New from the Institute for Free Speech
Nine Former FEC Commissioners Warn of “Ruinous Effect” of H.R. 1 and S. 1
By Luke Wachob
Nine former FEC commissioners fiercely criticized both H.R. 1 and S. 1 in a letter to Congressional leaders earlier today. The deceptively named “For the People Act” totals nearly 800 pages and would mushroom regulation of all manner of speech about government, elections, and public policy. It would also break the Federal Election Commission’s bipartisan structure, and in so doing, destroy its credibility.
The nine former Commissioners boast a combined six decades of experience at the FEC. At least one of the signers served on the Commission at all times between 1998 and 2020. Most also served a term as the Commission’s Chair, providing them with unique insights into the bill’s threats to speech and to the fair and effective enforcement of campaign finance laws. Among the former commissioners is Institute for Free Speech Chairman and Founder Bradley A. Smith, who signed the letter in his personal capacity…
You can read the letter here. It was signed by former FEC Commissioners Thomas J. Josefiak, Darryl R. Wold, David M. Mason, Bradley A. Smith, Michael E. Toner, Hans A. von Spakovsky, Matthew S. Petersen, Caroline C. Hunter, and Lee E. Goodman.
Events
Stanford PACS: The Election Reform Agenda – Part 4: Campaign Finance
Webinar: February 9th, 2021 – 3:00pm to 4:15pm ET (12:00 pm to 1:15 pm PT)
What exactly is included in H.R. 1 and what are the arguments of its supporters and detractors? Join us for a deep dive into four components of this historic legislation. Each panel brings together advocates, critics, and academics to describe the specific reforms under consideration…
Session Moderators:
Nate Persily, Co-Director of the Program on Democracy and Internet at Stanford PACS and the Stanford-MIT Healthy Elections Project
Didi Kuo, Associate Director for Research, Center on Democracy, Development and Rule of Law at Stanford University
Speakers
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- Bradley Smith – Josiah H. Blackmore II/Shirley M. Nault Professor of Law, Capital University Law School
- Richard Pildes – Sudler Family Professor of Constitutional Law, New York University School of Law
- Meredith McGehee – Executive Director, Issue One
- Alex Kaplan – Vice President of Policy & Campaigns, RepresentUs
- Adav Noti – Senior Director of Trial Litigation & Chief of Staff, Campaign Legal Center
Congress
Letter from Nine Former FEC Commissioners Expressing Concerns with H.R. 1 and S. 1
By former FEC Commissioners Thomas J. Josefiak, Darryl R. Wold, David M. Mason, Bradley A. Smith, Michael E. Toner, Hans A. von Spakovsky, Matthew S. Petersen, Caroline C. Hunter, and Lee E. Goodman
We write out of deep concern for the threat that the self-styled “For the People Act” (H.R. 1 and S. 1 in the current Congress, hereinafter the “FPA”) poses to the long-standing bipartisan structure of the Federal Election Commission (“FEC”)-a concern based on our many years of experience as commissioners of the FEC. The FEC is the federal agency entrusted with primary interpretation, civil enforcement, and administration of federal campaign finance laws.
The threat to bipartisanship in this federal agency should be a concern for the public, but also for members of Congress, who are among the most visible subjects of FEC scrutiny. Candidates for federal office know that the FEC is an intrusive presence in virtually every aspect of their campaigns, requiring disclosure of detailed aspects of their contributions and expenditures, initiating investigations, subpoenaing witnesses and records, imposing civil penalties for violations of its hundreds of pages of regulations, and conducting audits of campaign committees selected by the Commission to monitor compliance, among other actions.
Washington Post: House committee asks if Trump was offered a stake in Parler
By Tom Hamburger and Craig Timberg
A House committee investigating conservative social media site Parler on Monday demanded answers about its ownership, possible ties to Russia and whether the company offered a significant stake to former president Donald Trump to entice him to join the platform.
The letter from the House Oversight and Reform Committee cites numerous news reports about the site, which has struggled to return to full operation for weeks and which fired its chief executive last week. Parler was a fast-growing alternative to mainstream social media sites but has struggled ever since its users used the platform to instigate and celebrate the Jan. 6 assault on the U.S. Capitol.
“Since the attacks, numerous Parler users have been arrested and charged for their roles, with the Department of Justice citing in several instances the threats that individuals made through Parler in the days leading up to and following the attack,” said the committee’s chairwoman, Rep. Carolyn B. Maloney (D-N.Y.), in a statement. “Individuals with ties to the January 6 assault should not – and must not – be allowed to hide behind the veil of anonymity provided by shell companies.”
First Amendment
Washington Post: Trump’s First Amendment rights don’t matter for his impeachment trial
By Ilya Somin
There is indeed a high threshold for establishing that someone has crossed the line into speech subject to criminal prosecution. Scholars disagree about whether Trump did so. But this debate misses the point: Government officials can be impeached and removed for speech that is not criminal. The First Amendment protects private citizens against criminal and civil sanctions for a wide range of speech. But it doesn’t protect government officials against impeachment and conviction.
Jonathan Turley: “The First Amendment Does Not Apply”: A Response To The Letter Of Scholars In Rejecting Trump Arguments Under The First Amendment
“The First Amendment does not apply in impeachment proceedings.” If there is a single line that sums up the sense of legal impunity in the second Trump impeachment, it is that line from a letter sent by law professors to deny any basis for the former president to challenge his impeachment on free speech grounds. The scholars call any such arguments “legally frivolous” but only after misstating the argument and frankly employing a degree of circular logic. While I agree with aspects of the letter, I believe that the thrust of the letter misses the point of those of us who have raised free speech concerns.
Roll Call: How the Jan. 6 riot could make it tougher to lobby
By Kate Ackley
Lobbyists who’ve been around a long time can regale younger generations with tales of freely roaming the Capitol – parking steps from an entrance to the temple of democracy and leisurely loitering by elevators to grab members en route to the House or Senate floors.
Those days, of course, vanished long ago. And now COVID-19 has shifted the influence industry online. But the deadly Jan. 6 assault on the Capitol, a horror to anyone on K Street familiar with the complex’s hallowed halls, has ignited a fresh fear among lobbyists and activists.
What if, they worry, new security measures keep them at a perpetual distance from the lawmakers and staff they aim to influence, long after the pandemic ends?
Access is currency on K Street, and the subtleties of in-person relationship-building can be at least as important as crafting a salient policy message. Big-money lobbyists are likely to regain such interactions through fundraising events when they return in full force post-pandemic, but rank-and-file lobbyists and advocates for lower-dollar influence campaigns say they’re troubled at the prospect of no longer having access to the Capitol complex.
“It’s a big concern for us,” said Paul Miller, a longtime lobbyist and president of the National Institute for Lobbying & Ethics. “Does the technology make it easier for them to avoid constituents and folks like us who are up there speaking on their behalf?”
Online Speech Platforms
The Hill: Facebook weighs pivotal decision on Trump ban
By Rebecca Klar
Facebook finds itself confronted with one of its most consequential content moderation decisions – whether to let former President Trump back on the platform or keep him permanently banned.
Facebook CEO Mark Zuckerberg has left the decision in the hands of Facebook’s fairly new independent oversight body, and the 20-member board’s impending verdict may have effects beyond the fate of Trump’s potential return…
On the Trump case, Facebook said it requested the board’s “observations or recommendations on suspensions when the user is a political leader,” meaning the board’s decision on Trump could influence how Facebook handles bans on future leaders around the world.
“That could be the most significant part of it,” Oversight Board member John Samples, who is also the vice president of the Cato Institute, said Thursday during a panel hosted by The R Street Institute.
Washington Post: Facebook should let Donald Trump back on its platform
By Henry Olsen
It was one thing to temporarily ban [Trump] from social media during the tumultuous days following the Jan. 6 Capitol riot. Doing so helped ensure that Trump could not mobilize his followers to further violence that could hinder or mar President Biden’s inauguration. That danger has now passed, and keeping the former president from commenting on public affairs would only serve to suppress free speech. That’s not something Facebook, or any social media platform, should do.
New York Times: Facebook says it plans to remove posts with false vaccine claims.
By Mike Isaac
Facebook said on Monday that it plans to remove posts with erroneous claims about vaccines from across its platform, including taking down assertions that vaccines cause autism or that it is safer for people to contract Covid-19 than to receive the vaccinations.
The social network has increasingly changed its content policies over the past year as the coronavirus has surged. In October, the social network prohibited people and companies from purchasing advertising that included false or misleading information about vaccines. In December, Facebook said it would remove posts with claims that had been debunked by the World Health Organization or government agencies.
Monday’s move goes further by targeting unpaid posts to the site and particularly Facebook pages and groups. Instead of targeting only misinformation around Covid vaccines, the update encompasses false claims around all vaccines. Facebook said it consulted with the World Health Organization and other leading health institutes to determine a list of false or misleading claims around Covid and vaccines in general.
PACs
Politico: What’s in a word for corporate PACs?
By Zach Montellaro
What corporate PACs are not: vehicles for corporations to funnel an unlimited amount of money to federal candidates. Corporate PACs can give individual candidates no more than $5,000 per election – which in an era of ballooning fundraising, isn’t a heck of a lot of money on its own. And corporate PACs can’t accept unlimited amounts of contributions, either; The corporation itself cannot contribute anything to the PAC’s pool of money that is then doled out to politicians. Only certain individuals – generally a specific class of employees or shareholders – can give to the PAC, and each has a $5,000 per year maximum…
That’s the part that corporations typically emphasize when talking about corporate PACs: “It’s not us giving the money – it is our employees working together!” And they’d be right … to an extent. But while corporations can’t contribute the money that goes to politicians, they can cover the overhead of running the PAC. The examples the FEC gives are “office space, phones, salaries, utilities, supplies, bank charges and fundraising activities.” That’s no small cost – and corporations are allowed to, as the FEC puts it, “exercise control over its SSF.” So they aren’t totally independent entities acting without the parent corporation.
With all that in mind, let’s consider two recent corporate PAC stories: the push for corporate PACs to not donate to lawmakers who voted to reject the election results, and a broader anti-corporate PAC pledge.
Candidates and Campaigns
New York Post: Sen. Hawley billed campaign for junk food on family trip: FEC records
By Jon Levine
Sen. Josh Hawley (R-MO)…charged a Halloween ransom in junk food to his Senate campaign in March 2020, after a family jaunt with his wife and two young boys to Universal Studios theme park in Orlando, FEC records show.
The $197 in charges included: $16.87 at Voodoo Doughnut, $8.83 at Seuss Popcorn, $15.63 at Lard Lad, $13.83 at Lagoon Popcorn, $31.38 at Hopping Pot, $30.41 at Bumblebee Taco, and $80.04 at Margaritaville.
The binge raised the eyebrows of campaign finance experts who said campaign funds are strictly prohibited for any personal use by the Federal Election Commission.
“It appears to not be a legal use of campaign funds,” Ann Ravel, a former Obama-appointed chairwoman of the FEC, told The Post…
“The expenses were reimbursed on Jan. 30,” Hawley’s office said after being contacted by The Post this week. “This was a trip for the respective Leadership PACs of Senators Hawley and Blunt. The event is designed specifically for families to attend. Guests are encouraged to bring their children and Sen. Blunt has been hosting it for a number of years.”
The States
Voice of OC: OC Residents Can Now Address Their County Supervisors By Name in Public and Even Question Them
By Nick Gerda
In response to a lawsuit from the ACLU, Orange County’s top elected officials have now deleted their longtime ban against public commenters mentioning the officials’ names or questioning them without permission.
The rule – which had been on the books for decades – required that public comments be directed at the entire Board of Supervisors and “not to any individual Board member.”
“No question shall be asked of any Board or staff member without first obtaining permission of the Chair,” added the rule, which went unchanged since it was first adopted in 1971…
ACLU attorneys said their actions and the ultimate settlement defended the public’s right to redress their government leaders.
“There’s a lot of local government bodies who see the public, particularly people who have critical things to say about them, as a nuisance,” said Peter Eliasberg, an attorney with the ACLU of Southern California who helped lead the lawsuit.
“I think the case just emphasizes the continuing importance of pushing local governments to abide by the state’s quite good laws around public meetings,” he added. “[Public comment] is a way that the public can communicate how they feel about their elected officials. And it’s important that they be allowed to do so.”
Miami New Times: Experts Say DeSantis’ De-Platforming Proposal Violates First Amendment
By Joshua Ceballos
Gov. Ron DeSantis and Florida GOP leaders are taking aim at the so-called big tech oligarchy with a new legislative proposal meant to regulate and punish social-media sites for their alleged bias against conservatives. But several attorneys tell New Times the proposal won’t hold water in court.
Last week, DeSantis and Florida House Speaker Chris Sprowls announced their intent to file the Transparency in Technology Act, legislation that, if enacted, would allow the Florida Elections Commission to fine tech companies that de-platform a political candidate $100,000 a day until the candidate’s page is restored.
The proposal would also allow citizens and the state attorney general to sue a tech company for alleged violations of the company’s own terms of service and allow users to opt out of content algorithms that tailor a website to a user’s interests.
By Peter Hall and Kayla Dwyer
Raub Middle School teacher Jason Moorehead’s social media posts from the Jan. 6 rally for former President Donald Trump in Washington, D.C., began circulating in Allentown on the afternoon when the world watched in horror as protesters stormed the U.S. Capitol…
The uproar was enough for Allentown School District to suspend him with pay while it investigated his involvement in the day’s events…
Moorehead says he was never closer than a mile away from the Capitol building that day and didn’t realize the violence that occurred until after he had left.
Moorehead says he’s a victim of cancel culture and that his reputation has been destroyed by what he says is a false statement that he was involved in the violent protest. He maintains his trip to Washington to hear the former president speak was nothing more and denied involvement in the siege…
Moorehead, a social studies teacher at Raub for 17 years, posted pictures of himself at Trump’s “Stop the Steal” rally blocks from the White House grounds.
In one, he stood before a sea of Trump banners wearing a “Make America Great Again” hat and carrying a Revolutionary War flag. “Doing my civic duty,” he commented. In another, he stood in front of a hot dog cart waiting for lunch “during (what CNN will hopefully call) a ‘mostly peaceful protest’ while at the Capital.”
Later, he reposted someone else’s tweet saying “Don’t worry everyone, the capitol is insured,” adding “This,” to show his approval.
