In the News
Washington Examiner: FEC ‘compromise’ could threaten free speech online
By Eric Peterson
The FEC recently heard testimony on two proposals to require disclaimers on online political advertisements. (My employer, the Institute for Free Speech, was one such group.) These dueling options concern only paid ads that specifically endorse or oppose a candidate for office.
At the hearing, some urged the agency to adopt a flexible approach for both speakers and websites hosting political ads. Others supported requiring disclaimers even when a person shares promoted content organically…
The commissioners seemed to agree on a need for a new rule. But it’s unlikely that any proposal will be agreed to and implemented before the midterms. Yet, despite the lack of a new rule, online political ads are already much more heavily regulated than they were in 2016.
Facebook, Twitter, and Google recently rolled out new policies for online ads and promoted content on political issues or candidates. In addition, three states (Maryland, New York, and Washington) have enacted strict laws for Internet ads…
The steps taken by the big three companies are certainly not immune from criticism. But their leaders are aware that they must strike a balance between competing priorities. They must weigh allowing viewers to have more information about ads while not overburdening those who want to speak. These companies know their platforms best and can tailor solutions to address the needs of various parties while fixing any issues.
With this in mind, the FEC’s goal should be maximizing the ability of Americans to speak about the causes about which they are passionate. This means using the lightest regulatory touch possible, promoting flexibility, and allowing companies to come up with solutions that fit their unique platforms.
Puget Sound Business Journal: Opinion: Google’s political ad ban gives incumbents a big boost
By Scott Blackburn and Dann Mead Smith
Now that Google is banning political ads in Washington, newer candidates will have a harder time getting their campaigns off the ground, Scott Blackburn and Dann Mead Smith argue.
The Intercept: Brett Kavanaugh, Who Has Ruled Against Campaign Finance Regulations, Could Bring an Avalanche of Big Money to Elections
By Lee Fang
Over the years, one of the most aggressive groups dedicated to litigating against campaign finance rules in support of unlimited private donor power has been the Center for Competitive Politics, a nonprofit led by Republican legal scholars. Embracing the latest trend of weaponizing the First Amendment, the organization rebranded last year and is now known as the Institute for Free Speech.
In a statement posted this week, the group extended a strong endorsement to Trump’s pick. In the past, Kavanaugh has appeared alongside Institute for Free Speech leader Brad Smith, moderating a Federalist Society panel on the importance of donor secrecy. But it is Kavanaugh’s long record of campaign deregulation that earned him high praise. Kavanaugh’s opinion in the EMILY’s List decision, the institute gushed in a post on its site, “foreshadowed the Citizens United and SpeechNow.org opinions” – two federal court cases that relied on free speech principles to upend limitations on corporate and private campaign spending.
While Citizens United formally legalized unlimited corporate, union, and individual spending in the election system, the SpeechNow.org decision in its immediate wake allowed the creation of expenditure-only committees, also known as Super PACs. That decision, which Kavanaugh joined in ruling against the Federal Election Commission, held that “the government can have no anti-corruption interest in limiting contributions to independent expenditure-only organizations.”
Kavanaugh’s work, however, was far from done – much to the Institute for Free Speech’s delight. The group proudly lists a number of cases in which Kavanaugh has struck down FEC rules following the EMILY’s List decision.
PR Watch: Democrats Reintroduce DISCLOSE Act to Combat Dark Money “Poison”
By Scott Zimmerman
On June 27, Democrats in both chambers of Congress reintroduced the DISCLOSE Act to provide what the lead Senate sponsor, Sheldon Whitehouse (RI-D), calls “a commonsense solution to restore transparency and accountability in our political system.” …
Opponents of the DISCLOSE Act include the Institute for Free Speech (formerly known as the Center for Competitive Politics), The Heritage Foundation, Americans for Tax Reform, The American Conservative Union, CatholicVote.org, and Citizens Against Government Waste.
These groups argue that the act violates the First Amendment, but a Brennan Center analysis found that “there can be no credible doubt” that a similar 2012 version of the DISCLOSE Act was fully constitutional. As Common Cause points out, “the Supreme Court has repeatedly rejected any arguments that disclosure requirements silence speech” and has continually upheld their constitutionality on the grounds that the public has a right to know who is influencing an election…
The DISCLOSE Act is part of the Democrats’ broader plan, called “A Better Deal for Our Democracy,” aimed at fixing the federal campaign finance system, improving elections, and strengthening ethics laws.
Supreme Court
Reason (Volokh Conspiracy): Judge Kavanaugh and Justice Kennedy’s Free Speech Legacy
By Jonathan H. Adler
Judge Kavanaugh’s nomination to fill Justice Kennedy’s seat makes it very likely this free speech legacy will survive. The Chief Justice has largely supported Kennedy’s speech protective vision, and has written important First Amendment decisions of his own, such as his decision for a unanimous Court protecting abortion clinic protests in McCullen v. Coakley (a position Justice Kennedy had urged in dissent several years earlier). Justice Alito, on the other hand, has written separately or dissented in multiple cases involving various forms of offensive or otherwise objectionable speech and protection.
As Ken White documents on Popehat (and Eugene noted here), Judge Kavanaugh has adopted a very speech protective record on the D.C. Circuit, including in areas that were of particular importance to Justice Kennedy, such as campaign-related speech. He has also articulated a principled and nuanced understanding of how the First Amendment applies in the context of compelled commercial speech. Contrary to Damon Root, I believe Judge Kavanaugh’s opinion in American Meat Institute v. USDA is quite speech protective, and represents a more sophisticated understanding of how to reconcile various strands of the Supreme Court’s commercial speech and compelled speech jurisprudence. There was no question that country-of-origin labeling requirements for meat products would be upheld. The question was how to reconcile this requirement with broader protection against compelled commercial speech, and that’s the question Kavanaugh answered.
Largely due to Justice Kennedy’s leadership, the Roberts Court showed that a conservative court can be a free speech court. The Kavanaugh nomination provides reason to hope that this free speech legacy is secure.
Daily Caller: A First Amendment Lawyer’s Take On Brett Kavanaugh
By Marc Randazza
During the 2016 presidential campaign, Donald Trump famously threatened to “open up the libel laws,” prompting me to write “Is the First Amendment Safe from Donald Trump?”
In that piece, I worried that Trump might nominate Supreme Court justices who were willing to set aside New York Times v. Sullivan – something that Obama appointee Elena Kagan has at least flirted with.
When Trump nominated Neil Gorsuch, he did not pick an anti-speech demagogue. But when Brett Kavanaugh’s name came up, my reaction was initially negative. After doing a deeper dive into his First Amendment bona fides, however, I think that Trump has selected what should prove to be a pretty good, if not quite good, justice on First Amendment issues. I am tentatively willing to give him a B+ going into his confirmation hearings…
Kavanaugh is not a perfect judge on free speech, but no judge is. He does, however, have a healthy respect for the reality that defamation litigation can chill free speech, and thus that obviously weak defamation cases should be dismissed early. He also recognizes that commercial speech enjoys significant protection under the First Amendment and that the public has a right to judicial records.
He may not be my dream Supreme Court nominee, but at least regarding First Amendment issues, President Trump could have done much worse than Brett Kavanaugh.
The Courts
The Intercept: With Last Charges Against J20 Protesters Dropped, Defendants Seek Accountability for Prosecutors
By Sam Adler-Bell
[T]he U.S. Attorney’s Office for the District of Columbia dismissed charges against the 39 remaining J20 Inauguration Day protesters under indictment, bringing a close to a year-and-a-half-long saga marked by police aggression, prosecutorial overreach, and heartening displays of solidarity by the defendants and their supporters…
While the U.S. government may be finished with the J20 prosecutions, however, J20 defendants are not done with the prosecutors. Amid the celebrations, the defendants and advocates are turning to a new task: holding prosecutors accountable for their conduct at trial – and for the unnecessary anxiety and ambient trauma suffered by the defendants.
Several former defendants told The Intercept that they plan to file formal complaints against Assistant U.S. Attorney Jennifer Kerkhoff, the lead prosecutor in the case, with the District of Columbia Office of Bar Counsel. Among those working with advocates on such complaints are the former defendants Isaac Dalto, Elizabeth Lagesse, Dylan Petrohilos, Anthony Felice, Rudy Martinez, and Olivia Alsip. Meanwhile, the American Civil Liberties Union has filed suit against the Metropolitan Police Department for its behavior during the protest…
“The dismissal of these charges is long overdue,” said Scott Michelman, senior staff attorney at the ACLU of D.C., who is litigating the case against the police department. “The prosecutor should have known she was proceeding on a flimsy and constitutionally impermissible theory of guilt by association. Hopefully, the U.S. government will learn an important lesson about the limits of their ability to prosecute protesters in the first place.”
FEC
Courthouse News Service: Watchdog Wants FEC to Investigate Trump 2016 Fundraising
By Brad Kutner
A campaign watchdog group filed a complaint with the Federal Election Commission Wednesday claiming President Donald Trump, his 2016 presidential campaign and the nonprofit Trump Foundation may have committed numerous campaign finance law violations.
In a 17-page complaint filed with the commission Wednesday afternoon, the nonprofit says the “soft money” violations first occurred ahead of the 2016 Iowa caucuses when donors at a campaign function were told “it is imperative that you all get out and caucus for Donald J. Trump and vote for Donald J. Trump.”
The campaign is then alleged to have directed the funds to the Trump Foundation, which used them to back checks “emblazoned with the Trump campaign slogan” to help get Trump elected.
The fundraising event was then live broadcast with Trump announcing donation amounts with some as high as $1 million.
The complaint then points to an email exchange a week later between Trump’s then-campaign manager Corey Lewandowski and Trump Foundation treasurer Allen Weisselberg.
“Is there any way we can make some disbursements [from the proceeds of the fundraiser] this week while in Iowa? Specifically on Saturday,” the emails say, according to the complaint. It also lists other email exchanges…
“As a result, Donald J. Trump, Donald J. Trump for President, Inc., and the Donald J. Trump Foundation violated [laws dealing with receiving, directing, and spending soft money funds] in connection with an election for federal office that were not subject to the limitations, prohibitions, and reporting requirements,” the complaint reads.
Congress
CNN: A new bill aims to send masked Antifa activists to jail for 15 years
By Dakin Andone
Antifa activists could be jailed for up to 15 years for wearing masks under a bill introduced by a US congressman.
If passed, Bill HR 6054 would punish anyone wearing a mask or disguise who “injures, oppresses, threatens, or intimidates” someone else exercising a right guaranteed under the Constitution.
The title of the bill — “Unmasking Antifa Act of 2018” — makes it clear that Antifa activists are its intended target, but the bill’s text never explicitly mentions them.
The bill, which was introduced by Republican Rep. Dan Donovan of New York last month, has drawn widespread condemnation from critics who claim it unfairly targets Antifa activists, while it could embolden the far-right demonstrators Antifa protests against.
Independent Groups
USA Today: Exclusive: Secret money funds more than 40 percent of outside congressional ads
By Fredreka Schouten
Secret donors financed more than four out of every 10 television ads that outside groups broadcast this year to influence November’s high-stakes congressional elections, according to a USA TODAY analysis of Kantar Media data…
In all, nearly 386,000 television spots focused on House and Senate races have aired from Jan. 1 to July 8 this year, ranging from ads by candidates to those funded by outside groups. That total surpasses the 355,464 broadcast TV spots that ran at the same point in the last midterm elections for Congress in 2014 and underscores the battle raging for control of Congress.
Advertising from secret-money groups has jumped, too. A recent analysis by the Wesleyan Media Project and the nonpartisan Center for Responsive Politics found a 26 percent increase in airings by “dark money” groups in federal races since the 2014 midterms.
These organizations generally operate as nonprofit advocacy groups or trade associations that do not have politics as their main purpose. Many of their commercials count as “issue ads” and are not reported to federal election regulators because they do not specifically call for the election or defeat of candidates.
First Amendment
Reason: Stormy Daniels Was Arrested Because of a Terrible Law That Threatens Free Expression
By Marc Randazza
Stormy Daniels, the adult film star who says she took hush money to stay quiet about an alleged 2006 affair with Donald Trump, was arrested for violating an Ohio statute that prohibits a stripper from allowing patrons to touch her if she is nude or semi-nude. The statute used against her is an example of how free expression can fall victim to zealous moralizers-and how almost any law aimed at free expression can be used to punish a political opponent.
These regulations-typically known as “no touch” or “proximity” rules-are common, and throughout their history they have been used to make end-runs around the First Amendment…
Whatever you think of her, there is no question that she is an outspoken political activist. And, it seems that she was targeted, in particular, due to her political activism. Otherwise, why was there a massive sting operation involving multiple vice detectives on that particular night, a tour Daniels had advertised well in advance? It sure wasn’t because the City of Columbus was under siege by a rash of touchy strippers.
And therein lies the deeper evil in any and all laws aimed at free expression. When you give law enforcement a tool that can be used to target someone who has unpopular views, they will use it. So, not only was the expression demonstrated by the nude dancing suppressed, but the tool of suppression may have been used to punish someone for their political activism.
The case against Stormy was immediately dropped-not because enforcement of it would be unconstitutional (although, I think it would be), and not because it was a pretty blatant targeting of someone for her outspoken activism, but because the statute has a strange quirk wherein it does not apply to performers who do not “regularly appear” at the particular strip club.
Online Speech Platforms
Wall Street Journal: Facebook Gives Researchers ‘Full Access’ for Election Studies
By Douglas MacMillan
Facebook Inc. will give a newly formed group of academics “full access” to data on its 2.2 billion users for the purpose of identifying areas of research about the effects of social media on elections and democracy, the group said Wednesday.
Social Science One, a group formed earlier this year with backing from nonprofits including The John S. and James L. Knight Foundation and The Charles Koch Foundation, said it would start accepting proposals from researchers for funding.
Facebook is participating in the effort as part of what company officials have said is a renewed commitment to transparency and stamping out abuses on the platform…
Social Science One plans to make grants to other groups of researchers who request access to select sets of user data from Facebook. The group’s first research project involves combing through one million gigabytes of information about the links users have clicked on over the past year to find patterns about fake news.
Candidates and Campaigns
Brookings: Money is not destiny
By Walter Shapiro
By traditional standards, everything about Ocasio-Cortez made her an implausible candidate to upend Joe Crowley, the fourth highest-ranking House Democrat and a potential successor to Minority Leader Rep. Nancy Pelosi. Ocasio-Cortez was too young (at 28 she will be the youngest woman ever elected to Congress), too much of a party outsider (she worked as an organizer for Bernie Sanders in 2016), and too underfunded (she raised about one quarter as much money as Patel) …
[T]here is another related belief structure that undermines campaign reporting-and that is the widespread conviction that, in politics, money is the measure of all things.
That money-talks credo made sense back in the era when virtually all voters watched expensive campaign commercials on network TV and the only form of small-donor fund-raising was through stamped letters sent through the mail. But that 20th-century playbook has grown increasingly outmoded with every passing election.
These days, candidates can still squander millions on 30-second TV spots-and often win that way. But as outsiders like Ocasio-Cortez have demonstrated, it is also possible to cleverly harness social media to reach voters at a far lower cost. Ocasio-Cortez’s candidacy was powered by vibrant online videos that underscored the themes of her antiestablishment campaign (“We’ve got the people, they’ve got the money”) while still being visually arresting…
Online media and fund-raising means that, even in the era of Citizens United, campaign money does not always guarantee destiny.
Daily Beast: Jill Stein’s Recount Cash Pays for Her Russia Legal Defense
By Charles Davis
Money that Jill Stein raised to recount votes in 2016 swing states is being used by her campaign to pay for legal bills stemming from the investigation of Russian interference in the last presidential election.
In June, The Daily Beast reported that the the U.S. Green Party candidate’s campaign, which raised $7.3 million for recounts in Michigan, Wisconsin and Pennsylvania, had in 2017 stopped disclosing its monthly spending with the Federal Election Commission. Later that month, the Jill Stein for President committee filed a slew of reports that reveal spending on lawyers who are not trying to get inside any voting machines…
“The real prohibition,” according to Stephen Spaulding, chief of strategy at the center-left nonprofit Common Cause, “is on ‘personal use,’ which is when candidates or campaigns use money to fulfill obligations irrespective of the campaign.” Outside of that-an itemized deduction of a beach house, for example-the Stein campaign, like all campaigns, has the practical freedom to use donor cash liberally.
Adav Noti, the FEC’s associate general counsel for policy from 2013 to 2017, echoed that sentiment.
“The short answer is that I believe Stein’s spending is likely compliant with FEC rules,” Noti, now senior director for trial litigation at the Campaign Legal Center, wrote in an email. “The somewhat longer answer is that for many years the FEC has allowed candidates and political parties to get away with pretty much anything in the context of recount accounts, so the restrictions on those accounts, to the extent there can even be said to be restrictions, are a complete mess.”
Harassment
Quillette: I Was the Mob Until the Mob Came for Me
By Barrett Wilson
I drive food delivery for an online app to make rent and support myself and my young family. This is my new life. I once had a well paid job in what might be described as the social justice industry. Then I upset the wrong person, and within a short window of time, I was considered too toxic for my employer’s taste. I was publicly shamed, mobbed, and reduced to a symbol of male privilege. I was cast out of my career and my professional community. Writing anything under my own byline now would invite a renewal of this mobbing-which is why, with my editor’s permission, I am writing this under a pseudonym. He knows who I am…
Upon reading Jon Ronson’s 2015 book, So You’ve Been Publicly Shamed, I recently went back into my Twitter archives to study my own behavior…
Ronson describes a central problem with Twitter shaming: There is a “disconnect between the severity of the crime and the gleeful savagery of the punishment.” For years, I was blind to my own gleeful savagery…
Aggressive online virtue signaling is a fundamentally two-dimensional act. It has no human depth. It’s only when we snap out of it, see the world as it really is, and people as they really are, that we appreciate the destruction and human suffering we caused when we were trapped inside.
The States
Maine Public: Arguments Made In Lawsuit Over Clean Elections Funding
By Mal Leary
Governor Paul LePage is being sued for disallowing the distribution of that money to publicly financed candidates for Governor and the legislature.
In written arguments filed in Superior Court, the plaintiffs argue that they are being harmed by the Governor’s refusal to sign off on a transfer of funds set aside for clean elections candidates by the legislature. The state and the candidates have a contractual relationship, they say, because the candidates have agreed to use only the public funds for their campaigns, having met a required condition of collecting a certain number of $5 contributions.
They also argue that the Ethics Commission has responsibility over the fund and should be allowed to spend the money- despite a drafting error made in the state budget.
The Governor, through his attorney, counters that the request to the court is unprecedented and in violation of state budget laws. The law, they argue, gives the governor “unfettered discretion” in deciding whether to transfer money. They also reject the implicit contract argument citing the fact that the law allows candidates to raise money privately if they do not receive the amount spelled out in statute. Governor LePage also contends that the legislature is still in session and can fix the problem.
Sacramento Bee: More campaign money could flow to California legislative leaders under new bill
By Taryn Luna
In a typical election year, political parties are only required to file six financial disclosures, and 24-hour reports on contributions of $1,000 or more in the three months leading up to an election. AB 84 would require political parties to file monthly reports as well.
Political observers and advocates for campaign finance reform raised immediate concerns about the bill.
“Apparently there is more transparency, but the question is in exchange for what?” said Emelyn Rodriguez, a political and election law attorney and former senior counsel at the California Fair Political Practices Commission. “It looks like the exchange could be raising and spending larger or unlimited amounts from more sources and possibly including lobbyist and lobbying entities.”
The proposal would allow both Republican and Democratic leaders in the Senate and Assembly to open separate and new “legislative caucus committees.” The groups would be considered political party committees, which have more generous financial contribution limits than legislative candidates.
Under rules applied to the 2018 election cycle, candidates for the Senate and Assembly are limited to receiving $4,400 per election from individuals, businesses and campaign finance committees. Lawmakers are also barred from giving each other more than $4,400 per election. Political parties, on the other hand, can give candidates as much money as they want.
These new legislative caucus committees would be treated like political parties, which are capped at accepting $36,500 in contributions from each outside source per calendar year. The limit would only apply to contributions that the caucus committees spend on state candidates. There’s no limit to how much money an outside source could give the committees for other expenses.
Associated Press: University of Kansas removes altered US flag art
By Margaret Stafford
An art display that included an altered U.S. flag will be moved from an outside display on the University of Kansas campus to the school’s art museum after Gov. Jeff Colyer and other Republican political candidates complained that it was disrespectful.
Kansas Chancellor Doug Girod said in a statement that the display, which was part of a national art project called “Pledges of Allegiance,” caused conversations on Wednesday that “generated public safety concerns for our campus community.” He didn’t elaborate on the safety concerns.
“While we want to foster difficult dialogue, we cannot allow that dialogue to put our people or property in harm’s way,” Girod said.
Girod said the display, which had flown on a flag police outside Spooner Hall on the Lawrence campus, will be moved to the university’s Spencer Museum of Art “where we can continue the important conversation it has generated.” The art museum was a partner in the national art project.
The flag was removed from the outside display about 4:30 p.m. Wednesday, about an hour after Colyer’s spokesman said Girod had agreed to take it down.
“It was disrespectful to have something like that on permanent display on campus,” Colyer spokesman Kendall Marr said.
Secretary of State Kris Kobach, who is running against Colyer in the August Republican primary for governor, also had called for the artwork to be taken down from the campus in Lawrence, Kansas, about 40 miles (65 kilometers) west of Kansas City.
The Federalist: Wisconsin’s Marquette Decision Is A Big Win For Free Speech And A Sign Of Trouble
By Margot Cleveland
[T]he Wisconsin Supreme Court vindicated Marquette University professor John McAdams in a high-profile free speech case. The high court ruled the Jesuit university breached its employment contract with McAdams by suspending him for publishing a blog post criticizing a fellow faculty member.
McAdams’ November 9, 2014 post at his Marquette Warrior blog condemned philosophy instructor Cheryl Abbate for announcing to her Theory of Ethics class that “everybody agrees” on “gay rights,” and later telling a student who believed gay marriage deserved classroom discussion that “[i]n this class, homophobic comments, racist comments, will not be tolerated.”
McAdams’ blog post identified Abbate by name and linked to her webpage. Later, after national outlets picked up the story, Abbate began receiving emails and letters, some positive, some negative, and a few vile and threatening. Marquette held McAdams responsible for the third-party threats and suspended him.
