PDF of analysis available here Analysis Of November 2018 North Dakota Campaign Finance/Lobbying Initiated Constitutional Amendment By Eric Wang, Senior Fellow Introduction and Executive Summary The Institute for Free Speech (“IFS”) provides the following analysis of the voter-initiated campaign finance and lobbying amendment to North Dakota’s State Constitution that will be on the ballot in […]
Filed Under: Blog, Disclosure, Disclosure, Disclosure Comments, Disclosure Press Release/In the News/Blog, Disclosure State, External Relations Comments and Testimony, State Comments and Testimony, Enforcement, Private Right of Action, North Dakota
By Eric Wang
March for Our Lives, the student group that held nationwide rallies in the spring to decry school shootings, recently began a voter registration campaign across the country this summer. But laws restricting free speech will make them sweat a lot harder than they should.
Using the slogan and hashtag “#VoteThemOut,” the movement demands change in the most direct manner possible: by voting. But in doing so, the students will run into an elaborate maze of tax and campaign finance laws. These regulations stymie grassroots advocacy groups and effectively censor how they can speak…
The IRS relies on an extremely vague and broad “facts and circumstances” test to determine “political campaign intervention.” Under this standard, the agency may apply unspecified factors that it has not publicly disclosed in advance. The IRS warns that voter registration efforts that “have the effect of favoring a candidate or group of candidates  will constitute [political campaign] intervention.” In fact, the IRS denied 501(c)(4) status to an organization similar to March for Our Lives because the group’s plan to target voter registration to specific geographic areas or individuals that favor the group’s causes was campaign intervention…
As if the tax laws were not bad enough, the campaign finance laws add yet another layer of obstacles for groups like March for Our Lives. Thanks in no small part to certain commissioners at the Federal Election Commission, that federal agency is unlikely to stand in the way of grassroots activities. But state laws and regulatory agencies are a different matter. When March for Our Lives speaks on both federal and state gun laws, it risks getting entangled in a web of state speech laws.
Washington Examiner: Maryland lawmakers voted to criminalize online speech in the name of security (In the News)
By Eric Wang
More than a thousand students gathered at the Maryland state capitol in March as part of the national “March for Our Lives” demonstrations against school shootings. Presumably, these students used the Internet, social media, or mobile device apps to organize their rally.
In so doing, they may have committed a crime under an obscure Maryland law.
Instead of fixing this flawed speech law, the Maryland General Assembly recently passed a bill to reenact and expand it. The legislation purports to counter foreign online political propaganda. But in reality, the new burden it would place on Marylanders’ Internet speech threatens our First Amendment rights. Gov. Larry Hogan, R, should veto the bill.
At issue is HB 981, the so-called “Online Electioneering Transparency and Accountability Act.” If signed into law, the bill would reenact the state’s existing regulation of “campaign material.” The term includes any “material transmitted by or appearing on the Internet or other electronic medium” that “relates to” a candidate, prospective candidate, ballot measure, or prospective ballot measure. If you think about it, that includes just about anything…
It is bad enough that HB 981 would reenact Maryland’s unconstitutional speech law. But the bill would make matters even worse by imposing a whole host of additional reporting and record-keeping requirements.
The Hill: Feds prohibit candidates from commenting on Trump, despite constitutional questions (In the News)
By Eric Wang
As the midterm congressional elections unfold, candidates are also running in 36 states for governor and competing for more than 6,000 state legislative seats. How many of these state candidates do you think will say something good or bad about President Trump? Probably more than you can count. When they do, they will break an obscure federal law…
The Federal Election Commission recently released two enforcement matters concerning the federal gag on state candidates. In one matter, Washington State Gov. Jay Inslee’s 2016 reelection campaign ran a TV ad tying his Republican opponent to Trump. The ad concluded, “Bill Bryant and Donald Trump, Wrong for Washington [State].” Hillary Clinton and Inslee went on to clobber their opponents in that state. Going in the opposite direction, gubernatorial candidate Eric Greitens sent a mailer urging Missouri voters to turn out for Trump and Greitens. Trump went on to win a conversely large margin in that state, while Greitens won by a narrower margin.
The Inslee and Greitens ads seem rather typical for political campaigns, but they were actually outlawed by Congress in 2002 as part of the Bipartisan Campaign Reform Act (BCRA).
Cato: Staring at the Sun: An Inquiry into Compulsory Campaign Finance Donor Disclosure Laws (In the News)
By Eric Wang
Since the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, proponents of stricter campaign finance regulation have increasingly prescribed “disclosure” as an antidote to “dark money” in politics. Advocates of more extensive donor disclosure laws typically invoke Supreme Court Justice Louis Brandeis’s famous maxim that “sunlight is said to be the best of disinfectants,” but they seldom acknowledge the harm of excessive sunlight.
This paper urges a more critical and balanced look at the issue, especially concerning disclosure requirements for independent political speech (i.e., speech that is not coordinated with candidates). Of primary focus is the Court’s jurisprudence in this area, which is often invoked to support additional compulsory donor disclosure laws but lacks coherence, especially as it applies to independent speech. Even assuming that the Court’s jurisprudence in this area remains sound, many arguments being advanced for compulsory donor disclosure laws are untethered from the justifications the Court has articulated, rendering them especially susceptible to challenge in litigation. This paper concludes with recommendations on how, and how not, to enact disclosure laws.
Analysis of Klobuchar-Warner-McCain Internet Ads Legislation (S. 1989, 115th Cong.): So-Called “Honest Ads Act” Is Dishonest About Its Effects
PDF of Legislative Brief available here Analysis of Klobuchar-Warner-McCain Internet Ads Legislation (S. 1989, 115th Cong.) So-Called “Honest Ads Act” Is Dishonest About Its Effects By Eric Wang, Senior Fellow Introduction and Executive Summary Americans’ First Amendment rights to free speech are foundational to our open society, our democratic discourse, and our way of life. […]
Filed Under: Blog, Disclosure, Disclosure Comments, Disclosure Federal, External Relations Comments and Testimony, Federal, Federal Comments and Testimony, Amy Klobuchar, Foreign Agents Registration Act, Foreign Influence, Honest Ads Act, Internet Speech Regulation, John McCain, Mark Warner, Russia, S. 1989
The Hill: Federal move to undo internet freedom would make US more like Russia, not less (In the News)
By Eric Wang
This week, three congressional committee hearings will probe Russian attempts to influence our election campaign last year on social media. S.1989, the recently introduced, so-called “Honest Ads Act,” likely will feature prominently. The bill is being sold “first and foremost [as addressing] an issue of national security.”
But unless Americans exercising their First Amendment rights is now “an issue of national security,” the bill and its sponsors are not being honest about its effects. With Americans bearing 99.99 percent of its regulatory impact, the “Honest Ads Act” is a sledgehammer for a problem better addressed with a scalpel.
According to the bill’s own legislative findings and its sponsors’ remarks, more than $1.4 billion was spent on online political advertising last year. Of that amount, some $100,000 (less than 0.01 percent) has been reported thus far as coming from Russian interests. But S.1989 fails at even a perfunctory attempt to target foreign interference. Instead, the bill would almost entirely regulate Americans.
By Eric Wang
China censors any agitators, foreign or domestic, on social media. Politically sensitive topics like Tibetan self-determination, the Tiananmen Square demonstrations, or resistance against the Communist Party are off-limits. Of course, the Great Firewall also completely blocks access to Facebook, Twitter, and thousands of other websites. Through these measures, Chinese citizens can rest assured that they are free from foreign interference…
Emulating China’s disregard for free speech may seem like mere satire for Americans. But is it? There is always risk for overstatement when resorting to “slippery slope” arguments. But recent calls to regulate online political speech by foreign interests directed at Americans seem to articulate no bounds. There is a real risk that a rush to regulate will threaten basic civil liberties…
Recent debates show the difficulty in blocking foreign nationals from speaking without also compromising Americans values. For example, consider immigration. Many of those publicly voicing support for the Deferred Action for Childhood Arrivals (DACA) policy have been undocumented immigrants. Some of the most vociferous opponents of the Trump administration’s “travel ban” have been citizens of affected countries. Could we prevent these foreign nationals from speaking to American voters about these issues during election season, and would that not end up stifling part of the debate?
By Bradley Smith and Eric Wang
This latest allegation of foreign interference with our elections inevitably will be used as fodder to support the newest iteration of the so-called “Disclose Act.” Over the summer, Sen. Sheldon Whitehouse (D-R.I.) introduced a tweaked version of this perennial bill to include features he claimed would “head off foreign election interference.” Upon closer inspection, the legislation turns out to be an exercise in distraction rather than disclosure. The bill’s foreign spending provisions are poorly disguised ploys for clamping down on public debate and dissent…
Aside from its foreign national provisions, the latest Disclose Act also contains numerous purported disclosure requirements (hence its name). But those disclosure provisions are also ploys to shut down political speech. For example, the bill would require any corporation (even one that has no foreign owners at all) making a “campaign-related disbursement” to disclose all of its “beneficial owners,” a term which likely includes any shareholder…
Whitehouse’s latest Disclose Act also would expand the existing “electioneering communications” law to regulate ads that merely mention a congressional candidate or a member of Congress up for reelection beginning on the first day of an election year through Election Day.