Daily Media Links 11/7

November 7, 2018   •  By Alex Baiocco   •  
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The Courts

Reason (Volokh Conspiracy): NRA’s Free Speech Claims Against N.Y. Officials May Proceed

By Eugene Volokh

In October 2017, the New York Department of Financial Services began to investigate NRA’s Carry Guard insurance program, offered through two insurance companies, Chubb and Lockton. The program apparently violated New York law, by providing “(1) liability insurance to gun owners for acts of intentional wrongdoing, and (2) legal services insurance for any costs and expenses incurred in connection with a criminal proceeding resulting from acts of self-defense with a legally possessed firearm.” (States have broad authority to decide what risks people can insure against.) DFS also learned that the NRA marketed the Carry Guard program in New York without having the proper insurance marketing license.

The NRA claims, though, that state officials did more than just enforce insurance law, or punish the NRA and the insurers for violations of the insurance law. Rather, the NRA argues, the officials tried to pressure banks and insurers who were subject to New York law (which many major banks and insurers are, since they do business in New York) to stop dealing with the NRA altogether-and that the reason for this was the NRA’s politics. Today, U.S. District Court Judge Thomas A. McAvoy allowed the NRA’s free speech claims to go forward (though not their other claims). Here’s an excerpt from the opinion, NRA v. Cuomo, which I think is quite correct on this point: …


Washington Post: Power shift: What House Dems plan to do with their majority

By Alan Fram, AP

Minority Leader Nancy Pelosi, D-Calif., hoping to reprise her 2007 through 2010 role as speaker, has talked about a first bill – HR1 – revamping campaign finance laws, election statutes and ethics requirements. The goal: Demonstrating that Democrats care about reform and that Trump’s “drain the swamp” mantra has achieved anything but.

While final decisions remain, Democrats are considering steps like curbing large political donations, toughening disclosure requirements for corporations and big contributors and offering public financing to congressional candidates.

Online Speech Platforms

Wall Street Journal: No Significant Foreign Interference Seen on Midterm Vote

By Dustin Volz

Late Monday, Facebook Inc. said it had responded to a tip from U.S. law enforcement and suspended 30 Facebook accounts and 85 more on Instagram that officials told the company could involve foreign activity. A person familiar with the matter said the tip was brought to Facebook from the FBI…

Late Tuesday, Facebook said it had shut down more accounts after a website claiming to be affiliated with the Russia-backed Internet Research Agency LLC posted a list of about 90 Instagram accounts that it said it had operated to influence the election.

Facebook was not able to say whether the website, called Usaira.ru, was operated by the Russian-backed organization charged by federal prosecutors with interfering in the 2016 election. Nevertheless, the company took down the accounts. “We had already blocked most of these accounts yesterday, and have now blocked the rest,” Facebook said in a statement…

Also Tuesday, Facebook said it had taken action against some inaccurate voting informations…

Federal agencies had received some reports of misinformation related to the election, the DHS official said, though he didn’t identify any specific content and praised social media firms for responding quickly

Recorded Future said it had been studying Russian influence operations on social media leading up to the midterms and found Moscow’s tactics shifting since 2016 from pushing verifiably false information to a greater emphasis on promoting “hyperpartisan” perspectives.

In 2018, Russia “explicitly advocate[d] for specific candidates and policy positions,” said Ms. Moriuchi, adding that Moscow’s tactics have become harder to detect.

The Guardian: Facebook delays identity checks on UK political advertisers

By Alex Hern and Jim Waterson

Facebook is delaying its plans to require British political advertisers to verify their identity, the Guardian can reveal, after a spate of failures on the part of the company to vet disclosers in the UK and US.

The social network will bring in the requirement “in the next month”, it says, pushing back the initial deadline of Wednesday 7 November.

“We have learnt that some people may try to game the disclaimer system by entering inaccurate details and have been working to improve our review process to detect and prevent this kind of abuse,” a Facebook spokesperson said in a statement…

The company had initially planned to make the system compulsory by 7 November, but in the intervening time, a damaging series of stories cast doubts on the effectiveness of the project.

Washington Post: If the Internet belongs to everyone, that includes Gab

By Editorial Board

There has been plenty of debate over whether platforms such as Facebook should tolerate racist rhetoricians or misinformation-mongers, but less over what happens when the platform itself becomes the problem. Gab was created to support speech that more mainstream sites deemed unacceptable. Now, payment processors have deemed Gab’s own failure to moderate even the most deplorable and dangerous speech unacceptable, too. So have hosting providers and domain-name registers. That, for now, has resulted in the site’s disappearance from the Web.

Gab’s plight highlights a central conundrum of digital governance. It is one thing for a site to tell a user they must take their hate elsewhere. It is another for the actors who control the Internet’s infrastructure to prevent the site itself from operating…

A handful of players with little accountability to the public deciding at a whim whether a site may exist should make all of us queasy.

In the end, companies have the legal right to deny service to the Gabs of the world. But if managers of the pipeline of Internet access that have always presented themselves as content-neutral begin to change course, they should do so thoughtfully and transparently – laying out their rules and the philosophy behind them, providing explanations to violators and perhaps even instituting appeals processes. As they deliberate, they should consider an inconvenient possibility: If the Internet belongs to everyone, it might belong to Gab, too.

The Verge: Gab is back online after being banned by GoDaddy, PayPal, and more

By Adi Robertson

Gab.com has now migrated to a new domain registrar, the Seattle-area-based Epik.  In a blog post, Epik CEO Robert Monster expressed support for Gab, criticizing the concept of “digital censorship” by other registrars. “Although I did not take the decision lightly to accept this domain registration, I look forward to partnering with a young, and once brash, CEO who is courageously doing something that looks useful,” Monster wrote…

[A]long with neo-Nazi news site The Daily Stormer, which was widely deplatformed last year, Gab’s existence has sparked a debate over whether basic web service providers should decide which sites can stay online.

Candidates and Campaigns 

Center for Responsive Politics: Democrats ride monster fundraising to take the House, GOP successfully picks its Senate battles

By Karl Evers-Hillstrom

In what was the most expensive midterm election ever, a cash advantage didn’t always translate to success at the polls…

Democrats soundly took the House while outraising Republicans by more than $300 million. Republicans picked up several seats in the Senate despite being outraised overall…

The Congressional Leadership Fund (CLF) did its best to try to keep the House red – spending more than $137 million in media to lead all outside groups – but with Democratic candidates raising millions across the country, the group simply couldn’t afford to defend every seat…

On the Senate side, liberal ‘dark money’ group Majority Forward was less successful. It spent more than $24 million to support Democratic Senate hopefuls in Tennessee, Arizona, Indiana and Florida. Two of the races are confirmed to have gone to the GOP and Republicans lead in Arizona and Florida…

For the first time ever, outside spending outpaced the amount of money raised by candidates in 40 races. The number will likely fall as candidates’ final fundraising numbers are filed with the FEC.

The Senate fundraising numbers are skewed by the biggest Democratic recipients, several of whom set fundraising records in losses. Sen. Heidi Heitkamp (D-N.D.) lost her seat to Kevin Cramer despite outraising him $27 million to $5.5 million. Rep. Beto O’Rourke (D-Texas) fell to Sen. Ted Cruz despite collecting a record $69 million through Oct. 17.

New York Times: Women Lead Parade of Victories to Help Democrats Win House

By Susan Chira and Kate Zernike

In Massachusetts, Ayanna Pressley became the first woman of color in her state’s congressional delegation. Rashida Tlaib in Michigan and Ilhan Omar in Minnesota will be the first Muslim women in Congress. Sharice Davids toppled a Republican man in Kansas and Deb Haaland prevailed in New Mexico, becoming the first Native American women elected to Congress. In Tennessee, Marsha Blackburn, a Republican, became the state’s first woman elected to the Senate…

Pennsylvania, which had no women in its 21-member congressional delegation, will now have four. Democratic women flipped three Republican-held seats: Mary Gay Scanlon, Chrissy Houlahan and Susan Wild; and Madeleine Dean won an open seat.

Two women helped Democrats pick up seats in Florida: Debbie Mucarsel-Powell and Donna Shalala, a member of former President Bill Clinton’s cabinet. Ms. Houlahan was one of four female military veterans and political newcomers to win seats for Democrats…

One-third of the female nominees for the House were women of color, the highest ever. A record number of women faced off against other women, from Arizona to New York. Ms. Pressley in Massachusetts and Alexandria Ocasio-Cortez in New York were among women who defeated long-serving white male incumbents in party primaries and won tonight.

Candidates like Ms. Sherrill, Ms. McGrath and Katie Hill, who was running for a House seat in California, raised staggering amounts of money, though women still raised less, on average, than men. And women played bigger roles as donors, giving 36 percent more money to congressional campaigns than in 2016…

Jahana Hayes, a former teacher of the year, was a surprise winner of a Democratic House primary in Connecticut and on Tuesday became the state’s first black woman elected to Congress.

The States

Sioux Falls Argus Leader: Voters reject tobacco tax hike, support limiting out-of-state money for ballot measures

By Trevor Mitchell and Shelly Conlon

IM-24, which will limit out-of-state money for ballot measures, is almost certain to be challenged on constitutional grounds, a warning that has been repeated by experts and was directly outlined in the ballot question voters saw as they passed it…

As for the warnings against IM-24, [Rep. Mark Mickelson, who proposed the ballot measure,] said “sometimes the lawyers want to complicate things.” …

Meanwhile, the state’s constitution will see only one of three proposed changes. Amendment W, a campaign finance and ethics law, was rejected by voters…

Amendment W

Passed: No

Votes: 45 percent in favor; 55 percent against

What it means: The amendment would have the power to overhaul campaign finance and lobbying laws, as well as certain initiative and referendum provisions and create a government accountability board…

Initiated Measure 24

Passed: Yes

Votes: 56 percent in favor; 44 percent against

What it means: This measure bans out-of-state campaign donations for ballot question committees by non-residents, out-of-state political committees and other groups not filed with the Secretary of State.

Dickinson Press: Aimed at combating corruption, North Dakota voters pass Measure 1

By Tu-Uyen Tran

A constitutional amendment that could either combat corruption in North Dakota politics or make it much harder to be politically engaged, depending on which side you believe, went before voters Tuesday, Nov. 6.

In complete but unofficial results., Measure 1 received 54 percent “yes” votes and 46 percent “no” votes with 424 precincts reporting…

The amendment would, among other things, require the Legislature to pass laws requiring the disclosure of the “ultimate and true source” of money spent on media to influence politics, forbid lobbyists from giving gifts to public officials, forbid politicians from using campaign funds for personal purposes and create an ethics commission to investigate violations.

Opponents, which include business interests as well as some civic groups, primarily attacked the disclosure requirement as being too onerous.

The American Civil Liberties Union of North Dakota warned it would require a private citizen driving to visit with lawmakers to record every dollar spent on the trip from gas to meals.

The North Dakota Catholic Conference warned it would force the church to turn over a list of all members.

Ozarks First: “Clean Missouri” Amendment Passes

By Benjamin Ward

Voters in Missouri passed Amendment 1, also know as the “Clean Missouri” Amendment…

The Amendment also sets contribution limits for candidates and committees. State Senate candidates will only be able to receive $2,500 per person per election cycle, while House candidates are maxed out at $2,000 per person per election cycle.

Those who donate will not be able to use a fake name or another person’s name and cannot donate through another person in order to hide their identity.

The Missouri State Legislature is prevented from passing laws that allow for unlimited campaign contributions.

The third portion of the Amendment addresses political lobbying.

Legislators and employees are now required to wait two years after the end of the legislative session they served in to become a paid lobbyist. They are also prohibited from accepting gifts from paid lobbyists in excess of $5.

WBUR Boston NPR: Mass. Voters Pass Question 2, Express Support Of Long Shot Mission To Repeal Citizens United

By Lisa Creamer

The vote, which mandates a 15-member commission of Massachusetts residents form to explore a path to repeal the hotly debated 2010 Supreme Court decision, was not surprising.

While proponents hope for the eventual nullification of Citizens United, their main intentions behind this ballot measure were mostly seen as symbolic: A constitutional amendment would be needed to repeal the law that allows corporations to spend unlimited funds on political campaigns – an outcome that is widely seen as a long shot.

Santa Fe New Mexican: New Mexico overwhelmingly backs ethics commission

A constitutional amendment that establishes an independent ethics commission was well on its way to passing overwhelmingly Tuesday night, with a nearly three-quarters majority. It’s a move proponents say will help rebuild trust in a state government that has experienced intermittent storms of corruption through the years.

Heather Ferguson, legislative director for Common Cause New Mexico, which had pushed hard for the amendment’s passage, said she was thrilled by the outcome.

“We knew voters wanted to have this opportunity; it actually tracked with the polling we’d done,” she said, noting the organization had been working to create an ethics commission in the state for more than 40 years.

Next up for the commission is the 2019 legislative session, in which lawmakers must determine how the commission will operate.

The commission would be authorized to look at alleged misconduct by state officers as well as employees of the executive and legislative branches, plus candidates, lobbyists, government contractors and those seeking government contracts.

The amendment would give the new commission broad powers, including the ability to subpoena witnesses.

Denver Post: Colorado Amendment 75: Campaign funding bill defeated by wide margin

By Ben Botkin

Voters Tuesday night rejected a constitutional amendment that would have loosened the limits on campaign contributions in races in which one candidate is heavily self-funding their campaign…

Amendment 75’s proposed changes to campaign contributions would have been triggered when a candidate for state office donated or loaned their campaign more than $1 million. When that happened, all candidates in the race would be able to accept donations that are five times the normal limits for individual donors or political action committees.

The proposal’s goal was to level the playing field for candidates who are facing wealthy, self-funded opponents who don’t need to spend as much time raising campaign cash.

New York Daily News: NYC voters approve three ballot questions to revise City Charter

By Jillian Jorgensen

New York City voters approved three ballot questions Tuesday to transform the City Charter — including changes to the campaign finance system…

The ballot questions were all supported by Mayor de Blasio, and were the result of a charter revision commission he convened earlier this year — but some of them had met resistance from many other city elected officials.

The first was the least controversial — it would sharply reduce the maximum contribution a candidate running for office can receive, while increasing the amount of public funds participating candidates are given to match small contributions.

For citywide offices, the top contribution would drop from $5,100 to $2,000; for borough presidents, it would drop from $3,950 to $1,500; for city council candidates, from $2,850 to $1,000.

But all of those candidates would be able to accept more in public matching funds for small donations — they’d get $8 in public funds for every $1 in matchable private contributions, up to the first $250 of a contribution for citywide candidates and the first $175 for borough president or city council. That’s up from $6 for every $1 under the current system, and also represents an increase in the amount of a contribution that can be matched for citywide candidates.

Oregon Public Broadcasting: Portland Voters Pass Campaign Finance Limits

By Amelia Templeton

Portland voters have passed a campaign finance measure that limits large contributions in political campaigns and requires candidates in city elections to disclose their funders in advertisements…

Oregon is one of only five states with no limits at all on political contributions, despite decades of effort by campaign finance activists.

The Portland measure bars political contributions from corporations and limits the amount a candidate can receive from an individual donor to $500. Individuals can give no more than $5,000 total to city candidates and initiatives per election, while political committees can make aggregate contributions of no more than $10,000 per election.

Small donor committees – groups that limit individual contributions to $100 – are exempt from those limits.

The limits are essentially the same as campaign finance measure adopted by Multnomah County voters in 2016…

A Multnomah County judge ruled earlier this year that those contribution limits violate the free-speech protections in Oregon’s Constitution. That ruling was based on a 1997 Oregon Supreme Court decision that struck down statewide campaign finance limits.

The county measure’s backers are appealing that decision…

Meek says passing campaign finance limits by a wide margin in the most populous city and county in Oregon is part of a broader strategy to challenge that 1997 Supreme Court ruling.

That strategy could include another effort to amend the state’s constitution to allow political spending limits.

In 2006, Oregon voters rejected a constitutional amendment that would have allowed limits on political spending.

Arizona Daily Star: Arizona voters OK public campaign finance change

By Associated Press

Arizona voters have approved a measure that will limit the authority of the state commission that provides public financing to political candidates and give the governor more oversight over the commission.

The changes to state law will allow the governor to reject rules proposed by the members of the Citizens Clean Elections Commission and will prevent candidates from spending public funds on political party services.

Proposition 306 was put on the ballot by the Republican-controlled Legislature in its latest effort to mute the commission’s power. The independent panel finances candidates who reject private financing and fundraising and enforces campaign finance disclosure rules.

Passage of the measure means that regulations proposed by the bipartisan commission created by voters in 1998 can now be overturned by a panel overseen by the governor.

Vox: One big winner last night: political reform

By Lee Drutman

When it comes to campaign finance, cities are taking the lead. New York City, which has already established itself as a national model with its 6-to-1 public matching system for small donors, has now improved the system by encouraging even more public funding, upping the ratio to 8 to 1 and lowering the limit on donations that can qualify for matching. The citywide referendum passed, 72 percent to 28.

Denver has done New York City one better, passing a 9-to-1 public matching system for small-donor contributions. The referendum passed, 69 percent to 31.

Portland also overwhelmingly passed a campaign finance reform, placing very strict limits on campaign contributions, and requiring more disclosure, 87 percent to 12.

Missouri also approved new campaign finance rules as part of a broader initiative, placing strict limits on lobbyist gifts (nothing over $5) and place limits on individual campaign contributions state lawmakers can receive.

The small-donor matching model is worth watching because it’s a key provision in Democrats’ Better Deal for Democracy platform.

Alex Baiocco

Alex Baiocco


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