The Courts

Courthouse News: PAC Names

A Montana law that governs how a political action committee can name itself fails under exacting scrutiny, a federal court in the state ruled, regardless of whether it “imposes a content-based limitation on political speech,” or “requires the disclosure of information to which listeners ought to be entitled.”

Free Speech

Reason (Volokh Conspiracy): “For Free Speech, Today’s College Students Are Tomorrow’s Law Students, Lawyers, Politicians, and Judges”

By Josh Blackman

In 2015, I wrote a blog post titled, “For Free Speech, Today’s College Students Are Tomorrow’s Law Students, Lawyers, Politicians, and Judges.”

I pay very close attention to what today’s college students think and do, because today’s college students will becomes tomorrow’s law students, the next decade’s lawyers, and the next generation’s politicians and judges. With respect to the First Amendment, I don’t pretend for a moment that today’s prevailing views of free speech and free exercise will remain constant.

Five years later, I am even less optimistic. The trend on college campuses, and now law school campuses, is towards greater control of unpopular speech. These incidents are not isolated. Courts today only provide protection for speech, because today’s judges came of age in an era where there was a general consensus on free speech. Future judges may not share these values.

Greg Lukianoff and Adam Goldstein of FIRE sound a similar alarm in the WSJ…

We are already seeing fractures on the Roberts Court with respect to free speech. Justice Sotomayor wrote separately in Iancu v. Brunetti, and sent some signals about hate speech, with respect to racial slurs. Justices Kagan and Ginsburg did not join her. (The New York Times confirmed my speculation that RBG is not nearly woke enough).

I suspect a prerequisite to be on a President Biden’s short list will be speaking out against hate speech and other related issues.

Independent Groups

Center for Responsive Politics: Outside spending surpasses half-billion mark as 2020 election nears

By Ian Karbal

This cycle so far, 4 percent of outside money spent came from groups that don’t disclose any donors… Another 39 percent came from groups that only partially disclose funds…

2020 marks the second cycle in a row that liberal outside groups are spending more than conservative groups…

Liberal groups have also spent more non-disclosed money than conservative groups this cycle, accounting for $13.6 million of the $20.8 million spent by non-disclosing groups.

The numbers represent a potential schism with the Democratic platform, which has long called for campaign finance reform, including the elimination or restriction of “dark money.” Democrats’ first bill after retaking a House majority in the 116th Congress proposed several major campaign finance reforms, including requiring politically active nonprofits to disclose their donors. The Democratic bill passed the house along party lines and was not brought forward in the Senate.

Online Speech Platforms

Protocol: In a letter to Pichai, top philanthropists slam Google for placing charity ads on disinfo sites

By Issie Lapowsky

The leaders of more than a dozen of the country’s top philanthropic organizations, including the Rockefeller Foundation and the Ford Foundation, wrote to Google CEO Sundar Pichai on Wednesday night, criticizing his company for placing ads for prominent charities on websites that promote misinformation.

The letter points to new research from a group called the Global Disinformation Index, which found that ads from organizations like the Red Cross and Save the Children have been running alongside conspiracy theories about COVID-19 and calls to jail Dr. Anthony Fauci on far-right websites like TheGatewayPundit.

“Charities, which depend on online advertising for donations to keep the lights on and serve their constituencies, have their ads placed on websites that openly spread hate speech, promote dangerous falsehoods about the spread and prevention of COVID-19, and even encourage violence,” the letter reads. “In too many cases, this means the charities are paying Google, only for Google to damage their reputation and undermine their mission.”

Among the foundations that signed onto the letter are several noted critics of Big Tech, including Open Society Foundations and The Omidyar Network…

In a statement, a Google spokesperson called the Global Disinformation Index’s research “fundamentally flawed in that it does not define what should be considered disinformation.” …

Read the letter below.

The Verge: Facebook tells Elizabeth Warren it has two different standards for climate fact-checking

By Justine Calma

Facebook says its third-party fact-checking partners “do review and rate climate misinformation, and there has never been a prohibition against them doing so,” in a response to criticism from Democratic senators. Facebook will continue its policy of exempting “clear opinion content” from fact-checking, the letter says. The senators are unsatisfied.

In the response, which was shared exclusively with The Verge, the tech behemoth says it does not consider all climate change content “opinion.” But opinion articles about climate change don’t receive fact-checking, a policy Facebook says it began in 2016.

Candidates and Campaigns

Election Law Blog: Is Kanye West Breaking the Law By Coordinating with the Trump Campaign While Running for President? Perhaps

By Rick Hasen

I’ve been getting a lot of questions about whether Kanye West, who is running for President and getting on the ballots in at least a few states, is somehow breaking campaign finance law by doing so given the possibility that he is running for office, at least in part, to help President Trump’s reelection (by potentially siphoning votes away from Biden, though that’s far from clear) and given that he has reportedly been speaking “almost daily” with the President’s son-in-law Jared Kushner. Kushner is one of the key people running Trump’s reelection campaign.

West’s motivations alone in running for office cannot be the basis for a campaign finance violation. Third party candidates run for office for all sorts of reasons, and there’s nothing illegal about running for office while secretly (or openly) hoping your run will help another candidate.

The real issue is one of potential illegal coordination. A person can contribute up to $2,800 to a presidential campaign (and spend unlimited sums independent of that candidate to support that candidate’s run). When someone spends money supporting a candidate but does so in coordination with a candidate for office, that counts as a contribution and is subject to the $2,800 limit. West surely is spending more than $2,800 on his campaign. If he’s doing so in coordination with the Trump campaign to help Trump win, that could count as an excessive contribution to the campaign and be illegal.

But this is a really odd situation, and I cannot think of a case in which a candidate has been found to make an excessive contribution to another candidate by coordinating a spoiler run for office. I’m not sure how authorities would treat such a case, which would get into some difficult questions of motive.

Politico: Biden aides headline DNC fundraisers with lobbyists

By Theodoric Meyer

When Barack Obama won the Democratic presidential nomination in 2008, he barred the Democratic National Committee from accepting contributions from lobbyists in an attempt to purge their influence from his future administration.

Joe Biden doesn’t appear to have the same concerns.

The DNC started accepting checks from lobbyists again in 2016 and has continued to do so as Biden prepares to accept the Democratic nomination next week. And while the Biden campaign has sworn off contributions from lobbyists, it has dispatched top staffers to headline at least four Zoom fundraisers this month benefiting the DNC and hosted by prominentDemocratic lobbyists.

Steve Elmendorf, a well-known lobbyist who hosted a DNC fundraiser last week with other Democratic lobbyists at his firm, said that since the Biden campaign won’t take lobbyists’ checks, he has turned to giving to the DNC and state parties as the way for lobbyists to contribute to the campaign against Trump…

Patrick Burgwinkle, a spokesperson for End Citizens United, a Democratic PAC that advocates for getting big money out of politics, said the group wasn’t overly troubled that Biden hadn’t barred the DNC from raising money from lobbyists.

“We know he will be a president for all Americans instead of the corrupt tool of corporate special interests we have in the White House today,” he said in a statement. “We encourage all Democrats to follow the vice president’s lead in rejecting corporate PAC money and applaud all Democrats who go the extra step to reject lobbyist money, too.”

The Hill: Passing term limits on Congress will lead to campaign finance reform

By Pat Quinn

According to the Center for Responsive Politics, PACs spend around $500 million each cycle on congressional races, with over 90 percent of those dollars flowing to incumbents instead of challengers…

This tsunami of cash makes a mockery of our democracy. It allows congressional incumbents to stand on pedestals and say “don’t like me? Just vote me out!” while hoarding millions to ensure that cannot happen.

It creates barriers to entry which deny millions of smart and capable Americans the opportunity to participate in public service, just because they aren’t wealthy enough to self-fund a campaign. It also reduces voter turnout, because fewer people vote in elections which aren’t competitive.

The Center for Responsive Politics pegs the cost of dethroning a U.S. House incumbent at $2.5 million. How many Americans have that kind of money just sitting around, much less in the era of global pandemics? …

The only proven way to end these fundraising disparities, give challengers a fighting chance and revitalize democracy is by enacting term limits. A six-year House term limit would guarantee open seat elections occur on a regular basis, which would lower the overall cost of getting elected to Congress. By weakening the power of incumbency, challengers will have the ability to compete without needing millions of dollars.

The States

Courthouse News: Montana Ethics

The Montana Supreme Court ruled that the state’s political practices agency was justified in dismissing an ethics complaint that claimed the agency’s deputy made statements to a radio station that constituted election advocacy. The high court found that the statements could reasonably be interpreted as a defense of a state statute.

MLive: New social media policy allows city of Jackson to delete ‘improper’ comments

By McKenna Ross

Officials may delete comments or block users who engage in harmful or “discriminatory” discussion in posts on the city of Jackson’s social media pages.

Jackson officials adopted a social media policy on Monday, Aug. 10, that gives staff the right to delete comments they see as inappropriate or harmful. Repeated violations could result in a user being blocked from the city’s social media platforms, according to the policy…

The policy is intended to avoid exchanges that become hateful or discriminatory, [City Attorney Matt] Hagerty said. 

The policy addresses [“links to unverified and misleading online information,” “a personal attack, insult, racial slur or any other derogatory term,” and “hate or discrimination of any kind,” among other categories.]

The Detroit News: Ex-Chamber attorney challenges mystery funding of campaign to limit Whitmer’s power

By Craig Mauger

An attorney who spent decades advising the Michigan Chamber of Commerce is challenging a nonprofit’s use of money from undisclosed sources to back the campaign to limit Gov. Gretchen Whitmer’s emergency powers.

Bob LaBrant, who helped write some of Michigan’s campaign finance laws and penned a book entitled, “PAC Man: A Memoir,” said the Department of State received his complaint Monday.

In it, he argues the nonprofit Michigan Citizens for Fiscal Responsibility, a group tied to Republican consultants, should have to file its own fundraising disclosures after making a series of contributions to the Unlock Michigan petition drive…

By making multiple contributions to the campaign, totaling $660,200, Michigan Citizens for Fiscal Responsibility became its own ballot proposal committee that should have to file reports with Secretary of State Jocelyn Benson, LaBrant argued.