New from the Institute for Free Speech
Comments to FinCEN on ANPRM Implementing Beneficial Ownership Information Reporting Requirements
By David Keating
On behalf of the Institute for Free Speech, I respectfully submit the following comments on the “advance notice of proposed rulemaking (ANPRM) … on the implementation of the Corporate Transparency Act” (CTA).
Our organization defends the free expression rights guaranteed by the First Amendment. As such, we wish to ensure that FinCEN works to faithfully implement the exemptions to the CTA that were placed in the law by Congress to protect First Amendment rights. The CTA’s exemptions eliminate or may reduce burdens that might otherwise be placed on civil society groups as they speak, publish, peacefully assemble, or petition the Government for a redress of grievances.
Question 6 of the ANPRM asks: “The CTA contains numerous defined exemptions from the definition of ‘reporting company.’ Are these exemptions sufficiently clear, or are there aspects of any of these definitions that FinCEN should clarify by regulation?”
Congress
Washington Post: Democrats tweak marquee voting bill as they seek path out of Senate
By Mike DeBonis
Congressional Democrats have tweaked their marquee voting-rights, campaign-finance and ethics bill ahead of a Senate committee vote next week, addressing concerns raised by elections administrators but forgoing a more radical rewrite of the legislation.
The changes to the For the People Act come after the bill passed the House on a largely party-line vote in March and ahead of a critical vote Tuesday in the Senate Rules and Administration Committee that could advance the legislation to the floor…
The For the People Act, however, presently has no viable route to enactment in the 50-50 Senate. The tweaks made Tuesday aren’t likely to change that…
Among the controversial provisions of the bill that will remain is a publicly financed system of matching funds for congressional candidates, which could also allow small donations to be multiplied six times using federal funds. That provision has fueled some of the fiercest GOP attacks on the bill, but will survive in the baseline draft taken up at Tuesday’s committee session.
What has changed are some of the requirements and timelines related to the bill’s mandates for early voting, voting by mail, automatic voter registration and voting system standards. In several cases, states or local jurisdictions will be given more time or more leeway to follow through on the bill’s mandates.
New York Times: Constitutional Challenges Loom Over Proposed Voting Bill
By Adam Liptak
[H.R. 1’s] opponents say that it is, in the words of an editorial in The National Review, “a frontal assault on the Constitution” and “the most comprehensively unconstitutional bill in modern American history.” …
“It seems very willing to brush past, at least in some cases, some relatively clear constitutional provisions,” [John O. McGinnis, a law professor at Northwestern University,] said, citing parts of the bill that require presidential candidates to disclose their tax returns and force advocacy groups to disclose their contributors…
The provision in H.R. 1 establishing a public financing system appears to be consistent with current Supreme Court precedents…
Some of the disclosure requirements in H.R. 1 have drawn objections from across the ideological spectrum. The American Civil Liberties Union has said that it supports disclosures tied to “express advocacy” of a candidate’s election or defeat. The bill goes further, though, requiring disclosures in connection with policy debates that refer to candidates.
That measure, two A.C.L.U. lawyers wrote in The Washington Post in March, “could directly interfere with the ability of many to engage in political speech about causes that they care about and that impact their lives by imposing new and onerous disclosure requirements on nonprofits committed to advancing those causes.”
“When a group is advocating policy changes outside the mainstream,” they continued, “they need privacy protections to be able to speak freely and without fear of reprisal.” …
Professor McGinnis said he also questioned a provision in the bill that required leaders of organizations to say they stood by the messages in political advertisements. “This seems to me to be eating up airtime without any real justification and subjecting people to harassment,” he said.
Lexington Herald-Leader: Inside Mitch McConnell’s personal push to defeat Democrats’ voting reforms
By David Catanese
Every week, a group of nearly 100 conservative leaders convene for a 30-minute strategy call on a single issue: How to combat Democrats’ sweeping legislation to change the way federal elections are conducted.
Two weeks ago, the keynote briefer was Sen. Mitch McConnell, who made it crystal clear that defeating the “For the People Act” is his top priority of this two-year legislative session.
McConnell has conveyed his vehement opposition to the bill repeatedly in public. What’s different, conservatives say, is his personal level of commitment behind-the-scenes to educate activists on just how damaging the legislation would be to the future electoral prospects of Republicans. To those involved, they’ve noticed a level of engagement from the GOP leader they haven’t seen before.
“So many times the conservative movement only works with McConnell when it’s a Supreme Court nomination, or a Supreme Court fight. And so we’ve been trying to change that with H.R. 1 and S.1 and really make this fight similar and more akin to a Supreme Court fight, where it’s like an all-hands-on-deck effort,” said Jessica Anderson, the executive director of Heritage Action, one of the leading conservative groups mobilizing to fight President Joe Biden’s agenda.
Online Speech Platforms
Politico: Trumpland thought he’d get back on Facebook. Now, they’re anxious and scrambling.
By Meridith McGraw
The ruling by the Facebook oversight board meant that Trump would remain off the platform for the foreseeable future and, perhaps, well beyond should the company make the ban permanent. In practical terms, the main driver of Republican Party enthusiasm would be less omnipresent in voters’ lives — a reality that sparked fear for some GOP operatives. As for Trump, he would remain without one of the great money-raising spigots in all of politics as his political operation geared up for a possible 2024 run.
“This is a huge decision, makes it infinitely harder for him to raise money,” conceded a person close to the Trump operation. “Facebook was the main way he raised money. He’s now going to have to spend far more in the future to find other ways to raise money … It was the main way he found donors.”
Trump’s official line in response to the ruling showed no concern over the financial ramifications of it, though some anxiety about how it could impact his ability to communicate with his hordes of followers. He accused Facebook, Twitter, and Google of taking away his free speech, called them “corrupt” and demanded that they “pay a political price.”
But it was clear that money matters were on his team’s mind. Shortly after the official statement was released, the Trump operation blasted out a text message to its list calling the Facebook ban “NONSENSE” but also asking for money. “I want a list of all donors sent to my office,” the text read.
Washington Post: Mark Zuckerberg must decide the fate of Trump’s Facebook account. He should turn to the First Amendment.
By Henry Olsen
The decision by Facebook’s Oversight Board to uphold the company’s restrictions on former president Donald Trump’s social media accounts in the wake of the Jan. 6 Capitol riot was the right call — not because Trump should be banned from the social media platform, but because in making its decision, the board has pushed the decision back to the company to set actual standards for suspending accounts. The company should use that opportunity to create a robust, pro-free speech policy that expressly incorporates First Amendment principles.
Jonathan Turley: Evolving With Big Tech: Facebook’s New Campaign Should Have Free Speech Advocates Nervous
In 1964, Stanley Kubrick released a dark comedy classic titled “Dr. Strangelove or: How I Learned to Stop Worrying and Love the Bomb.” The title captured the absurdity of getting people to embrace the concept of weapons of mass destruction. The movie came to mind recently with the public campaign of Facebook calling for people to change her attitudes about the Internet and rethink issues like “content modification” – the new Orwellian term for censorship.
The commercials show people like “Joshan” who says that he was born in 1996 and grew up with the internet.” Joshan mocks how much computers have changed and then asks why our regulations on privacy and censorship cannot evolve as much as our technology. The ads are clearly directed at younger users who may be more willing to accept censorship than their parents who hopelessly cling to old-fashioned notions of free speech. Facebook knows that it cannot exercise more control over content unless it can get people to stop worrying and love the censor.
There was a time when this would have been viewed as chilling: a corporate giant running commercials to get people to support new regulations impacting basic values like free speech and privacy….
The rise of the corporate censor has challenged long-standing assumptions of the free speech community. Our Constitution and much of free speech writings are focused on the classic model of government censorship and state media. What we have seen in the last few years is that corporations have far greater ability to curtail speech and that you can have a type of state media without the state.
Fundraising
The Dispatch: The Sweep: How McCain-Feingold Ruined Everything
By Sarah Isgur and Chris Stirewalt
The current limit that an individual can give to a federal campaign is $2,900 toward the general election. So as a candidate you’ve got two problems: First, there aren’t that many people in the country who have that level of disposable income. Second, $2,900 is a small drop in the bucket compared to what you need to run a federal race at this point. The contribution limit was indexed to inflation—but not the inflation of campaign expenditures. My first campaign was in 2002 and the limit was $2,000. But the range for contributions from individuals in the top 50 House races in 2002 was $1 million to $3 million. In 2020, it was $5 million to $28 million. So while the donation limit is 1.5 times higher, the amount of money you need to raise to stay competitive is six to nine times more. What is a candidate to do?
To start, you try having outside groups without limits. There’s a reason Citizens United came to the Supreme Court for relief in 2010 and not 1995. There was no way for them to get the money to their candidate, and there was no way they weren’t going to spend the money to help their candidate. Thus, super PACs were born, and millions and millions of unlimited dollars started pouring into groups that are allowed to spend the money on electioneering activities as long as they don’t ask the candidate how they should spend it. But as I wrote last year on Citizens United’s 10th anniversary, super PACs are pretty terrible and aren’t nearly as effective as direct spending by the candidate.
Bloomberg Government: PAC Giving to GOP Dives as Companies Retrench After Jan. 6 Riots
By Kenneth P. Doyle
Political action committee contributions to congressional lawmakers fell sharply in the first three months of the year, with Republicans taking the brunt of the plunge as a result of the fallout from the 2020 election and the Jan. 6 Capitol riot…
“Folks for the time being are skittish” following the refusal of former President Donald Trump and his supporters to accept last year’s election result, Bruce Freed, head of the nonprofit Center for Political Accountability, said in a phone interview…
Contributions fell most dramatically for top Republicans in Congress…
The pause in giving, however, may only be a temporary blip that will end when the news cycle and public attention have shifted, said Freed, who’s followed trends in corporate political giving for nearly two decades. There could be more pressure on companies to give as the midterm elections get closer, especially if there’s an impression that Republicans have a shot at taking back the House and Senate majorities, he said.
By Dave Levinthal
Fraudsters stole almost $44,000 just before the 2020 election from the Republican National Committee — the latest news to emerge in a string of thefts from prominent federal political operations.
The States
Ballotpedia News: Arkansas enacts nonprofit donor disclosure bill
By Jerrick Adams
On April 30, Gov. Asa Hutchinson (R) signed SB535 into law. The bill bars state agencies and officials from implementing disclosure requirements on nonprofits that are “more stringent, restrictive, or expansive” than those already in force. It also prohibits state and local public agencies from requiring, requesting, or disclosing information about a nonprofit’s donors.
Star-Herald: Arizona Supreme Court to hear lawmaker’s defamation case
The Arizona Supreme Court will hear a defamation case stemming from a state senator’s attack advertisements during a failed congressional run in 2018.
Arizona state Sen. Wendy Rogers attacked her opponent — former state Sen. Steve Smith — in multiple advertisements, including a radio commercial that called him a “slimy character whose modeling agency specializes in underage girls and advertises on websites linked to sex trafficking,” the Arizona Capitol Times reported Tuesday.
Rogers campaign’s website — www.slimysteve.com — also said Smith advertises on a website containing pornographic material.
Pamela Young, owner of the Young Agency and a former employer of Smith, sued Rogers for defamation and false light invasion of privacy. The Young Agency is a modeling agency representing models and actors, most of whom are children.
The Court of Appeals overturned the lower court in a split decision in December, entering summary judgement for Rogers. Now the state’s high court will decide.
Young’s attorneys asked the appellate court if a political candidate can be liable for defaming a third party while attacking a political opponent. They argued there has not been another state case on the issue.
Rogers attorneys argued the litigation will chill political speech and keep politicians from addressing their opponents’ employers.
Courthouse News: Virginia Republican Files Defamation Suit Over Anonymous Text Calling Him Gay
By Brad Kutner
A candidate for the Republican nomination in Virginia’s lieutenant governor race has asked a state judge to unmask whoever anonymously sent an unsigned text message to registered voters calling him gay.
In a lawsuit filed in Norfolk Circuit Court Tuesday, Republican Delegate Glenn Davis, who represents Virginia Beach, said a text message calling him a “gay Democrat” amounts to defamation. In a subpoena filed alongside the claim, he’s asking telecommunications company Onvoy, LLC, to share information that could identify the text’s author.
“This was an illegal text message with the intention of defaming me, to harm the campaign. It’s representative of what has happened to other candidates in the past. They think because there’s no disclaimer they can’t be held accountable and it has to stop,” said Davis in a phone interview before suggesting voters are looking for a return to “civility and fairness” in the campaign process…
The text accompanied a photo of Davis in a rainbow shirt from when he attended an LGBTQ Pride event. Davis’ district is home to one of the largest Pride events in the state: Hampton Roads Pride…
No matter the outcome of Saturday’s election, Davis’ lawsuit raises interesting and complicated questions for free speech rights in the context of political campaigns.
KTBS: Louisiana Senate rejects bill allowing social media companies to be sued
By David Jacobs, The Center Square
The Louisiana Senate rejected a bill Tuesday that called for making social media companies subject to lawsuits for deleting or limiting political or religious speech.
Senate Bill 196 by Sen. Jay Morris, a West Monroe Republican, targeted sites with at least 75 million members, namely Facebook, YouTube and Twitter. Users could sue for actual damages plus up to $75,000 in punitive damages “if the social media website knowingly deletes or censors the user’s rights of religious speech or political speech, or uses an algorithm to disfavor or censor a user’s religious or political speech.”
Similar bills have been introduced in other states but none have been enacted, according to committee testimony. While supporters said they want to protect free speech on the most influential platforms, opponents said the bill would violate federal law and the First Amendment of the U.S. Constitution.
“They have the right to edit their content as they see fit,” Eric Peterson, who works on technology policy for the free-market Pelican Institute for Public Policy, said during the bill’s committee hearing.
Senators voted 19-18 for the bill, falling one short of the 20-vote majority needed to send Morris’ bill to the House. House Bill 602, a similar bill, was killed in committee Monday. House Bill 14, also with similar aims, awaits a committee hearing.
