In the News
New American: 10 Years Later: Gloomy Predictions Following Citizens United Decision Didn’t Happen
By Bob Adelmann
Predictions that the decision by the Supreme Court 10 years ago in Citizens United v. FEC (Federal Election Commission) would allow “dark money” to invade and take over the political process in the United States have failed to materialize. Instead, the First Amendment’s guarantee of free speech has been strengthened in the political arena…
Since the decision in 2010, voters have become more knowledgeable of both candidates and issues, says Bradley Smith, the former chairman of the Federal Elections Commission: “None of the catastrophic predictions have come true. There’s more competition than ever. We’ve had five elections since Citizens United. In four of them, either the presidency has changed hands or one of the houses of Congress has.”
Smith added that incumbents are now less likely to win reelection because of that healthy competition. One chamber flipped in 2010, 2014, and 2018, and the White House changed party affiliation in 2016…
Scott Blackburn, research director at the Institute for Free Speech, summed up the benefits the Republic is enjoying following the Citizens United decision 10 years ago: “While Citizens United hasn’t resulted in a flood of corporate cash ‘drowning out’ ordinary voices, it has allowed new, often very important, voices to be heard. The decision not only protects the right to speak, it protects the right of Americans to hear those voices.”
Center for Public Integrity: Congressional Candidate’s Gamble: Risk Breaking Laws – Or The Bank
By Dave Levinthal
Nabilah Islam is 30 years old, saddled with student loan debt and, for the moment, a professional congressional candidate.
A Democratic political operative until last year running to represent Georgia’s competitive 7th District, Islam no longer enjoys employer-provided health insurance or, because of competing living costs, any health insurance at all.
So Islam on Monday asked the bipartisan Federal Election Commission to provide an official answer to her novel question: May she use congressional campaign funds to purchase health insurance for herself – without violating prohibitions on using campaign cash for personal expenses? …
Absent the FEC advisory opinion she seeks, Islam’s choices are limited and imperfect. She could:
- Simply pay for health insurance from her campaign account – and risk a federal fine if a reconstituted FEC months from now deems her actions illegal…
- Ask a federal court to rule on her health care request. “But if she’s worried about money, that’s not cheap, either,” said former FEC chairman Bradley Smith, a Republican, adding that Islam could conceivably use campaign contributions to pay legal costs associated with petitioning a court…
- Have her campaign committee pay her a regular salary…
Avoid potential legal cost and peril by continuing to live without health insurance.
The Courts
Techdirt: Welcome News: DC Circuit Revives The Constitutional Challenge Of FOSTA
By Cathy Gellis
We’ve written several times before about the constitutional challenge to FOSTA in the case Woodhull Freedom Foundation, et al. v. U.S. That challenge hit a roadblock when the district court dismissed that lawsuit for lack of standing by the plaintiffs. Per the district court, the plaintiffs had not been hurt by the statute, nor were they likely to be hurt by it, and thus they had no right to challenge it in the courts. The plaintiffs appealed, and we supported the appeal with an amicus brief…
On Friday the court issued its ruling, and, as I’d suspected/hoped, it reversed the dismissal of the case by finding standing for at least two of the plaintiffs, which the court decided was enough for purposes of reviving the litigation. [p. 12]. For plaintiffs like Eric Koszyk, a licensed massage therapist whose ability to earn a living was harmed when Craigslist prohibited ads for therapeutic services in the wake of FOSTA, [p. 9], the court found they had standing based on the issue of “redressability.” …
And that wasn’t all. Back when amicus briefs were filed in support of the government, we noticed a strange one submitted by twenty-one state attorney generals. The problem was, for the government to win the appeal and keep the constitutional challenge dismissed, it needed to convince the appeals court that the plaintiffs had not been hurt and would not be hurt. But then the state attorney generals filed their brief, which proudly made the point that they just hadn’t used the power FOSTA granted them to hurt people like the plaintiffs yet. The court noticed that brief, and how it served to bolster the plaintiffs’ standing argument.
Congress
Washington Free Beacon: Ernst Calls for End of Taxpayer-Funded Presidential Campaigns
By Yuichiro Kakutani
As candidates prepare to spend billions on the 2020 presidential election, Sen. Joni Ernst (R., Iowa) is working to put to use more than $300 million taxpayer dollars sitting idly in a public campaign fund.
Presidential candidates today may request grants from the taxpayer-funded Presidential Election Campaign Fund to pay for campaign expenses. The fund has accumulated more than $350 million, as no major party candidates have requested public financing in the last 12 years. The Iowa senator has introduced a bill to abolish the fund and divert its money to pay down the national debt…
The last major party candidate to use public funding was Sen. John McCain (R., Ariz.) in 2008, who drew more than $84 million from the public fund, roughly 20 percent of all money raised by his campaign. Since then, the fund has mostly drawn interest from third-party candidates such as the Green Party’s Jill Stein. Stein spent $450,000 of taxpayer money to fund an unpopular presidential campaign that received barely 1 percent of the total vote…
The fund was created in 1966 to curb the influence of special interest groups. At its inception, nearly 30 percent of taxpayers chose to contribute to the fund, but interest has fallen in the 21st century. Less than 5 percent of taxpayers contributed in 2018, according to the Urban Institute and Brookings Institution’s Tax Policy Center.
Privacy
Reason (The Volokh Conspiracy): Free Speech and Privacy, Episode 9 of My “Free Speech Rules” YouTube Video Series
By Eugene Volokh
Thanks to a generous grant from the Stanton Foundation, and to the video production work of Meredith Bragg and Austin Bragg at Reason.tv, I’m putting together a series of 10 short, graphical YouTube videos explaining free speech law. Our videos so far have been [:]
- “7 Things You Should Know About Free Speech in Schools,”
- “The Three Rules of Hate Speech and the First Amendment,”
- “Fake News and the First Amendment,”
- “Who Owns Your Life Story?,”
- “Is Money Speech?,”
- “Corporations and the First Amendment,”
- “The Ten Rules of Free Speech and College Students,” and
- “Free Speech and Government Property.”
Our ninth, which we just released, is “The First Amendment and Privacy“:
As usual for our episodes, the full script is also posted right below the video on YouTube.
Media
Broadcasting + Cable: NAB to FCC: Ad Clarification Opponents Have It All Wrong
By John Eggerton
The National Association of Broadcasters said its opponents have given the FCC no reason to deny NAB’s request that it clarify its disclosure requirements for third-party political ads and follow NAB’s “rationally tailored approach.”
That came in a reply to comments on its request for that clarification.
NAB joined with Hearst Television, Graham Media Group, Nexstar, Fox, Tegna and Scripps to ask the FCC to narrow its definition of non-candidate ads on “any political matter of national importance” (i.e. “issue” ads) and the disclosure obligations on broadcasters to identify the issues in those ads.
That came in NAB’s petition for reconsideration of the FCC’s order resolving complaints against broadcast groups for failure to properly identify political ads.
Broadcasters want to narrow the interpretation of “national importance” by specifying that the term applies only to national political actors in position to take national action, which would exclude ads targeted at state and local races.
Commenters opposed to NAB’s request said the association’s interpretation of “political matter of national importance” is contrary to statutory intent and language, but NAB said campaign finance reform disclosures are about soft money and issue ads influencing federal elections and should not apply to “thousands of state and local elections merely because they may mention issues discussed at the national, as well as state or local, level.”
Washington Post: Want to fix the presidential primaries? Revive the fairness and equal time doctrines.
By Martin O’Malley
There was a time not long ago when fairness and equal time in the coverage of candidates and the conduct of candidate debates was the law of the land. These time-honored doctrines have been abandoned over the past 15 years, and the slide of democracy into the media-entertainment abyss has been fast and furious.
Most Americans who do know about the doctrines focus on how their end paved the way for the rise of conservative media – particularly talk radio. But less acknowledged is the effect of the doctrines’ demise on the nomination contests of our political parties. As a result, the media’s entertainment imperative has displaced the parties’ consensus-building imperative – in both primary and general elections.
Under this imperative, candidates gain traction and greater media attention by alienating as many people as they entertain…
Consider the confession of Les Moonves, the former head of CBS. In early 2016, he was asked about the network’s inordinate coverage of Donald Trump during the primaries – a deluge that would continue through Election Day. Recall the uninterrupted start-to-finish coverage of his rallies; recall the disproportionate speaking time he received in debates. Under the old rules, no network would have gotten away with giving so much attention to one candidate. But, as Moonves gushed, “I’ve never seen anything like this, and this is going to be a very good year for us. Sorry. It’s a terrible thing to say. But, bring it on, Donald. Keep going. … It may not be good for America, but it’s damn good for CBS.”
Townhall: Leakers, Whistleblowers and Where is the Line that Divides Journalism and Cybercrime?
By Julio Rivera
American Journalist Glenn Greenwald, now a resident of Brazil, was charged by Brazilian prosecutors of providing assistance to a group of hackers who were monitoring the phone calls of politicians involved in what is being reported to be a major corruption inquiry…
The charges are being slammed by many in the Brazilian and international media as an attempt to stifle free speech as Greenwald has previously been critical of the country’s leadership, and specifically right-leaning President Jair Bolsonaro and has characterized the charges against him as “an attack to the freedom of the press.”
But should defending the right to privacy really be considered an attack against free speech or journalistic freedom here? Should evidence obtained via a non-governmental and potentially politically motivated investigation provide a moral justification for journalists like Greenwald to break the law?
If the same set of circumstances had occurred in America, the actions taken by Greenwald and his hacker associates would constitute a crime, and rightfully so, whether you support the theoretical party under investigation or not…
The First Amendment in America has long been held as the global standard for the assurance of a free and fair citizens’ press. As journalists continue to toe, but not cross, the line that separates reporting and intrusion, necessitation and salaciousness, and possibly most importantly, legal and illegal, nanny-staters and proponents of censorship will have a hard time redefining our basic constitutional rights. When that line is crossed, the laws designed to protect the safety and reputation of innocent parties must be enforced.
NPR: NPR Seeks ‘Clarification’ From State Department About Reporter Dropped From Trip
By Bill Chappell
NPR is asking the State Department to explain its decision to deny an NPR reporter press credentials to travel with Secretary of State Mike Pompeo on an upcoming trip to Europe…
Saying the State Department has not responded to NPR’s initial attempts to communicate, [NPR President and CEO John] Lansing added, “Our SVP of News Nancy Barnes and I are now sending the attached letter to the State Department demanding answers.”
NPR will continue to pursue the issue, Lansing said, adding that access to people in power is fundamental to “the role of journalism in America.”
Last week, Pompeo became upset when questioned about Ukraine by NPR host Mary Louise Kelly. After the interview was cut off, Kelly was called to Pompeo’s private living room where he cursed at her and challenged her to find Ukraine on a map…
Earlier Tuesday, President Trump waded into the controversy between Pompeo and NPR, appearing to publicly praise the secretary for berating Kelly and for denying Kelemen’s credentials.
Kelemen, NPR’s diplomacy correspondent, was barred from joining Pompeo’s trip, days after he publicly accused Kelly of lying to him about the topic of the interview and the episode following it…
The State Department’s action against Kelemen prompted a protest from the State Department Correspondents’ Association…
The White House Correspondents’ Association also issued a statement Tuesday supporting Kelemen and NPR.
New York Times: Pompeo Called Me a ‘Liar.’ That’s Not What Bothers Me.
By Mary Louise Kelly
Ask journalists why they do the job they do, and you’ll hear a range of answers. Here’s mine: Not every day, but on the best ones, we get to put questions to powerful people and hold them to account. This is both a privilege and a responsibility.
January has been an interesting month on this front. I’ve had the opportunity to put questions, one on one, to the top diplomats of both the United States and Iran, in their respective capitals…
I write about all this now to refocus attention on the substance of the interviews, which has been overshadowed by Mr. Pompeo’s subsequently swearing at me, calling me a liar and challenging me to find Ukraine on an unmarked map.
For the record, I did. That’s not the point. The point is that recently the risk of miscalculation – of two old adversaries misreading each other and accidentally escalating into armed confrontation – has felt very real. It occurs to me that swapping insults through interviews with journalists such as me might, terrifyingly, be as close as the top diplomats of the United States and Iran came to communicating this month.
There is a reason that freedom of the press is enshrined in the Constitution. There is a reason it matters that people in positions of power – people charged with steering the foreign policy of entire nations – be held to account. The stakes are too high for their impulses and decisions not to be examined in as thoughtful and rigorous an interview as is possible.
Journalists don’t sit down with senior government officials in the service of scoring political points. We do it in the service of asking tough questions, on behalf of our fellow citizens. And then sharing the answers – or lack thereof – with the world.
Online Speech Platforms
Wired: Why Mark Zuckerberg’s Oversight Board May Kill His Political Ad Policy
By Steven Levy
After nearly two years, Facebook is almost done setting up its Oversight Board, an independent panel with the power to override Facebook’s most contentious decisions on controversial content. Today, Facebook is releasing a set of bylaws that will determine how the board will operate. (The bylaws still need to be approved by the board when it is convened.) Next month it will reveal the names of the first set of content arbiters, starting with around 20…
That means a long but inexorable countdown clock has begun on Zuckerberg’s insistence to permit paid political lying.
The Oversight Board’s bylaws set out a road map for what may become the end of his stubborn stand on political advertising. Here’s the scenario: A politician makes a bogus charge in a paid Facebook ad, falsely claiming an opponent has taken a bribe, appeared in a sex film, trafficked in drugs, or doesn’t wash their hands after visiting the bathroom. Right now, the victim of one of those lies has no recourse: If they appeal to Facebook, the company will refer to Zuckerberg’s official policy. Facebook will continue to pocket the money and promote the lie.
The point of the board is to take knotty decisions like these out of Facebook’s hands. The first cases, which could happen as early as March, will either come from users who have exhausted appeals after Facebook took their content down, or cases submitted by Facebook itself. Later this year, Facebook’s product team will create a means where users can appeal to the board on decisions where the company allows objectionable content to remain.
Wall Street Journal (Video): TikTok Gets Political, Raising Concerns About Misinformation
By Shelby Holliday
The video-sharing app TikTok, popular for its whimsical content, is getting increasingly political. WSJ’s Shelby Holliday explains why experts fear it could give rise to misinformation.
Candidates and Campaigns
New York Times: Trump’s Digital Advantage Is Freaking Out Democratic Strategists
By Thomas B. Edsall
Geofencing is just one of the new tools of digital campaigning, a largely unregulated field of political combat in which voters have little or no idea of how they are being manipulated, in which traditional disclosure requirements are inoperative and key actors are anonymous. It is a weapon of choice. Once an area is geofenced, commercial data companies can acquire the mobile phone ID numbers of those within the boundary…
If you attend an evangelical or a Catholic Church, a women’s rights march or a political rally of any kind, especially in a seriously contested state, the odds are that your cellphone ID number, home address, partisan affiliation and the identifying information of the people around you will be provided by geofencing marketers to campaigns, lobbyists and other interest groups.
With increasing speed, digital technology is transforming politics, constantly providing novel ways to target specific individuals, to get the unregistered registered, to turn out marginal voters, to persuade the undecided and to suppress support for the opposition…
The new technology, [Democratic media consultant Ben Nuckels, said] allows campaigns to “deliver a broader narrative over the top” on television and other media, while “underneath in digital you are delivering ads that are tailored to those voters that you need to influence and persuade the most.”
The explosion of digital technology has created the opportunity for political operatives to run what amount to dark campaigns, conducted below the radar of both voter awareness and government oversight.
Politico: Bloomberg’s rise sets off alarms on the left
By Christopher Cadelago and Sally Goldenberg
Progressive allies of Elizabeth Warren have approached the Democratic National Committee to lobby for an unusual cause: including billionaire Mike Bloomberg in upcoming presidential primary debates.
The move, described to POLITICO by a co-founder of the Progressive Change Campaign Committee, reflects the desire of liberal activists to pin down the former New York mayor, who has avoided verbal combat with his opponents by waging a self-funded campaign that plays by its own rules…
Bloomberg’s polling meets the party’s criteria for [debate] inclusion, but his refusal to raise money from outside donors – even in minuscule increments – means he can’t meet the qualifying threshold. [Adam Green, of the Progressive Change Campaign Committee] proposed altering the rules so that Bloomberg would be included…
Bloomberg has dispatched top aides to appeal to the DNC for a change in the rules that would allow him to participate…
“We have seen rich people run before, but the amount of money Bloomberg is able to throw around is able to get him over the absence of enthusiasm because it’s orders of magnitude” greater, said Neil Sroka of the progressive group Democracy for America…
Mayor Bill de Blasio, who has yet to stop running against Bloomberg’s record seven years into his own tenure, told left-wing online show The Young Turks in November, “I think a lot of media outlets were literally worried he might buy them some day and I think a lot of the leaders in those media outlets did not want to make waves or alienate him.”
American Prospect: Take the Money and Run
By Alexander Sammon
The process of raising money has historically been perfunctory, arousing little interest. Now, it serves as a way to express frustrations with a rigged economic system, a substitute for policy content and ideology, a proxy for who candidates are and what they stand for. As the primary enters its final leg, campaign finance has become a chief distinguishing marker by which we can understand Democratic politics.
Three distinct camps, articulated clearly on that December debate stage, have emerged: the traditionalists, the reformers, and the super-rich. Sanders and Warren have funded their campaigns entirely on the might of an unprecedented swell of online contributors. On the far opposite end, a similarly radical insurgency of self-funded billionaires, Steyer and Bloomberg, have committed their functionally infinite funds to buying the infrastructure needed to win votes. And left in the once-thick middle is an increasingly strained crowd, repped by surviving members Biden and Buttigieg, subsisting off high-dollar fundraisers, bundlers, super PACs, and access politics.
That’s set the stage for a profound reckoning. The Democratic presidential primary, of course, is also a contest for control of the party’s identity, a mantle that will be assumed de facto by its winner. And the emergence of these three warring factions has elicited a battle over not only how to fund elections, but the future of the Democratic Party’s relationship to big money.
Washington Post: Trump’s impeachment defense: Who is paying the president’s lawyers?
By Ann E. Marimow, Beth Reinhard, and Josh Dawsey
Because Trump is on trial as a result of his status as an officeholder or candidate, election law allows him to dip into campaign or party funds for his legal bills…
The president is benefiting from a measure in a 2014 law that dramatically increased how much national parties can raise by allowing them to collect large donations for separate accounts to finance presidential conventions, building renovations and legal proceedings…
Trump’s campaign committee is not directly paying impeachment-related legal bills, according to a campaign official, although the campaign does transfer money to the RNC from time to time.
The 2014 measure that lifted some limits on national party fundraising means that along with a $35,500 check to the RNC, a donor also can spread $319,500 between the additional accounts for conventions, headquarters and legal proceedings.
The provision was crafted by leaders of both parties with the help of leading campaign finance attorneys, including Marc Elias, former general counsel of Hillary Clinton’s 2016 campaign. That the well-known Democratic election lawyer had a hand in expanding the amount the RNC can raise for Trump’s impeachment trial is not lost on some campaign finance reformers.
“It was horrible the way we blew up the limits on donations to national parties because it allows people to buy access and influence,” said Paul S. Ryan, a vice president at Common Cause, a government watchdog group. “Contrary to popular perception, the Democratic Party has long fought to loosen restrictions on money and politics, hand-in-hand with the Republicans. The public doesn’t think that because Democrats on the stump talk about campaign finance reform.”
The States
Henrico Citizen: Bill defining ‘milk’ advances in Virginia legislature
By Will Gonzalez
As people drink less dairy milk and some turn to plant-based alternatives such as oat, soy and almond milk, dairy farmers say they’re struggling. That’s why Virginia is the latest state to advance legislation restricting the use of the word milk for marketing purposes.
Del. Barry Knight, R-Virginia Beach, introduced House Bill 119, which defines milk as the lacteal secretion “obtained by the complete milking of a healthy hooved animal.” The bill prohibits plant-based milk alternative products from marketing their products as milk. Knight, a pig farmer, said agriculture is the largest private industry in Virginia, and the state government has to protect it…
“We’re losing about one dairy farm a week in the state of Virginia, and farmers are struggling hard,” Knight said. “I thought, ‘well, maybe these plant-based fluids are capitalizing on the good name of milk.'” …
HB 119 was amended to say that 11 out of the following states need to pass similar legislation for the law to go into effect: Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, Texas and West Virginia. A bill that passed the North Carolina legislature carried a similar stipulation.
Michael Robbins, a spokesperson from the Plant Based Foods Association, believes the bill is unnecessary, and the dairy industry has created a “bogeyman” in plant-based milk, instead of addressing the tangible issues the dairy industry faces.
Mississippi and Arkansas passed their own “truth in labeling” laws for plant-based meat alternatives such as tofu dogs and beyond burgers, which were challenged and overturned on the grounds that they violated the First Amendment. Robbins said if milk labeling bills become law, the plant-based food industry will fight them in court.
“Right now, because none of those bills are in effect, there’s no standing to challenge them in court, but step one would be to file an appropriate lawsuit,” Robbins said.
