In the News
Washington Examiner: Campaign law blackouts limit political speech when public debate is needed the most
By Luke Wachob
As the Senate nears a vote to confirm Judge Amy Coney Barrett to the Supreme Court, not everyone is free to speak his or her mind about it. That’s because groups that urge people to tell their senators to vote “aye” or “nay” are regulated like campaign entities, simply because of the luck of the calendar.
Senators can stop campaigning on a dime to cast their vote, but campaign finance laws can’t be put on pause. Those laws regulate mass communications that merely name candidates in the two months prior to the election. Since many elected officials are also candidates, the law throws a wrench into efforts to alert people about actions in Washington.
For most of the year, groups urge people to contact their legislators about important issues. They ask you to ask them to confirm or reject judicial nominees, support or oppose legislation, or take up causes that are being ignored. These are classic examples of free speech: people telling other people about what their government is doing and how they should respond.
In the two months before the election, however, these sorts of messages are deemed “electioneering communications” when aired on television or radio and are regulated almost as strictly as full-blown campaign ads. Groups that make “electioneering communications” must publicly report any donors who gave to fund the messages. Worse, they must endure a permanent headache trying to stay on the right side of our notoriously complex campaign finance laws.
National Review: Supreme Court Case Could Rewrite the Book on Free-Speech Lawsuits
By Zac Morgan
Should the government be held to account when it violates a person’s First Amendment rights, or should it be allowed to manipulate the legal system to avoid judgment?
This term, the Supreme Court will hear Uzuegbunam v. Preczewski, a case on precisely that question. Its ruling may dramatically change the way First Amendment litigation proceeds in this country.
Right now, it comes about in one of two ways. One is a “pre-enforcement challenge” where a person or group identifies a law it believes is unconstitutional and meticulously plans its case before filing a complaint in federal court. The other involves a person coming to court the old-fashioned way: by having the long arm of law come down on her.
In many ways, not least for the peace of mind of the litigant herself, the first way is easier – when it is available. For starters, the plaintiff does not have to endure the enforcement process, which is a form of punishment even when you win. But a second key advantage is that by planning their case ahead of time, plaintiffs can ensure that they satisfy a legal requirement called “standing.”
To prove standing in First Amendment litigation, a plaintiff must show a desire to speak and an ongoing fear of punishment. This second element is important; the threat of harm cannot be a relic of the past. This allows the government to manipulate prosecutions to moot lawsuits at the moment they seem most poised to succeed.
New from the Institute for Free Speech
Third Parties Are Excluded from the Presidential Debates – And Punished by Campaign Finance Laws
By Scott Blackburn
It’s been an inauspicious year for the Commission on Presidential Debates. After the first Trump-Biden debate was dominated by interruptions and bickering, the second was cancelled after President Trump tested positive for COVID-19. The candidates are set for a final debate tonight, but not every choice on your ballot will be there. Democrats and Republicans get to participate, but not the Libertarians, Greens, or anyone else.
The same was true in 2016, despite two uniquely polarizing candidates in American history. In the final Gallup polling prior to the November election, Sen. Hillary Clinton’s favorability rating was 47%. Donald Trump’s was 36%. In the year prior to the election, neither candidate ever managed to garner the approval of half the country.
Despite this, other candidates were never seriously considered. Third party candidates received scant media attention, were dwarfed by Clinton and Trump in ad spending, and, at the end of the day, garnered just over 5% of the popular vote. Still, 2016 was actually the best showing for third-party candidates in 24 years.
2020, once again, appears unlikely to disturb the major parties’ dominance. The idea that a third-party candidate could actually compete, let alone win, is almost unimaginable. Political scientists have spilled barrels of ink explaining why this is so. But in previous eras, candidates waging an independent run for president, from Teddy Roosevelt to Robert La Follette to Ross Perot, at least managed to air their views. In recent elections, even the ideas of third-party candidates have failed to make an impact on presidential runs.
Congress
Breitbart: Exclusive – Kelly Loeffler Introduces Bill to Stop ‘Un-American’ Big Tech Censorship of Free Speech
By Sean Moran
Sen. Kelly Loeffler (R-GA) introduced legislation Wednesday to limit the scope of big tech’s Section 230 legal immunity to stop “un-American” censorship of free speech on the Internet, Breitbart News can exclusively reveal.
“Free speech is the bedrock of American democracy, with our Founding Fathers enshrining this sacred right in the First Amendment to the Constitution,” Loeffler outlined in a statement.
Loeffler introduced the Stop Suppressing Speech Act of 2020, which would replace ambiguous terminology in Section 230 of the Communications Decency Act with more concrete terms to preserve free speech on the Internet. The legislation would use the terminology recommended by the Department of Justice (DOJ).
The legislation would remove Section 230’s “or other objectionable” material standard, which tech experts contend grants big tech companies too much leeway to censor free speech without significant legal recourse. Loeffler legislation would replace “or other objectionable” material with “unlawful, or that promotes violence or terrorism.”
Washington Post: House Republicans push inquiry into Biden’s use of Amtrak on trip through Ohio and Pennsylvania
By Michael Laris, Luz Lazo, and Ian Duncan
During a campaign season in which President Trump has been criticized for using federal resources for his political benefit, House Republicans on Wednesday said they are leading an inquiry into Joe Biden’s use of an Amtrak train to campaign last month.
FCC
Federal Communications Commission: The FCC’s Authority to Interpret Section 230 of the Communications Act
By Thomas M. Johnson Jr.
Last week, FCC Chairman Ajit Pai announced his intent to move forward with a rulemaking to interpret Section 230 of the Communications Act of 1934…
The Chairman’s decision was consistent with my advice that the FCC has the legal authority to interpret Section 230. Due to the unique interest generated by this proceeding, Chairman Pai has now asked me to make my analysis public, in furtherance of his longstanding commitment to transparency in the rulemaking process.
The policy issues raised by the debate over Section 230 may be complex, but the FCC’s legal authority is straightforward. Simply put, the FCC has the authority to interpret all provisions of the Communications Act, including amendments such as Section 230. As I explain below, this authority flows from the plain meaning of Section 201(b) of the Communications Act of 1934, which confers on the FCC the power to issue rules necessary to carry out the provisions of the Act. By expressly directing that Section 230 be placed into the Communications Act, Congress made clear that the FCC’s rulemaking authority extended to the provisions of that section. Two seminal U.S. Supreme Court cases authored by the late Justice Antonin Scalia-AT&T Corp. v. Iowa Utilities Bd., 525 U.S. 366 (1999) and City of Arlington v. FCC, 569 U.S. 290 (2013)-confirm this conclusion. Based on this authority, the Commission can feel confident proceeding with a rulemaking to clarify the scope of the Section 230 immunity shield.
Donor Privacy
The Hill: Police in New Hampshire investigating threatening letters sent to Trump backers
By Justine Coleman
Police in New Hampshire are investigating a series of threatening letters sent to supporters of President Trump.
The letters were reportedly received by residents of Milford, N.H., and Brookline, N.H., and included threats to burn down the recipients’ homes, New Hampshire station WMUR9 reported.
One of the recipients, identified as Kelly, shared her letter with the news outlet.
“Dear neighbor,” the letter read. “You have been identified by our group as being a Trump supporter. Your address has been added to our database as a target when we attack should Trump not concede the election.”
It continued by suggesting the homeowners check their home insurance to ensure it covers fire damage.
Independent Groups
Vox (Recode): Silicon Valley megadonors unleash a last-minute, $100 million barrage of ads against Trump
By Theodore Schleifer
A little-known Democratic super PAC backed by some of Silicon Valley’s biggest donors is quietly unleashing a torrent of television spending in the final weeks of the presidential campaign in a last-minute attempt to oust President Donald Trump, Recode has learned.
The barrage of late money – which includes at least $22 million from Facebook co-founder Dustin Moskovitz – figures among one of the most expensive and aggressive plays yet by tech billionaires, who have spent years studying how to maximize the return they get from each additional dollar they spend on politics. Moskovitz is placing his single biggest public bet yet on the evidence that TV ads that come just before Election Day are the best way to do that.
The super PAC, called Future Forward, has remained under the radar but is spending more than $100 million on television and digital in the final month of the campaign – more than any other group – on behalf of Democratic presidential nominee Joe Biden outside of the Biden campaign itself…
Like other Silicon Valley donors new to politics in the Trump era, Moskovitz has sought to bring the brainy, data-driven approach that he has pioneered in his philanthropy to his political program in 2020. He has tried to calculate the “cost-per-net-Democratic-vote,” combing through academic literature to mathematically determine where each marginal dollar from him can make the biggest difference…
But the lead conclusion from Moskovitz’s research has been to invest in late TV ads that come just before Election Day, when the ads are still fresh on the minds of voters.
Online Speech Platforms
Townhall: Election Interference: Twitter Blocks Donation Links to Republicans But Not Democrats
By Bronson Stocking
The National Republican Senatorial Committee is calling out Twitter for restricting the retweets of WinRed, the GOP’s fundraising platform…Twitter is running interference on retweets of WinRed’s links to donate to Republican candidates but not links by ActBlue to donate to Democrats.
New York Times: I Spoke to a Scholar of Conspiracy Theories and I’m Scared for Us
By Farhad Manjoo
If I sound jumpy, it’s because I spent a couple of hours recently chatting with Joan Donovan, the research director of the Shorenstein Center on Media, Politics and Public Policy at Harvard’s Kennedy School. Donovan is a pioneering scholar of misinformation and media manipulation – the way that activists, extremists and propagandists surf currents in our fragmented, poorly moderated media ecosystem to gain attention and influence society…
This week, Donovan’s team published “The Media Manipulation Casebook,” a searchable online database of their research.
Candidates and Campaigns
Washington Free Beacon: Dem House Candidate Says PAC Contributions Should Be Taxed at 90% Rate
By Elizabeth Matamoros
Texas Democratic congressional candidate Julie Oliver said corporate PAC contributions should be taxed at 90 percent to aid publicly financed campaigns, earning a round of praise from Sen. Elizabeth Warren (D., Mass.).
“One of the things I’ve proposed . . . is revoking the tax-exempt status of corporate PACs. Let’s tax them,” Oliver said during a fundraiser with the Progressive Change Campaign Committee. “Let’s tax them at like 90 percent. Let’s create a revenue stream for the publicly financed campaigns.”
Warren, who was a speaker at the virtual event, affirmed the tax proposal and urged Oliver and other progressives to “work with each other” to enact changes to campaign finance law. “I love it,” Warren said.
Buzzfeed News: Trump Called The $10 Million A Loan. His Campaign Called It A Donation. Who Paid It Back, And How?
By Ken Bensinger and Kadia Goba
As the 2020 presidential campaign hurtles toward a close, questions remain about a last-minute $10 million lifeline Trump threw to his previous campaign, the one that catapulted him into the presidency…
But nothing is known about whether the $10 million loan – which the campaign however appears to have reported as a contribution – was ever repaid, who might have repaid it, and whether it would even be legal to do so…
“If this was a loan, it should have been reported as a loan,” said Brendan Fischer, director of federal reform at the Campaign Legal Center, which monitors money in politics. If it were a loan, he said, the transaction should also have been recorded on financial disclosures Trump was required to file, along with details of how the money was repaid. “If there is some off-the-books mechanism that Trump is using to get repaid for his loans, that should be disclosed,” Fischer added.
Associated Press: US officials link Iran to emails meant to intimidate voters
By Eric Tucker and Frank Bajak
U.S. officials accused Iran on Wednesday of being behind a flurry of emails sent to Democratic voters in multiple battleground states that appeared to be aimed at intimidating them into voting for President Donald Trump.
The officials did not lay out specific evidence for how they came to pinpoint Iran, but the activities attributed to Tehran would mark a significant escalation for a country some cybersecurity experts regard as a second-rate player in online espionage. The announcement was made at a hastily called news conference 13 days before the election.
The allegations underscored the U.S. government’s concern about efforts by foreign countries to influence the election by spreading false information meant to suppress voter turnout and undermine American confidence in the vote. Such direct attempts to sway public opinion are more commonly associated with Moscow, which conducted a covert social media campaign in 2016 aimed at sowing discord and is again interfering this year, but the idea that Iran could be responsible suggested that those tactics have been adopted by other nations, too.
New York Times: The Real Divide in America Is Between Political Junkies and Everyone Else
By Yanna Krupnikov and John Barry Ryan
The common view of American politics today is of a clamorous divide between Democrats and Republicans, an unyielding, inevitable clash of harsh partisan polarization.
But that focus obscures another, enormous gulf – the gap between those who follow politics closely and those who don’t. Call it the “attention divide.”
What we found is that most Americans – upward of 80 percent to 85 percent – follow politics casually or not at all. Just 15 percent to 20 percent follow it closely (the people we call “deeply involved”): the group of people who monitor everything from covfefe to the politics of “Cuties.”
The States
Capitol Fax: You likely can’t end it, so mend it
By Rich Miller
I’ve been pushing reform groups to come up with some viable alternatives to the contribution caps law. The legislature will never go for eliminating it because that makes members vulnerable to big-spending individuals and groups. Reform for Illinois came up with some ideas and here’s a sampling…
Unfortunately, the self-funding provision inadvertently created a loophole that was ripe for abuse. As reported by Reform for Illinois and the Better Government Association, it has now become common practice for legislative leaders in both parties to donate or loan $100,001 to their own campaigns, triggering the self-funding provision and opening the floodgates to uncapped megadonor and special interest contributions. As the above table shows, all four legislative leaders have removed limits in their own races this election cycle.
Legislative leaders don’t need the extra funds for themselves-none of them has faced a credible reelection threat in years. Instead, they use the money to further consolidate their power by transferring millions to grateful candidates either directly or using a state party committee as an intermediary. […]
Option 2: Raise-but do not remove-fundraising limits in a race where a candidate self-funds
