New from the Institute for Free Speech
Can the Dead Corrupt Politics?
By Ryan Morrison
Can a dead man’s unexpected donation corrupt the political process? That’s a question the Supreme Court may answer if it decides to hear the Libertarian National Committee’s case against the Federal Election Commission.
In 2015, Joseph Shaber left more than $235,000 to the LNC in his will with no strings attached. The LNC had no idea the contribution was coming. Mr. Shaber had only donated $3,315 to the party over twenty-five years before his death, making the large bequest even more unexpected.
Amazed at its good fortune, the LNC wanted to use the money to promote its message and candidates right away. But the FEC said no; the party had to wait. Under federal campaign contribution limits, the LNC could only accept a fraction of the total bequest ($33,400 in 2015). The rest of the money would have to sit in an escrow account to be distributed over six more years. Or the party could use the whole amount immediately, but only if it spent the funds on certain things like the party’s national convention, its headquarters, or on legal fees.
The LNC decided to let the money wait in escrow and bring a lawsuit to challenge the constitutionality of restricting Mr. Shaber’s gift. After losing its challenge at the D.C. Circuit Court of Appeals, the LNC recently asked the Supreme Court to review the case. It should…
Contribution limits exist to prevent quid pro quo corruption or its appearance. But when, as here, the evidence shows corruption is impossible, contribution limits should not apply. Mr. Shaber wanted to continue his legacy by supporting a cause he believed in after his death. He wanted nothing in return other than for the LNC to continue pursuing their shared ideals. There is nothing more American than that. As applied here, the Supreme Court should rule that the law’s contribution limits are unconstitutional.
The Institute filed an amicus brief calling on the Supreme Court to hear the case above.
Congress
Washington Post: Lawmakers Urge Trade Officials to Remove Tech Liability Shield
By Naomi Nix and Rebecca Kern, Bloomberg
A bipartisan group of lawmakers is stepping up efforts to have U.S. trade officials eliminate a legal liability shield that tech companies are pushing to keep in new agreements…
“Including provisions in trade agreements that are controversial to both Republicans and Democrats is not the way to get support from Congress,” House Energy and Committee Commerce Chairman Frank Pallone Jr. said as he addressed a Wednesday hearing of subcommittees that included executives from Reddit Inc. and Alphabet Inc.’s Google.
The lawmakers, who also heard from experts on law and cyber crime, were examining whether tech giants should continue to benefit from Section 230 of the 1996 Communications Decency Act…
Democratic Representative Jan Schakowsky of Illinois, the chairman of the Consumer Protection and Commerce Subcommittee, told reporters after the hearing that language similar to Section 230 has no place in a trade agreement.
“It is a uniquely American law, and we’re in the midst of a discussion about it, and this is a gift to big tech to insert it into trade agreements,” Schakowsky said…
The panel had invited U.S. Trade Representative Robert Lighthizer to testify, but he declined to appear…
Pallone and Representative Greg Walden of Oregon, the top Republican on the committee, had sent a letter to Lighthizer in August asking him not to include provisions similar to Section 230 in future trade agreements. Walden said he was frustrated with the lack of response…
Lawmakers at Wednesday’s hearing showed an increasing willingness to modify the legal liability shield but stopped short of calling for its repeal all together…
Republican Representative Bill Johnson of Ohio urged tech companies to do a better job at moderating their platforms if they don’t want onerous regulations.
“I would suggest to the entire industry of the internet, social media platforms, you better get serious about this self-regulating,” Johnson said.
FEC
ABC News: ‘I am very concerned’: FEC chairwoman on 2020 election interference
By Pierre Thomas and Luke Barr
“I can only tell you that from the FEC perspective as I understand the law, if a foreign government is investing resources in producing something that will be a value to a campaign here in the United States, that’s a problem,” she stressed…
She would not discuss the president calling for China to investigate Joe Biden, but said that any foreign interference is unwelcome and on the issue of Trump’s alleged involvement in asking Ukraine to investigate Biden, Weintraub wouldn’t comment but defined what the law said.
“I’m not going to comment on what any individual may have done but I can just tell you that it is illegal for anyone to solicit, accept or receive anything of value from a foreign national in connection with a U.S. election,” she said.
“Well, without commenting on the decision that the Justice Department made in any particular instance just talking about the law in general, I can tell you that the FEC has looked at things of value in a variety of context and sometimes they’re not even ascertainable when you’re talking about money that could be coming from foreign sources. The bar is pretty low on what you would want to investigate. I think because any interference at all is going to be illegal,” she said.
“So we have looked at in the domestic context … things like mailing lists, contact lists, opposition research things that people sometimes pay for. I mean that is one issue that is a thing of value that something that people normally pay for. We would also look at whether somebody spent money in order to acquire the information in order to produce the information that would also be a relevant factor for us,” she said.
Her analysis directly contradicts the decision the Justice Department rendered about President Donald Trump’s phone call with the president of Ukraine because it didn’t amount to a thing of value.
Online Speech Platforms
Washington Post: The Technology 202: Tech issues divide Democrats, including Twitter’s handling of Trump’s tweets
By Cat Zakrzewski
Sen. Kamala Harris (D-Calif.) pressed Sen. Elizabeth Warren (D-Mass.), who is leading in many polls, to join her in calling on Twitter to suspend Trump’s account for tweets she argued obstruct justice or incite violence, just hours after the company defended its policy of preserving newsworthy tweets that would otherwise violate its policy. Warren wouldn’t agree to the challenge, prompting Harris to take a swipe at the core of Warren’s messaging and suggest she has a double standard on corporate accountability.
“You can’t say you’re for corporate responsibility if it doesn’t apply to everyone,” Harris said.
Warren hit back by touting her recent pledge to turn down contributions over $200 from executives at large tech companies as many 2020 Democratic candidates — including Harris — have been aggressively fundraising in Silicon Valley.
“You can’t go behind closed doors and take the money of these executives and then turn around and expect that these are the people who are actually finally going to enforce the laws,” Warren said…
O’Rourke said if elected, he would treat the companies as publishers. O’Rourke has previously proposed making changes to a key Internet law shielding tech platforms from liability for the content others post on their sites, covered by Section 230 of the Communications Decency Act. He attacked Facebook’s recent decision to run a Trump campaign ad that made false claims.
“They curate the content that we see. Our pictures and personal information that they share with others, we would allow no publisher to do what Facebook is doing, to publish that ad that Senator Warren has rightfully called out, that CNN has refused to air because it is untrue and tells lies about the vice president, treat them like the publisher that they are,” he said.
Politico: Inside Mark Zuckerberg’s private meetings with conservative pundits
By Natasha Bertrand and Daniel Lippman
Facebook CEO Mark Zuckerberg has been hosting informal talks and small, off-the-record dinners with conservative journalists, commentators and at least one Republican lawmaker in recent months to talk about issues like free speech and discuss partnerships…
News of the outreach is likely to further fuel suspicions on the left that Zuckerberg is trying to appease the White House and stay out of Trump’s crosshairs. The president threatened to sue Facebook and Google in June and has in the past pressured the Justice Department to take action against his perceived foes.
“The discussion in Silicon Valley is that Zuckerberg is very concerned about the Justice Department, under Bill Barr, bringing an enforcement action to break up the company,” said one cybersecurity researcher and former government official based in Silicon Valley. “So the fear is that Zuckerberg is trying to appease the Trump administration by not cracking down on right-wing propaganda.”…
When asked about the gatherings, a senior Trump administration official said “the White House is looking for meaningful steps from Facebook on a number of fronts,” including “competition, free speech for everybody including conservatives, and privacy.”
“Nominal outreach won’t cut it,” the official added…
The ongoing talks between Zuckerberg and prominent conservatives have attracted the attention of the House Energy and Commerce Committee, which conducts oversight on issues related to telecommunications and consumer protection and is “aware” of allegations that conservatives “are trying to work the refs” ahead of 2020, according to a person with knowledge of the matter.
The committee’s Democrats sent a previously unreported letter to Facebook in June, after a doctored video of House Speaker Nancy Pelosi went viral on the platform, asking what the company was doing to address “the spreading of political disinformation by real accounts.”…
Facebook’s vice president of U.S. public policy, Kevin Martin, responded three weeks later in a letter, also obtained by POLITICO.
Washington Post: Under pressure to suspend Trump, Twitter restates that world leaders don’t always have to follow its rules
By Tony Romm and Isaac Stanley-Becker
Facing a request to boot President Trump from its platform, Twitter on Tuesday affirmed that world leaders are not above its rules but defended its discretion to preserve some tweets that violate its policies.
The update, detailed in a blog post, seemed unlikely to quiet increasingly forceful appeals for technology giants to regulate Trump’s use of social media…
The dispute stems from Twitter’s announcement this summer that it would label tweets from world leaders whose comments violate site policies, including those designed to prevent harm and abuse…
But Twitter’s application of the policy ultimately invited widespread criticism, after the company opted not to label a number of Trump’s tweets Democrats and digital watchdogs saw as improper…
In an attempt to clarify its rules, Twitter said Tuesday it would take enforcement actions against “any account” in certain, dire circumstances, including instances when a world leader threatens a user with direct violence or publishes private information, such as a home address.
But Twitter also noted there were cases when the company may not act, such as when heads of state have “direct interactions” with their peers or engage in “foreign policy saber rattling on economic and military issues,” which it said are not violations of rules. Nor would the company seek to “determine all potential interpretations of the content or its intent,” it said.
For those tweets that are labeled as violations, Twitter said it would also take steps to limit their spread on the site: Users would not be able to retweet or like that content, for example. The company said it has not yet applied this label…
The update from Twitter on Tuesday shows, however, that the conundrum facing social media companies extends far beyond paid advertising. The megaphone they offer politicians – including those with a penchant for mistruths – can be just as valuable and just as fraught.
BuzzFeed News: Facebook Said Politicians Can Lie In Ads. It’s Taking Down Ads From Warren, Biden, And Trump For Other Reasons.
By Ryan Mac and Zahra Hirji
According to a BuzzFeed News review, Facebook has removed more than 160 ads posted this month by President Donald Trump and some Democratic candidates, including Vermont Sen. Bernie Sanders, Massachusetts Sen. Elizabeth Warren, former vice president Joe Biden, and businessperson Tom Steyer. In some cases, Facebook appeared to apply its policies unequally, removing some ads for breaking rules around profanity, fake buttons, and advertising in certain states while leaving others that seemed to do the exact same thing untouched.
In several instances, Facebook quietly removed ads that ostensibly violated its policies after BuzzFeed News inquired about them on Monday. By one count, the social network took down an additional 32 ads from the Biden campaign after the inquiries…
“None of these political ads were rejected on the basis of being deemed false by our fact-checkers,” a Facebook spokesperson told BuzzFeed News. “They were removed for violating one or more of Facebook’s other advertising policies, such as our policy against using fake buttons in ads.”…
Facebook killed [Warren’s] climate ad over a local disclosures rule.
Last year, the state of Washington sued Facebook and Google for allegedly violating its campaign finance laws by failing to maintain data on the purchasers of election ads and later adopted new laws on ad disclosures. In response, Facebook implemented a blanket ban on “ads that relate to Washington’s state or local elected officials, candidates, elections or ballot initiatives.”
Because the text of this ad and a handful of others created by the Warren campaign mention Jay Inslee, the Washington governor and former Democratic presidential candidate, they were removed.
New York Times: A Spice Company Spent $92,000 on Pro-Impeachment Facebook Ads in a Week
By Jacey Fortin
Candidates, campaigns and companies have unleashed a flood of Facebook advertisements related to impeachment, and it might come as no surprise that President Trump and his re-election campaign are far outspending everyone else.
But last week, the second biggest spender was an entity you might not be familiar with: a purveyor of pepper, paprika and poppy seeds based in Wisconsin.
Penzeys Spices, a family-owned company in Wauwatosa, spent nearly $92,000 on Facebook advertisements related to impeachment from Sept. 29 to Oct. 5, according to data from a communications agency that tracks political spending…
Facebook’s publicly available data shows that from Oct. 2 to 8, Penzeys was the seventh-biggest spender on ads about “social issues, elections or politics” – a broader category than just impeachment – and the only entity in the top 10 that was not a politician or a policy-oriented organization.
Penzeys spent nearly $120,000 on Facebook advertisements addressing politics during those seven days, Facebook data showed. (That’s less than Democratic presidential candidates like Joseph R. Biden Jr. and Elizabeth Warren, but more than Pete Buttigieg.)…
The New York Times reported in 2006 that Mr. Penzey had started a food magazine that touched on prison reform, immigration policy and international adoption…
The politics haven’t hurt Mr. Penzey’s business, he said, adding that he has lost some customers but gained some, too.
“If you are a company and you have values, now is the time to share them,” Mr. Penzey said. “Now is the time that it’s important to share them.”
Fundraising
Time: Warren’s New Campaign Finance Plan Is Putting Rivals Like Biden and Buttigieg on the Spot
By Charlotte Alter
Warren’s new plan was released just a day after Buttigieg drew blowback from online progressives for comments about his fundraising strategy. “My competitors can go with whatever strategy they like, but we’re going to make sure that we have the resources to compete because we we are going up against the sitting President of the United States,” Buttigieg told Snapchat’s Peter Hamby. “He has tremendous amounts of support and allies at his back, and we’re not going to beat him with pocket change.”
Progressives online slammed him immediately. “Small-dollar grassroots campaigns, aka what Buttigieg insults here as ‘pocket change,’ out-fundraise him by millions,” Rep. Alexandria Ocasio Cortez tweeted in responses. “Our nation’s leaders should be working to end the era of big money politics, not protect it.”
Candidates and Campaigns
Wall Street Journal: Joe Biden Releases Ethics Agenda Amid Focus on Ukraine
By Ken Thomas
It includes a ban on lobbying by foreign governments; an expansion of lobbying and disclosure laws; and legislation that would require all candidates for federal election to disclose 10 years of tax returns…
As he has said previously, Mr. Biden would also introduce a constitutional amendment to eliminate private funds from federal elections as a way of overturning the 2010 Citizens United Supreme Court decision that allowed unlimited political expenditures.
Mr. Biden, a longtime advocate of public financing of elections, would propose legislation to provide public matching funds for small-dollar donations to federal candidates as part of the constitutional amendment effort…
Lastly, Mr. Biden’s plan includes creating a Commission on Federal Ethics, a government agency that would oversee federal anticorruption and ethics laws. The agency would be able to enforce its own subpoenas and refer matters for criminal investigations to the Justice Department.
The States
Arizona Capitol Times: Group tries to dodge fine for campaign finance law violation
By Howard Fischer, Capitol Media Services
Maricopa County Superior Court Judge Christopher Whitten ruled in August that the lawyers for the [Legacy Foundation Action Fund] were misreading the law.
Now the fund is seeking intervention by the state Court of Appeals…
The case stems from a commercial that ran in early 2014 when Smith was pursuing the Republican gubernatorial nomination.
Produced by the Legacy Foundation Action Fund, it noted that Smith, who was mayor of Mesa, also was president of the U.S. Conference of Mayors. More to the point, it focused on some of the stands the conference had taken…
Jason Torchinsky, one of the attorneys for the fund, argued there was nothing improper about the commercial.
More to the point, he said it was not designed to influence the election but simply to educate Arizonans about Smith. Torchinsky noted that the ad made no reference to Smith’s race against Ducey nor even to Smith’s status as a candidate.
The Clean Elections Commission, however, concluded otherwise, ruling that its true purpose was to affect the GOP gubernatorial primary. And what that meant, the commission concluded, was that the Legacy Foundation Action Fund, by virtue of attempting to influence an election, was required to publicly disclose the spending, which it did not.
That failure led to the $96,000 penalty…
Attorney Brian Bergin argues that the commission, in concluding the purpose of the commercial was to affect the 2014 GOP primary, ignored the plain language of what viewers saw.
“The Arizona advertisement discusses issues: government spending, Second Amendment rights, and the regulation of carbon emissions,” Bergin wrote, while telling viewers the policies “are wrong for Mesa” and urging them to call Smith “and tell him to support policies that are good for Mesa.”
U.S. News & World Report: Big Questions Remain for NY’s Public Campaign Finance Plan
By Marina Villeneuve, Associated Press
A New York commission began crafting a small-donor public campaign financing system Monday but has yet to tackle big issues…
The Public Campaign Financing Commission has until Dec. 1 to announce rules that will become law unless lawmakers hold a rare end-of-year special session to reject them.
Commissioners moved ahead on issues such as the number of small-dollar contributions that candidates would need to qualify for matching funds. Commissioners agreed Monday to continue their work following an Oct. 22 hearing and also requested legal advice from two attorneys.
But questions on key issues remain unanswered. It’s unclear, for example, when the program would launch or how exactly it will be implemented…
It’s also unknown whether the commission will lower contribution limits for candidates who don’t participate in public financing. The Brennan Center for Justice, which has long supported public campaign financing in New York, said the state’s current limits are so high that they would undermine a public financing system…
Commissioners also discussed a proposal to offer higher matches based on a district’s income level. Jay Jacobs, the chair of New York’s Democratic Party and an appointee of Democratic Gov. Andrew Cuomo, said a “one-size fits all approach” may not be fair for low-income districts that could struggle to raise enough contributions to quality for public matching funds.
The Brennan Center in a memo to commissioners dated Sunday said the group didn’t oppose the idea but warned about “adopting an untested model.” The group said its research suggests New York City public campaign funding system, which matches all eligible donations 6:1, has helped city districts across income levels.
