We’re Hiring!
Senior Attorneys – Institute for Free Speech – Washington, DC or Virtual Office
The Institute for Free Speech is hiring three attorneys, including at least one Senior Attorney with at least 10 years of experience and two other experienced attorneys with at least four to six years of experience in an expansion of its litigation and legal advocacy capabilities.
This is a rare opportunity to work with a growing team to litigate a long-term legal strategy directed toward the protection of Constitutional rights. You would work to secure legal precedents clearing away a thicket of laws and regulations that suppress speech about government and candidates for political office, threaten citizens’ privacy if they speak or join groups, and impose heavy burdens on organized political activity.
A strong preference will be given to candidates who can work in our Washington, D.C. headquarters. However, we will consider exceptionally strong candidates living and working virtually from anywhere in the country. In addition to litigation or advocacy-related travel, a virtual candidate would be required to travel for quarterly week-long visits to IFS’s headquarters after the pandemic’s impact has receded.
[You can learn more about this role and apply for the position here.]
New from the Institute for Free Speech
Comments to FEC on Draft Statement of Policy
By Alan Gura
The Institute for Free Speech supports the proposed policy clarification regarding the closing of FEC complaint files at the initial stage of the enforcement process.
As you know, the Federal Election Campaign Act of 1971, as amended, vests the FEC with “exclusive jurisdiction with respect to [] civil enforcement” of the Act and Chapters 95 and 96 of Title 26 of the Internal Revenue Code. “Any person who believes a violation [of these laws] has occurred, may file a complaint with the Commission.” The Commission may only take action on the complaint with a “vote of 4 of its members.” If the Commission fails to act on the complaint within 120 days, any aggrieved party may petition the U.S. District Court for the District of Columbia for an order directing the FEC to act within 30 days. If the Commission fails to follow the court’s order, the aggrieved party may bring a private cause of action against the respondent(s) named in the administrative complaint filed with the FEC “to remedy the violation involved in the original complaint.”
The draft statement of policy regarding closing the file at the initial stage in the enforcement process will help effectuate the statutory framework outlined above, promote judicial economy, and satisfy the parties’ interest in finality as well as the public’s informational interest in the Commission’s operations.
The proposed policy will promote due process and the speedy resolution of disputes.
Congress
Wall Street Journal: U.S. Chamber Urges Lawmakers to Oppose Democratic-Backed Voting Bill
By Alexa Corse
The U.S. Chamber of Commerce urged senators to oppose a sweeping Democratic-backed voting-overhaul bill, saying it would impose onerous restrictions on political advocacy by corporations and other associations…
Congressional Democrats’ roughly 800-page bill would make many changes to rules regarding voting and campaign finance…
The bill also would restructure the Federal Election Commission in a way that proponents say would make the agency more effective but critics say would turn it into a partisan tool.
The Washington-based Chamber…previously had been against some campaign-finance proposals included in the Democratic bill…
In the letter, the Chamber said that many aspects of the bill are “extremely problematic” and specifically criticized several proposals that the group said would restrict how corporations and associations engage in the political process.
The Chamber also said it opposed what it called the bill’s “onerous disclaimer requirements” for communications mentioning a candidate or elected official.
Another measure in the bill would establish a program to provide federal matching funds for small-dollar contributions for campaigns that follow certain restrictions. The Chamber said that taxpayer money should be used to support projects like infrastructure initiatives and education programs, not political campaigns…
“American democracy benefits from the robust participation of its citizens—whether they choose to engage individually at the ballot box or collectively through a party, association, or corporation,” the draft of the letter said. The current bill “would regulate and ultimately silence Americans who choose to petition their government or participate in the political process through the collective action of an association or corporation.”
Slow Boring: HR 1 is kind of half-baked
By Matthew Yglesias
You’ve probably heard that Democrats have legislation — HR 1 — that is “sweeping” and aimed at “political reform” or even “fixing American democracy.”… Instead, it’s actually much more focused on campaign finance and government ethics stuff that is much lower-stakes, and some of which has drawn serious criticism from the ACLU and others…
[T]his whole line of thought rests on a fairly arbitrary effort to draw a line between “campaign-related disbursements” and other ways money can influence politics.
Fox News’ editorial coverage is a big deal for politics. So is the Ford Foundation’s funding of a diverse array of groups that endorse defunding the police. So is the internal decision-making at Facebook and YouTube about algorithmic content promotion. So is the slanted local news coverage from Sinclair Broadcasting affiliates. I don’t see how to avoid the outcome that “the behind-the-scenes machinations of rich people matter for politics.” Especially because the Supreme Court seems likely to once again be somewhat skeptical of the idea that you can separate campaign ads from general free speech considerations.
The small-donor match doesn’t really curb the power of the super-rich since they can still give to super PACs. But it definitely enhances the power of small donors. So if you think a big problem in American politics is that the kinds of people who make small contributions to political campaigns don’t have enough influence, this seems compelling. But what Brian Schaffner and Ray LaRaja found when they studied this is that donors mostly differ from normal people by having more extreme political opinions.
RealClearPolicy: Elites Will Rule If Sheldon Whitehouse Gets His Wish
By Tyler Martinez
After years of trying to starve grassroots organizations of funding, by denouncing and combating the influence “dark money” allegedly wields in American politics, [Rhode Island Senator Sheldon] Whitehouse is taking a new tack in his assault on donor privacy, by introducing legislation that would force any group filing an amicus brief in a federal court case to disclose its donors.
Not only would such a proposal deny courts and judges insights, perspectives, and legal arguments that they need to hear, resulting in worse rulings, but it blatantly favors elites over average Americans…
Senator Whitehouse’s idea goes against decades of case law protecting private association under the First Amendment…
Senator Whitehouse wants donor information disclosed for all to see, exposing people to harassment from those who disagree. Worse, the end result is that fewer voices are heard in our highest court, expect those of the Senator and his colleagues. Congress should reject this ridiculous idea and hold true to the First Amendment’s rights.
Salon: Cruz, Hawley want to “break up” MLB as punishment for protesting Georgia voting restrictions
By Igor Derysh
Three Republican senators introduced a bill on Tuesday that aims to punish Major League Baseball for its decision to move the All-Star game out of Georgia over the state’s new voting restrictions.
Sens. Ted Cruz, R-Texas, Josh Hawley, R-Mo., and Mike Lee, R-Utah, introduced a bill that would end the MLB’s antitrust exemption, which dates back to a 1922 Supreme Court decision, in response to its protest of the Georgia law…
The trio made clear that the bill was in response to a corporate action they disagreed with.
“This past month we have seen the rise of the ‘woke’ corporation,” Cruz said. “These woke corporations have decided to become the political enforcer for Democrats in Washington.”
Cruz accused the companies of “spreading disinformation” about the law…
Hawley, who has previously waded into antitrust legislation amid his ongoing feud with tech companies he accuses of censoring conservatives, said that the solution to corporations trying to “amass” political power is to “break them up.”…
Hawley claimed that the MLB and other corporations that have criticized voter restrictions in Georgia and other states are doing “exactly what the railroad barons tried to do a century ago.”
Online Speech Platforms
Newsweek: N.Y. Senator Brad Hoylman Asks Twitter to Suspend Robert F. Kennedy Jr. for ‘Vaccine Misinformation
By Julia Marnin
New York state Senator Brad Hoylman has called on Twitter CEO Jack Dorsey to have the platform permanently suspend Robert F. Kennedy Jr.’s account for “repeatedly spreading misinformation” about vaccines.
In a letter he addressed to Dorsey on April 6, Hoylman also requested that Kennedy’s organization, the Children’s Health Defense, a nonprofit with a mission to “end the childhood health epidemics,” be permanently suspended for the same reason. In a press release, Hoylman cited multiple examples of Kennedy’s and the CHD’s Twitter accounts for allegedly violating Twitter’s policies…
“We passed the First Amendment of the Constitution in this country specifically to prevent government officials from interfering with free speech,” Kennedy told Newsweek. “The senator’s request is un-democratic, un-American and unconstitutional.”…
“I recommend that Senator Hoylman read the U.S. Constitution, which he took an oath to uphold,” Kennedy said.
Washington Post: Facebook users can appeal harmful content to oversight board
By Associated Press
Facebook’s quasi-independent Oversight Board said Tuesday that it will start letting users file appeals over posts, photos, and videos that they think the company shouldn’t have allowed to stay on its platforms.
The board said it will accept cases from users who object to content posted by others and who have already exhausted Facebook’s appeals process.
Until now, users could only appeal to the Oversight Board when their own content was taken down by Facebook. The company is able to refer cases on its own to the board.
“Enabling users to appeal content they want to see removed from Facebook is a significant expansion of the Oversight Board’s capabilities,” Thomas Hughes, director of the Oversight Board Administration, said in a statement.
Reason (Volokh Conspiracy): Conservative Catfight: Episode 357 of the Cyberlaw Podcast
By Stewart Baker
In the 1980s, they used to say that a conservative was a liberal who’d been mugged. Today’s version is that a conservative who embraces regulation of business is a conservative who’s been muzzled by Silicon Valley. David Kris kicks off this topic by reprising Justice Thomas’s opinion in a case about Trump’s authority to block users he didn’t like. The case was made thoroughly moot by both the election and Twitter’s blocking of Trump, but Justice Thomas wrote separately to muse on the ways in which Twitter’s authority to block users could be regulated by treating the company as a common carrier or a public accommodation. David sees a trend for conservative jurists to embrace limits on Big Social’s authority to suppress speech.
I recount my recent experience being muzzled by LinkedIn, which would not let me link to a new Daily Mail story about the Hunter Biden laptop and say, “The social media giants that won’t let you say the 2020 election was rigged are the people who did their best to rig it: The Hunter Biden laptop was genuine and scandalous according to the Daily Mail.” To my mind, Big Social was protecting its own interests by suppressing a story that could convince people the industry has too much power over our national dialogue and our elections. (It turns out that Linkedin was triggered by a reference to the election being rigged, as I learned when I posted 5 variants of my original post, all making the same point in slightly different ways. All but the one saying Silicon Valley tried to rig the election stayed up…
[Listen to the podcast here.]
The States
Politico: Pro-Yang PACs take shape as New York mayor’s race enters prime time
By Sally Goldenberg and Joe Anuta
A top-tier political consultant is launching an effort to boost Andrew Yang’s candidacy with a goal of raising $6 million for TV ads — one of at least three political action committees in the works to propel the current front runner to City Hall.
Lis Smith, a senior adviser to Pete Buttigieg’s presidential campaign, is in talks with potential donors and staff about forming a PAC that would operate outside the city’s strict campaign finance limits to counter negative advertising against Yang, several people familiar with the calls told POLITICO…
Smith is not alone in setting up PACs to elevate Yang’s candidacy: Two other groups filed paperwork recently with the state Board of Elections for the same stated purpose.
Future Forward NYC is being spearheaded by David Rose, a startup investor who heads the entrepreneurial networking website Gust…
In a March 25 memo to prospective donors, Rose lamented the constraints Yang faces by participating in the city’s campaign finance program — which comes with the considerable upside of publicly-backed matching funds in exchange for agreeing to donation limits. (In this regard Yang is hardly unique — only one candidate in the eight-way Democratic primary is operating outside the system.)
“With investments from generous individuals and organizations, we can make sure Yang’s message is heard by enough voters to make sure he gets over the 50% ranked-choice threshold to win the Democratic primary on June 22nd,” Rose wrote in the memo, which was obtained by POLITICO.
