In the News
National Review: We Need Donor-Privacy Legislation Now
By Jeremy Carl
Janice Rogers Brown, a former judge on the D.C. court of appeals, cogently observed that the arc of campaign-finance laws has been ambivalent, bending toward speech and disclosure. But she recognized the inherent contradiction in this, noting that “these two values exist in unmistakable tension” with each other.
And the value of anonymous political expression is critical, something realized by our Founders, who regularly wrote under pseudonyms, as did later politicians, including Abraham Lincoln. Throughout American history, citizens, especially those supporting politically unpopular causes, have used anonymity to shield themselves. Even in granting legitimacy to campaign-finance disclosures, the Supreme Court has recognized the importance that the right of privacy has in extending free speech. Of course, that right can be balanced by other rights and societal considerations. Reasonable people can disagree on where the draw the line ought to be drawn, but arguably it should be drawn only at major fundraisers bundling donations worth $25,000, or $100,000 – a far cry from the current $200 limit…
In an excellent critique of disclosure laws in City Journal, Bradley Smith, a former chairman of the Federal Election Commission and arguably the leading conservative scholar of campaign finance, argues that the fetishizing of disclosure “has added to a political climate in which candidates are judged by their funders rather than their ideas.” Furthermore, as Smith contends, the notion that these smaller donors “need to be publicly disclosed to prevent corruption is a proposition that can scarcely be stated with a straight face.” …
As Representative Castro’s shameful actions show, our current disclosure laws threaten public safety, allow political shakedowns, and punish those who are not in sync with the priorities of the political establishment. The sooner that laws are passed to protect donor privacy at both the state and the federal level, the stronger our political system will be.
NPR: SoulCycle Owner, Trump Donors Face Public Shaming
By Don Gonyea
Two high-profile episodes this week could signal a year in which the glare of the campaign usually reserved for candidates pivots to put those who make personal donations to political campaigns in the spotlight…
Kellyanne Conway, the president’s adviser, told Fox News that Castro’s actions set “a terrible precedent.” She said it doesn’t matter that such information is already part of the public record, describing Castro’s tweet as “some kind of a target list” designed to make life “miserable or worse for law-abiding citizens expressing their First Amendment right.”
Joaquin Castro says he wants Trump donors to think twice. He insists he’s not calling for boycotts, but others are…
David Keating, president of the Institute for Free Speech, says he was disturbed by what the Texas congressman tweeted, adding that “the reason for this [donor] database is to make sure the contributions coming in are on the up and up.” He also said we should never “encourage politicians or anyone else to use this to target people or incite people or take retribution against these individuals or against any business they work at.”
Keating and other conservatives say this week’s episodes only highlight how current campaign disclosure laws miss the mark.
Washington Examiner: Shaming of Trump donors shows danger of liberal campaign finance rules
By John W. York
In an era of partisan boycotts, flash mobs, and mounting antifa violence, Castro’s shaming of people for making legal campaign contributions exposes the targets of his ire to both financial and physical harm…
Castro’s “tweet to arms” reveals the danger of liberal campaign finance proposals that would reveal personal information on anyone who dared donate to any candidate or politically active group. Currently, political campaigns, party committees, and PACs must reveal the name, city and state of residency, occupation, and employer of anyone who contributes $200 or more. Other organizations are not…
Trade associations like the Chamber of Commerce, “social welfare groups” like the Sierra Club, and nonprofit membership organizations like the National Rifle Association that engage in many activities unrelated to political campaigns are not obligated to identify their donors…
The DISCLOSE Act would change that. It would require any of these types of membership groups to release the personal information of anyone who gave them more than $1,000 to the nonprofit, regardless of the purpose behind that gift. While the espoused intent of this bill is to shed light on “dark money” – that is, political spending that cannot be traced to a specific individual – the Castro incident demonstrates the danger of publicly disclosing the personal information of donors…
Compared to the chilling effect additional disclosure laws would have on both free speech and the freedom of people to associate with, and support, organizations like Planned Parenthood, the NAACP, the Sierra Club, or the NRA, the potential benefits are slight. “Dark money” represented less than 3% of total campaign contributions in 2018 and is a shrinking share of overall spending.
National Review: Regulating Speech Won’t Fix Our Politics
By Joe Lonsdale
Rather than succumb to popular hysteria about money in politics, we ought to take a more philosophically rigorous view of the issue. Our Founding Fathers, while noting the potential danger of special interests, still believed that “factions” must play a role in democratic debate. James Madison and others understood that any attempt to abolish factionalism would limit freedom. In Federalist No. 10, Madison wrote that “liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air . . . because it imparts to fire its destructive agency.”
The same must be said of speech.
Instead of eliminating the influences of special interests by restricting the liberties afforded to all citizens, in a large and diverse republic, Madison suggested, factions of citizens would compete to advance their ideological agendas…
As law professor Bradley Smith pointed out in 2010 in an essay in National Affairs, politicians are not obstinate: “Votes – not dollars – are what ultimately get put into ballot boxes. And it would make little sense to anger one’s constituents for a contribution that can only be used to try to win those constituents back.”
Madison believed that we should trust the ability of citizens to make political decisions to elect “fit characters” or to vote out unfit representatives. No amount of money can overcome the voter’s ultimate power. Fortunately, the Supreme Court in Citizens United maintained faith in the American citizen, declaring that “the right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.”
The Courts
Courthouse News Service: Gun Rights Group’s Challenge of Montana Electioneering Mandate Rejected
By Karina Brown
As a tax-exempt nonprofit, [National Association for Gun Rights Inc.] can’t directly advocate for or against any political candidate. Instead, it educates voters on the positions of government officials related to the Second Amendment. That’s just what the group is planning for 2020, when it says it will send Montana voters information on “which public officials have supported the rights of citizens to keep and bear arms and engage in lawful self-defense, as well as those who have not done so.”
Montana called that electioneering and told the group to register as a political committee, based on a 2015 law requiring groups that spend more than $250 on “electioneering communications” …
The group sued Montana officials in 2016, claiming the law was too broad and violated the First Amendment. But U.S. District Judge Dana L. Christensen rejected those arguments…
The group appealed, and on Monday a three-judge panel for the Ninth Circuit largely sided with Montana. In a 37-page opinion by U.S. Circuit Judge Marsha Berzon, the panel found the First Amendment does not prohibit states from requiring disclosure of political speech such as the group’s fliers, which could influence voters…
But the panel reversed the lower court’s finding that Montana could require political committees to appoint a treasurer who is registered to vote in the state…
David Warrington, the attorney who argued National Association for Gun Rights’ case before the Ninth Circuit, called that narrow win “a strong proposition that states can’t impose restrictions on speakers simply because they are speaking during the election season.” …
“On the part of the decision that upheld Montana law, we’re still in the process of analyzing our options,” Warrington said. “Whether to seek an en banc review or appeal to the Supreme Court.”
Congress
By Jacob Sullum
“To advance democratic self-government and political equality, and to protect the integrity of government and the electoral process,” Section 1 says, “Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.” By allowing restrictions on money spent by anyone to influence elections, that provision would nullify a principle set forth in the landmark 1976 case Buckley v. Valeo…
Section 2 of the amendment adds that legislators “may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.” In other words, a complete ban on election-related speech by citizens organized as corporations, including a wide range of nonprofit interest groups across the political spectrum, would be presumptively reasonable, regardless of timing. By contrast, the ban overturned by Citizens United applied only to messages that mentioned a candidate for federal office within 30 days of a primary or 60 days of a general election….
The third section of the amendment contradicts the other two sections by stating that “nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.” …
As scholars such as UCLA law professor Eugene Volokh have shown, however, the “freedom of the press” protected by the First Amendment does not refer to a particular profession. The clause was meant to protect anyone who uses a technology of mass communication-the printing press at the time and, by extension, TV, radio, and the internet today. On its face, then, Section 3 of the Democracy for All Amendment invalidates the rest of it.
Wall Street Journal: Democrats Do Intimidation
By Kimberley A. Strassel
Energy and Commerce Committee Chairman Frank Pallone Jr. a month ago sent a letter to five separate entities…
Mr. Pallone explained he was investigating the administration’s move to reform Barack Obama ‘s auto-efficiency standards. A change to these rules was a given on day one of the Trump presidency. Yet Mr. Pallone insists they were the result of a “covert lobbying and social media campaign.” His evidence was a December 2018 New York Times investigation, which sought to describe a straightforward policy push as a sinister, secret plot…
Mr. Pallone then got down to his unconstitutional demands. He insisted that these private entities turn over “all documents exchanged and communications” about the rule with any employee, current or former, of key federal departments and the office of the president. The groups were also ordered to hand over documents and communications they’d exchanged with each other. Mr. Pallone further demanded groups like AFP detail all of their efforts, “whether directly or indirectly,” in “lobbying” or “social media efforts” related to the reform…
Mark Holden, a member of AFP’s board, pointed out to Mr. Pallone that the sum total of the Times’s crack evidence of AFP’s involvement in a plot was that one of AFP’s 3.2 million members “spoke in favor” of the reform at a public meeting in Michigan. Mr. Holden, in a spirit of helpfulness, revealed that AFP had also submitted a comment in favor of the rulemaking-one of 600,000. The rest of the letter served as a tutorial for Mr. Pallone on the First Amendment and its longstanding protection of free association and speech. AFP is not turning over documents.
Nor is ALEC. Its own letter, penned by Washington attorney Cleta Mitchell, pointed Mr. Pallone to a very public record showing ALEC’s support for a model policy to reform fuel-efficiency standards.
Internet Speech
Medium: Four questions about online hate speech
By David Kaye
The New York Times devoted the front page of its business section…to this screaming headline and three articles that followed it: [“Why Hate Speech on the Internet Is a Never-Ending Problem” (see correction at bottom)]
The three articles involve some careful and important reporting. Two of them capture an under-reported feature of online content issues, namely that internet companies other than social media firms have a role in regulating what we might call “dangerous speech” found on platforms like 8chan. A company like Cloudflare, which provides network security for millions of sites, can operate as a gateway for internet access, just as internet service providers, telecommunications companies, website hosting services, mobile device manufacturers, App stores, and many others do (see my report to the UN in 2017). Matthew Prince, the CEO of Cloudflare, has suggested that content moderation is a responsibility he does not want to have – he does not want Cloudflare to become an internet censor. (See this great piece…from Evelyn Douek discussing Prince’s position and the issues at stake.) …
But “hate speech” does not persist online because of some magical Section 230 shield. For the most concise overview, I strongly encourage checking out Daphne Keller’s piece in The Washington Post at the end of July. Kurt Opsahl of EFF captures one problem with the headline succinctly in this tweet…
[R]egulating online hate speech requires us to think through at least four questions. I’ll note them here and hold off on the answers for now in an effort simply to help orient the conversation in what I hope would be a more realistic and constructive agenda than that headline suggests.
Cato: WSJ, WaPo, NYT Spread False Internet Law Claims
By Matthew Feeney
Section 230 of the Communications Decency Act is much debated and under bipartisan attack. The legislation, which includes the “26 words that created the Internet,” is attacked from the right by those who complain about alleged “Big Tech” anti-conservative bias and from the left by those bemoaning the spread of extremist content. Accordingly, Section 230 has been the topic of much discussion in newspaper pages. Unfortunately, the Fourth Estate has recently allowed misinformation about Section 230 to spread, which is especially regrettable given that falsehoods about Section 230 are already ubiquitous.
The most recent example of such misinformation is an op-ed in The Wall Street Journal by the conservative commentator and Prager University founder Dennis Prager. The first falsehood appears in the subhed: “Big tech companies enjoy legal immunity premised on the assumption they’ll respect free speech.” …
The New York Times published a Section 230-heavy article which featured on the front page of its business section. The headline read: “Why Hate Speech on the Internet Is a Never-Ending Problem.” To its credit, The New York Times has since issued a correction and fixed the headline. As I discussed above, Section 230 doesn’t protect hate speech per se. You can thank the First Amendment for that. Rather, it allows companies to remove speech that violates their content moderation rules without becoming liable for everything posted by users…
Last month, The Washington Post published an oped by Charlie Kirk, founder of Turning Point USA. The Kirk oped repeats the same “publisher” v. “platform” error often seen in Section 230 debates.
Wall Street Journal: Mitch McConnell’s Twitter Jailbreak
By Editorial Board
Twitter says that it doesn’t discriminate against conservatives-really and truly. But then it keeps making decisions that fuel populist suspicion. Case in point: Last week Twitter locked GOP Senator Mitch McConnell ‘s account for spreading menacing rhetoric-specifically, a video of a protester screaming outside his Louisville, Ky., home…
Mr. McConnell’s campaign Twitter page posted 30 seconds of the video, intending to spotlight the extreme nature of the attacks.
Twitter then froze Mr. McConnell’s account. The menacing video, it said, “violated our violent threats policy, specifically threats involving physical safety.” This is bizarre in that it implies that the Senate Majority Leader was the one threatening violence.
Twitter at first denied the McConnell campaign’s appeal, saying the video would have to be deleted for the account to be unlocked. GOP groups protested, pledging to quit advertising on the site.
Twitter finally paroled him on Friday: “After multiple appeals from affected users and Leader McConnell’s team confirming their intent to highlight the threats for public discussion, we have reviewed this case more closely.” The change of heart is welcome, but shouldn’t Twitter have examined the matter “closely” in the first place?
Some conservatives want to regulate social media for content. Senator Josh Hawley ‘s plan is that sites like Twitter should be liable for everything their users say unless they can prove they are “neutral” platforms. That idea is a mistake, a Fairness Doctrine for the internet. But if the tech giants want to avoid that future, their content moderation can’t keep singling out conservatives for censorship.
Political Parties
The Atlantic: The DNC Debate Rules Are a Game
By Edward-Isaac Dovere
Qualifying for the Democratic debates has become a game, and Tom Steyer has more than enough money to play it. In the span of five weeks, the San Francisco-based billionaire activist has channeled millions of dollars of his own money into trying to win a spot on the stage in September…
One major investment: His campaign bought 8 million voter files compiled by the group Need to Impeach and is renting data from NexGen America, two advocacy organizations that Steyer himself founded and still funds. The move gives his team access to information on scores of people. But his ability to get this close to qualifying so quickly is also a reflection of the system set up this cycle by the Democratic National Committee. By telling candidates they need a minimum of 130,000 donors to compete at the next debates, the party has compelled campaigns to devote significant energy to persuading voters to donate minuscule amounts of money so the candidates can make the stage-money that’s not necessarily representative of voters’ genuine support…
Steyer’s campaign is announcing today that he’s cleared the donor threshold. And he’s nearly there on the DNC’s second requirement: Steyer has hit at least 2 percent in three recent polls evaluating voter support. If he hits 2 percent in one more-which is likely, given his performance in public polling overall-he’ll be guaranteed a spot in the next presidential debates in Houston…
The entire first month of Steyer’s campaign was geared toward getting into the debates. Using the data from his two groups, his campaign has produced 16,000 variations of digital ads, aides told me, including those that are adjusted automatically by software to more effectively target viewers by their interests. The aides acknowledged that they built the early phase of the campaign specifically to fit the DNC’s requirements, postponing other voter-engagement efforts until the fall.
The Media
CNN: Washington Post editor responds to Bernie Sanders: Your ‘conspiracy theory’ is wrong
By Oliver Darcy, Annie Grayer and Greg Krieg
“I talk about (Amazon’s taxes) all of the time,” Sanders said in Wolfeboro, New Hampshire. “And then I wonder why The Washington Post, which is owned by Jeff Bezos, who owns Amazon, doesn’t write particularly good articles about me. I don’t know why.”
In a statement provided to CNN on Monday evening, [Marty] Baron responded, saying, “Sen. Sanders is a member of a large club of politicians — of every ideology — who complain about their coverage.”
“Contrary to the conspiracy theory the senator seems to favor, Jeff Bezos allows our newsroom to operate with full independence, as our reporters and editors can attest,” Baron added…
Sanders connected Bezos’ ownership of the Post to its coverage. But on Monday night in North Conway, New Hampshire, he also singled out The New York Times.
“We have pointed out over and over again that Amazon made $10 billion in profits last year. You know how much they paid in taxes? You got it, zero! Any wonder why The Washington Post is not one of my great supporters, I wonder why? New York Times not much better,” Sanders said…
At an event in Orient, Iowa, on Sunday, Sanders made distinctions between his criticisms of the media and Trump’s outright attacks.
“We’ve got to be careful. We have a authoritarian-type President right now who does not believe in our Constitution, who is trying to intimidate the media and so forth, and that’s not what we do,” Sanders said…
“But I think what we have to be concerned about in terms of media is that you have a small number of very, very large corporate interests who control a lot of what the people in this country see, hear and read. They have their agenda. That’s what they want,” Sanders added…
On a call with reporters Monday morning, senior adviser Jeff Weaver suggested the media was not accurately reporting on Sanders’ standing with primary voters.
