By Eric Peterson
The FEC recently heard testimony on two proposals to require disclaimers on online political advertisements. (My employer, the Institute for Free Speech, was one such group.) These dueling options concern only paid ads that specifically endorse or oppose a candidate for office.
At the hearing, some urged the agency to adopt a flexible approach for both speakers and websites hosting political ads. Others supported requiring disclaimers even when a person shares promoted content organically…
The commissioners seemed to agree on a need for a new rule. But it’s unlikely that any proposal will be agreed to and implemented before the midterms. Yet, despite the lack of a new rule, online political ads are already much more heavily regulated than they were in 2016.
Facebook, Twitter, and Google recently rolled out new policies for online ads and promoted content on political issues or candidates. In addition, three states (Maryland, New York, and Washington) have enacted strict laws for Internet ads…
The steps taken by the big three companies are certainly not immune from criticism. But their leaders are aware that they must strike a balance between competing priorities. They must weigh allowing viewers to have more information about ads while not overburdening those who want to speak. These companies know their platforms best and can tailor solutions to address the needs of various parties while fixing any issues.
With this in mind, the FEC’s goal should be maximizing the ability of Americans to speak about the causes about which they are passionate. This means using the lightest regulatory touch possible, promoting flexibility, and allowing companies to come up with solutions that fit their unique platforms.
By Eric Peterson
Puget Sound Business Journal: Opinion: Google’s political ad ban gives incumbents a big boost (In the News)
By Scott Blackburn and Dann Mead Smith
Now that Google is banning political ads in Washington, newer candidates will have a harder time getting their campaigns off the ground, Scott Blackburn and Dann Mead Smith argue.
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.
[O]n June 30, 1958, the Supreme Court held that Alabama’s demands for the NAACP’s member and donor information violated the organization’s and its members’ freedom of association. “It is hardly a novel perception,” wrote Justice John M. Harlan II, “that compelled disclosure of affiliation with groups engaged in advocacy may constitute [an] effective . . . restraint on freedom of association.” Alabama’s demand, he continued, “may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs.”
Today politicians routinely demand that the law be changed to require disclosure of names and personal information of donors to any organization that is involved in public affairs. Concerns about privacy are brushed off with the response that such donors no longer face any substantial threat. And it is true that few causes today generate the potential for violence that faced civil-rights protesters 60 years ago in the deep South.
But NAACP v. Alabama wasn’t a one-off. It was merely the most dramatic of a series of midcentury decisions that protect the right of Americans to support causes without fear of retaliation. The parties protected against compulsory disclosure include union members and organizers (Thomas v. Collins, 1945), those paying for flyers critical of business practices (Talley v. California, 1960), donors to charities (Bates v. Little Rock, 1960), and public-school teachers (Shelton v. Tucker, 1960), among others.
Retaliation from compelled disclosure remains a live risk in the contemporary political scene. Vandalism, boycotts and bullying by both online and real-life mobs are well-documented. In some cases, elected officials have used disclosure information to retaliate against citizens for their lawful support of organizations critical of those same officials.
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.
By Bradley A. Smith
There is no agreed upon definition of “dark money.” Hence it can be used as a pejorative term for any number of things that the person using it does not like.
For example, suppose you give money to the Sierra Club. The Sierra Club then spends some of its money to advocate for the defeat of a political candidate who opposes green energy subsidies. Are you a “dark money” donor? After all, your name will not be publicly disclosed.
Suppose that instead, the Sierra Club uses some its money to run ads urging voters to contact their senators to support green subsidies: Now are you a “dark money” donor? …
In the narrowest sense of the term, “dark money” usually means money spent by a group to promote the election or defeat of a candidate, where that group (like most non-profits and trade associations) does not publicly name all its members and donors. But what does it mean to promote the election or defeat of a candidate, or to use another term bandied out, what is “political spending?” Was the think tank’s spending money on a study that was critical of green energy subsidies “political spending?” If a group like, say, Common Cause, sends out a mailer urging people to demand an end to “dark money,” is that “political spending?” What if it doesn’t actually mention any candidates? What if does, but merely to note their position on a bill to reform campaign finance? …
So here’s the bottom line answer to your question: When somebody talks about “dark money,” they’re not trying to clarify or explain. They’re trying to make something normal sound sinister, something legal sound shady, something complex sound simple. It’s political rhetoric for any spending pertaining to public affairs and elections that the speaker doesn’t like. (Speakers who like the spending call it “donations” or “grassroots advocacy” or something like that).
Illinois Business Journal: Counterpoint: Should the U.S. Constitution be amended to reverse Citizens United? No: Government power over campaign spending is a threat to free speech (In the News)
By Bradley A. Smith
Laws banning corporate speech do not just silence major for-profit firms. They also silence nonprofit advocacy groups. Justice Anthony Kennedy listed examples of speech that would constitute a felony prior to Citizens United: “The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.” …
An amendment reversing Citizens United would be most dangerous for critics of powerful politicians, not those already with money and power. History teaches us that giving government power over speech, however indirect, inevitably harms marginalized groups and critics of the government. America’s strong protections for political speech were developed by generations who discovered that, unless the First Amendment was given a robust interpretation, in practice it was easy for governments to shut down their critics. Those on the outskirts of acceptable political opinion, from civil rights activists to Communist Party members, found themselves at risk of being arrested, fined, and subject to retribution simply for speaking their minds.
This history should inform the current debate. Government officials typically do not go after the message they want to censor directly. Instead they target the methods employed by groups they wish to stop. Political spending is one method that is always under attack.
By Alex Baiocco
The greatest threats to civil liberties often occur in the name of “national security.” History has shown that free political speech is almost always among the first rights to be curbed. In the ongoing debate surrounding appropriate remedies and responses to foreign election campaign interference, we must remain skeptical of any proposal that risks repeating this shameful history.
This brings us to the Honest Ads Act. The sponsors of the bill in Congress are pitching their proposal as a response to Russian ad buys on social media. Most of these ads were meant to inflame existing political tensions in the United States by echoing controversial views on contentious issues. Some were an attempt to influence our opinions of candidates during the run up to the 2016 election. While this legislation seeks to broadly regulate political communications online, it will not meaningfully address the kind of foreign meddling we saw in 2016.
But it will chill core political speech from Americans. Why? The bill holds both online platforms and speakers liable for violations of its many confusing provisions. The risk of legal liability for speech offenses necessarily chills speech. All speech liability imposed by the bill would fall squarely on Americans engaging in or facilitating political speech…
The incompatibility of liability for speech and freedom of speech is easy to understand. If speakers risk running afoul of the law when expressing their opinions, many will simply choose silence. If platforms also risk penalties when hosting such opinions, some will steer clear of allowing such speech altogether. The more vague or complex any new regulations of speech are, the higher the risk of violating them.
The rules in the Honest Ads Act are both vague and complex, not to mention burdensome.
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.