New from the Institute for Free Speech
Senate Confirms Allen Dickerson, Shana Broussard, and Sean Cooksey to the FEC
The Institute for Free Speech released the following statement congratulating the Senate on today’s vote to confirm Allen Dickerson, Shana Broussard, and Sean Cooksey to the Federal Election Commission. The confirmations will fill three vacancies at the FEC and restore the Commission to its full six-member status.
“Allen Dickerson is an excellent addition to the FEC who brings years of experience and a proven dedication to the rule of law. Having worked with him for over nine years at the Institute for Free Speech, I hold Allen in the highest regard as a lawyer, a professional, and a person. We wish to congratulate him, and the Senate and White House, on today’s much-deserved confirmation,” said Institute for Free Speech Chairman and former Federal Election Commission Chair Bradley A. Smith.
“We also congratulate Shana Broussard and Sean Cooksey on their confirmations. The FEC will now have a quorum and a full slate of commissioners for the first time since 2017, allowing it to provide guidance to speakers and defend its actions in court,” Smith continued.
Institute for Free Speech President David Keating also praised the confirmations.
“The Institute’s loss is the nation’s gain. Allen was a tremendous asset to our organization, and we greatly enjoyed working with him. I am confident he will do an outstanding job at the FEC,” said Keating.
FEC
Washington Post: Senate confirms three FEC commissioners, restoring full slate for the first time since 2017
By Michelle Ye Hee Lee
The final votes for the nominees were 49 to 47 for Dickerson, 92 to 4 for Broussard and 50 to 46 for Cooksey…
Two current commissioners, Walther and Democrat Ellen Weintraub, are serving on the panel long after their terms expired in 2009 and 2007, respectively. Senate Republican leaders, including Blunt, have said they want to appoint a clean slate of six new commissioners to replace all the members in holdover status. It is unclear when the next nominations will be made.
Politico: Federal campaign finance watchdog has full slate for first time in years
By Zach Montellaro
Of the three new commissioners, Dickerson has the longest public track record. He previously worked as the legal director of the Institute for Free Speech, which generally takes an anti-regulatory approach toward campaign finance, arguing that many represent restraints on First Amendment rights.
The Courts
Reason (Volokh Conspiracy): Judge Kenney Provides Roadmap to Stop ABA Model Rule 8.4(g)
By Josh Blackman
I have been writing about ABA Model Rule 8.4(g) for nearly five years. Now, for the first time, a court has weighed in on the constitutionality of this measure. Today, Judge Chad F. Kenney (E.D.Pa.) ruled that Pennsylvania’s version of Rule 8.4(g) violates the Free Speech Clause First Amendment. I blogged about the case back in August. And Eugene excerpted some portions of the court’s opinion. This passage, I think, summarizes the constitutional argument:
There is no doubt that the government is acting with beneficent intentions. However, in doing so, the government has created a rule that promotes a government-favored, viewpoint monologue and creates a pathway for its handpicked arbiters to determine, without any concrete standards, who and what offends. This leaves the door wide open for them to determine what is bias and prejudice based on whether the viewpoint expressed is socially and politically acceptable and within the bounds of permissible cultural parlance. Yet the government cannot set its standard by legislating diplomatic speech because although it embarks upon a friendly, favorable tide, this tide sweeps us all along with the admonished, minority viewpoint into the massive currents of suppression and repression. Our limited constitutional Government was designed to protect the individual’s right to speak freely, including those individuals expressing words or ideas we abhor.
Free Speech
Jonathan Turley: “Free Speech Is Being Weaponized”: Columbia Dean and New Yorker Writer Calls For More Censorship
We have been discussing how reporters, editors, commentators, and academics have embraced rising calls for censorship and speech controls, including President-elect Joe Biden and key advisers. This includes academics rejecting the very concept of objectivity in journalism in favor of open advocacy. Now, Columbia Journalism Dean and New Yorker writer Steve Coll has denounced how the First Amendment right to freedom of speech was being “weaponized” to protect disinformation. That’s right. A journalism dean and writer declaring that the problem is that free speech itself is allowing too much freedom on the Internet and other forums.
Online Speech Platforms
Politico: Google will end political ad ban this week
By Elena Schneider
Google will lift its political ad ban on Thursday, ending its five-week-long prohibition aimed at curbing disinformation in the aftermath of the 2020 election.
Google announced the decision in an email to digital consultants, after directly informing several top clients on Wednesday morning…
“While we no longer consider the post-election period to be a sensitive event, we will still rigorously enforce our ad policies, which strictly prohibit demonstrably false information that could significantly undermine trust in elections or the democratic process, among other forms of abuse,” Mark Beatty, Google’s head of industry, wrote in an email Wednesday morning.
Google’s decision – which marks the return of political ads on high-profile sites like YouTube and Google search pages – comes days before the Electoral College votes will be tallied, as well as one month before the Georgia Senate runoffs…
Facebook, which also instituted a ban on political ads ahead of the election, has not yet announced if or when it will lift its ban…
Facebook and Google’s ad bans drew sharp criticism from political operatives in both parties, who argued that their bans cut off a key communication pipeline with voters in Georgia, harming their ability to raise grassroots online donations and mobilize support ahead of the Jan. 5 elections.
It forced the Georgia campaigns to rethink their digital strategies, raising the pressure to return to in-person canvassing during the coronavirus pandemic…
San Francisco Chronicle: Social media companies should permanently ban political advertising
By Eric Goldman and Irina Raicu
Undoubtedly, banning political ads favors incumbents, who can reach potential voters more easily than challengers can. For example, incumbents often get more press coverage and have more social media followers. For that reason, the Democratic Senatorial Campaign Committee has urged Facebook to accept political ads again to bolster the two Democratic senatorial candidates challenging Republican incumbents in Georgia.
While we’re sympathetic to those concerns, we believe the perils of online political ads far outweigh their benefits…
Social media services don’t have the internal expertise to adjudicate the truth; they often lack the facts and context sufficient to recognize lies. Outsourcing fact-checking to third parties only partially solves the problem; the choice of those third-party sources introduces new biases and generates its own disputes…
It is far easier for the services to acquiesce to lies from powerful people and hope that someone else – an opponent, the media, voters – will do the much-needed fact-checking instead…
Still, banning political ads is the best outcome.
New York Times: YouTube to Forbid Videos Claiming Widespread Election Fraud
By Davey Alba
YouTube on Wednesday announced changes to how it handles videos about the 2020 presidential election, saying it would remove new videos that mislead people by claiming that widespread fraud or errors influenced the outcome of the election.
The company said it was making the change because Tuesday was the so-called safe harbor deadline – the date by which all state-level election challenges, such as recounts and audits, are supposed to be completed. YouTube said that enough states have certified their election results to determine that Joseph R. Biden Jr. is the president-elect.
YouTube’s announcement is a reversal of a much-criticized company policy on election videos. Throughout the election cycle, YouTube, which is owned by Google, has allowed videos spreading false claims of widespread election fraud under a policy that permits videos that comment on the outcome of an election. Under the new policy, videos about the election uploaded before the safe harbor deadline would remain on the platform, with YouTube appending an information panel linking to the Office of the Federal Register’s election results certification notice.
Independent Groups
Insider NJ: Independent Spending- What Goes Up Can Also Come Down
By Jeffrey Brindle
According to the Center for Responsive Politics, $27.6 million was spent by independent groups on New Jersey’s primary and general congressional races this year. This amount was $24 million less than the $52 million spent by these groups in 2018.
A very strong possibility exists that two years from now, independent spending will decline even more. All 12 New Jersey house members- ten Democrats and two Republicans- in 2022 will have been in office for at least two terms assuming they all decide to run for reelection. This will make them less vulnerable and their districts less competitive.
Michael Malbin, one of the nation’s top experts on campaign finance issues, has said one of the main goals of Super PACs and other independent spenders is to “win the close races.” Independent expenditure committees, he said, place “nearly exclusive focus on the most competitive races.”
A comparison of 2020 and 2018 Congressional elections confirms that the trend toward less competitive districts in New Jersey- and a decline in independent spending- already seems to have begun.
Candidates and Campaigns
Center for Responsive Politics: Nine of the 10 most expensive Senate races of all time happened in 2020
By Eliana Miller
The 2020 Senate races brought home trophy after trophy in the arena of campaign finance. When considering combined candidate and outside spending, this year’s elections gave rise to nine of the 10 most expensive Senate races ever…
Even though Democratic candidate committees spent $167.2 million more overall than Republicans in the 10 most expensive Senate races, Republican incumbents mostly came out on top. Excluding the ongoing Georgia Senate race between Republican Sen. David Perdue and Democrat Jon Ossoff, Republicans won all but one of the most expensive races. Incumbents won all but two…
No other race saw as much combined candidate spending as this year’s South Carolina race. Sen. Lindsey Graham spent $97.6 million to beat Democrat Jaime Harrison by 10 points in a race that totaled $276.9 million. Harrison spent even more – $129.8 million. His campaign committee is the only singular committee to spend over $100 million in a Senate race.
Roswell Daily Record: Torres Small outraised Herrell in last weeks of House race
By Alex Ross
Democratic U.S. Rep. Xochitl Torres Small continued to outpace Republican Yvette Herrell in fundraising during the final weeks of the U.S. House race in New Mexico’s 2nd Congressional District.
Herrell defeated Torres Small 54% to 46% last month in one of the most closely watched toss-up races for the U.S. House of Representatives. Reports filed by the campaigns with the Federal Election Commission Thursday though show Herrell won despite Torres Small having a substantial cash advantage…
During the entire 2020 election cycle, reports state, Torres Small held an edge over Herrell, taking in $8,525,584.54 in contributions compared to Herrell’s $2,806,793.04.
A first-term congresswoman, Torres Small had defeated Herrell, a former state representative from Alamogordo, in 2018 for the same U.S. House seat, by 4,000 votes.
