In the News
National Review: Stunning Findings on Campaign-Finance Law
By Zac Morgan
You may think the Bill of Rights safeguards our liberties from the whims of public opinion…
Well, you’d be wrong, as we’re reminded by David M. Primo and Jeffrey D. Milyo’s latest work, Campaign Finance and American Democracy: What the Public Really Thinks and Why It Matters. In this welcome addition to the discourse on the country’s campaign-finance system, the authors’ research illustrates the ways in which public opinion, often misinformed, has served as a basis for courts to bless the restriction of First Amendment liberties.
The Constitution says: “Congress shall make no law . . . abridging the freedom of speech.” Yet the Supreme Court carved out an exception, allowing such a law if it deters the “appearance of corruption spawned by the real or imagined coercive influence of large financial contributions.” That exception comes from Buckley v. Valeo, the landmark 1976 case in which the Supreme Court struck down key provisions in the Federal Election Campaign Act while upholding others, including contribution limits.
Thus, the extent to which the First Amendment protects Americans’ ability to speak out about politics – whether publicly or privately; whether singly, in groups, or through the corporate form – is limited by the Court’s deference to people’s views about campaign finance and American democracy.
Epoch Times: Leftists Warned Not to Plot Punishment for Trump Supporters
By Mark Tapscott
Republicans in Congress are speaking out against AOC and others who are seeking to inflict retribution against Trump supporters and appointees…
Institute for Free Speech President David Keating told The Epoch Times that it worries him that “one of the trends that we’ve seen in politics is to try to use the tools of government or the tools of private harassment to punish people with whom others disagree.”
To illustrate, Keating pointed to the threats of physical violence and other forms of harassment inflicted on attorneys representing Trump’s election fraud cases, and on two Republican members of the Wayne County, Michigan, Board of Elections, when they refused to support certifying election results due to their concerns about fraud.
“If the retribution just keeps ramping up after each election, it’s not just going to be on one side,” Keating warned.
The Courts
NPR: Trump Appointee Unconstitutionally Interfered With VOA, Judge Rules
By David Folkenflik
The chief executive over the Voice of America and its sister networks has acted unconstitutionally in investigating what he claimed was a deep-seated bias against President Trump by his own journalists, a federal judge has ruled.
Citing the journalists’ First Amendment protections, U.S. Judge Beryl Howell on Friday evening ordered U.S. Agency for Global Media CEO Michael Pack to stop interfering in the news service’s news coverage and editorial personnel matters. She struck a deep blow at Pack’s authority to continue to force the news agency to cover the president more sympathetically.
Actions by Pack and his aides have likely “violated and continue to violate [journalists’] First Amendment rights because, among other unconstitutional effects, they result in self-censorship and the chilling of First Amendment expression,” Howell wrote in her opinion. “These current and unanticipated harms are sufficient to demonstrate irreparable harm.”
Right to Protest
New York Times: Why Charges Against Protesters Are Being Dismissed by the Thousands
By Neil MacFarquhar
Prosecutors called the scale of both the mass arrests and mass dismissals within a few short months unrivaled, at least since the civil rights protests of the early 1960s. With the police detaining hundreds of people in major cities, the arrests [of protesters] this year ended up colliding with the limitations of the court system.
In the aftermath, prosecutors declined to pursue many of the cases because they concluded that the protesters were exercising their basic civil rights. Cases involving free speech or free assembly rarely succeed in court, according to prosecutors across the country, and the coronavirus pandemic also played a role in the decision. A wave of thousands of minor cases threatened to capsize courts already floundering under hefty lockdown backlogs.
There was also the recognition that law enforcement officers often use mass arrests as a technique to help clear the streets, not to confront illegal behavior…
Protest leaders and defense attorneys nationwide accuse the police of piling on charges to try to halt the demonstrations. “It was to squelch dissent,” said Attica Scott, the only Black woman in the Kentucky State Legislature and one of the protest organizers detained by the police.
Independent Groups
Politico: Liberal dark-money behemoth raised nearly $140M last year
By Scott Bland
One of the left’s biggest financial hubs raised $137 million from anonymous donors in 2019…
The “social welfare organization” [Sixteen Thirty Fund] – which, unlike a super PAC, is not required to disclose the identities of its donors – has multiplied in size during the Trump administration, becoming one of the biggest financial forces in American politics. Sixteen Thirty Fund’s rise signaled the left’s embrace of nonprofit groups it long derided as “dark money,” when the right dominated the space during the Obama years…
More than half of the Sixteen Thirty Fund’s money came from just three anonymous sources in 2019…
Sixteen Thirty Fund spent…$33.7 million directly in 2019, including millions on lobbying, legal services and advertising for “fiscally sponsored” groups…
The fiscal sponsorship setup also merges all of the groups’ fundraising and spending together on Sixteen Thirty Fund’s tax forms, so it’s impossible to tell how much any one arm of the organization did financially in 2019. And pooling so many different groups together can offer flexibility to spend more anonymous money directly on politics, [Anna Massoglia, investigative researcher at The Center for Responsive Politics] noted, because of an IRS rule requiring that nonprofits spend no more than half of their funds on political activity.
“Some groups are very political, and some are not,” Massoglia said. “So the ones that are much less political act to water down the overall” share of money getting spent on politics, and “that opens them up to be able to spend more directly on political activity.”
Online Speech Platforms
New York Times: Designed to Deceive: Do These People Look Real to You?
By Kashmir Hill and Jeremy White
There are now businesses that sell fake people. On the website Generated.Photos, you can buy a “unique, worry-free” fake person for $2.99, or 1,000 people for $1,000. If you just need a couple of fake people – for characters in a video game, or to make your company website appear more diverse – you can get their photos for free on ThisPersonDoesNotExist.com. Adjust their likeness as needed; make them old or young or the ethnicity of your choosing. If you want your fake person animated, a company called Rosebud.AI can do that and can even make them talk.
These simulated people are starting to show up around the internet, used as masks by real people with nefarious intent: spies who don an attractive face in an effort to infiltrate the intelligence community; right-wing propagandists who hide behind fake profiles, photo and all; online harassers who troll their targets with a friendly visage…
Given the pace of improvement, it’s easy to imagine a not-so-distant future in which we are confronted with not just single portraits of fake people but whole collections of them – at a party with fake friends, hanging out with their fake dogs, holding their fake babies. It will become increasingly difficult to tell who is real online and who is a figment of a computer’s imagination.
“When the tech first appeared in 2014, it was bad – it looked like the Sims,” said Camille François, a disinformation researcher whose job is to analyze manipulation of social networks. “It’s a reminder of how quickly the technology can evolve. Detection will only get harder over time.”
Washington Post: Why it’s easy to hate Facebook but hard to leave
By Heather Kelly
Before the pandemic, Andrea Norrington barely checked Facebook…
Then, at the end of March, Norrington came down with covid-19. When she was still ill after two weeks, she started scouring the Internet for information about other people who weren’t getting better. That’s when she found an early Facebook group for covid long-haulers…
The group and others like it became an important part of her daily life and recovery. Members talked to doctors, swapped details on symptoms and tracked treatments together to find out what was making things better or worse. Like many Facebook users, Norrington realized that quitting the world’s largest social network isn’t as easy as hitting a delete button, especially when you’re part of its online communities. It’s hard to persuade people to leave, to learn a new tool, and to re-create the ease of gathering such a large variety of people.
Of the 2.74 billion users around the world who check Facebook at least once a month, two-thirds of them use the Groups feature at least once a month, for everything from health issues and hobbies to political organizing.
Facebook says there has been an increase in people using the Groups feature during the pandemic.
Biden Transition
By Caleb Burns, Lee Goodman, Carol Laham, Hannah Miller, D. Mark Renaud, Michael Toner, Robert Walker, Andrew Woodson, and Brandi Zehr, Wiley Rein LLP
Joe Biden’s campaign platform called for a number of sweeping revisions to the federal campaign finance laws. Nearly all of these changes, however, require congressional approval of new legislation or – in some cases – ratification of a constitutional amendment, leaving them unlikely to move forward in a Republican-controlled Senate.
Biden has, for example, advocated for the wholesale abolition of private dollars from federal campaigns. While this would require a constitutional amendment to effect, which his campaign acknowledged, Biden has called for legislation in the interim that would provide for public funding for many federal campaigns. Similarly, Biden has criticized the Citizens United decision, and has advocated for legislation to restrict one byproduct of that decision – super PACs – until a constitutional amendment outlawing super PACs could be enacted. Biden’s campaign platform also called for increased reporting, proposing a national database of online advertising as well as a 48-hour reporting requirement for entities that spend money on advertising in the 60 days before an election to disclose their contributors.
As to candidate contributions, Biden has advocated for legislation that would ban corporate PAC contributions to candidates, as well as a prohibition on the officers and directors of federal government contractors contributing to campaigns. While these measures would also likely involve legislation, it is nonetheless possible that a President Biden might attempt to use his Executive powers to inhibit contributions by those connected to federal contractors, in particular.
Candidates and Campaigns
The Hill: Money can’t buy the Senate
By Michael Watson
It’s a common belief: Money – whether spent on campaigns, party-building, or the “independent expenditures” that are campaign work in all but legal classification – “buys” elections. Democrats campaigning for Senate and their supporters put that proposition to the test in the 2020 elections in a big way, channeling tens of millions through big-money super PACs and small-dollar fundraising vehicles like ActBlue.
Most of them lost…
These results are a bitter pill for the advocates of governmental restrictions on campaign speech (known by the euphemism “campaign finance reform”) who use the purported purchase of American democracy as grounds to limit political debate. Indeed, reports from the New York Times suggest that voters can be turned off by big money efforts to nationalize local races; the “paper of record” found that the tens of millions that Democrats spent on behalf of Sara Gideon’s challenge to longtime Sen. Susan Collins (R-Maine) did as much to turn off Mainers as it did to persuade them.
It might disappoint professional politicos, local television station advertising sales departments, and multi-millionaires looking to “make a difference” in partisan politics, but there is long-standing evidence that the public cannot be “bought” by simply throwing money at elections.
The States
New York Times: What Happened When a School District Banned Thin Blue Line Flags
By Michael Gold
In late October, administrators in a suburban New York school district told employees that some of their apparel was making students feel uncomfortable, and even threatened.
At issue were masks showing the so-called thin blue line flag, which signals support for the police but which has increasingly been used to display opposition to the Black Lives Matter movement, which rose in opposition to racism in policing.
Wearing the symbol violated a district policy prohibiting employees from expressing political speech, officials said. The logo, a black-and-white version of the American flag with a single blue stripe at its center, could no longer be worn by staff members.
Days later, a group of employees of the district, in Pelham, N.Y., appeared at work wearing shirts bearing the word “Vote” and the names of Black people who had been killed by the police, prompting accusations of hypocrisy and political bias.
The resulting controversy has divided Pelham, an affluent and mostly white Westchester County town of about 12,000 people just north of New York City.
