In the News
New York Daily News: How the For the People Act could supercharge cancel culture
By Bradley A. Smith and David Keating
Democratic leaders say they are fighting voter suppression, but their signature legislation contains nearly 300 pages of speaker suppression. In fact, much of their highly publicized “For the People Act” has nothing to do with voting. Instead, it would impose unconstitutional restrictions on your First Amendment rights to speak, assemble and petition the government.
Many of the provisions would expose supporters of controversial causes, providing new ways to dox people and turbocharging an already malignant cancel culture. And, while the bill proposes to squelch ordinary citizens’ speech, politicians would get a payday. The bill would subsidize House candidates with billions of dollars in public money.
The legislation, passed as H.R. 1 in the House and now being considered as S. 1 in the Senate, imposes crushing regulations on groups that so much as mention elected officials when discussing legislation, judicial nominees or other public issues. It would radically expand the law to regulate not just ads, but an organization’s own website, Facebook posts and tweets. Groups that speak would likely have to hire an attorney, and a good one. (The late Justice Antonin Scalia once said our campaign finance laws were already “so intricate that I can’t figure it out.”) H.R. 1 would greatly increase the complexity of federal speech laws, while covering many more citizens and groups.
To sidestep the regulatory morass, many citizens and the groups they belong to will choose silence or less effective ways of communicating, subtracting key voices from our democracy. Groups that do speak will pay a price.
Supreme Court
Reason (Volokh Conspiracy): Amicus Brief in the Student Speech Case
By Eugene Volokh
Prof. Jane Bambauer, Prof. Ashutosh Bhagwat, and I just filed an amicus brief in Mahanoy Area School Dist. v. B.L., the Supreme Court’s new student speech case. Many thanks to my colleague Prof. Stuart Banner, who drafted the brief for us, and to his students Tom Callahan and Molly Moore. (I also signed the brief as counsel, together with Stuart.) In case you folks are interested, here is our argument:
Congress
The Federalist: New Yorker Attempt To Dunk On Conservatives Further Shows Why H.R. 1 Is A Threat
By Gabe Kaminsky
In attempting to own conservatives by leaking partial audio of a presentation to Republicans by the director of research at a conservative nonprofit, staff writer Jane Mayer at The New Yorker further illuminates why H.R. 1 is a garbage proposal. Mayer misunderstands the Republican base’s argument completely and produces a straw man.
Washington Post: Why Democrats shouldn’t break up their voting rights bill
By Michael Waldman
The For the People Act, recently passed in the House, has new momentum in the Senate. But now some pundits are urging Democrats to strip the bill of many key provisions before the printer’s ink is even dry. That’s a bad idea. Keeping the measure strong is the best way to boost its chances of becoming law…
There’s no denying the measure faces legislative challenges. Republicans are preparing to filibuster, with Sen. Ted Cruz (R-Tex.) calling it “an all-hands moment.” Democrats, realizing it may pass, are poring over the fine print again. This is the moment when supporters get jittery.
In response to this predictable give-and-take, some commentators have urged sponsors to weaken the bill, jettison campaign finance or redistricting rules, or split it up altogether. That may seem like savvy advice, but it doesn’t actually make sense.
The bill’s power lies in its grand aims…
Indeed, Sen. Joe Manchin III (D-W.Va.), a key swing vote on this and so many other bills, published a statement supporting reform but urging bipartisanship. He praised provisions including disclosure of dark money and measures to curb foreign spending in campaigns — in other words, not just voting rights.
The Hill: Here’s why H.R. 1 is not election reform
By Matt Schlapp
[H.R. 1 and S. 1] would destroy the Federal Election Commission by turning it into a partisan organization governed by a simple majority.
[The legislation would create] more regulations, less free speech. The FEC would appoint a free-speech czar who would play a large role in funding campaigns and determining what speech is acceptable. It also would risk reprising the Obama administration’s use of the IRS to target conservative organizations and donors with mandated public disclosures…
Whenever one party controls all of the levers of power, particularly in Washington, there is a danger that its appetite for control will expand to match its unrestricted authority. This might seem like a good thing to that party’s followers at the time — but it surely will seem much less so when the opposing party eventually wins control and takes advantage of the unfair rules imposed previously, or responds with its own one-sided regulations.
DOJ
Center for Responsive Politics: Foreign billionaire conspired to violate election law in straw donor scheme
By Anna Massoglia
…..A Lebanese-Nigerian billionaire agreed to pay the U.S. government $1.8 million to resolve allegations that he conspired to violate federal election laws in a “straw donor” scheme to route illegal foreign contributions to U.S. presidential and congressional candidates, the Justice Department announced Wednesday.
Free Speech
Reason (Volokh Conspiracy): Managing Supply Chain Political Blacklist Risk?
By Eugene Volokh
Recent events made me wonder: What good things have been written about how people and organizations—especially ideologically minded organizations—can protect against their suppliers’ blacklisting them because of what they say, or because of what they allow others to say?
The Amazon Web Services shutdown of Parler (for insufficiently policing user posts) is the most obvious recent example; while that was temporary, perhaps it wouldn’t have been if Parler didn’t have deep-pocketed investors. Discord has reportedly shown a similar willingness to cut off organizations for “allowing hate speech.” Visa and Mastercard have apparently at times blocked payments to groups they view as “hate groups” (and had earlier blocked payments to Wikileaks).
Of course, if a supplier is just one of many in a competitive market, blacklisted users can easily switch to a competitor. But sometimes there might be only a few such suppliers in a field, and they might follow parallel ideological paths, whether because they share the same politics or just because they are subject to the same political pressures. (The clearest example of a “blacklist” is if indeed many competitors are going along with each other, formally or informally, so that if a company is dropped by one supplier, other suppliers are likely to follow suit.) Or sometimes transitioning from one supplier to another might be a massive and time-consuming undertaking.
Tablet: The Disintegration of the ACLU
By James Kirchick
Think of the American Civil Liberties Union during the last two decades of the 20th century, and a certain type of person invariably comes to mind: shrewd, thick-skinned, and possessed of an unwavering—some might say irritating—commitment to principle. The men and women of the ACLU were liberals in the most honorable, but increasingly obsolescent, meaning of the term. They understood that the measure of democracy lies in the impartial application of its laws, and were prepared to defend anyone whose constitutional rights were trampled upon, irrespective of their political views or the repercussions that mounting such a defense might entail…
No one embodied that late-20th-century cultural archetype of the fiercely outspoken, intellectual, principled, and Jewish ACLU activist more than Ira Glasser. From his appointment as national executive director in 1978 until his retirement in 2001, Glasser transformed the ACLU from a mom and pop outfit into a “nationwide civil liberties powerhouse,” broadening its mandate to include issues such as sexual orientation discrimination and abortion rights. Through his ubiquitous and spirited media appearances, Glasser became the face of civil liberties in America.
Online Speech Platforms
Politico: Facebook’s ‘supreme court’ struggles to set global free speech rules
By Mark Scott
Roughly two months since a group of outside experts started ruling on what people could post on Facebook, cracks in the so-called Oversight Board are already starting to show.
So far, the independent body of human rights experts, free speech supporters and legal scholars that rules on what content Facebook must take down or put back up has reversed the social media giant’s decisions in four out of its first five cases. The biggest test is yet to come: deciding whether or not to reinstate former President Donald Trump’s account after it was blocked for inciting violence around the Capitol Hill riots in January.
Candidates and Campaigns
Axios: D.C.’s tech money shame game
By Margaret Harding McGill and Ashley Gold
Big Tech dollars may be becoming toxic in Washington.
The once lionized industry finds itself more and more cast as a pariah, with lawmakers comparing Big Tech to Big Tobacco during a hearing with tech CEOs last week and a key House Republican forswearing industry donations.
Plenty of officeholders still welcome tech contributions. And tech companies are doing their own re-assessing of how they give to candidates following the Jan. 6 Capitol riot, after which many paused donations.
The strained relationship on both ends represents a shift in Washington, where money previously flowed between tech and lawmakers with little question.
The lead Republicanon the House Judiciary antitrust subcommittee, Rep. Ken Buck (R-Colo.), announced last week he will stop accepting donations from Amazon, Facebook and Google.
His counterpart on the subcommittee, Chairman David Cicilline (D-R.I.), does not accept money from corporate political action committees or companies that may be subject to scrutiny from the subcommittee.
Buck’s move could start a trend. But so far other Republicanswho have castigated tech companies are not refusing their donations, and Democrats have a range of positions as well.
Some Republicans in the House are urging the party to embrace its abandonment by “liberal corporations” in order make the GOP the party of the working class and drum up individual donations, according to a memo by Rep. Jim Banks (R-Ind.) obtained by Axios’ Jonathan Swan.
The States
Missouri Independent: Lawmakers raise concerns bill would limit oversight of dark money, affect labor unions
By Tessa Weinberg
[Senate Bill 333] restricts state agencies from imposing filing or reporting requirements on charitable organizations that go beyond what is required to be submitted to the Attorney General’s office under state law. State contracts, labor unions and investigations by the Attorney General into charitable organizations would be exempt.
“If we’re going to be asking for more information, it should come through us as an elected body,” Burlison said. “Not be done unilaterally by a state agency or municipality or county.”
Burlison cited examples of other states requiring charities to turn over forms that include confidential donor information, which may create a chilling effect for donors, he said.
“I think that Americans should have that right and not have their name dragged in the mud,” Burlison said of donating to nonprofits.
Sen. Doug Beck, D-St. Louis, questioned if this was an issue in Missouri and said he was concerned it would stymie transparency. Beck also alluded to allegations that former Gov. Eric Greitens’ stole a donor list from a veteran’s charity he founded, which was investigated by a House committee. Beck worried the bill would restrict other entities, like a city, from conducting investigations of their own into charities…
[Sen. Jill Schupp, D-Creve Coeur] has a bill that would establish the “Eliminate Dark Money Act,” which would require 501(c)(4) tax-exempt organizations to disclose certain donors and expenditures.
“I feel like your bill does everything to continue to rob the public of that information,” Schupp said, “and… unfortunately, to keep dark money in politics.”
Washington Post: The GOP attack on Delta reveals an ugly side to the culture war
By Greg Sargent
An extraordinary event took place in Georgia on Wednesday night. Republicans sought to cancel a tax break for Delta Air Lines, the state’s biggest employer, as punishment for the heresy of criticizing the new voter suppression law Republicans passed last week.
And a top Republican has openly, blithely confirmed that this was exactly the motive.
Axios: What you need to know about Florida’s controversial “anti-riot” bill
By Ben Montgomery
The so-called “anti-riot” bill that cleared the House along party lines after weeks of opposition from social justice groups and hours of debate faces an uncertain future in the Senate, per the Associated Press.
The bill would increase penalties for crimes committed during a violent protest, and it would create new felonies for organizing or taking part in demonstrations that turn violent…
Black lawmakers hate the bill, calling it a “heartless” return to the Jim Crow era that would stifle dissent.
The framework was laid out by Gov. Ron DeSantis last year following largely peaceful protests throughout the country sparked by the death of George Floyd.
Florida House Speaker Chris Sprowls (R-Palm Harbor) told Axios that the bill is “racially blind” and serves to make peaceful protesters safer.
“There are so many people out in the public who have a misunderstanding … of what the bill actually does,” Sprowls said. “I have a deep belief in the First Amendment and the ability of people to address grievances with protest.”
