Preserving online speech freedom should be a priority for regulators Alexandria, VA – Institute for Free Speech President David Keating released the following statement today regarding the Federal Election Commission’s (FEC) Notice of Proposed Rulemaking concerning disclaimer mandates for online advertisements: “The FEC’s Notice of Proposed Rulemaking is a good start, and we commend the commissioners for […]
By Joe Albanese
The Austin City Council is the latest battleground over taxpayer financing of political campaigns. It tasked the Charter Review Commission with devising such a system for the city, on the theory that it will reduce funding gaps among candidates and improve voter turnout. In fact, not only would a tax financing system likely fail in these goals, but it would also undermine Austin residents’ freedom of speech and association.
The commission opted to endorse a system whereby residents would receive government vouchers to give to candidates, emulating a similar program in Seattle…
Although residents can choose which eligible candidates get their vouchers, those paying into the system do not have the choice to withhold their money. Having the right to support a candidate ought to imply a right to not support that candidate…
Although backers insist on following Seattle’s example, that city has not seen much success.
After just one year, the program has already seen its first fraud investigation. Inequality has only continued – a mere fraction of candidates qualified for vouchers in the first year, and they held a large fundraising edge over their opponents. It seems the biggest winners under the program would have done just fine raising money themselves.
And far from bringing more people into politics, the first year of Seattle’s voucher program saw below-average county voter turnout.
Federal Election Commission member Ellen Weintraub and Adav Noti, a lead attorney in the Supreme Court’s Citizens United case, took part of a forum on Russian interference in U.S. elections. The two were joined by a group of attorneys, authors, and academics. Topics included the Trump presidential campaign, campaign finance ballot measures around the country, and the 2018 midterm elections.
This program was part of the the inaugural Unrig the System Summit at Tulane University in New Orleans. The non-profit organization known as Represent.us hosted the event.
[The panel includes Institute for Free Speech Senior Fellow Eric Wang.]
By Anne Blythe and Brian Murphy
The allegations from both cases raise questions about campaign finance law, and whether payments made by wealthy supporters to hide a candidate’s extramarital affair should be considered campaign contributions that not only went unreported but exceeded the maximum dollar amount allowed…
Brad Smith, the chairman and founder of the Institute For Free Speech who served on the Federal Elections Commission, said at the time of the Edwards trial that he did not think the payments made by the wealthy donors should be viewed as campaign funds, and had similar views about the Trump case from what details he knew.
“What we said then,” Smith said referring to the Edwards case, “was that generally speaking, not everything that benefits a a candidate is a campaign expense.”
Smith, a Republican, said one has to weigh whether the expense would have been made outside the realm of the campaign such as a “$400 haircut.”
“One of the things with the Trump campaign is I think you have to say that certainly it might have been done anyway,” Smith said. “I think it really can’t be viewed as a campaign finance.”
By David Keating and Thomas Wheatley
Wolff’s book is indisputably speech funded by a corporation and is scathingly critical of President Trump. Had the Citizens United turned out differently, the Federal Election Commission (FEC), with just an administrative sleight of hand, could have constitutionally placed Wolff’s publisher in the agency’s crosshairs.
It does not matter the book was released in January, far removed from any primary or general election. Express advocacy paid for by a corporation’s general treasury funds was banned regardless of proximity to an election. Although the book makes no explicit calls for voters to support or oppose Trump, it could easily be argued that it is the “functional equivalent” of express advocacy because it “is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” And Trump has already declared his candidacy for 2020.
What’s more, when deciding whether a communication constituted express advocacy, the FEC, prior to Citizens United, looked for whether the communication took a position on an “office holder’s character, qualifications, or fitness for office.” …
Although Citizens United concerned an electioneering communication, the broader ban on corporations using general treasury funds for express advocacy struck down by the Court applied to all forms of media – including books.
By Edith Roberts
In an op-ed for the Orlando Sentinel, David Keating and Thomas Wheatley weigh in on Lozman v. City of Riviera Beach, Florida, in which the justices will decide whether the existence of probable cause defeats a retaliatory-arrest claim, arguing that “the court should consider the presence of probable cause holistically without automatically extinguishing a First Amendment claim.”
By David Keating and Thomas Wheatley
When former U.S. Marine Corps officer Fane Lozman approached the lectern during a Riviera Beach City Council meeting to air his grievances as a citizen, he didn’t suspect he’d be hauled out in handcuffs.
Yet only a few seconds into his speech, that’s exactly what happened. His arrest triggered a First Amendment retaliation lawsuit now before the U.S. Supreme Court, which heard arguments last week. The case has important implications for citizen activists and journalists alike…
Now the court will decide whether probable cause for an arrest can stop such a retaliation claim.
For the sake of the freedoms of speech and press, the answer must be no. Instead, the court should consider the presence of probable cause holistically without automatically extinguishing a First Amendment claim.
Granting probable cause such weight gives government a powerful tool to punish critics. With so many laws on the books, it is often easy to find probable cause for an arrest…
Of course, none of this is to say that probable cause should never defeat a First Amendment retaliation claim. But it shouldn’t disqualify it. Let’s hope the court recognizes this and sides with Lozman.
By Bradley A. Smith
For many years now, the IRS has required nonprofits to report their major donors to the IRS on what is known as Form 990, Schedule B. Recognizing the sensitive nature of this information, however, charitable organizations are not required to make this information public, and the IRS is prohibited by law from making it public.
Unfortunately, the IRS is not always successful at keeping the information secret…
Moreover, this information can be used improperly within the IRS. Certainly, most IRS employees are fair and responsible, but it only takes a handful of bad apples to use this information to harass citizens for the views and causes supported by their charitable giving.
The form is also an administrative burden for charities. The Institute for Free Speech estimates that Schedule B repeal would save charities and other nonprofits an estimated $63 million in costs spent complying with the dictates of the form…
Rep. Peter Roskam, R-Ill., has taken a first step to ending abuses of privacy by introducing H.R. 4916, the Preventing IRS Abuse and Protecting Free Speech Act, which would reverse current law and prohibit the IRS from collecting this information. This legislation passed the House in the last Congress, but was not taken up in the Senate. Its best chance to pass this year will be through its inclusion in the omnibus budget bill currently being negotiated in both chambers.
Center for Individual Freedom: Russian Indictments and Americans’ First Amendment Political Speech Rights (In the News)
Bradley A. Smith, Chairman and Founder of the Institute for Free Speech, discusses the Mueller indictments, campaign finance laws, and proposals to respond to foreign interference with broad-based restrictions on American online issue speech.
Bloomberg BNA (via Election Law Blog): Edwards Case Looms Over Payments to Women Alleging Trump Links (In the News)
By Ken Doyle
Bradley Smith, a former Republican commissioner on the FEC who now heads the nonprofit Institute for Free Speech, said in a phone interview that it would be “very difficult” to show the payments to women linked to Trump were related to the presidential campaign. Smith noted that Trump had a long history before his candidacy trying to shape his news coverage as a public figure.
Smith said it was likely the FEC would dismiss the Common Cause complaints based on responses from Cohen and others.
Adav Noti, a former FEC staff attorney now with the nonprofit Campaign Legal Center, said the timing of payments to Clifford and McDougal raised serious legal questions. He added, however, that “we don’t know nearly enough facts” to determine whether the campaign finance law was violated.
Whether the FEC will investigate and determine those facts is doubtful, Noti said.