buses, King County Metro Transit says
By Mike Lindblom
Alongside tobacco, firearms and the fight over Palestine, add natural gas to the list of topics too taboo for the side of a King County Metro Transit bus.
The nation’s ninth-busiest public bus agency says it made an error in accepting $91,000 for 80 advertisements by the Partnership for Energy Progress Northwest, a coalition of gas companies, labor unions, farming and pro-business groups. The messages show a family cooking with gas, on a light-blue background next to the words “Reliable. Affordable. Natural Gas. Here For You.”…
Metro policy forbids political campaign ads, along with “public issue speech” ads that express views “on a matter of public debate about economic, political, public safety, religious or social issues.” Those limits evolved from a controversy a decade ago, when competing ads about the Israel-Palestinian conflict caused Metro to fear local violence. Ads for tobacco and firearms are also banned.
