Daily Media Links 9/11: Missouri Appeals Court Upholds Ban on PAC Rules, Campaigns, Parties Can Accept Free Service From Microsoft, FEC Says, and more…

New from the Institute for Free Speech

Amicus Curiae Brief Of The Institute For Free Speech In Support Of Petitioners in Timbs v. Indiana (U.S. Supreme Court)

The Bill of Rights protects discrete, enumerated liberties. But it also protects “our scheme of ordered liberty” by serving the Constitution’s larger, interlocking machinery. McDonald v. City of Chicago, 561 U.S. 742, 764 (2010) (emphasis removed). Accordingly, when deciding whether to incorporate one of its protections against the States, this Court should consider the effect on other enumerated rights.

Here, incorporating the Excessive Fines Clause will bolster the rights protected by the First Amendment. That is because state regulators have threatened outrageous fines for even minor, technical violations of campaign finance provisions. As a result, the threat of excessive fines itself works to chill protected expression.

This is troubling because courts cannot directly address the fines themselves. Instead, until this Court incorporates the Excessive Fines Clause, they must take a detour through the hopelessly complex law governing campaign finance, choosing among and applying the mosaic of standards articulated by this Court in the First Amendment context. That approach is inefficient and fails to provide the protections clearly anticipated by the Eighth Amendment’s text.

Free Speech

Wall Street Journal: ‘The Coddling of the American Mind’ Review: Fragile, Fearful, Feeling Aggrieved

By Laura Vanderkam

For most of the past few decades, college students have been proponents of free speech, despite occasional bouts of protest and indignation. But something changed about five years ago. Students began demanding “trigger warnings” for certain material in their classes. Some demanded that anything “triggering” be removed entirely from the curriculum so that no one might feel traumatized. They lobbied for “safe spaces” where they could avoid being exposed to uncomfortable ideas. Members of what psychologist Jean Twenge calls “iGen” (born after 1995) moved from challenging controversial speakers to hounding even very liberal members of their own communities who wrote or said something that was deemed offensive.

“What is new today is the premise that students are fragile,” write Greg Lukianoff and Jonathan Haidt in “The Coddling of the American Mind.” “Even those who are not fragile themselves often believe that others are in danger and therefore need protection.” The debate narrows as everyone censors others as well as themselves.

Mr. Lukianoff (president of the Foundation for Individual Rights in Education) and Mr. Haidt (a professor at NYU’s Stern School of Business) argue that this new vulnerability is a result of the ways in which the first social-media generation has been raised. Well-meaning parents and educators have inculcated in young people three bad ideas, what the authors call “the Great Untruths”: that what doesn’t kill you makes you weaker; that you should always trust your feelings; and that life is a battle between good and evil people. Students can’t see nuance, and they don’t feel tough enough to handle debate.

The Courts

Courthouse News Service: Missouri Appeals Court Upholds Ban on PAC Rules

By Glynis Farrell Bergner

A federal appeals court in Missouri upheld a ruling that banning political action committees from receiving donations from other political action committees violates free speech

“The district court concluded that the prohibition unconstitutionally infringed on a political action committee’s First Amendment rights to freedom of speech and association. We agree and therefore affirm,” Judge Steven Colloton wrote in a 10-page ruling.

The judge ruled the ethics commission failed to show PAC-to-PAC contributions would breed corruption, because the groups are not controlled by a particular candidate and operate independently from any party running for political office.

It also argued the ban would prevent corruption “by preventing circumvention of contribution limits” by independent donors attempting to evade the $2,600 contribution limit.

“The transfer ban, however, does little, if anything, to further the objective of preventing corruption or the appearance of corruption,” Colloton wrote.

“It does not point to any evidence of any occasions before the amendment where PAC-to-PAC transfers led to the circumvention of contribution limits,” he added. “Nor does the Commission identify any donors who have exceeded contribution limits by using transfers among a network of coordinated PACs.” …

“The district court properly enjoined enforcement of the transfer ban in its entirety. The amendment violates the First Amendment as applied to PACs that donate only to candidates and to PACS that both donate to candidates and make independent expenditures,” Colloton concluded.

FEC

Roll Call: Campaigns, Parties Can Accept Free Service From Microsoft, FEC Says

By Stephanie Akin

Federal campaigns and national party committees can accept free security services from the Microsoft Corporation after a recent Federal Election Commission ruling.

But one watchdog group called it an unprecedented opening for corporations looking to influence lawmakers and skirt campaign finance laws.

The ruling, approved by a 4-0 vote at a commission hearing Thursday, noted the potentially “severe and long-term” damage to the Microsoft brand if a campaign were breached by hackers, especially considering the, “public scrutiny regarding foreign attempts to influence U.S. elections.”

Federal election law prohibits companies from providing free services to lawmakers. But the FEC would make an exception in this case, it ruled, because Microsoft would be acting out of business interests and not trying to curry favor. The decision also noted that Microsoft has promised to offer the services “on a non-partisan basis.”

Opponents of the change said the exception was too broad.

“If that is the standard, then pretty much any corporation could give anything to a candidate, because they always do it for business reasons,” said Adav Noti, an attorney for the nonprofit Campaign Legal Center and a former associate general counsel at the Federal Election Commission. “It’s a loophole you could drive a truck through.” …

Under its accepted proposal, Microsoft would provide a free package of “enhanced account security protections,” to “election-sensitive,” customers, including federal, state and local candidate committees, national and state political party committees, campaign technology vendors, think tanks and “democracy advocacy nonprofits,” according to an outline the company provided to the FEC.

Tampa Bay Times: Federal complaint alleges Rick Scott illegally benefited from anti-Bill Nelson Super PAC ads

By Steve Contorno

A left-leaning organization pushing campaign finance reform is alleging in a federal complaint that Gov. Rick Scott illegally benefited from television advertisements aired by a super PAC closely aligned with his campaign.

The complaint from End Citizens United, to be filed Monday with the Federal Elections Commission, says that ads aired by New Republican PAC in May and June violated campaign finance laws because they helped Scott in his Senate race. Though the ads didn’t mention the Republican, they attacked Sen. Bill Nelson, his Democratic opponent.

The timing of the ads were suspect, End Citizens United says, because they came just months after Scott stepped down as chairman of New Republican PAC. The complaint says that the timeline “demonstrates that Rick Scott began developing political and communications strategy for a potential campaign for Senate while serving as a chair of a super PAC that immediately after his announcement began running advertisements to aid his campaign.” …

End Citizens United said the FEC “must immediately investigate to confirm whether Respondents did in fact violate the Federal Election Campaign Act by financing coordinated communications that resulted in prohibited in-kind contributions to Rick Scott for U.S. Senate.”

Internet Speech Regulation

Reason: Beware the Press’s Self-Serving Calls to Regulate Social Media

By Andrea O’Sullivan

Consider the recent campaign by media outfits in the United Kingdom to crack down on social media platforms

There are a variety of proposals on the table, and these media leaders specifically suggested that a government oversight board could be created to monitor and manage social media platforms. But whatever the final form, it is clear to them that Something Must Be Done. After all, they “do not think it is realistic or appropriate to expect internet and social media companies to make all the judgment calls about what content is and is not acceptable, without any independent oversight.”

Sound ironic? The same media companies who would rightly howl at the suggestion that a government oversee their “judgement calls about what content is and is not acceptable”-A.K.A. delivering news-self-righteously call to impose these rules on a competing industry without a second thought…

The situation is similar in the United States, as last week’s spectacle on Capitol Hill suggests. Here, as in the United Kingdom, many media outlets harbor grudges against social media platforms for their effects on the news industry and public opinion.

But there are key institutional differences that change the calculus.

The freedom of speech is a constitutionally protected right in America, but not in the U.K. Even though social media platforms are private companies, the cultural respect of free speech is jealously guarded here, and that influences people’s opinions on proper policy responses. Perhaps the cultural antibodies against violations of free speech are simply weaker in the U.K. Alternatively, perhaps Americans will misdirect our love of free speech into supporting public utility regulations on social media platforms that also violate the speech rights of social media platforms.

The Economist: Should the tech giants be liable for content?

Back when Google, Facebook, Twitter and others were babies, the answer that politicians gave on the question of content liability was clear. Laws such as America’s Communications Decency Act (CDA), passed in 1996, largely shielded online firms from responsibility for their users’ actions. Lawmakers reasoned that the fledgling online industry needed to be protected from costly lawsuits. They were to be thought of more as telecoms providers, neutral venues on which customers could communicate with each other.

That position is hard to maintain today. Online giants no longer need protection: they are among the world’s most successful and influential firms…

The pendulum is thus swinging the other way. Lawmakers are eroding the idea that the platforms have no responsibility for content. Earlier this year America passed the SESTA act, which has the worthy aim of cracking down on sex trafficking; the Department of Justice this week said it would look into the platforms’ impact on free speech…

This new interventionism carries two big dangers. One is that it will entrench the dominance of the giants, because startups will not be able to afford the burden of policing their platforms or to shoulder the risk of lawsuits. The other is that the tech titans become “ministries of truth”, acting as arbiters of what billions of people around the world see-and what they do not. This is no idle worry. Facebook and YouTube have banned Alex Jones, a notorious peddler of conspiracy theories. Loathsome as Mr Jones’s ideas are, defenders of free speech ought to squirm at the notion that a small set of like-minded executives in Silicon Valley are deciding what is seen by an audience of billions.

Congress

Nextgov: After 15 years of trying, the Senate may finally allow for candidates to electronically file campaign spending reports.

By Jack Corrigan

A one-line provision tucked away in the 2019 Legislative Branch funding bill would require Senate candidates to electronically file campaign spending reports with the Federal Election Commission. If passed, the measure would do away with the current paper-based filing system that frequently jumbles data and costs nearly $1 million to operate every year.

The amendment, which adopted its single sentence from the Senate Campaign Disclosure Parity Act, was included in the final version of a nearly $150 billion minibus spending bill approved Monday by conference committee.

Trump Administration

USA Today: Take the ‘Trump news’ Google challenge. Whatever the results, presidents can’t change them.

By John Samples

The Constitution guarantees freedom of the press, not fairness by the press. Our basic law protects freedom from government action, not least by the president. Some courts have ruled that Google’s search results are also protected by the First Amendment. Even if Google biased their search algorithm, the company has no obligation, legal or otherwise, to provide search results favoring or disfavoring the president.

But manipulating searches to harm Trump would threaten Google’s core obligation to its shareholders to maximize the value of its stock. Google is very profitable in part because of the accuracy of its results. There is also potential competition. If Google did bias its results, a large number of the 60 million people who voted for Trump could try Bing or DuckDuckGo, both of which one suspects would welcome the new users. Google’s managers have profound business reasons to avoid political crusades. 

Not for the first time, Trump’s actions should trouble real conservatives. He seems to be fostering a conspiracy theory about Google – “they are controlling what we can & cannot see” – to divert attention from his political difficulties over the past week. But a place where the leader fosters conspiracy theories for political gain is called a banana republic, not a constitutional government.

But we are not a banana republic. We still have a government where the president and other elected officials are limited in their powers to control “the freedom of speech and of the press.” Trump’s barely concealed threat to “address” Google’s alleged errors does more damage to American liberty than anything the company might have done. We can hope this was an empty threat. But we can also hope that one day we have a president who recognizes that freedom of speech and the press is a big part of what has made America great.

Candidates and Campaigns

Associated Press: AP Fact Check: Tester did rank No. 1 in cash from lobbyists

By Matthew Brown

Asked about the allegation that he’s the top recipient of lobbyist cash, Tester initially responded, “That’s bull.”

A look at the claim:

National Republican Senatorial Committee: “Jon Tester was No. 1 in Cash from Lobbyists in 2018,” in an advertisement released September 6.

The Facts: The Republican group got it right – Tester was the top recipient in Congress of money from lobbyists for a time, according to campaign contribution data compiled by the nonpartisan Center for Responsive Politics….

When Rosendale posted his tweet on Aug. 24, representatives of the lobbying industry had contributed $394,478 to Tester’s campaign during the 2018 election cycle, according to the center’s website, opensecrets.org.

That made him tops among members of Congress receiving lobbying industry contributions, just ahead of U.S. Sen. Sherrod Brown, an Ohio Democrat…

The money includes donations from people who work in government relations firms or as government relation consultants, political committees acting on behalf of lobbying companies and state-level lobbyists.

Tester ranked No. 2 among members of the House and Senate receiving contributions from a second group, federally-registered lobbyists and their families…

“The reason you know that fact, if in fact it is true, which I very much doubt, is that all my money’s transparent,” Tester said. “The ads he (Rosendale) is putting up, we don’t know who’s paying for them. That’s why we need campaign finance reform, by the way, which he opposes.” …

For the 2012 cycle, Tester was also the No. 1 recipient of lobbyists’ money…

Since Rosendale posted his tweet, the Center for Responsive Politics updated its numbers and Brown has overtaken Tester to move into first place…

The States

Missoula Current: Montana’s political watchdog finds Big Tobacco in violation of state campaign laws

The Montana Commissioner of Political Practices has found two out-of-state tobacco companies in violation of Montana’s campaign finance laws – a decision lauded by supporters of a ballot initiative aimed at raising the state’s tax on tobacco.

Jeffrey Mangan, the state Commissioner of Political Practices, found the parent company of Philip Morris USA and RJ Reynolds Tobacco violated state laws as part of their $9 million campaign against I-185, a state ballot initiative opposed by Big Tobacco.

The ruling, released on Sept. 5, contends that Altria, owner of Philip Morris, and RAI of RJ Reynolds, failed to file as an incidental committee within five days of engaging in campaign activity in opposition to I-185.

It also found that Altria failed to report travel-related expenses to lobby the Montana Chamber of Commerce in opposition to I-185.

“This commissioner, having been charged to investigate and decide, hereby determines that there is sufficient evidence to show that Altria Client Services LLC and RAI Services Company violated Montana’s campaign practice laws,” Mangan wrote. “The failure to fully and timely report and disclose cannot generally be excused by oversight or ignorance.”

Seattle Times: Judge boosts contempt fines against Tim Eyman in campaign-finance lawsuit

By Joseph O’Sullivan

A Thurston County judge has doubled the daily contempt-of-court fines against Tim Eyman and his associates in the state’s lawsuit against the initiative activist.

Friday’s order by Superior Court Judge James Dixon marks the latest twist in several years’ worth of scrutiny of Eyman’s campaign activities.

Eyman and Citizen Solutions have been in contempt since February for not handing over all the relevant documents sought by the state, according to a statement by the state Attorney General’s Office.

Dixon’s order boosts the fines levied on the defendants to a combined $1,000 per day. Eyman and Citizen Solutions have now racked up $101,500 in fines, with another $35,722 for related court costs and fees, the statement from the Attorney General’s Office said…

The lawsuit stems from a 2015 complaint investigation by the state Public Disclosure Commission that alleged Eyman in 2012 improperly used money raised for Initiative 1185 to promote Initiative 517…

Eyman wrote that more than a decade of his tax returns, phone records and bank statements, and “literally millions of emails and documents on my computer” have been reviewed for the lawsuit.

“No matter how much we give them, they always ask for more,” he wrote. “When you’re the target of a government lawsuit like this, whether you’re innocent or guilty, saint or sinner, the result is the same: the process is the punishment.”

But in a September legal filing, the Attorney General’s Office accused Eyman of repeatedly ignoring directions to hand over bank statements, “despite being given every opportunity to comply.”

Anchorage Press: Realtors PAC Probably Getting Big Break on Fines for Campaign Finance Violations

By Amy Armstrong

An active Anchorage-based political action committee is most likely receiving a 99 percent reduction in potential civil fees for violations of the state’s campaign finances laws should an agreement reached between representatives of the Alaska Public Offices Commission and attorneys representing the Alaska Realtors Political Action Committee be approved.

The issue is being presented at Friday’s regular meeting of the commission.

In short, the realtors PAC might have to pay only $24,381.50 instead of the $2,438,150.00 APOC officials have found the group liable for under state law.

“Although the violations in this case are very serious and troubling, ARP (realtors PAC) has done everything in its power to remedy the violations,” APOC staff wrote in the consent agreement signed at the end of August by Heather Hobdon, APOC executive director; Mary Lynn Macsalka, APOC attorney; Ulriks Urner Johnson, chair of the Alaska Realtors Political Action Committee; and Thomas Amodio, attorney representing the realtors PAC.

The huge reduction is because according to findings by APOC’s Thomas R. Lucas, campaign disclosure coordinator, the realtors PAC self-reported its violations and the “maximum penalty is significantly out of proportion to the degree of harm to the public,” as written in a consent agreement for case No. 18-05-CD, APOC Staff, complaint vs. Alaska Realtors Political Action Committee, respondent, posted for consideration at the Sept. 14, 2018 meeting.

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