Add a new chapter to the debate over private regulation of speech. Wells Fargo closed the bank account of a Florida candidate who received campaign contributions from lobbyists from the medical marijuana industry. The candidate, Nikki Fried, is herself a former medical marijuana lobbyist-turned candidate for Florida Commissioner of Agriculture and Consumer Services. Wells Fargo […]
PDF available here The First Amendment is facing a new threat in state legislatures. A spate of bills that would regulate political and issue advertising on the Internet are jeopardizing free speech. Promoted under the guise of “transparency” or as a response to foreign meddling in U.S. elections, these complicated proposals can be difficult to […]
PDF available here The First Amendment protects the right of Americans to associate privately with others. Nonprofits across America have long relied on this right to organize supporters and advocate on their behalf. Examples of such organizations include the National Federation of Independent Business, National Rifle Association, National Right to Life Committee, the AARP, NAACP […]
By Luke Wachob
The IRS recently dealt a blow to efforts to violate nonprofit privacy when it announced that it would no longer collect the names and addresses of donors to many nonprofits. In response, critics are outraged that this policy change opens the door to foreign spending in our American elections. That charge could not be more off the mark.
Let us get a few things straight. First, nonprofits can accept money from foreign sources, but they are legally prohibited from using it to support the election or defeat of candidates. The ban also applies to broadcast ads that mention the name of a candidate in the time near an election. Second, a donor name and address does not tell you whether it is a U.S. citizen or green card holder. Many Americans live abroad, and many people in the United States are not citizens or legal permanent residents.
The mass collection of donor names and addresses was all risk and no reward. The information was supposed to be confidential and redacted on publicly disclosed forms, but the information sometimes leaked out, at times to adversaries of an organization. The IRS made clear in its announcement that it does not use donor names to enforce tax laws, and nonprofits will still have to maintain records in case of an audit.
The Federal Election Commission, which is the agency actually in charge of enforcing campaign finance laws, did not have access to the donor names collected by the IRS. Nor is the Federal Election Commission a major player in preventing foreign spending in elections. The Treasury Department handles the bulk of that task through the Bank Secrecy Act.
It is easy for politicians to claim the IRS is undermining the ban on foreign spending in elections when government methods for policing foreign money are not commonly known. In reality, the IRS simply made a commonsense decision to end the mass collection of personal information it did not need and could not reliably protect.
Washington Examiner: At 60, the NAACP’s victory for privacy rights must not be forgotten (In the News)
By Luke Wachob
In the mid-20th century, the NAACP was leading the fight for equality. The state of Alabama, then controlled by politicians dedicated to upholding Jim Crow laws, wanted to shut it down. When the group put up a fight, Alabama demanded the NAACP turn over a list of its members in the state.
The practical effect of exposing the names and home addresses of NAACP members was no mystery, then or now. The state government and other opponents of civil rights would use the information to harass and intimidate those members. The list would fuel a divide-and-conquer campaign to starve the group of financial support. The NAACP’s roar would be reduced to a whisper.
Thankfully, the NAACP refused to provide the list and in a decision that turned 60 years old last weekend, the Supreme Court ruled unanimously in favor of its right to privacy. The decision offers a lesson that rings true to this day: Americans often need to associate privately if they are to fully exercise their First Amendment rights.
“Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association,” Justice John Harlan wrote in the majority opinion. “It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as [other] forms of governmental action,” Harlan added.
Today, this historic ruling is under threat – not from racists, but from overreaching government officials seeking to force “transparency” on private citizens.
In order for civic groups to be effective, Americans must be able to associate with their fellow citizens
privately. People behave differently when they are being watched, and this is especially true when people are monitored by the very government they are trying to reform. The right to privacy is therefore essential to the protection of First Amendment freedoms. To understand the vital relationship between privacy rights and freedom of association, we need only look to the landmark 1958 Supreme Court case, NAACP v. Alabama.
Filed Under: Featured Content
PDF available here “It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as [other] forms of governmental action.” – NAACP v. Alabama, 357 U.S. 449, 462 (1958) The freedom to associate with others and speak as a group […]
Filed Under: Blog, Disclosure, Disclosure, Disclosure, Jurisprudence & Litigation, Associational Privacy, Donor Privacy, Harassment, NAACP, NAACP v. Alabama, Supreme Court, Disclosure, Jurisprudence & Litigation, Alabama
By Luke Wachob
For Facebook, government regulation of political and issue ads on its platform is the lesser of two evils. Russian interference in the 2016 election, which involved the purchasing of politically-charged Facebook ads, has sparked calls for government to regulate the social media giant. It has also raised awareness of the way Facebook’s business model relies on collecting data on its users and allowing advertisers to target users with messages designed to appeal to their interests.
Public unease with this aspect of Facebook’s business could be a major problem for the company. It’s therefore in Facebook’s interest to do whatever it can to shift the conversation away from its user privacy protections – or lack thereof. The company’s first reaction to the Russia controversy, which was simply to deny that any problem existed with the platform, failed to persuade. So now Facebook is on to plan B: support some dumb legislation and self-censor until the politicians get off its back.
Enter the Honest Ads Act. Notably, prior to Facebook CEO Mark Zuckerberg’s endorsement of the bill in April, the Honest Ads Act had been languishing in Congress. That neglect was for good reason. Drafted in a rush to capitalize on media coverage of Russian interference, the Honest Ads Act fails to provide real solutions to foreign meddling. Compared to the more targeted approach pursued in other proposals, the Honest Ads Act would indiscriminately increase regulation for all online political advertising…
Online speech has long been regulated with a light touch out of a bipartisan recognition that the Internet is an empowering and diversifying medium capable of uplifting marginalized voices. Regulating Internet ads like expensive television and radio ads breaks with that tradition and recasts the Internet’s ability to accelerate social change as a bug rather than a feature.
By Luke Wachob and Alex Baiocco
In a new Free Speech Index on political giving, Connecticut, along with 10 other states, receives an ‘F’ grade.
Connecticut’s limits are so low that individuals can give no more than $250 per election to a candidate for the House of Representatives. The state doesn’t adjust its limits for inflation either, meaning a citizen’s ability to support candidates will continue to decline. And while Connecticut has a program that doles out taxpayer dollars to campaigns in the hopes of bolstering candidates, these programs are easily gamed by savvy political actors and do little to change the makeup of legislatures or Connecticut legislators’ voting behavior.
The problems don’t end there. The state limits individual giving to political committees to $750 per year, and also limits the ability of groups and parties to support candidates.
In all the debate over what can go wrong when people give money to candidates, we rarely consider the benefits. Making a donation to a candidate or group with shared beliefs is one of the simplest and most effective ways for Americans to make their voice heard. These contributions fund campaign spending that raises awareness and interest in elections, especially among those least interested in government.
Contribution limits stand in the way of this process. They hinder candidates trying to spread their message and make it harder for voters to learn about the choices they’ll be asked to make on Election Day.
Perhaps most disappointing of all, they hobble political newcomers trying to shake up the system.
PDF available here The deceptively-named “Honest Ads Act” is a proposal in Congress that would increase regulations for paid political and issue advertising on the Internet – including communications by organizations engaged in nonpartisan voter education, registration, and get out the vote efforts. In order to run such ads, groups would be forced to comply […]