In the News
Cato: NAACP v. Alabama and Associational Privacy (Podcast)
Featuring Bradley A. Smith and Caleb O. Brown
What does a decades-old ruling on the First Amendment tell us about the right of associational privacy today? Bradley Smith of the Institute for Free Speech comments on the ongoing relevance on the 60th anniversary of NAACP v. Alabama.
Mark Levin Show: Mark Levin Audio Rewind – 7/25/18
[T]he pseudo media always tries to drive the narrative that Trump’s dealings with former lawyer Michael Cohen are a violation of campaign law. But, we hear from Bradley Smith, the former Chairman of the Federal Election Commission, saying he’s done nothing wrong.
[Ed. Note: IFS Chairman and Founder Bradley A. Smith joins the show at 18:30]
New from the Institute for Free Speech
By Eric Peterson
What kind of people do we want running the government? Former Washington Secretary of State, diplomat, and current Chairman of the Board of the Discovery Institute, Bruce Chapman, endeavors to answer that question in his latest work.
The title of Chapman’s new book, Politicians: The Worst Kind of People to Run the Government Except for All the Others, borrows from the classic quote about democracy oft attributed to Winston Churchill. In Politicians, Chapman examines the paradox of why people have so little faith in the politicians they choose to send to Washington, D.C. If politicians are responsible to the wishes of the people, why do Americans believe they hold too much power? Why are unelected bureaucrats viewed as having too little power?
The complete answers to these questions are much too complex for the purposes of this short book review. Chapman, however, posits a few interesting ideas for what has partially caused this sentiment among the American people. One particularly interesting theory Chapman considers is that the relative weakening of political parties has stifled political involvement. As a result, many Americans feel estranged from the political process.
Chapman traces a major weakening of political parties to the explosion of campaign finance laws, specifically the 2002 regulations passed by Congress in legislation commonly known as McCain-Feingold. While many see campaign finance restrictions as affecting only the wealthy, Chapman alludes to how the strongest effects are felt by everyday Americans at the local level.
Congress
Wall Street Journal: Senate Panel Invites Three Tech Firms to Another Hearing on Russian Influence
By Byron Tau
Representatives from Facebook Inc., Alphabet Inc.’s Google and Twitter Inc. have been invited to appear before the U.S. Senate in September for another hearing on foreign activity on their networks.
According to two people familiar with the matter, the three tech companies have been invited to appear before the Senate Intelligence Committee during the first week of September as part of the panel’s work on investigating Russian activity during the 2016 election.
IRS
Center for Responsive Politics: Montana politicians launch fights against relaxed nonprofit disclosure rules
By Jordan Muller
Two Montana politicians on Tuesday launched separate fights against the Trump administration’s decision to relax disclosure requirements on certain politically active nonprofit groups.
Sen. Jon Tester (D-Mont.) introduced legislation that would overturn the decision and increase nonprofit transparency requirements. Gov. Steve Bullock (D-Mont.) filed a lawsuit in a Montana Federal District Court that would prevent the administration from implementing the new rules…Tester’s legislation, dubbed the Spotlight Act, would effectively reverse the department’s new rules. The Spotlight Act would also require 501(c)(4), 501(c)(5) and 501(c)(6) groups to disclose to the IRS and the public the names of donors who contribute more than $5,000. Those groups do not have to release the names of any donors under current laws, which is why many politically active nonprofits are called “dark money” groups.
Bullock’s lawsuit, first reported by The New York Times, claims the IRS and Treasury Department unlawfully interfered with Montana’s ability to gather the data it needs to manage its tax laws. The suit also claims the Trump administration did not follow the Administrative Procedure Act, which requires agencies such as the Treasury Department to provide opportunities for public comment before changing policies.
FEC
Bloomberg: Trump’s Mysterious Super-PAC Donor Accused of Breaking Law
By Bill Allison, Max Abelson, and Shahien Nasiripour
Global Energy Producers LLC didn’t exist until April. A month later, before it had a working website, it was flush with enough cash to make one of the biggest donations of the year to America First Action Inc., a super-political action committee backing President Donald Trump’s agenda.
On Wednesday, the Washington-based nonprofit Campaign Legal Center filed a complaint with the Federal Election Commission accusing the company and two businessmen with connections to Ukraine of violating campaign finance laws.
It’s unlikely Global Energy Producers had enough revenue or capital to make a $325,000 contribution so quickly, the complaint says. Under federal law, donors to political committees must use their own funds.”The company is confident that it is in compliance with all relevant campaign finance laws,” Michael Marder, a lawyer for Global Energy Producers, said in an email. He said any action would be “vigorously defended.”
Online Speech Platforms
Wall Street Journal: Why Does Facebook Think I’m ‘Political’?
By Yoram Hazony
It lasted two weeks. Then a red announcement appeared: “Your ad was not approved because your Page has not been authorized to run ads with political content.” My boost was now stamped with a verdict in red letters: “Rejected.”
I found a window for submitting appeals. “My book is concerned with the historical development of the nation-state and the case for preferring it to imperialism,” I groveled…
A response came from “Veronica”: “The text and/or imagery you’re using qualifies as political, based on the definition we’re using for enforcement,” it said. “You must authorize your page to run political ads.”
Me? Run political ads? I scoured Facebook’s definitions, which said “political content” is support for candidates, ballot initiatives or legislation. “Dear Veronica,” I pleaded. “I don’t see anything in the ad that qualifies as ‘political’ based on Facebook’s definition. Could you specify which aspects of the ad qualify as ‘political’?”
A reply came from “Sol”: “The text and/or imagery you’re using qualifies as political.” …
For days I answered the robots’ questions and uploaded personal documents. Finally, they mailed me a paper letter with a secret code. I entered it. The robots were pleased: “You’re all set. When the Page admin has completed the next step you’ll be able to run ads.” …
I recruited a computer-genius friend to help. He spent days hacking through the Zuckerspeak. After a dozen runs, the robots issued a green check-mark saying I’d “linked my ad accounts” (to the mother ship, I believe).
Ads with political content were “approved.” I was in. I brought up the ad and clicked “Boost Post.” The robots replied: “Your ad was not approved because your Page has not been authorized to run ads with political content.”
Vice News: Twitter appears to have fixed search problems that lowered visibility of GOP lawmakers
By Alex Thompson
Twitter appears to have adjusted its platform overnight to no longer limit the visibility of some prominent Republicans in its search results, a problem that the company said was a side effect of its attempts to clean up discourse on its platform.
On Wednesday VICE News reported that Twitter’s drop-down search section was not showing the profiles of some prominent Republicans in what amounted to a “shadow ban.” Those affected included RNC Chair Ronna McDaniel, Republican Reps. Mark Meadows, Jim Jordan, Matt Gaetz, along with Andrew Surabian, Donald Trump Jr.’s spokesman and former Special Assistant to the President. The profiles did populate when entering a full search but not in the more visible search menu…
The search problems appeared to have been a side effect of Twitter’s recently stepped up attempts at improving “conversation health” and limiting the reach of “troll-like behaviors.”
But Democrats in Congress and DNC chair Tom Perez did not appear to be affected like McDaniel and some other congressional Republicans.
The report provoked outrage on the right and claims that the social media company was intentionally censoring conservative voices. In a statement yesterday, a Twitter spokesperson told VICE News that the platform does not make judgements on political views and “I’d emphasize that our technology is based on account *behavior* not the content of Tweets.”
Fast Company: Facebook promises to nix its tools for discriminatory ad targeting
By Steven Melendez
Facebook has agreed to take steps within 90 days to limit what the Washington state attorney general’s office said was “unlawful discrimination,” by ending the ability of advertisers to exclude certain ethnic and other identity groups from seeing certain ads…
In the Washington deal, Facebook has denied violating the law, according to an agreement called an assurance of discontinuance filed in Washington court. Still, the company agreed not to let advertisers use categories such as race, creed, color, national origin, or veteran status to limit who can see ads for insurance, employment, housing, credit, or “business open to the public,” such as restaurants, hospitals, and beauty salons. Additionally, the company will pay the attorney general’s office $90,000 in costs and fees…
The new restrictions will apply nationwide. It isn’t clear if Facebook intends to roll out similar limits on ads beyond the U.S. The agreement also did not mention Facebook’s Instagram platform, where the company’s ad business is now seeing its fastest growth…
The investigation wasn’t Attorney General Ferguson’s first action against the social network. In June, he charged Facebook and Google with breaking decades-old state campaign finance laws that require disclosures for political ads. Facebook recently moved that lawsuit to federal court, and, according to court filings, both companies have secured additional time to respond to Ferguson’s suit.
First Amendment
Justia Verdict: FDA Plan to Censor “Milk” in Plant-Based Food Names May Violate the First Amendment
By Michael C. Dorf
The term “lacteal secretion” is not the invention of an animal rights organization attempting to turn the public off of dairy but the Food and Drug Administration’s (FDA’s) own definition of “milk.”
Last week, FDA Commissioner Scott Gottlieb leaned into that definition when he announced the start of a process to prevent producers of what are now labeled as soy milk, almond milk, hemp milk, and the like from using the m-word…Last year, the [Wisconsin’s] Democratic US Senator, Tammy Baldwin, sponsored a bill-the DAIRY PRIDE Act-that would forbid the marketing as dairy of any food not primarily derived from “the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more hooved mammals.”…
The DAIRY PRIDE Act also asserts: “Plant-based products labeled as milk are misleading to consumers.”…
In dismissing a lawsuit making a similar contention to the one in Senator Baldwin’s bill, a federal district judge in 2013 explained that the claim that “a reasonable consumer would view the terms ‘soymilk’ and ‘almond milk,’ disregard the first words in the names, and assume that the beverages come from cows … stretches credulity. Under [this] logic, a reasonable consumer might also believe that veggie bacon contains pork, that flourless chocolate cake contains flour, or that e-books are made out of paper.” …
[T]he Supreme Court has become increasingly solicitous of free speech claims by commercial actors. Perhaps most revealing is last year’s decision in Matal v. Tam, which rejected the Patent and Trademark Office’s denial of a trademark to the band (made up of Asian American musicians) named “The Slants” on the ground that the name was offensive.
The Media
Wall Street Journal: National Enquirer’s Yearslong Dealings With Trump Lawyer Fall Under Federal Scrutiny
By Michael Rothfeld, Joe Palazzolo, Lukas I. Alpert and Rebecca Davis O’Brien
The shared history could expose American Media, Mr. Cohen and by extension, Mr. Trump, to criminal campaign-finance charges. For example, federal agents and prosecutors in New York are investigating whether Mr. Cohen, acting as Mr. Trump’s representative, improperly coordinated with American Media to keep an ex-Playboy model’s account of an affair with Mr. Trump under wraps in the months before the 2016 presidential election, people familiar with the matter said.
One looming issue for both prosecutors and AMI is the publisher’s status as a media organization, which would afford it First Amendment protections. The Justice Department is examining whether American Media at times acted more like an extension of Mr. Trump and his campaign, a person familiar with the matter said. The legal bar is high to strip any media organization of its constitutional protections.
The Manhattan U.S. attorney’s office subpoenaed American Media and the Trump Organization on the same day in early April that the FBI raided Mr. Cohen’s home, office and hotel room. It is unusual for investigators to subpoena media organizations for information related to their newsgathering without advance warning.
Investigators personally approached Mr. Pecker with a subpoena and delivered a separate subpoena to American Media seeking information related to the payment to the ex-Playboy model, among other things, according to people briefed on the matter.
Federal law bars candidates from accepting campaign contributions from corporations. The law defines a contribution as anything of value given to influence a federal election. It also requires candidates to disclose political contributions and expenditures.
Trump Administration
Boston Globe: Trump’s bid to silence dissent violates spirit of First Amendment
By Alan M. Dershowitz
President Trump recently threatened to strip the security clearances of top former government officials who criticized his performance at Helsinki with regard to Russian president Vladimir Putin. Were Trump to carry out this threat, he would be violating the spirit, if not the letter, of the First Amendment. Such a decision, directed only at those who exercised their First Amendment rights to criticize Trump, might be seen by the courts as punitive government action directed at the content of speech. Even threatening to do so might deter critics from exercising their free-speech rights.
Trump’s threat is reminiscent of the decision by General Lewis B. Hershey, who was the director of the Selective Service System during the Vietnam War, to selectively draft critics of the war. In both cases, the government has the authority to act generally by cutting off security clearances or drafting individuals. But it may not have the constitutional power to act selectively against critics who are exercising their rights under the First Amendment…
All Americans benefit from vigorous dissent, especially from security experts and former government officials. To be sure, some of the current criticism about which Trump is complaining seems partisan and over the top (e.g., accusing him of treasonous behavior in Helsinki), but that is precisely what the First Amendment is designed to protect: unfair and over-the-top criticism. No president should seek to stifle dissent, especially a president who himself is often partisan and over the top. I personally wish both sides would stop exaggerating and provide us with more nuanced exchanges, but the First Amendment doesn’t distinguish between good and bad speech. It leaves that to the citizens.
The States
West Fargo Pioneer: Anti-corruption measure headed for North Dakota ballot
By John Hageman
North Dakota voters will decide whether to add anti-corruption language to the state’s constitution this fall, Secretary of State Al Jaeger said Monday, July 23.
The announcement marks the first ballot measure confirmed to have the sufficient number of signatures to reach voters on Nov. 6…
The measure would prevent lobbyists from giving gifts to public officials and would establish an ethics commission that could investigate public officials, candidates and lobbyists. It would also prevent public officials from being a lobbyist while holding office and for two years after leaving their post, as well as require state agency leaders to “avoid the appearance of bias.”
State lawmakers would be required to pass legislation mandating “public disclosure of the ultimate and true source of funds” spent to influence elections and state government actions under the measure.
Campaign finance records show the effort has received significant backing from Represent.Us, a Massachusetts-based group that focuses on passing anti-corruption measures across the country, as well as Voters Right to Know in California and End Citizens United from Washington, D.C.
Dina Butcher, chairwoman of the measure’s sponsoring committee, said she was “delighted” to see the ballot measure’s approval and was confident North Dakotans would vote in its favor. She noted it would be harder for policymakers to repeal the measure like South Dakota did last year because the North Dakota language would be etched into the constitution.
U.S. News & World Report: Third-Party Groups Make Presence Felt in Alaska Election
By Becky Bohrer, Associated Press
The state caps how much an individual can contribute to a candidate’s official campaign. Alaska’s $500 individual cap for gubernatorial races is the lowest in the nation, according to the National Conference of State Legislatures.
Alaska’s campaign finance laws are “completely out of touch with what it takes to communicate to voters,” said state GOP party chairman Tuckerman Babcock. Jay Parmley, executive director of the state Democratic Party, agreed the $500 cap is low.
“But what is the sweet spot?” Parmley said, adding later: “I don’t really know what that is but it ought to be talked about.”
Pillar of Law Institute: An End to One of the Dumbest Campaign Finance Cases Ever
By Stephen Klein
Last year, when news broke of felony charges against then-president of the Los Angeles Board of Education Ref Rodriguez, I scratched my head. With news this week that Rodriguez will plead guilty, serve three years’ probation, pay a $100,000 fine and resign his office, my bewilderment has not changed…
“The [Los Angeles City Ethics Commission] accused Rodriguez of ‘campaign money laundering’ and referred its findings to the district attorney’s office.” Sounds ominous, and it can make sense: if, for example, someone contributes to a candidate a maximum contribution, then provides money to a friend in order to contribute it to the same candidate, it circumvents the contribution limit, or shrouds an illegal contribution…
But Rodriguez’s case was different in an important way. He wasn’t donating to someone else’s campaign, but to his own. That is, he reimbursed 25 people, mostly relatives and friends, for money they contributed to his campaign-nearly $25,000 total…
The charges, then, were about disclosure. Legally speaking, this certainly does not clear Rodriguez: “[he] submitted records ‘certified under penalty of perjury’ showing he had raised $51,001 in individual donations . . . . ‘However, nearly half of the reported funds were actually Rodriguez’s own money.'” Illegal? Sure, but it distinguishes the case from one about corruption to one of simple deception: Rodriguez signed a false statement and deceived the half dozen or so citizens (excluding opposing campaigns, journalists, scholars and paid “watchdogs”-government and private sector alike) who actually read campaign finance reports…
It’s probation and a $100,000 fine for a disclosure violation. To put this into perspective, the statutory fine for most felonies in California, including murder, is $10,000.
The Republic (Columbus, Indiana): Sign changes pass; action puts local ordinance in line with supreme court ruling
By Matthew Kent
City and county leaders have approved changes to a zoning ordinance related to signs and their content due to a U.S. Supreme Court ruling.
Amendments within the ordinance, which covers the City of Columbus and Bartholomew County, were made to language and the methods that are used to regulate signs, said Jeff Bergman, planning director with the city-county planning department…
The U.S. Supreme Court had taken up the case, Reed v. Town of Gilbert, Arizona, after a pastor of a local church sued the town and claimed its regulation of temporary directional signs for the church violated the U.S. Constitution’s First Amendment to free speech, Bergman said.
The Arizona town’s sign regulations – which the Supreme Court ruled on three years ago – treated different types of non-commercial speech differently, he said.
Bartholomew County governing bodies took the local ordinance created in 1998 and made changes to the language involving political/expression signs. Instead of a political sign category, the amended ordinance will replace that with non-commercial messages, Bergman said.
“We need to avoid the possible implication that those signs are limited to political candidates,” he said…
Bergman said the U.S. Supreme Court case left it up to cities to look at their regulations and make changes. Lower court decisions have also clarified how the 2015 decision will be interpreted and applied.
“We need to make sure we’re not regulating based on content or implied we’re regulating on content,” Bergman said.
Juneau Empire: Alaskans made government accountable to the people
By Dan Krassner
The Alaska Legislature raised the bar for ethics and integrity in government by passing House Bill 44. The bill passed the Senate 13-6 and the House 39-1 with support from Republicans, Democrats, and Independents, and Gov. Bill Walker just signed it into law. This only happened because more than 45,000 Alaskans signed petitions to put a similar proposal, the Alaska Government Accountability Act, on the ballot…
This law includes strong conflict of interest standards that require legislators to declare conflicts of interest before voting, and to excuse themselves from voting when they or a member of their family has a financial conflict of interest. The new law toughens lobbyist gift laws, prohibiting lobbyists from buying legislators alcoholic beverages and lavish meals. It helps reduce wasteful spending on foreign travel junkets by implementing a stricter foreign travel policy for legislators…
Alaskans for Integrity co-sponsors, Independent Rep. Jason Grenn, Democrat Rep. Jonathan Kreiss-Tomkins and Republican activist Bonnie Jack, deserve credit for leading a campaign that created leverage for the people. Campaign manager Susanna Orr and general consultant Jim Lottsfeldt expertly guided the effort. Key partners included the Alaska AFL-CIO, the conservative group Take Back Our Republic, the progressive group End Citizens United, and my nonpartisan anti-corruption organization Represent.Us.
