In the News
National Review: The Democrats’ New Schemes to Control Political Speech
By Alex Baiocco
‘We the people. Those words changed everything. Power rested in the people, not the government. Freedom to think, to speak, to act, to criticize your government, all protected.” Great rhetoric, worthy of praise. Yet these words from candidate Joe Biden introduced President Joe Biden’s agenda to curtail the very freedoms those words extol.
Biden’s “Plan to Guarantee Government Works for the People” acknowledges that the First Amendment prevents his ultimate goal to “entirely eliminate private dollars from our federal elections.” That’s why he’ll push for a constitutional amendment to get the people’s rights out of the government’s way.
During the 2020 election, more Americans made campaign donations than ever before, and millions of Americans made their voices heard through independent groups that represented them. The president wants to ban such civic engagement, which is protected by the First Amendment.
Biden’s plan would bar so-called outside spending – speech from groups not controlled by candidates or parties. That term tells you all you need to know about the mindset behind the plan. Since when are the people outside our democracy? This, apparently, is the president’s vision of democracy: a status quo-preserving machine wherein those in power get a monopoly on political speech, while the people are mere spectators.
PolitiFact: Yes, the ACLU has criticized HR 1. Here’s why
By Amy Sherman
A major Democratic bill that aims to expand voting rights and overhaul campaign finance rules has resulted in some unusual allies.
“There’s a reason even the ACLU opposes #HR1 – it threatens our freedom of speech,” tweeted Republican National Committee chair Ronna McDaniel…
The ACLU supports the bill’s provisions to expand voting rights and while it has criticisms of the legislation, its senior counsel told PolitiFact that it has not formally opposed the 2021 version, saying “a serious legislative effort to restore and strengthen our republic is needed now more than ever.” But McDaniel is right in that the organization says certain campaign finance provisions would limit free speech – and the ACLU has formally opposed the bill in the past…
A RNC spokesperson pointed to the ACLU’s own writings – letters to lawmakers and statements issued in 2019 and 2021 detailing their criticisms of H.R. 1…
The ACLU has long opposed certain campaign finance proposals…
The ACLU’s 2021 letter largely highlights its objections to the Shield Act and the Disclose Act, two Democratic bills rolled into H.R. 1…
The Institute for Free Speech, a conservative group that advocates against campaign finance restrictions, sides with the ACLU in arguing that it would chill free speech.
“These advocates of restricting free speech want to have it both ways, by arguing that restricting speech is necessary or beneficial, but also that what they propose does not restrict speech,” said Bradley A. Smith, chairman of the institute and a professor at Capital University Law School, in an email to PolitiFact.
The Lars Larson Show (Audio): Is The Democrats’ New “For The People Act” Really For The People?
H.R. 1 and S. 1, better known as the “For the People Act,” would impose sweeping new restrictions on speech about campaigns and public affairs. The bill would impose some awful restrictions on Americans and groups of Americans to discuss the policy issues of the day with elected officials and the public.
To discuss this destructive piece of legislation, Lars spoke with David Keating, the president of the Institute for Free Speech.
Listen Below.
By Dave Levinthal, Kimberly Leonard, Elvina Nawaguna, Kayla Epstein, Robin Bravender, and Tina Sfondeles
Alan Gura has joined the Institute for Free Speech as vice president for litigation. He will direct the institute’s litigation and legal advocacy and manage its network of volunteer attorneys. He most recently worked at Gura PLLC, a law practice he founded with a focus on appellate litigation and constitutional law.
New from the Institute for Free Speech
Amicus Brief: The First Amendment Guarantees All Americans’ Right to Privacy
The Institute for Free Speech filed an amicus brief yesterday urging the Supreme Court to strike down California’s requirement that charities provide state officials a list of their major donors before asking for financial support. “Private associations enjoy a presumptive right under the First Amendment to withhold the identity of their supporters from the government, for any reason or for no reason at all,” the brief explains.
“California’s demand violates the First Amendment in an unusually harsh way. It asks us to give up our right to association as a precondition for exercising our freedom of speech,” said Institute for Free Speech President David Keating.
The brief warns that “[i]f California can demand that private associations disclose a list of their donors as a condition of raising money in the State, its appetite for information will become virtually limitless. The State could require patrons to list the authors they plan to read before it will issue them a library card. It could require organizers of a peaceful protest to disclose the names, addresses, and cell phone numbers of expected participants. It could demand that newspapers turn over a list of their state government sources before it will issue press credentials for official events.” …
The Institute for Free Speech was the first to challenge the constitutionality of California’s mandate, which applies to all nonprofits that raise money in the state. Our case, which argues the state’s demand is unconstitutional regardless of whether a group can prove threats to its donors, is still pending. The Supreme Court will hear the cases of two groups whose supporters felt threatened by the mandate, Americans for Prosperity Foundation and the Thomas More Law Center.
Brief of Institute For Free Speech as Amicus Curiae Supporting Petitioners
Private associations enjoy a presumptive right under the First Amendment to withhold the identity of their supporters from the government, for any reason or for no reason at all. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958). California has inverted that presumption by mandating that nonprofit corporations turn over a list of their major donors as a condition of raising money in the State. This sweeping disclosure requirement, made without any compelling State need, violates the First Amendment on its face.
1. The Ninth Circuit rejected IFS’s facial challenge based on the erroneous premise that the compelled disclosure of an association’s donors does not constitute a First Amendment injury at all, at least without proof that the disclosure resulted in threats, harassment, or other concrete harms. Ctr. for Competitive Politics v. Harris, 784 F.3d 1307, 1314, 1316 (9th Cir. 2015). The Ninth Circuit’s requirement that a plaintiff prove injury not only lacks any foundation in this Court’s cases; it also decimates the associational right at issue. The right to associational privacy, by its very nature, includes the right not to tell the government why one wants to keep one’s associations private.
Supreme Court
By Barnaby Zall
On February 26, 2021, the Public Policy Legal Institute and the National Taxpayers Union Foundation filed a friend of the court (amici curiae) brief in the consolidated cases of Americans for Prosperity Foundation v. Becerra, No. 19-251, and Thomas More Legal Center v. Becerra, No. 19-255. Both these cases involve demands by the California Attorney General for an obscure federal tax form listing major donors to charities. The two charities contend that the Attorney General’s demands violate the First Amendment rights of association; the Attorney General contends that he needs to collect the form from all charities that want to operate or fundraise in California in order to find and prosecute those who want to misuse the charities.
The PPLI/NTUF amici brief takes a different approach from most of the briefs filed in this case, which directly discuss the First Amendment issues and precedents. The new brief points out that this case is not just about the First Amendment, but also about the Sixteenth Amendment, which grants government very broad powers to collect income taxes, but must also respect taxpayer privacy.
Congress
Roll Call: Reformers say HR 1 will fortify our democracy. Science shows it won’t
By David M. Primo and Jeffrey D. Milyo
The problem for the administration is that [H.R. 1] is riddled with claims that do not hold up when subjected to scientific scrutiny. For instance, the legislation offers the promise of “fortifying our democracy” against, among other evils, the “torrent of money flowing into our political system,” thereby protecting “the integrity of democracy.” …
But do such restrictions work as intended? To find out, we undertook the largest examination to date of survey data on attitudes toward money in politics, analyzing nearly 60,000 individual responses to over 50 surveys conducted between 1987 and 2017…
There was no difference in levels of trust between a fully deregulated system and a fully regulated system with limits on contributions, bans on independent expenditures and public financing of campaigns…
[W]e now have forty years of experimentation with campaign finance reform and virtually no evidence that it actually improves how Americans view their democracy. And decades of social science research on democracy suggests there is no reason to believe that campaign finance reforms, which are themselves the products of a democratic process, are going to improve that process in meaningful ways.
[Ed. note: Primo and Milyo recently authored a book, Campaign Finance and American Democracy: What the Public Really Thinks and Why It Matters, detailing these findings. The Institute for Free Speech has written about their work here and here.]
Office of Sen. Sheldon Whitehouse: Whitehouse, Cicilline Introduce DISCLOSE Act To Repair Americans’ Faith in Democracy
Today, Senator Sheldon Whitehouse (D-RI) and Representative David Cicilline (D-RI) led 197 colleagues in both houses of Congress in introducing the DISCLOSE Act to combat the flood of anonymous special interest spending in American politics. The bill would require organizations spending money in federal elections to disclose their donors, allowing the American people to see who is attempting to sway their elections and gain control over their government.
“Americans are drowning in anonymous political attacks and misinformation,” said Whitehouse, who has introduced the DISCLOSE Act in every Congress since 2012…
A number of leading good-government organizations cheered introduction of the bill.
“In the eleven years since the Supreme Court’s overreaching decision in the Citizens United case, we’ve seen the amount of secret political money in our elections explode,” said Lisa Gilbert, Executive Vice President, Public Citizen. “Despite this, we have yet to take meaningful action to grapple with the realities of this out-of-control spending and our system of democracy has suffered. Public Citizen applauds Senator Whitehouse and Representative Cicilline for reintroducing the DISCLOSE Act to begin to repair our dark money crisis.”
ABC 4: Sen. Lee introduces PROMISE Act targeting ‘political bias’ in big tech companies
By Craig Proffer
Sen. Mike Lee (R-Utah), along with Senator Jerry Moran (R-Kan.) and Senator Mike Braun (R-Ind.) introduce legislation on Thursday, that calls for big tech companies to be held accountable for “political bias”.
The legislation claims that big tech companies, such as Twitter, tend to silence viewpoints, whether they be political or otherwise, despite their business policy saying that they don’t do such things.
The PROMISE Act, which stands for Promoting Responsibility Over Moderation in the Social Media Environment Act.
According to a news release from Sen Lee’s office, the PROMISE Act would require big tech companies to disclose their moderation policies to the public including; categories of information not allowed on their platform, the decision making process used when moderating content, and requiring users to be notified of why moderation was used in something they posted on a platform.
“The billionaires who own our nation’s Big Tech companies have every right to be partisan political actors,” Sen. Lee said. “They do not have the right to tell consumers that they will provide unbiased platforms, and then use those same platforms to discriminate against Americans with opposing religious, philosophical, or political viewpoints,” Sen. Lee added.
Ballot Access News: Congressional Democrats Try To Vastly Toughen Rules For Primary Season Matching Funds
By Richard Winger
Starting in 1984, minor party presidential candidates have used primary season matching funds to help pay for petitioners to get on the ballot. Now, Democrats in Congress propose to make eligibility for primary season matching funds five times more difficult. H.R. 1 and S.1 make many election law changes. Among the changes are increasing the difficulty of receiving primary season matching funds. Current law requires small donations totalling at least $5,000 from each of twenty states. The bills raise that to $25,000 from each of twenty states…
There is extensive press coverage of these bills, but virtually none on the part of the bills changing the rules for primary season matching funds eligibility.
Brick House: Luria Seeks to Block Public Campaign Financing
By Donald Shaw, Sludge
This afternoon, [Virginia Rep. Elaine] Luria is calling on her colleagues to take up her amendment that would cut the voluntary public campaign financing program for congressional candidates from the Democrats’ landmark democracy reform bill, H.R.1. The public financing provision, which has been supported by Democratic congressional leaders for more than a decade, is arguably the heart and soul of H.R. 1…
The goal is to enable a wider group of people to be able to raise the funds necessary for going up against entrenched incumbents and establishment political figures in elections…
Her amendment to strip the public financing provision from H.R. 1 is co-sponsored by Democrats Kurt Schrader (Ore.), Josh Gottheimer (N.J.), and Abigail Spanberger (Va.). It will be considered this afternoon by the House Rules Committee, which determines which amendments will ultimately move forward to the House floor to be voted on by the full chamber.
Rep. Luria was the last House Democrat to sign on as a co-sponsor to H.R. 1 this session, trailing her notoriously conservative and corporate-aligned Democratic caucus colleagues like Rep. Henry Cuellar and Gottheimer in formally embracing the bill.
By Chris Stewart
With the White House now suggesting they will turn the resources of the U.S. Intelligence Community (IC) inward to conduct domestic surveillance, they seek the power to covertly target and retaliate against political opponents, potentially silencing dissent.
Given the way Obama operatives created a Russian collusion conspiracy out of whole cloth to serve their political agenda, Americans should be more than just leery of the administration’s justifications for this expanded surveillance. They should be terrified.
I stand with my Republican colleagues on the House Permanent Select Committee on Intelligence (HPSCI) to oppose this abuse. Politicizing our surveillance apparatus isn’t the beginning of a slippery slope, it’s the edge of a cliff, and we should never walk off…
The Constitution protects all Americans’ First Amendment rights. Not just BLM or Antifa activists. The Constitution protects all of our rights to peacefully protest, to speak out against the government, to oppose the government over issues that are important to us. All of us should have the ability to do these things without being labeled a domestic extremist and being subject to illegal surveillance.
Wall Street Journal: ‘Just Asking’ for Censorship
By Kimberley A. Strassel
“Right now, the greatest threat to free speech in this country is not any law passed by the government-the First Amendment stands as a bulwark,” says Federal Communications Commissioner Brendan Carr. “The threat comes in the form of legislating by letterhead. Politicians have realized that they can silence the speech of those with different political viewpoints by public bullying.”
What was new this week was Democrats’ brazenness: their shocking and open targeting of news organizations. The left has long worked to shut down speech with which it disagrees, but officials in the past did it with more subterfuge. It came via legislation for “campaign finance reform,” or via their successful effort to push the IRS to target conservative nonprofits; or via Sen. Dick Durbin’s campaign to pressure companies out of funding free-market nonprofits. Liberal activists have honed intimidation campaigns, threatening boycotts and other actions against companies that advertise on disfavored platforms or donate to right-leaning groups.
FEC
Bloomberg Government: Funding Bodyguards With Campaign Cash Set for Federal Approval
By Kenneth P. Doyle
Federal regulators next week are set to pave the way for lawmakers to pay for bodyguards with campaign money.
James “Trey” Trainor, a Republican commissioner at the Federal Election Commission, said in a phone interview Monday that he expects an advisory opinion on the matter to be approved at the FEC’s next public meeting, on March 11.
Allowing campaigns to pay for lawmakers’ bodyguards would mark a significant expansion of permissible campaign fund uses. But Trainor said there’s agreement within the commission that personal security for elected officials is a growing concern.
Independent Groups
Washington Times: Biden a dark money puppet
By Adam Laxalt
Liberal dark money groups spent a record-breaking $145 million to get Joe Biden elected, and now they are cashing in. These groups are pushing President Biden to nominate dark money appointees and pass their extreme left-wing policies.
From top to bottom, Mr. Biden’s staff is filled with people affiliated with dark money.
The States
Norman Transcript: Experts say Standridge’s social media bill unconstitutional
By Reese Gorman
A bill that would allow social media users to sue social media companies for “censoring” their political or religious speech passed through the Oklahoma state Senate Judiciary Committee Tuesday, but experts say the legislation violates multiple laws and is unconstitutional.
Authored by Oklahoma state Sen. Rob Standridge, R-Norman, S.B 383 would allow Oklahomans to sue any social media company that “deletes or censors a social media website user’s political speech or religious speech; or uses an algorithm to suppress political speech or religious speech.” …
Social media companies could be charged a minimum of $75,000 per intentional deletion or censorship of a user’s speech, the bill reads.
“There have been cases where social media posts discriminate against conservative views and social media platforms censor or delete posts supporting those views,” Standridge said in a press release. “Nonviolent political posts are being censored just for having a differing opinion and citizens should be able to have a chance at civil recourse.” …
Bills of this nature have also popped up across the country, including in neighboring states such as Missouri and Kansas…
“This bill is going around state legislatures [across the country] and it’s super unconstitutional,” said Shoshana Weissmann, a fellow at the Washington, D.C.-based nonpartisan nonprofit think tank The R Street Institute.
