In the News
Texas Tribune: Austin should reject free speech pain for politicians’ gain
By Joe Albanese
The Austin City Council is the latest battleground over taxpayer financing of political campaigns. It tasked the Charter Review Commission with devising such a system for the city, on the theory that it will reduce funding gaps among candidates and improve voter turnout. In fact, not only would a tax financing system likely fail in these goals, but it would also undermine Austin residents’ freedom of speech and association.
The commission opted to endorse a system whereby residents would receive government vouchers to give to candidates, emulating a similar program in Seattle…
Although residents can choose which eligible candidates get their vouchers, those paying into the system do not have the choice to withhold their money. Having the right to support a candidate ought to imply a right to not support that candidate…
Although backers insist on following Seattle’s example, that city has not seen much success.
After just one year, the program has already seen its first fraud investigation. Inequality has only continued – a mere fraction of candidates qualified for vouchers in the first year, and they held a large fundraising edge over their opponents. It seems the biggest winners under the program would have done just fine raising money themselves.
And far from bringing more people into politics, the first year of Seattle’s voucher program saw below-average county voter turnout.
C-SPAN: Russian Interference in U.S. Elections (Video)
Federal Election Commission member Ellen Weintraub and Adav Noti, a lead attorney in the Supreme Court’s Citizens United case, took part of a forum on Russian interference in U.S. elections. The two were joined by a group of attorneys, authors, and academics. Topics included the Trump presidential campaign, campaign finance ballot measures around the country, and the 2018 midterm elections.
This program was part of the the inaugural Unrig the System Summit at Tulane University in New Orleans. The non-profit organization known as Represent.us hosted the event.
[The panel includes Institute for Free Speech Senior Fellow Eric Wang.]
New from the Institute for Free Speech
Institute for Free Speech Statement on FEC Vote to Proceed with Internet Ad Rulemaking
Institute for Free Speech President David Keating released the following statement today regarding the Federal Election Commission’s (FEC) Notice of Proposed Rulemaking concerning disclaimer mandates for online advertisements:
“The FEC’s Notice of Proposed Rulemaking is a good start, and we commend the commissioners for working together to produce this draft for public comment.”
“While the two alternatives share much in common, there are some important differences. Alternative B does a far better job of carefully applying the law, respecting speakers’ rights, and allowing political speakers flexibility in crafting and publishing their messages.”
“Alternative A will be controversial because, if adopted, it would greatly hamper online video and audio ads, which are often shorter than broadcast ads. It would create a problem by burdening short video and audio ads with new, wordy disclaimers beyond those used today.”
“In any final rule, the Commission should strive to preserve the freedom that has allowed the Internet to flourish as an avenue for low-cost political speech and association. Regulations should be clear and flexible so that Americans can comply with the rules without compromising their First Amendment right to speak about candidates. Overregulating speech limits the ability of Americans to discuss, criticize, and ultimately improve their government.”
“We look forward to submitting comments that would improve this proposal.”
A Government That Can Ban Ads on Public Transportation Can Restrict Other Forms of Speech Too
By Joe Albanese
Can a subway system ban advertisements that convey a controversial political opinion? What about an ad that asks riders to “embrace humanity and inclusion”? …
Since 2015, WMATA has maintained a blanket ban on ads that seek to influence public policy or public sentiment…
The “humanity and inclusion” ad comes from a group called, well, Humanity & Inclusion – a nonprofit disability advocacy group. Perhaps unsurprisingly, WMATA’s decision has faced backlash. Humanity & Inclusion’s leadership pointed out that there was no advocacy “ask” made in its ads, and Congressman Jamie Raskin of Maryland went further by questioning why ads promoting political or social messages face more restrictions than those conveying commercial messages (although he himself has introduced legislation that would restrict political speech).
This is a question worth considering not just in terms of subway ads, but other forms of free speech as well. Political speech is one sort of “social message” that lawmakers are depressingly comfortable with regulating, despite its centrality to the history of the First Amendment and its necessity to a free, democratic society. They do this by, among many other things, restricting campaign donations or political messages through different types of media.
FEC
USA Today: Facebook, Google may face new rules for political ads, as U.S. grapples with foreign influence
By Fredreka Schouten
The Federal Election Commission on Wednesday agreed to begin writing new disclosure rules for online ads…
By an unanimous vote, the commission agreed to start writing rules that require ads run online or on mobile applications to identify their sponsors…
The commission plans to take public comment for a 60-day period and has scheduled a June 27 public hearing on the matter. Commissioners then would have to take a formal vote to adopt new regulations…
The commissioners, who often divide along partisan lines, are weighing various options to deal with disclaimers that don’t fit within the confines of an online ad. For instance, a proposal advanced by Republicans, might allow advertisers to provide a hyperlink in the body of the ad that takes viewers to a website that explains who the sponsor is – in cases in which the disclaimer would take up more than 10% of the ad’s content.
The Federal Election Commission (FEC) has jurisdiction over just a slice of political advertising: the paid ads run by federal candidates or political committees regulated by the FEC and advertising from outside groups that calls for the election or defeat of a federal candidate. Ads that focus on “issues” but don’t calls for voters to support or oppose a candidate fall outside the regulations commissioners are considering.
Washington Post: FEC considers expanding political ad disclaimers to mobile apps
By Michelle Ye Hee Lee and Tony Romm
Under current FEC rules, all political committees that pay to run ads on a website must report their spending in public filings and include disclaimers on the ads themselves that state the ads’ sponsors – just as they do for television ads.
However, as social media has played a growing role in campaigns, the commission has not drawn clear lines on what is required of small political ads online…
The FEC is now seeking public input on two proposals that would require more disclosure…
Among the ideas in the draft rules: allowing small ads that run on sites such as Google or Facebook to include a small icon or truncated text that would provide more information when a user hovers over the ad or when the user clicks to a separate page listing the sponsor’s information.
The proposal also asks whether the FEC’s definition for “public communication” online should continue to apply only to websites. The rule proposes to expand the definition to “internet-enabled device or application,” such as app-based social networks like Snapchat and streaming applications like Netflix and Hulu. Political advertisers might already be running some type of disclosure on those apps out of an abundance of caution, but there is no FEC rule that currently requires them to do so.
Congress
Roll Call: Plenty of Pitfalls for Hill Staffers Doing Campaign Work
By Simone Pathé
With campaign season here, Hill staffers are likely to find their duties expanding with election-related tasks.
Press secretaries and senior staff doing paid or volunteer campaign work routinely flock to nearby coffee shops with their personal laptops to send campaign press releases or go on walks to take reporters’ calls about their boss’s re-election. Campaign work has to be done on staffers’ own time, off government property.
Everyone knows there’s supposed to be a separation between official and campaign work. That’s Ethics 101 in Washington.
But even the most black-and-white lines are still crossed. And in reality, some lines – like what constitutes government time – are murky, especially when enforcement is lacking.
The Media
The Hill: For press and public, big risks lurk behind ‘opposition research’
By Sharyl Attkisson
In general, the work of political opposition firms is perfectly legal. And many reputable journalists argue there’s nothing wrong with relying on such research for news stories as long as it’s valid.
“The fact is, every news organization in Washington, D.C., has relationships with groups like that,” said one national investigative reporter I spoke to. “I’ll listen to anybody who has information.”
But the practice raises some valid questions:
Should the resulting news stories disclose that political oppo research was used?
Should the news stories reveal on whose behalf the oppo research was conducted? In other words, who’s the client who hired the oppo research firm to dig up information on a particular person or topic?
What if there’s a direct conflict of interest? What if a political oppo research firm that’s part of an investigation by Congress targets the congressional investigators, then supplies dirt about them to a news organization? Should the resulting story disclose that the news organization has worked with the very oppo research firm that stands to benefit from the news story?
Candidates and Campaigns
Las Vegas Review-Journal: More ethics complaints filed in Heller-Rosen Senate fight
By Ramona Giwargis
Republican U.S. Sen. Dean Heller and Democratic opponent, U.S. Rep. Jacky Rosen, filed ethics complaints against one another this week, the latest salvo in Nevada’s contentious Senate race.
The complaint against Heller is the fourth filed by the Nevada Democratic Party, this time alleging that campaign ads on at least 10 electronic billboards fail to disclose who paid for the ads…
Heller’s campaign spokesman dismissed the allegation as a distraction from real issues.
“This is a meritless complaint meant to distract voters from Rosen’s inability to get results for Nevada,” said Keith Schipper. “This ad was done by a third party and was not paid for or authorized by our campaign.”
The Republican Party’s complaint against Rosen called for the House Committee on Ethics to investigate a Feb. 24 email that apparently asked people to help her save net neutrality. After recipients clicked on a link and submitted their name and contact information, they were asked to take a survey and donate money to Rosen’s campaign.
Tying the solicitation of money to a promised legislative action is illegal, the complaint said.
The States
U.S. News & World Report: Panel Dismisses Campaign Finance Complaints Against Black
By Associated Press
A Tennessee panel has dismissed two campaign finance complaints against Republican U.S. Rep. Diane Black in her gubernatorial bid.
The Tennessee Registry of Election Finance dismissed complaints Wednesday that claim Black exceeded campaign contribution limits through donations from people and entities related to Tennessee trucking company Fitzgerald Glider Kits.
Linda Knight, a Black campaign attorney, called the allegations frivolous and baseless.
The registry delayed three complaints against Republican House Speaker Beth Harwell in her rival gubernatorial campaign until May.
They claim Harwell’s political committee helped her campaign beyond legal limits and that she doesn’t have the money to support a $3.1 million campaign self-loan.
A unanimous vote at the May meeting is needed to consider the complaints further. Registry member Hank Fincher said Wednesday he thought they should be dismissed.
Portland Press Herald: What about free speech? Or, how I got banned by the Portland Press Herald
By Jon Reisman
The First Amendment’s guarantee of freedom of speech is under attack in Maine…
[Attorney General] Mills is a serial abuser of the First Amendment. In 2015 she chose to prosecute pro-life protesters outside Planned Parenthood in Portland for allegedly speaking too loudly. Despite being clearly told by a Barack Obama-appointed U.S. district judge that this is protected speech, she persists, arguing that the government may indeed abridge political speech.
In 2016, Mills joined a partisan coalition of state attorneys general investigating Exxon and climate change “deniers” for “fraud.” The investigation started with a memo that protected the attorneys general from Freedom of Information requests and was followed by broad subpoenas to several prominent think tanks…
On Feb. 28, the editorial page editors of Maine’s three largest dailies appeared on Maine Public Radio’s “Maine Calling” for their monthly news roundup and commentary. I sent the following email to the panel: “Editorial in PPH criticizes Maine Ethics Commission for declining to investigate Jason Savage/Maine Examiner. No mention of First Amendment/ Citizens United guarantee of protected political speech- how come?” …
Not one editor thought it necessary to defend the First Amendment; all saw the “need” to abridge political speech.
