Internet Speech Regulation
By Paul Blumenthal
The new political ad database Facebook unveiled last month has already exposed previously hidden politicking by campaigns and political action committees. But it’s also ensnaring news sites, podcasts and nonprofits whose ads aren’t political – and highlighting the problems inherent in having a private company regulate political speech…
While independent news publishers worry that having their ads labeled as political will undermine their credibility and legitimacy, nonprofits argue it could not only hurt their branding but also their legal status.
Bryan Berky, executive director of Our Pursuit, a conservative budget watchdog nonprofit founded by former Sen. Tom Coburn (R-Okla.), said he doesn’t want a “paid for by” label slapped on the organization’s ads because it undermines the group’s branding as a nonpartisan nonprofit and could imperil its 501(c)(3) nonprofit status, which prohibits the group from engaging in electoral advocacy.
“It confuses the public by having to say “paid for by,” because that is terminology that is so distinctly associated with campaigns and PACs,” Berky said. “We would lose our (c)(3) status if we got involved with campaigns and PACs. It completely muddles the entire issue.”
Organizations are also concerned about a verification process that asks them to hand over additional personal information to a company that can’t go a month without a new privacy scandal.
The Verge: Google stops taking political ads in Washington state over new disclosure rules
By Colin Lecher
Following a new disclosure law coming into effect, Google has stopped taking ads in Washington state related to ballot measures and state and local elections.
In a short statement, the company said it will notify affected advertisers, and updated its political content policy to reflect the change.
The surprising shutdown is tied to new rules for advertising in the state, which require companies to keep records on who is paying for political ads, and for digital advertisers to hold information on the targeted location and reach of those ads. Google said in a statement that the shutdown was a temporary one.
“We take transparency and disclosure of political ads very seriously which is why we have decided to pause state and local election ads in Washington, starting June 7, while we assess the amended campaign disclosure law and ensure that our systems are built to comply with the new requirements,” a spokesperson said.
The change from Google comes just after a lawsuit filed by the Washington state attorney general against both Google and Facebook. The attorney general argues that the companies were already failing to comply with rules on transparency and record-keeping for political ads.
FEC
Washington Free Beacon: Former FEC Chair: FEC Complaints ‘Absolutely’ Biased Against Republicans
By Joe Schoffstall
Ann Ravel, the former Democrat chair of the Federal Election Commission (FEC) who wanted to regulate Internet speech, said that complaints brought before the commission are “absolutely” biased against Republicans.
Ravel made the comments during an interview with the alumni magazine of U.C. Berkeley, her alma mater where she is now a lecturer at its law school.
When asked if there were any way that the number and types of cases that come before the FEC could be biased against Republicans, Ravel said yes.
“Absolutely. The cases have come primarily from watchdog groups, and most of those groups are on the liberal side,” Ravel said. “However, they have also brought cases against Democratic committees. In fact, we had a case during the primary for the 2016 election that was brought by one of those groups against the Hillary Clinton campaign. The Democrats on the commission voted to investigate it. The Republicans voted to dismiss the case entirely.” …
A former FEC staffer said the commission’s complaint process has been “weaponized.”
“The FEC complaint process is being weaponized against conservatives, from the outside and sometimes even from inside the building,” the former staffer said, who added that the FEC’s enforcement agendas often consisted of three complaints against Republican groups for every one complaint against Democratic groups.
First Amendment
Reason (Volokh Conspiracy): First Amendment and Off-the-Job Political Speech Criticizing Black Lives Matter Movement and “Thugs”
By Eugene Volokh
From the opinion of Georgia Supreme Court Justice Peterson concurring in Tucker v. Atwater (joined by Chief Justice Hines and Justice Blackwell), where the Georgia court declined to review a lower court decision:
This is a case about just how far the First Amendment bends in allowing government to punish its employees for the viewpoints they communicate in their private lives. I am doubtful that it allowed the punishment imposed here. But the petitioner cannot prevail on the claims she actually brought even if her right to free speech was violated, and so I concur in the denial of the writ of certiorari…
American courts have long been jealous guardians of the right to free speech. And at the core of the First Amendment’s protection of speech is a firm command that government must not engage in viewpoint discrimination. Indeed, “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Tucker’s Facebook screed does not strike me as possessing any redeeming social value. But the First Amendment does not turn on whether a judge or society as a whole believes a particular viewpoint is worth sharing. Indeed, “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” This “bedrock principle” is difficult to reconcile with allowing government to punish its employees for viewpoints they communicate wholly unrelated to their employment.
Independent Groups
Daily Beast: The Original Donald Trump Super PAC Just Announced a Curious Reimbursement
By Lachlan Markay
Finding itself under a microscope and publicly shunned by the Trump campaign, Make America Great Again ceased operations less than six months later, with more than $157,000 still in the bank, according to Federal Election Commission filings. But when the group filed its first FEC report of 2016, it reported a negative cash balance of about $3,500. The FEC has tried ever since to get the group to say what it did with the $160,000 difference.
In mid-2016, Make America Great Again tried to terminate its registration with the FEC. But the commission wouldn’t let it fold until it revealed what happened to all that cash. The PAC then amended its termination report to say that, actually, its cash on hand was about $154,000. Then it stopped filing FEC reports. The committee went dark until January 2017, when it filed pre- and post-general election reports disclosing a cash balance of less than $50,000. The reports said it had disbursed about $110,000 between March and October of 2016, but contained none of the required details on how that money was spent.
The FEC, and the public, had no idea where the cash went until Wednesday, when Make America Great Again quietly amended a 2016 quarterly FEC filing to note a very conspicuous transaction. The PAC now says that it refunded $50,000 to one of its donors…
We still don’t know what Make America Great Again did with the remaining $60,000 that disappeared from its balance sheets.
Candidates and Campaigns
Center for Responsive Politics: Failing to disclose finances did not hurt all primary candidates
By Geoff West
Half of the candidates who advanced in Tuesday’s eight-state primary did not have personal financial disclosures publicly available to voters ahead of the election.
Congressional candidates who raised or spent at least $5,000 were required to disclose their assets and liabilities in a report to the House or Senate ethics committees by May 15.
Of the 304 candidates in Tuesday’s primary who were required to file disclosures, however, more than a third did not have the reports publicly available, an OpenSecrets analysis found.
The House and Senate publish the disclosures online.
As of Wednesday, 145 candidates had won or advanced to runoffs. Of those, 78 either had sought an extension to disclose their finances after Tuesday primaries or apparently did not file at all…
Personal financial disclosures differ from the regular campaign finance reports candidates must file with the Federal Election Commission (FEC). For non-officeholders, the FEC filings and the hustle of last-minute campaigning can often lead to “honest mistakes,” as a House records official said recently.
“There’s so much going on, things slip by,” said Democrat Omar Navarro, who filed a disclosure when he ran in 2016 but hadn’t yet filed in 2018. Navarro advanced in California’s 43rd District primary…
“I’m not even aware of that (requirement),” said Democrat Charles Schaupp, who advanced in California’s Third District.
Reuters: Stewing about Trump, California tech group bets on distant ‘purple’ candidates
By Heather Somerville
Elissa Slotkin, a Democrat and former defense official, is running for Congress in Michigan’s 8th District, a pocket of Detroit suburbs, college campuses and farmland more than 2,000 miles (3,200 km) away. She is a gun owner, a supporter of constitutionally enshrined gun rights and a critic of single payer health care – hardly the kind of far-left candidate voters in the San Francisco Bay Area generally embrace.
But Slotkin, 41, and the party guests shared a goal: wresting control of the House of Representatives from Republicans in November’s congressional elections.
With no Bay Area Democrats facing serious challenges from Republicans, the party host, Brian Monahan, and a group of fellow technology and marketing executives have decided to look farther afield for candidates in swing districts that need financial support.
To focus their efforts, Monahan, technology investor Chris Albinson, executive recruiter Jon Love and a handful of others have formed a loose-knit organization they call Purple Project.
So far, the group has raised at least $210,000 for Democratic candidates in Ohio, Michigan, Pennsylvania and elsewhere. The sum is a pittance compared to the money being spent on key races by fundraising Political Action Committees (PACs), which represent corporations and political interest groups and contribute millions of dollars each election cycle. But in moderate districts with close races like Slotkin’s, such grassroots efforts can make a difference.
Fundraising
Politico: Trump learns to love megadonors
By Maggie Severns
The president – who claimed in 2016 that he was self-funding his campaign so he couldn’t be “controlled” by donors, even though he ultimately raised most of his funds from outsiders – has developed a new ease with the donor class and is spending significant time away from the White House fundraising from them. Trump has attended eight events for the political groups supporting him in 2018, an uptick from the five he attended the previous year, and he has crisscrossed the country to Los Angeles, Dallas and Columbus, Ohio…
The change in attitude means Trump will be hard-pressed to claim he’s self-funding his 2020 campaign…
Most of the funds raised by his campaign and the RNC still come from people who give $200 or less. That’s a point of pride because it shows grass-roots support, but it’s also an expensive way to raise money…
Trump also needs to widen his donor pool for his reelection campaign. Because he launched his campaign so early, bigger donors could max out well before 2020. Two-thirds of the donors contributing $200 or more who have given money to the joint fundraising committee formed by Trump and the RNC for large contributions have already given the maximum amount for the 2020 primaries, according to a POLITICO analysis of disclosure records. And smaller donors could tire of frequent requests for cash.
The States
Courthouse News Service: Media Outlets Urge Tennessee Justices to Overturn Malice Standard
By Daniel Jackson
Courthouse News and other media organizations including The Associated Press, CNN, Gannet, Reporters Committee for Freedom of the Press and Sinclair Broadcast Group filed an amici curiae, or friend-of-the-court, brief in the case.
The coalition argued the Tennessee Supreme Court should overturn its precedent on the state’s fair report privilege, which holds that the privilege can be overcome by establishing express malice.
“Express malice’s role in the fair report privilege is a relic of time and should be overturned because it is inconsistent with the First Amendment, is illogical, and undercuts Tennessee’s public policy in favor of the robust discussion of public affairs,” the amici curiae brief states.
The media groups also noted that the U.S. Supreme Court has rejected express malice as a component of a defamation claim or defense, finding that it would have a chilling effect on speech.
“Permitting a showing of express malice to overcome the fair report privilege treats speakers differently based solely upon their intent and motivation,” the brief states. “If a partisan political pundit publishes truthful information about a political opponent based on government records or proceedings for the purpose of harming the political opponent, that could be sufficient to defeat the fair report privilege. But a reporter with no axe to grind against the politician who publishes the same information could successfully rely upon the fair report privilege. This is not only illogical, it is also unconstitutional.” …
The Tennessee Supreme Court has yet to schedule oral arguments in the case.
Kansas City Star: Inquiry of Greitens’ nonprofit likely to continue, despite House decision on subpoena
By Jason Hancock
A pair of attorneys suing the governor’s office over its use of a self-destructing text message app say they expect the nonprofit, called A New Missouri Inc., to be a big part of their ongoing litigation.
A former assistant attorney general under Democrat Chris Koster is trying to use the state’s consumer protection laws to uncover information about A New Missouri’s finances.
And despite giving up on the subpoena, House Republicans continue to ponder whether there’s a path forward to rekindle the inquiry.
“I think it’s unlikely that this is the end of the road,” said House Budget Chairman Scott Fitzpatrick, R-Shell Knob. “People in Missouri deserve to know who is trying to influence their government.”…
Elad Gross, a St. Louis attorney and former assistant attorney general, has sent a letter to A New Missouri demanding it turn over records about its finances under the state’s nonprofit laws and the Merchandising Practices Act, which prohibits deceptive and unfair business practices.
He contends A New Missouri is obligated to reply. If it doesn’t, or if it refuses to turn over documents, he said he’ll file a lawsuit.
“The records requested are evidence of the actions A New Missouri Inc. has taken and plans on taking to influence Missouri government and policy, the extent of the corporation’s influence, and the methods by which money is used to impact Missourians’ lives without transparency,” Gross says in his letter.
Gross said the state’s attorney general, Josh Hawley, should be taking the lead in investigating A New Missouri.
San Antonio Express-News: State needs to revisit fundraising limits
By Gilbert Garcia
A big part of being a politician in Texas is wrapping your mind around the incomprehensible discrepancies in our campaign finance laws.
For example, Joaquin Castro, as a member of the U.S. House of Representatives, can’t accept an individual contribution of more than $2,700. When Castro served in the Texas House, however, there was no limit to the amount of money a donor could contribute to his campaign.
If you’re running for San Antonio City Council, you can’t receive donations of more than $500 from any individual during a campaign-finance cycle…
This week, a campaign-finance task force submitted some modest, common-sense recommendations for dealing with fundraising in city elections.
If the council approves those recommendations, we’ll see a 50 percent bump in individual donation limits for municipal races: from $500 to $750 for council and from $1,000 to $1,500 for mayoral candidates…
Texas is one of only 11 states that has no limits on individual contributions for legislative and statewide races…
In 1999, Rep. Tom Uher, D-Bay City, filed a bill limiting contributions to $1,000 per election for the Texas House and $2,000 for the Texas Senate. But opponents of Uher’s bill insisted that these caps would restrict free speech and favor wealthy candidates willing to self-fund their campaigns…
San Antonio can handle a little more money in its politics. The state of Texas would benefit from a lot less.
