In the News
New York Post: Free-speech watch: Money in Politics Boosts Democracy
By Editorial Board
That candidates spent $5.2 billion on federal campaigns this year – more than for any other midterm – is “sure to spark calls for new laws restricting money in politics,” the Institute for Free Speech’s Luke Wachob notes at The Hill. But put the amounts in context: Americans spent $9 billion just for Halloween merchandise this year. And the campaign money was spent by “thousands of candidates” making their case. Advertising, usually the top expense, makes “voters more informed and engaged.” So this is a way money “can benefit democracy.” Research also shows money helps challengers more than incumbents, who use their offices to promote themselves. Nor does greater spending necessarily “buy” elections. All of which suggests, Wachob concludes, Americans “rethink laws that restrict it.”
Event
National Constitution Center: Should We Amend The Constitution To Authorize Political Spending Limits?
America continues to debate the Supreme Court’s jurisprudence on political campaign spending. Join Ciara Torres-Spelliscy, professor of law at Stetson University, as she moderates a conversation with Jeff Clements of American Promise, Elizabeth Doty of Leadership Momentum, Bradley Smith of the Institute of Free Speech, and Floyd Abrams, senior counsel at Cahill Gordon & Reindel, as they discuss whether the First Amendment was meant to prohibit limits on election spending, and whether or not a new constitutional amendment is necessary to ensure an equal voice for all Americans.
Date: TODAY
Time: 6:30 PM
You can watch live here.
First Amendment
Philadelphia Inquirer: Money in politics might seem distasteful, but the First Amendment protects it
By Floyd Abrams
Shall we adopt an amendment that limits the First Amendment right of all to participate in the political process by empowering Congress to limit the amounts spent in doing so? When a constitutional amendment was considered by Congress in 1997, Sen. Ted Kennedy opposed it, saying that “in the entire history of the Constitution, we have never amended the Bill of Rights, and now is no time to start.”
More recently, Chief Justice John Roberts went further. “Money in politics,” he wrote, “may seem at times repugnant to some, but so too does much of what the First Amendment vigorously protects. If the First Amendment protects flag burning, funeral protests, and Nazi parades – despite the profound offense such spectacles cause – it surely protects political campaign speech despite popular opposition.”
I would go further. The First Amendment is rooted in the notion that government simply cannot be trusted when it engages in the process of deciding how much speech as well as what speech may be permitted. We see every day the impact of gerrymandering by state legislatures when they are empowered to define the boundaries of electoral districts and then do not make the slightest effort to do so fairly but only to aid the party then in power. Would you trust those same legislators to decide how much speech about elections is “reasonable” – a word used in a number of the proposed constitutional amendments? I wouldn’t and don’t.
Philadelphia Inquirer: America needs a 28th Amendment for more liberty, more representation and better government
By Jeff Clements
Now, amid mounting concerns about the billions of dollars flooding our elections, and the resulting systemic corruption, unequal representation and undue control of policymaking by powerful wealthy interests, a new constitutional amendment is under consideration in Congress and the states. This amendment will empower Americans to regulate money in elections and secure equal representation for all citizens in our republic.
The amendment – the 28th Amendment to the Constitution – would nullify Supreme Court decisions, such as Citizens United v. FEC in 2010, that misconstrued the First Amendment’s freedom of speech clause as requiring unlimited spending by corporations, unions, and individuals with the financial means to influence elections…
The proposed amendment would ensure a level playing field and protect our liberty by providing for reasonable and even-handed rules and limits on money from any source. Our election laws will be better able to keep foreign money out of our elections, and keep corporations and unions operating in the economy, rather than using other people’s money to run election operations and buy political influence.
The 28th Amendment will give all citizens a voice.
Reason (Volokh Conspiracy): New Article on Compelled Speech, Forthcoming in the Texas Law Review
By Eugene Volokh
You can see a draft here, but here’s the Introduction:
Speech compulsions, the Court has often held, are as constitutionally suspect as are speech restrictions: “[T]he First Amendment guarantees ‘freedom of speech,’ a term necessarily comprising the decision of both what to say and what not to say.” In the Court, the doctrine dates back to the 1943 flag salute case] which held that “involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence.”
In state courts, it dates back even earlier: The very first state statute struck down on free speech grounds-in 1894, by the Georgia Supreme Court-was a “service letter” statute under which employers were obligated to give dismissed employees a letter explaining the reason for the dismissal. “Liberty of speech and of writing is secured by the constitution, and incident thereto is the correlative liberty of silence,” held the court.
And the doctrine remains strong today: just this last Term, it was powerfully reaffirmed in Janus v. American Federation of State, County & Municipal Employees, Council 31 (AFSCME) and National Institute of Family & Life Advocates (NIFLA) v. Becerra and was relied on by Justice Thomas in his concurrence (joined by Justice Gorsuch) in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.
Yet, however emphatically stated and deeply rooted the broad principle may be, its details are often hard to pin down…
In this Essay, I’ll try to summarize the law, where it’s settled, and identify the internal tensions, where they exist.
The Courts
Bloomberg Government: Maryland Online Ad Disclosure Law Misses Mark, Judge Says
By Kenneth P. Doyle
A federal judge said he might strike down a Maryland law requiring increased disclosure of information about online political ads because it fails to address the statute’s intent to deal with foreign interference in elections.
The state Legislature passed the law earlier this year to deal with the threat highlighted by Russian interference in the 2016 presidential election, which is “about as concerning a matter as the state can address,” U.S. District Judge Paul Grimm said in Friday court hearing.
Grimm repeatedly said, however, that the law “was not a good fit” for the problem it intended to solve.
A ruling on the constitutionality of such measures could have a broad impact. Maryland is one of a half-dozen states that have passed laws to regulate online ads in the wake of the 2016 election. Federal proposals also are being considered in Congress and the Federal Election Commission.
Grimm said he would rule “as quickly as I can” on a motion for a preliminary injunction to block enforcement of the law…
The judge said that past disclosure laws have required reporting by candidates and others sponsoring campaign ads, while the Maryland law is “a step beyond what’s ever been done before” because it imposes disclosure obligations on platforms that carry online ads.
The court hearing focused on a constitutional challenge to the Maryland law brought by the Washington Post and other newspapers circulating in Maryland, which said they are compelled under the state law to provide information about those buying digital ads on their websites.
Seth Berlin, an attorney for the Post and other papers, focused his arguments on the First Amendment rights of the press, including the right not to be compelled by the government to publish certain information.
CNN: White House backs down from legal fight, restores Jim Acosta’s press pass
By Brian Stelter and David Shortell
The White House on Monday backed down from its threats to revoke Jim Acosta’s press pass.
“Having received a formal reply from your counsel to our letter of November 16, we have made a final determination in this process: your hard pass is restored,” the White House said in a new letter to Acosta. “Should you refuse to follow these rules in the future, we will take action in accordance with the rules set forth above. The President is aware of this decision and concurs.”
The letter detailed several new rules for reporter conduct at presidential press conferences, including “a single question” from each journalist. Follow-ups will only be permitted “at the discretion of the President or other White House officials.”
The decision reverses a Friday letter by the White House that said Acosta’s press pass could be revoked again right after a temporary restraining order granted by a federal judge expires.
Courthouse News Service: Indicted Russian Firm Loses Challenge to Mueller
By Tim Ryan
Concord Management and Consulting asked U.S. District Judge Dabney Friedrich in July to dismiss the indictment filed against it, claiming Mueller had failed to prove the conspiracy charges a grand jury returned in February. According to the indictment, Concord helped fund Russian internet troll farms that supported Republican presidential candidate Donald Trump or attacked his opponent, Hillary Clinton, all without registering with the U.S. government.
Concord attacked the indictment on the grounds that it did not allege the company “actually violated” any federal law by working to influence the election.
But Friedrich found Thursday that Mueller needed only to show that the company “intended to frustrate” lawful functions of the federal government through the conspiracy – a bar the special counsel’s office so far has cleared. Friedrich said Mueller did not need to show what Concord did was necessarily “criminal” on its own, just that it “violated a legal duty and was therefore deceptive.”
“The indictment alleges that the defendants agreed to a course of conduct that would violate [the Federal Election Campaign Act] and [the Foreign Agent Registration Act]’s disclosure requirements, and provides specific examples of the kinds of expenditures and activities that required disclosure,” Friedrich wrote in a 32-page opinion. “At this stage, that is more than enough.”
Citing multiple precedents from other circuits, Friedrich also brushed aside Concord’s argument that Mueller needed to show the company had willfully violated the law in the alleged conspiracy. Concord failed as well to sway the judge that the First Amendment covered its conduct.
“The conspiracy to defraud does not implicate the First Amendment merely because it involved deceptive statements like claiming to represent U.S. entities, claiming to be U.S. persons and providing false statements on visa applications,” Friedrich wrote.
Free Speech
Washington Post: White nationalists have tried to weaponize free speech. Here’s why it’s still worth defending.
By Jeffrey Aaron Snyder
“Freedom of speech is no longer a value,” Nesrine Malik recently proclaimed in the Guardian. “It has become a loophole exploited with impunity by trolls, racists and ethnic-cleansing advocates.” Many on the left agree. “Your free speech hides beneath white sheets,” students at William & Mary chanted last fall when they shut down a talk by an executive director of the ACLU. As Talib Kweli Greene declared earlier this year: “Being a free-speech absolutist in this era is a white privilege pushed by those who believe, like Trump, that there are ‘very fine people’ who march with KKK and Nazis.”
Yes, it is indisputable that “free speech” has been used as a cudgel by right-wing media to assail “politically correct” colleges and universities and the “snowflakes” who attend them. That’s why Ann Coulter, Richard Spencer and Milo Yiannopoulos have relentlessly invoked free speech to overlay their reprehensible views with a veneer of righteousness.
But as journalist Katie Herzog insists, the far-right’s attempt to “claim the mantle of free speech” as their own is “a tactic, not an ideology,” something Spencer himself admitted in a May 2018 interview.
And this is why we must continue to defend the importance of free speech, in all its forms.
After all, this battle has happened before. Forty years ago, white working- and middle-class Americans co-opted the language and strategies of the civil rights movement to combat government-mandated school desegregation initiatives. Framing their antibusing campaign as a civil rights issue, white activists portrayed their aggressive push to maintain control over their white neighborhoods and schools as a noble cause. That racial-justice activists did not respond by abandoning civil rights as a value is a lesson that today’s critics of free speech should remember.
Congress
Election Law Blog: New Directions For Election-Law Reform
By Rick Pildes
Rather than contribute to a Democratic wish-list of voting reforms, many of which have been written about widely in the last several years in any event, I want to offer a couple of less familiar suggestions…
First, in the campaign finance area, Democrats will undoubtedly pursue more comprehensive disclosure laws to cover currently-undisclosed large contributions to groups that engage in election spending. I support that, but I would couple it with a significant increase in the dollar level at which the names of individual contributors to campaigns must be disclosed…
There’s too great a risk that people will lose jobs (as some already have), or not be hired (even when this is illegal), or be sanctioned in other ways, because of the candidates or causes they have financially supported.
Raising current disclosure thresholds supports democracy: People should not be punished for their contributions to candidates or causes any more than they should be for how they vote. Some people are also chilled and won’t contribute above $200 because they do not want their identities easily accessible to all…
Second, Democrats will likely seek voluntary public financing of national elections in the form of matching funds provided for small contributions. We can see this in the “Government By the People Act” that Rep. Sarbanes has already introduced.
I’m inclined to think straight public financing, rather than these matching programs, is better policy, because I worry that small contributors fuel political polarization; individual donors, in general, are among the most polarizing sources of money in elections, and small donors do not appear to be an exception. But it might well be more politically feasible to enact a matching program rather than a straight public financing system.
Either way, these systems should be designed, in ways they currently are not, to enable more of the public dollars to go to the political parties.
By Sara Salinas
Several U.S senators on Friday pressed Facebook for answers related to claims the company hired contractors to “retaliate against or spread intentionally inflammatory information about their critics,” according to a letter addressed to Facebook CEO Mark Zuckerberg.
“We are gravely concerned by recent reports indicating that your company used contractors to retaliate against or spread intentionally inflammatory information about your critics,” the letter reads. “Both elected officials and the general public have rightfully questioned whether Facebook is capable of regulating its own conduct.”
The New York Times reported earlier this week that Facebook, in the fallout from Russian interference in the 2016 presidential election, hired Definers Public Affairs to downplay public statements and deflect public scrutiny onto rival tech companies. Definers has been known to conduct opposition research…
Facebook’s dealings with Definers, if true, “may have campaign finance and other potential legal implications,” the senators said.
Senators Amy Klobuchar, D-Minn., Mark Warner, D-Va., Chris Coons, D-Del., and Richard Blumenthal, D-Conn, all signed the letter. Klobuchar was among the senators named in the New York Times report as having engaged in supposedly questionable closed-door dealings with Facebook executives.
[The full letter is included at the end of the article.]
The States
Washington Post: D.C. politics is a tangled web of money and power. Enough is enough.
By Colbert I. King
The D.C. Council has the chance to end dalliances with corruption – and restore confidence in the city’s political process – by adopting the omnibus campaign-finance-reform bill unanimously passed last month by the council’s Judiciary and Public Safety Committee…
The challenge is to get the bill before the full council for a vote. That responsibility falls squarely on the shoulders of Council Chairman Phil Mendelson (D)…
The Campaign Finance Reform Amendment Act of 2018 is not a panacea. It won’t excise larceny from the hearts of ill-intentioned donors. Neither will it expel the malignant influence of lust for power. But it does lay down some rules of the road, along with guidelines for how campaigns and campaign contributors must act toward one another. And the bill is equipped with penalties for crossing dividing lines…
For starters, the bill reshapes the Office of Campaign Finance, the agency charged with overseeing campaign-finance laws. The agency would be moved from under the Board of Elections and made into an independent regulator governed by a five-member Campaign Finance Board with appointees grounded in campaign-finance law and policy. The agency would be beefed up with the tools and staff needed to rigorously enforce the new laws…
The bill does get at the business of donors pouring oodles of dollars into inaugural committees and legal defense funds to gain favor, by lowering contribution limits from $10,000 to $2,000. The committee’s legislation also adds new disclosure requirements that will illuminate and, hopefully, eliminate improper coordination between elected officials, political committees and independent expenditure committees.
