In the News

C-SPAN (“Washington Journal”): Brad Smith on Free Speech Issues

Hosted by Bill Scanlan

Former FEC Chair Brad Smith, founder and chair of the Institute for Free Speech, talked about free speech issues, such as Senate Democrats’ push for campaign finance reform and allegations of free speech infringement at school board meetings by parents protesting COVID-19 rules.

Washington Examiner: The Freedom to Vote Act is remarkably anti-voter

By Nathan Maxwell

Despite the bill’s numerous rewrites, [the Freedom to Vote Act is] chock full of anti-voter measures that undermine true representation.

Almost a third of the proposal from Sens. Amy Klobuchar and Joe Manchin is not dedicated to voting. Instead, it’s devoted to producing politicians who are insulated from their critics and less responsive to their communities. Public communications that so much as mention a candidate, including nearly all elected officials, would be susceptible to regulation as campaign ads for more than 10 months out of any election year. That will prevent many nonprofit and community organizations from speaking out about key legislation or galvanizing the public to do the same. How is this better for democracy?…

Worse still, groups could face bureaucratic investigations and debilitating fines for daring to speak. The bill takes power away from the Federal Election Commission’s bipartisan appointees and turns the agency’s general counsel into a speech czar who will dictate many enforcement actions. This unelected bureaucrat, who would not be subject to the Senate’s advise and consent power, will wield tremendous influence in deciding which groups can speak freely…

The Klobuchar-Manchin bill would deter civic participation, undermine the First Amendment, and misinform voters. The bill’s cynical speech provisions utterly contradict its proponents’ stated mission of empowering the people.

Congress

Reuters: U.S. Senate set to hold test vote Wednesday on election reforms

By Richard Cowan

The U.S. Senate is likely to take a procedural vote on Wednesday on whether to debate an overhaul of federal election law, Majority Leader Chuck Schumer said on Monday as he urged Republicans not to block the measure…

If Republicans prevent debate on the [Freedom to Vote Act], some Democrats are likely to urge Schumer to find a way around the Senate’s filibuster procedure that requires at least 60 votes in the evenly split, 100-member chamber for most legislation to advance.

Such ideas include exempting the measure from the filibuster. Others include requiring that senators stay in the chamber and talk until the filibuster is abandoned – the way it used to be done.

Biden Administration

Washington Post: Advocates worry Biden is letting U.S. democracy erode on his watch

By Ashley Parker, Tyler Pager and Amy Gardner

Voting rights advocates meet once every week or two with White House officials via video conference, and in almost every session, an advocate speaks up to say that President Biden must do more, that American democracy is under threat and the president is not meeting the challenge.

At one such meeting earlier this year, a Biden aide responded that Democrats would simply have to “out-organize” the other side, according to multiple advocates familiar with the exchange who spoke on the condition of anonymity to describe a private meeting. The comment infuriated advocates, who believe they are watching former president Donald Trump actively and perhaps permanently undermine faith in U.S. elections.

“There’s been a lot of anger and frustration with that line from the White House, which was communicated as a response to advocates wanting the White House to do more,” said Aaron Scherb, legislative director of Common Cause, a longtime pro-democracy group.

Scherb conceded that the White House’s urgency has significantly amped up in recent days, as voting rights legislation comes up for debate on Capitol Hill, and White House officials denied the activists’ account of the meeting. But the ongoing frustration is widespread among activists and many Democrats who fear Biden is missing the urgency of the moment.

Wall Street Journal: The FBI Needs a Wray of Courage

By Thomas J. Baker

Attorney General Merrick Garland’s memorandum instructing the Federal Bureau of Investigation to develop strategies for monitoring “harassment, intimidation, and threats of violence” against local school personnel presents an opportunity for FBI Director Christopher Wray. While Mr. Garland’s order notes in passing that “spirited debate about policy matters is protected under our Constitution,” it is clearly intended to intimidate parents and as such is a threat to their First Amendment rights…

In response to Mr. Garland’s directive, Mr. Wray doesn’t even have to threaten to resign. He could remind the public, and hence Mr. Garland, that the FBI—in conformity with existing attorney general guidelines for domestic investigations—won’t undertake any investigation based on speech alone…

In the publicity for Rep. Adam Schiff’s forthcoming book, Mr. Wray is quoted as telling the author that he would resign before “doing something that wasn’t right.” Mr. Wray may want to revisit that declaration if the attorney general persists in his effort to curtail speech by implying that passionate parents are criminals.

Internet Speech Regulation

Technology & Marketing Law Blog: There Is No Bottom When It Comes to Section 230 Reform Proposals (Comments on the Justice Against Malicious Algorithms Act)

By Eric Goldman

The [Justice Against Malicious Algorithms Act] eliminates Section 230 for making a personalized recommendation of information that materially contributes to a physical or severe emotional injury. A personalized recommendation is defined as “the material enhancement, using a personalized algorithm, of the prominence of such information with respect to other information.” A personalized algorithm is “an algorithm that relies on information specific to an individual.”…

Some of the structural problems with the bill:…

• the harm standard is unmanageable. How can services predict which UGC items will “materially contribute to a physical or severe emotional injury” and which won’t? They can’t make this assessment on an automated basis; and even manual review won’t identify all of the potential problematic items. Thus, this standard will require Internet services to assume that *all* UGC could “materially contribute” to the specified harms and thus clamp down on all UGC…
• the exclusion applies equally to personalized content and personalized ad targeting, so this bill would potentially wreak havoc on the entire advertising ecosystem. After all, I get severe emotional distress…when I see Facebook’s ads urging Congress to reform Section 230…

Candidates and Campaigns

Fox News: Jonathan Turley: VP Harris’ McAuliffe endorsement video may violate federal law

By Jonathan Turley

Democratic leaders have pulled out the stops to help Terry McAuliffe’s struggling campaign for governor of Virginia…

The key for McAuliffe is Black voters and, to spur turnout, Vice President Kamala Harris has taped an endorsement of McAuliffe that is reportedly being played at hundreds of African American churches around the state. The problem is the “Johnson Amendment” makes such political pitches in churches a violation of federal law. 

Making matters worse, this knowing violation occurred just days after the filing of a complaint against White House press secretary Jen Psaki for clearly violating the Hatch Act in using the White House press room to support McAullife.

The States

The Center Square: Maine ethics panel rejects complaint over anti-corridor spending

By Christian Wade

A Maine ethics panel has rejected a request by backers of the $1 billion hydropower transmission corridor to investigate fundraising activity by opponents of the project.

On Friday, the Maine Ethics Commission voted 4-1 to reject a complaint by the group Clean Energy Matters that accused the founder of Say No to NECEC of not registering as a political action committee after it received a sizable donation from another opposition group.

Lawyers for Clean Energy Matters argued in the complaint that the founder of the group, Sandi Howard, should be required to register it as a political action committee because it accepted a $140,000 donation from the No CMP Corridor, a PAC she also founded. The group also alleged that the PAC was concealing donations it has received from the fossil fuel industry…

A lawyer representing Say No to NECEC argued that the group’s efforts are educational, not political, and it shouldn’t be required to register as a political action committee.

The ethics commission, the state’s campaign finance watchdog, sided with the CMP opponents, saying Clean Energy Matters had provided no evidence that Say No to NECEC had spent the money it received to sway voters on the referendum. As such, it shouldn’t be required to register as a PAC, a majority of the board concluded.

Reason (Volokh Conspiracy): Bans on Political Discrimination in Places of Public Accommodation and Housing

By Eugene Volokh

In several major cities and counties, in some territories, perhaps in the whole state of California, and to a small extent in Minnesota, private businesses may not discriminate against patrons based on certain of their political activities. In most of these jurisdictions (plus in South Carolina) it’s also illegal to discriminate based on political activities in housing (and sometimes in commercial real estate transactions). Some of these bans are narrow, just protecting the decisions to belong to or support a party. Others are broader, applying to political advocacy more generally, including political advocacy on the business’s premises…

Here, then, is the list of such bans that I have found, to accompany an older article of mine on laws banning political discrimination by employers. I arrange these roughly in order from narrowest to broadest, but only roughly; the scope of some of them is hard to determine, and the scope of others doesn’t fall on a neat spectrum.