In the News
C-SPAN: House Judiciary Subcommittee Hearing on Campaign Finance
Marking the 10th anniversary of the Citizens United v. FEC Supreme Court ruling, the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties held a hearing to examine campaign finance laws and the impact of the landmark ruling. Campaign finance experts discussed the effects of the ruling, which allowed unlimited spending on political campaigns by outside groups. Reps. Ted Deutch (D-FL) and Pramila Jayapal (D-WA) also provided testimony before the subcommittee.
[Ed. Note: IFS Chairman Bradley A. Smith’s opening statement begins at the 40 minute mark.]
People for the American Way: Democracy for All Amendment Receives Historic First Hearing
By Charlie Everett
On February 6, the House Subcommittee on the Constitution, Civil Rights and Civil Liberties held the historic first hearing in the House of Representatives on the Democracy For All Amendment (H.J. Res. 2)…
The witness for the minority was Bradley Smith, Professor of Law at Capital University.
Bloomberg Government: Congress Urged to Curb Political Spending by Foreign-Owned Firms
By Kenneth P. Doyle
Congress should impose curbs on political spending by companies that have substantial numbers of foreign stockholders or foreign nationals controlling corporate decision-making, Federal Election Commission member Ellen Weintraub told a House panel Thursday…
But Bradley Smith, a former Republican FEC commissioner warned the lawmakers that restrictions on political spending by “foreign-influenced” corporations could also restrict unions with international ties.
More than two dozen member unions of the AFL-CIO have “international” in their names, said Smith, a law professor at Capital University in Columbus, Ohio. These unions, as well as corporations with foreign stockholders that do business in the United States, have a First Amendment right to participate in the American political process, he said.
Bloomberg Tax: IRS Urged to Complete Rollback of Donor Disclosure Rules
By Lydia O’Neal
Conservative groups pressed the IRS to move ahead with its proposal to drop a requirement that certain tax-exempt nonprofits disclose identities of their significant donors.
The groups dominated a list of 16 witnesses set to testify at an agency hearing on the issue Friday. The IRS is trying to remove the requirement that organizations exempt under tax code Section 501(c), except for 501(c)(3) charities and Section 527 political organizations, provide the agency with names and addresses of donors who contribute $5,000 or more…
[T]he hearing began with supporters of the change, including Institute for Free Speech attorney Ryan Morrison, who said the agency “should collect only information that it needs to enforce the tax code.”
The place where donor names and addresses are listed, Schedule B of the Form 990, “is not a substitute for reports filed with the Federal Election Commission,” he said…
Tea Party Patriots Action, a 501(c)(4) organization, urged the IRS to apply the rollback more broadly, as others-such as the Institute for Free Speech-have urged in the past.
The Courts
San Francisco Examiner: Judge to hear challenge to new campaign finance disclosure rules
By Julia Cheever
A federal judge in San Francisco will hear arguments on Feb. 14 on a political campaign committee’s free-speech challenge to new donor disclosure rules enacted by city voters in November.
The federal lawsuit against the city was filed on Jan. 28 by the Yes on B committee and its treasurer, Todd David…
The lawsuit claims that rules approved by San Francisco voters as part of Proposition F in November violate the committee’s First Amendment free-speech rights because the required disclosures occupy so much space in audio, video and newspaper advertisements that they “effectively drown out” the political message.
U.S. District Judge Charles Breyer will consider the group’s request for a preliminary injunction blocking the rules at the Feb. 14 hearing.
City Attorney’s Office spokesman John Cote said in a statement, “We are defending this ballot measure consistent with First Amendment law.”
Proposition F is [also] known… as the Sunlight on Dark Money Initiative.
The [challenged] portions of the measure… include a requirement that an ad must list the contribution amounts as well as the names of the top three donors of $5,000 or more, plus the names and amounts of the top two donors of more than $5,000 to a secondary committee that contributes to the primary committee.
The suit also disputes the lowering of the donation disclosure threshold to $5,000 from the previous threshold of $10,000, and a requirement that donation disclosures must be made at the beginning rather than the end of an audio or video message or telephone call.
First Amendment
New York Times: Florida Man Charged With Driving Into GOP Voter Sign-Up Tent
By Associated Press
A man in Florida is under arrest after he deliberately drove a van into a tent where voters were being registered by local Republicans, authorities in Jacksonville said Sunday…
The county GOP said via Twitter that six volunteers for President Donald Trump’s campaign “were intentionally targeted while registering voters.”
Local media said there were no injuries…
In a tweet, GOP chairwoman Ronna McDaniel said, “These unprovoked, senseless attacks on @realDonaldTrump’s supporters need to end.”
President Donald Trump retweeted that message and added, “Be careful tough guys who you play with!” …
“No one’s life should be placed in danger for exercising their First Amendment rights,” [a] statement [from the Duval County Democratic Party] said.
Reason (The Volokh Conspiracy): Alexander Hamilton’s Influence on Free Press Law: Free Speech Rules (Episode 10)
By Eugene Volokh
In 1700s England… criminal libel cases were common, and they covered many written statements that harmed a person’s reputation even if they were true. Such statements were outlawed in part because they were seen as likely to produce duels. (Hamilton died because of his harsh statements, albeit oral statements, about Aaron Burr.) And when said about government officials, such defamatory statements-again, even if true-were seen as undermining the government’s authority. “The greater the truth, the greater the libel,” some said.
American law was based on English law, so many Americans assumed American law would take the same view…
Enter Alexander Hamilton in 1803. Thomas Jefferson was president; Hamilton was a prominent New York lawyer. When Harry Croswell, an anti-Jefferson newspaper editor, was prosecuted in New York state court for libeling Jefferson, Hamilton came to Croswell’s defense…
Croswell was convicted, after the trial judge instructed the jury that truth was not a defense in libel cases. Croswell appealed, and Hamilton, representing Croswell, argued that truth should have been a defense: “The Liberty of the Press consists, in my idea, in publishing the truth, from good motives and for justifiable ends, though it reflect on government, on magistrates, or individuals. It is essential to say, not only that the measure is bad and deleterious, but to hold up to the people who is the author, that, in this our free and elective government, he may be removed from the seat of power.”
Today, that standard actually would diminish First Amendment protection.
Media
Washington Post: Is it local journalism, or just local propaganda?
By Gabby Deutch
Courier Newsroom was created in November with the goal… of restoring trust in the media by building “local reporting infrastructure in states across the U.S.” …
In reality, Courier Newsroom is a clandestine political operation, publishing, among other things, positive stories about moderate Democrats who face difficult reelections in November. Courier’s main backer is Acronym, a liberal dark-money group that has invested heavily in Democratic digital advertising and campaign technology…
Through a $25 million investment in Courier and affiliated sites in six battleground states, Acronym aims to reshape the digital media ecosystem by taking advantage of Americans’ trust in local journalism. Unlike some sources of partisan disinformation, Courier stories are generally fact-based. Courier discloses its connection to Acronym but provides no information about the group or its donors, who remain anonymous due to Acronym’s nonprofit status. Because it obscures its funders and agenda, Courier’s “news” operation leads to the same result as conspiracy theories or outright lies: Readers are deceived.
IRS
Center for Responsive Politics: ‘Dark money’ groups steering millions to super PACs in 2020 elections
By Anna Massoglia
The [recent report from the U.S. Government Accountability Office] comes days before a rulemaking hearing today, Feb. 7, on IRS guidance rolling back donor disclosure requirements for most 501(c) nonprofits – including those that engage in political activity.
Identities of donors to most 501(c) nonprofits are already kept confidential from the general public, but the rule would mean these groups no longer need to report donor identities to the IRS.
Some transparency advocates have raised concerns that keeping donor information from federal government officials could hinder enforcement efforts and investigations to identify illegal foreign money flowing into U.S. elections through politically active nonprofits…
The IRS rejects any role in policing foreign money in U.S. elections but also doesn’t share donor lists with other federal agencies tasked with enforcement, such as the Justice Department, unless there’s a court order…
IRS officials said the “overarching challenge” posed by politically-active nonprofits is the “absence of bright line rules regarding what constitutes political campaign intervention” and the lack of “clear and concise guidance” on the extent to which 501(c)(4) nonprofits can engage in political campaign activities.
Although 501(c)(4) nonprofits are the most prominent example of politically active nonprofits, the IRS highlighted “particularly challenging” issues with 501(c)(3) tax-exempt nonprofits – which are barred from political activity outside of voter registration – “engaging in issue advocacy near the time of an election,” noting that these efforts “can be very close to advocating for a specific candidate.”
Online Speech Platforms
New York Times: Pelosi Clashes With Facebook and Twitter Over Video Posted by Trump
By Michael Levenson
Facebook and Twitter have rejected a request by Speaker Nancy Pelosi to remove a video posted by President Trump that was edited to make it appear as though she were ripping a copy of his State of the Union address as he honored a Tuskegee airman and other guests…
The roughly 5-minute clip shows Ms. Pelosi repeatedly ripping his speech in between snippets of him paying tribute to the airman, Charles McGee, as well as other guests he had invited to the State of the Union, including military families. In fact, Ms. Pelosi ripped a copy of Mr. Trump’s speech immediately after his address to Congress on Tuesday…
“The American people know that the President has no qualms about lying to them – but it is a shame to see Twitter and Facebook, sources of news for millions, do the same,” [Pelosi’s deputy chief of staff Drew] Hammill wrote on Twitter…
“The latest fake video of Speaker Pelosi is deliberately designed to mislead and lie to the American people, and every day that these platforms refuse to take it down is another reminder that they care more about their shareholders’ interests than the public’s interests,” he wrote…
Andy Stone, a Facebook spokesman, responded to Mr. Hammill on Twitter, writing, “Sorry, are you suggesting the President didn’t make those remarks and the Speaker didn’t rip the speech?”
Mr. Hammill shot back at Mr. Stone, writing: “What planet are you living on? this is deceptively altered. take it down.”
The Hill: Democrats call for Twitter, Facebook to take down Pelosi video posted by Trump
By Emily Birnbaum
A growing number of Democratic lawmakers are calling for Twitter and Facebook to pull down an edited video of House Speaker Nancy Pelosi (D-Calif.) that was posted by President Trump on Thursday…
Most Democratic lawmakers focused their ire on Twitter… pointing out that Twitter last week unveiled a new policy against manipulated footage that has the potential to confuse viewers.
Twitter’s new policy doesn’t go into effect until March, and the company said it would not answer hypotheticals about if the video would violate the new rules.
“Hey @Twitter, this video is clearly edited in a way that’s intended to mislead viewers,” tweeted Rep. David Cicilline (D-R.I.), who runs House Democrats’ messaging arm. “You should take it down.”
Rep. Ro Khanna (D-Calif.), who represents Silicon Valley and is a close Pelosi ally, tweeted, “@Twitter must take this misleading video about @SpeakerPelosi down now. Social media platforms are a place where people come for news & information. They need to have certain standards.” …
Some critics have raised concerns that broad policies against edited footage could wind up chilling free speech and potentially sweeping up normal political attack ads.
Wall Street Journal: When Is the Voter Registration Deadline in Oklahoma? Facebook Almost Flubbed It
By Dustin Volz and Alexa Corse
Paul Ziriax, the secretary of Oklahoma’s state election board, recounted to a recent forum of election officials that Facebook had planned to send notifications directly to the Facebook feeds of state residents alerting them to the state deadline to register for the presidential primary.
The problem? Facebook’s proposed language mistakenly listed the Feb. 7 deadline as the last day to put registration forms in the mail, Mr. Ziriax said. Instead, he said, registration forms need to be postmarked by that date…
The postmark is the stamp that acknowledges mail is in the care of the postal service, which may not be the same day as it was put in the mail, as Facebook’s notice specified as the deadline-a small difference that Oklahoma officials said nonetheless could have deprived some potential voters of registration…
“Our concern is that by saying ‘in the mail,’ there could be some people disenfranchised who think that that just means dropping it in the mailbox,” …
The company agreed to edit the language last week with the correct deadline before the notifications were pushed to Oklahoma users… But it did so only after resisting for over a month repeated pleas from election officials…
Facebook plans to send similar notifications to users across the country, tailored to each state’s voting rules. The company has been contacting election officials in all 50 states to check the alerts for accuracy, according to the company.
By RT Staff
James O’Keefe, who had his account locked down after tweeting about Bernie Sanders’s staffers, told RT the reason he was hit so hard by Twitter’s online minders is that he doesn’t come from an established, corporate publisher.
O’Keefe, a conservative activist and founder of investigative outlet Project Veritas, was targeted by social media censors earlier this month, when he sent a tweet to Dave Weigel of the Washington Post, asking him to remove a “factually inaccurate bit of reporting” on Sanders staffers Kyle Jurek and Martin Weissgerber.
The two were called “volunteers” in the Post article which covered Project Veritas’s #Expose2020 Sanders campaign. The designation didn’t sit well with O’Keefe, who insisted that both Jurek and Weissgerber “are still paid employees of Bernie Sanders’ campaign.”
The offending Project Veritas tweet included a screenshot of a page found on the Federal Election Commission (FEC) website showing that Jurek, at least, had received a salary from the campaign as recently as August 2019. As O’Keefe told RT, the page included “publicly available … documents” revealing Jurek’s address and the amount of money paid to him by the Sanders campaign.
Shortly thereafter, Twitter locked his account until he deleted the tweet…
“As a matter of ethics, this is a publicly available government website. The Federal Election Commission publishes the fact that Kyle Jurek was a paid employee. I don’t want to delete the tweet, I think that it would be unethical for me to delete information like that,” O’Keefe explained.
Candidates and Campaigns
Washington Post: Small dollars, big changes
By Richard Pildes
Previously, many reformers concerned about the role of big money in politics pressed for publicly financed elections… But instead of seeking to extend such programs… reformers are now trumpeting small-donor “matching programs.”
But there has been too little public debate about the effects of dramatically increasing the impact of small donations. In particular, empirical studies suggest that online fundraising is prone to the same polarizing dynamics and viral spirals we see in online political discourse generally. The candidates who thrive on small-donor financing are those who generate the most social media attention, often because they come from the ideological poles of the parties. Small-donor matching programs are thus not politically neutral: They disfavor moderates and empower the ideological extremes…
[S]mall-donor matching policies… bump up against the fundamental logic of American political participation: Those who take part most actively tend to be more ideologically extreme than those who participate less. It is not “everyday Americans” and “ordinary citizens” on whose choices public small-donor matching programs would turn…
Research also shows that more ideologically extreme legislators raise a greater proportion of their money from individual donors than other candidates…
To be sure, the Internet makes it easier for candidates and small donors to find each other, enabling broader participation and producing a somewhat more egalitarian finance system than one driven solely by bigger donors. But traditional public financing achieves most of these benefits without the downsides.
Intercept: Bloomberg Campaign Ran Ads Asking Voters How He Should Spend His Money
By Rachel M. Cohen
Billionaire Mike Bloomberg’s presidential campaign has been running targeted ads on Facebook inviting people to “tell him where his money should go.” Last week, in three separate ads targeted to California, Michigan, and Florida, the campaign issued the following appeal to potential voters: “EMERGENCY: Mike is planning his next round of climate crisis spending. Tell him where you think his money should go. We’re giving him a list of concerns next week.” …
It is unclear whether the campaign’s Facebook ads refer to Bloomberg’s personal spending or spending by his foundation. If the latter, campaign finance experts say the billionaire would be treading in legally risky terrain. The Bloomberg campaign did not respond to requests for comment.
“It’s great for wealthy people to have charitable foundations, but when the same person runs for office he or she must be scrupulous about keeping their 501c3 charity out of politics,” Ciara Torres-Spelliscy, an election law professor at Stetson University wrote in an email. “Under the tax laws 501c3s are not allowed to intervene in partisan fights.” …
Paul S. Ryan, the vice president of policy and litigation at Common Cause, a government watchdog group, said he sees no indication that Bloomberg has broken any laws, but that his “spidey sense is activated a bit.” …
It also helps that the ads don’t specify if the money the ads refer to will come from Bloomberg’s foundation or, say, his personal checking account, Ryan said. “It implies he’s talking about his foundation but it doesn’t actually say that, which says to me, Mike Bloomberg has good lawyers and good communication staff.”
The Atlantic: The Billion-Dollar Disinformation Campaign to Reelect the President
By McKay Coppins
Both parties will rely on micro-targeted ads this year, but the president is likely to have a distinct advantage…
While these ads can be used to try to win over undecided voters, they’re most often deployed for fundraising and for firing up the faithful-and Trump’s advisers believe this election will be decided by mobilization, not persuasion…
Beyond Facebook, the campaign is also investing in a texting platform that could allow it to send anonymous messages directly to millions of voters’ phones without their permission. Until recently, people had to opt in before a campaign could include them in a mass text. But with new “peer to peer” texting apps-including one developed by Gary Coby, a senior Trump adviser-a single volunteer can send hundreds of messages an hour, skirting federal regulations by clicking “Send” one message at a time. Notably, these messages aren’t required to disclose who’s behind them, thanks to a 2002 ruling by the Federal Election Commission that cited the limited number of characters available in a text.
Most experts assume that these regulations will be overhauled sometime after the 2020 election. For now, campaigns from both parties are hoovering up as many cellphone numbers as possible, and Parscale has said texting will be at the center of Trump’s reelection strategy. The medium’s ability to reach voters is unparalleled: While robocalls get sent to voicemail and email blasts get trapped in spam folders, peer-to-peer texting companies say that at least 90 percent of their messages are opened.
Daily Wire: Billionaire-Blasting Warren Says She’d Take Money From Billionaire Bloomberg In The General If He Offered
By Frank Camp
[In a post-debate interview,] Sen. Elizabeth Warren… criticize[d] the idea of a wealthy person self-financing their campaign: “And that is why, for me, I think we should not be doing these campaigns either letting billionaires finance themselves, or using unlimited spending through Super PACs which everybody on that stage was using except [Sen. Amy Klubuchar] and me.”
The senator from Massachusetts went on to note that she has funded her campaign via a “grassroots” effort…
Earlier in the debate, Warren had railed against billionaires self-funding campaigns, as well as the influence of PAC money.
Warren hasn’t always shunned big donors. A September 2019 piece in The New York Times detailed how the senator reportedly used approximately $10.4 million in “leftover funds from her 2018 Senate campaign to underwrite her 2020 run, a portion of which was raised from the same donor class she is now running against.”
The States
Common Dreams: West Virginia Legislation Would Make Civil Disobedience Against Gas Pipelines a Felony
By Russell Mokhiber
Industry drafted legislation (HB 4615) that would make civil disobedience against a pipeline or other fossil fuel projects a felony is moving through the West Virginia legislature. The House of Delegates Judiciary Committee will hold a hearing on the legislation February 10, 2020 at 8:30 am…
“The ‘Critical Infrastructure Protection Act’ would act to silence those of us who monitor and protest pipeline projects and other gas infrastructure,” [coalition leader of citizens against the pipeline Tracy] Cannon said…
“Now, the legislature is trying to make civil disobedience protests against gas infrastructure a felony punishable by one to three years and/or a fine of $1000 or more. The bill would also criminalize ‘conspiracy’ by organizations that sponsor civil disobedience and fine the organizations $5000 or more. Such fines could bankrupt small environmental groups.”
“West Virginians value their rights to free speech and free association as granted to us under the Constitution…” …
In West Virginia, Sierra Club put out a statement saying the proposed legislation would “silence citizens’ constitutional rights to free speech and freedom of association.”
“This bill seeks to shield wealthy fossil fuel corporations from criticism and protest,” the group said…
“There are already laws protecting infrastructure in place, and these corporations already have all the cash they need to buy their free speech…”
Williston Herald: North Dakota lawmaker proposes bill drafts to resolve conflicts in ethics laws
By Jack Dura
Proposed legislation would change new North Dakota ethics laws that apparently conflict with a voter-passed constitutional amendment…
Rep. Karla Rose Hanson, D-Fargo, provided fellow members of the Legislature’s interim Judiciary Committee on Tuesday with two bill drafts related to procedures and authority of North Dakota’s new Ethics Commission and transparency in political spending. The committee is studying the 2018 ethics measure that bore the new five-person panel and other ethics mandates.
The committee did not discuss and took no action on the bill drafts. Rep. Lawrence Klemin, R-Bismarck, who chairs the committee, said it will meet three more times before the 2021 Legislature convenes. Bill drafts require review at two interim committee meetings…
Hanson, who is seeking a second term, said her bill drafts are meant to resolve apparent conflicts between constitutional and new statutory language, such as authority of the Ethics Commission, and so-called “dark money” in elections…
The bill drafts offer new statutory definitions, lay out recordkeeping and reporting elements of “the ultimate and true source of funds” and rewrite areas of state ethics law such as complaint procedures…
The Ethics Commission has discussed the conflicts between the constitution and state ethics laws, including a confidential whistleblower hotline mandated by the constitution but at odds with a new state law prohibiting the commission from investigating anonymous complaints.
One News Now: ‘Leveling the playing field’ with social media
By Steve Jordahl
Nearly 20 states are working to allow anyone who has been kicked off a social media site because of his or her political or religious views to sue the social media company.
Republican and Democrat lawmakers from Delaware to Hawaii are sponsoring the Stop Social Media Censorship Act, legislation that would make any social media company with more than 75 million subscribers subject to a lawsuit if it deletes or censors any user for religious or political speech, or if it uses an algorithm that does the same thing.
“It levels the playing field,” says attorney Chris Sevier, who wrote the model legislation. “It holds social media websites to higher disciplinary standards. Those social media websites have substantially, materially created a digital public square.” …
“The states have jurisdiction here to regulate this issue, because when a person in any of the states signs up to use Facebook, Twitter, or YouTube, they are entering into a contract,” Sevier points out. “States have paramount jurisdiction over contracts.”
“When a user gets censored for religious [or] political reasons by Facebook, for example, it’s an existing form of breach of contract,” he continues…
The bill mandates at least a $75,000 fine per violation, plus actual and punitive damages.
Montana Public Radio: ACLU Sues For Information On Law Enforcement Preparation For Expected Keystone XL Protests
By Kayla Desroches
The American Civil Liberties Union of Montana Thursday Feb. 6 filed a lawsuit with the goal of learning how the state may respond to expected protests against the construction of the Keystone XL oil pipeline.
In its complaint, the ACLU says it requested documents from Montana Disaster and Emergency Services and the Montana Division of Criminal Investigation based on its concern that the agencies are preparing to impede first amendment freedoms like free speech and assembly in a coordinated crackdown with local, state and federal law enforcement…
The ACLU’s concerned that law enforcement may take similar measures against expected Keystone XL protesters as it did during protests against the Dakota Access Pipeline in 2016 and 2017. That includes what the ACLU calls unlawful surveillance, excessive force and criminalization of speech and assembly.
