Daily Media Links 3/9: FEC leaders quarrel on digital advertising as midterms begin, U.S. judge questions whether Trump can block Twitter users, and more…

In the News

The Hill: Did you enjoy ‘Fire and Fury’? Thank Citizens United for it

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.


Washington Post: New federal rules on Facebook and Google ads may not be in place for 2018 midterms

By Michelle Ye Hee Lee and Tony Romm

Proposed Federal Election Commission rules aimed at preventing foreign influence on U.S. elections through better disclosure of online political ad sponsors may not take effect before the 2018 midterms, the panel’s Republican chairwoman said Thursday.

“The commission has been reluctant to change the rules of the game in the middle of the election season, so that would be something we would want to seriously consider,” Chairwoman Caroline Hunter told reporters…

Since November, the commission has been negotiating new disclosure requirements for small, character-limited online political ads as a way to thwart foreign influence on U.S. elections. The rules would apply only to ads paid for by a political committee or candidate or paid “express advocacy” ads that call directly for the election or defeat of a federal candidate…

On Thursday, the commission delayed a scheduled vote to advance the new rules amid ongoing negotiations over dueling Democratic and Republican proposals. Commissioners plan to reconvene Wednesday to unveil their proposal and start a public comment and hearing process.

Center for Responsive Politics: FEC leaders quarrel on digital advertising as midterms begin

By Megan Janetsky

Weintraub, Hunter and other commissioners are trying to push out a bipartisan draft of the proposal to vote on early next week. The commissioners were originally slated to present and vote on a completed draft Thursday but pushed the vote back because they said they were still chipping away at wording and technicalities…

The FEC proposal would only tackle “express advocacy” ads. Hunter said that the commission does not “have the authority to make it broader.”

“This rulemaking is narrow,” Hunter said. “It’s only for ads placed on the internet for a fee and with express advocacy. It’s a very narrow subset of advertisements that we’re talking about. They have to directly advocate for the election or defeat of a federal candidate, which is express advocacy, and they have to be placed on another person’s site for a fee.” …

Weintraub said the proposal was a place to start, but there’s a need for further regulations on digital advertising in politics, especially going into midterms.

“There is a longstanding debate about what the words (express advocacy) actually mean,” Weintraub said. “But there’s no question that the chair and the Republicans on the commission in general over time – particularly since 2008 – have taken a very narrow view of that.”

Supreme Court

Acton Institute: Justice Alito exposes the hypocrisy of liberal double-standards

By Joe Carter

The case of Minnesota Voters Alliance v. Mansky concerns a Minnesota statute that broadly bans all political apparel at the polling place…

In the oral arguments, Justice Alito agreed that the law does seem arbitrary and observed that “so many things have political connotations, and the connotations are in the eye of the beholder.” How could any poll worker, he asked, be even-handed in enforcing the regulation?

Daniel Rogan, who defended the statute for the state before the Court, responded that the political speech being conveyed by the wearer had to be “understood as relating to electoral choices and it has to be well-known.”

Alito said “that makes it worse” since the poll worker applying the “reasonable person” standard has to not only recognize the clothing is political speech but well known political speech.

Rogan answered that what the standard meant was it would have to be something a reasonable person would consider “clearly political” and “something that’s going to be reasonably understood by voters in the polling place.” What followed was a line of questioning by Judge Alito that will go down in the history books..

The exchange has to be seen in full to appreciate the devastating effect, so I’ll reprint each part and note which examples of clothing Rogan considers “political” and what he views as “not political”: …

The Courts

Reuters: U.S. judge questions whether Trump can block Twitter users

By Brendan Pierson

At a hearing in Manhattan federal court, U.S. District Judge Naomi Reice Buchwald asked Michael Baer, a lawyer with the U.S. Department of Justice arguing for Trump, whether letting the president bar users from @realDonaldTrump would violate their First Amendment free speech rights.

She asked whether Twitter was different from a public town hall, where government officials would be unable to pull the plug from a microphone to mute speakers with unwelcome views…

Baer said the appropriate analogy was not a town hall, but rather Trump choosing to walk away from someone at a public event…

Near the close of the hearing, Buchwald suggested the lawsuit could be easily resolved if Trump agreed to mute, rather than block, Twitter users whose tweets he did not want to read. Both sides’ lawyers said they were receptive to the idea.

If Trump muted a user, he would not see that user’s tweets, but the user could still see and respond to the president’s tweets.

The lawsuit was filed against Trump in July by the Knight First Amendment Institute at Columbia University and several Twitter users. Buchwald is considering motions from both sides seeking judgment in their favor…

Katherine Fallow, a lawyer for the plaintiffs, told Buchwald the record “shows unambiguously that the president operates his account in an official capacity.”

Internet Speech Regulation

Variety: Sen. Mark Warner: Silicon Valley Could Do More to Stop Russian Interference in U.S. Elections

By Ted Johnson

Some of the steps taken by Facebook and Twitter are aimed at verifying the identities of those who purchase political ads on their platforms, but Warner says that misses the point, because the amount spent on paid advertising was “peanuts” compared with other means of trying to influence opinion on social media.

“The story is the 80 to 100 hackers who are at the Internet Research Agency in St. Petersburg, Russia, and how many fake accounts they have created,” Warner says…

Warner is co-sponsoring legislation to require greater political ad disclosure, but that has stalled. He suggests that the companies have to come up with a way to verify sources of information, not just sources for the ads…

Warner calls balancing the need to verify sources on the internet with the constitutional guarantee of free speech a “tricky business.” …

Warner says he’s most concerned about companies trying to “hide behind our Bill of Rights” and claiming that kind of behavior on the part of Russian sources is somehow protected.

Independent Groups

Vox: Republicans have dominated state races for years. A new liberal Super PAC wants to change that.

By Ella Nilsen

A liberal Super PAC, Forward Majority, is digging up dirt on hundreds of incumbent Republicans running in local races across the country…

Co-founded by David Cohen, a top Obama 2008 official, Forward Majority entered the political field last year during the Virginia elections, running ad campaigns in 16 state legislative races (Democratic candidates won 12 of those).

“What we found in Virginia is that these state legislators, many who have been in office for years, are some of the most unvetted people in American politics,” Cohen told Vox. “In that sense, oppo has an important role to play in helping voters understand who represents them.”…

As much as the group is hoping opposition research can boost state Democrats’ chances, there’s also an ideological conflict: Many Democrats are running on the message of overturning the US Supreme Court’s Citizens United decision and getting unlimited money out of politics, while Super PACs like Forward Majority are courting donors and funneling money into even the most local races.

But Cohen and Wexler-Waite say that for now, they need to play by the same rules as Republicans if there’s any hope of making campaign finance reform a reality.

“If anyone wants to see campaign finance reform, the first thing we need to do is elect Democratic state legislators,” Cohen said. “We’ve been fighting with both hands tied behind our back for years. We’re going to bring the fight to them.”

The States

Arkansas Times: City Board will decide March 20 on appeal of campaign finance decision

By Max Brantley

City Attorney Tom Carpenter distributed a memo to the Little Rock City Board Tuesday night outlining options for the decision against the city by Judge Tim Fox in its effort to shut down exploratory committee fund-raising for city offices.

A city ordinance prohibits fund-raising before July 1. It also prohibits incumbents from carrying over campaign money from previous elections.

The City Board voted to sue over exploratory committees set up by Frank Scott Jr. and Warwick Sabin, both challenging Mayor Mark Stodola. Fox ruled that a state law protecting exploratory committees allowed their fund-raising. Since then, Russ Racop, a candidate against Ward 6 Director Doris Wright, also has established an exploratory committee.

The city, while opposing exploratory committees, says another state law has invalidated the carryover fund provision that would otherwise apply to Stodola and Wright.

Carpenter’s memo doesn’t make a recommendation to the board, but the city attorney – who works at the pleasure of the mayor and board – says that he thinks Fox was wrong on several points in the decision.

He sets out the time involved in an appeal, which he also observes would be moot if the Board amended or repealed the ordinance. It could also simply let Fox’s decision stand, he notes.

Portland Mercury: With Dan Saltzman Absent, City Council Passes a Campaign Finance Tweak He Stopped Yesterday

By Dick VanderHart

Commissioner Dan Saltzman refused to approve a new arrangement that would put the city’s public campaign finance system directly in the hands of Commissioner Amanda Fritz.

So now Fritz and the rest of council have gone around him.

In an extremely rare maneuver, Fritz at this afternoon’s city council meeting called up an ordinance that yesterday failed to pass on an “emergency” basis because it lacked unanimous council support. The reason: Saltzman, the lone opponent of the proposal, is out of town. In his absence, Fritz got the 4-0 vote she needed to pass the matter as an emergency, meaning it goes into effect right away.

“We need to move very quickly,” Fritz said this afternoon. “I realize this is very unusual to be doing this procedural change.”

The arrangement council enshrined this afternoon comes with questions. The ordinance dramatically alters oversight of Open and Accountable Elections, the public campaign finance system proposed by Fritz and approved by council in late 2016, which is supposed to begin funding campaigns in 2020…

The ordinance approved by council this afternoon empowers Mayor Ted Wheeler to give control of Open and Accountable Elections to any commissioner (or the mayor), so long as they have more than two years left in their term … With passage of the ordinance today, Wheeler immediately handed the program to Fritz.

The Center for Competitive Politics is now the Institute for Free Speech.