Daily Media Links 1/14

January 14, 2020   •  By Tiffany Donnelly   •  
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Supreme Court

Politico: Supreme Court to hear challenge to auto-dialing ban

By Zach Montellaro

The Supreme Court will hear a case this spring over the constitutionality of a federal law that bans calling or texting cellphones with an auto-dialer, or using an artificial or prerecorded voice, that is being challenged by the American Association of Political Consultants, two state Democratic parties and a Democratic polling firm that relies on IVR technology.

The case is challenging a provision within the Telephone Consumer Protection Act of 1991 – that could leave anyone who makes those calls (without prior consent) on the hook for a up to $1,500 per call or text – on First Amendment grounds, with part of the challenge hinging on a carveout in the law that allows for those calls to be made “to collect a debt owed to or guaranteed by the United States.”

A lower court actually did rule that the debt-collector exception in the TCPA was unconstitutional – but instead of tossing the whole thing out, just struck that carve out. This led all involved to ask the Supreme Court to weigh in: the challengers, who want the entire ban ruled unconstitutional (and not just making debt collectors mad), and the government, which argued that the court erred in throwing out the debt-collector exception but would ask for severability even if its argument is turned aside.

“Our clients are direct participants in the American political process who want to use automatic-call technology to engage in political speech at the core of the First Amendment,” Roman Martinez, the lead attorney for the AAPC and other clients, told Score. “It’s important that they be able to conduct outreach to the public without triggering the statute’s crippling liability scheme.”

The Courts

Politico: Journalist seeks to revive litigation over alleged surveillance by feds

By Josh Gerstein

A TV journalist known for against-the-grain reporting is unleashing a new flurry of litigation on Friday alleging she was subjected to illegal surveillance by U.S. officials while covering Obama administration controversies such as the Benghazi attack and Operation Fast and Furious nearly a decade ago.

Now, Sharyl Attkisson says an informant has acknowledged a role in the snooping. The journalist and her attorneys believe that development may be enough to allow her to restart the litigation and demand answers from government officials.

New filings in federal court in Alexandria, Virginia and Baltimore are vague about the informant’s identity or his precise role, but say he stepped forward last summer and claims he was directly involved in spying on Attkisson.

“In August 2019 a former Government employee directly involved in the surveillance operation came forward to provide information about the illegal surveillance operation that resulted in surveillance of the Attkissons,” attorneys Tab Turner and Andrew Baxter wrote. “As a result, for the first time the Attkissons can now name at least some of the Government officials who were directly involved in conducting the illegal surveillance and provide more detail about the surveillance operations itself.”

The suit claims that Attkisson, as well as her husband and daughter, were targeted by an interagency task force which was based in Baltimore and overseen by [former Trump Deputy Attorney General Rod] Rosenstein. 

Citizens United

New York Times: Seattle Takes On Citizens United

By Ellen L. Weintraub

On Monday, the Seattle City Council responded to Citizens United, the infamous Supreme Court decision that has drowned our elections in a sea of largely unregulated cash for the past decade.

Instead of trying to repeal or ignore the 2010 ruling (two wildly popular options that aren’t actually legal), the council applied it to city elections on its own terms, passing a law that gives life to a theory I put forward in 2016. The theory, in a nutshell: Citizens United allowed corporations to spend freely in politics, calling them “associations of citizens”; their right to do so flows from the collective First Amendment rights of their individual shareholders. It logically follows, then, that restrictions on the rights of shareholders must also apply to the corporation.

One of our most important campaign-finance limits is that “foreign nationals” are barred from spending in any American election, city, state or federal. Since that’s true for individual foreigners, it must also be true for the corporations owned in whole or in part by them. One cannot have a right collectively that one does not have individually.

Seattle’s law, similar to one passed in St. Petersburg, Fla., in 2017, requires corporations that seek to spend in city elections to certify that they are not “foreign-influenced corporations,” and are, thus, in compliance with both Citizens United and federal statutes. Seattle defined any corporation as “foreign-influenced” when more than 1 percent of it is owned by an individual foreign entity, or more than 5 percent is owned in aggregate by two or more foreign entities. These are tight standards, but arguably, not as tight as the zero-tolerance standard that a strict reading of federal law would suggest.

Brennan Center: The 2018 Small Donor Boom Was Drowned Out by Big Donors, Thanks to Citizens United

By Ian Vandewalker

In much of the media, the money-in-politics story of the 2018 midterms was massive engagement by small donors across the board, especially as a weapon for Democrats in reaction to Donald Trump’s polarizing presidency. But that story obscured an even bigger increase in donations of more than $100,000 from a tiny number of people.

Even after a surge in activism, grassroots energy and online fundraising tools are still no match for the boost that the Supreme Court’s Citizens United ruling gave to big money 10 years ago this month. On the contrary, the proportion of money coming from megadonors is rapidly increasing.

In Citizens United, the Court struck down limits on political spending by corporations and unions. The opinion argued that political money won’t corrupt politicians if it’s not given directly to them, paving the way for the creation of super PACs and unlimited outside spending – money that doesn’t go directly to candidates but to groups that work to elect those candidates. These channels are the vehicles that the biggest donors use to influence who runs and who wins. 

To be sure, 2018 was a banner year for small donations. Donors who gave $200 or less contributed $1.4 billion to campaigns and political committees, a more than 50 percent increase over the last midterm cycle. But donors who gave more than $100,000 together contributed almost $2 billion, well over twice the total from 2014, resulting in a much greater portion of election funding coming from them than small donors.


Los Angeles Times: IRS may be unaware of 9,774 political nonprofits, watchdog says

By Bloomberg

There are 9,774 politically active tax-exempt organizations that may have failed to notify the Internal Revenue Service of their existence or submit the paperwork to operate tax-free, according to a new calculation from an agency watchdog.

The IRS has not done enough to identify noncompliant organizations, despite having various sources of data that would enable it to do so, the Treasury Inspector General for Tax Administration said in a report Thursday. The groups are required to notify the IRS within 60 days of forming that they intend to operate as a “social welfare” group organized under tax code Section 501(c)4.

The IRS could also be failing to collect millions of dollars in penalties and fees owed by these social welfare groups, the report said.

The revelation comes as the IRS is seeking to finish regulations that would allow the groups to keep their donor lists secret unless they are requested by the agency. The groups can engage in politics as long as they don’t spend more than half of their money on campaign advertisements or activities to sway an election. Donors don’t have to be disclosed to the public.

Online Speech Platforms

Washington Post: To lie or not to lie? The answer is easy for the GOP.

By Eugene Robinson

It is an uncomfortable truth that one of our two major political parties, the GOP, lies boldly and constantly, while the other, the Democratic Party, does not. We in the media are still struggling to deal with this asymmetry. We urgently need to banish the “both sides” template from our coverage and give primacy to the facts, not to some Platonic ideal of fairness as always involving “on the one hand” and “on the other hand.” That works only if there are, indeed, two legitimate sides…

In a 2018 study, three Massachusetts Institute of Technology scholars found that lies spread more rapidly than truth on Twitter. The same may be the case with other social media platforms as well…

The Republican Party figured this out long before the scholars at MIT did, and the Democratic Party still doesn’t have a clue. The technology of lying and obfuscation has leaped far ahead of the technology of truth telling and accountability. Thanks to Facebook, Twitter, Instagram and other conduits, we in the media are no longer the primary arbiters of what’s true and what’s false. It’s a jungle out there.

In the Darwinian world of social media, will “survival of the fakest” be the rule? It cannot be. Democracy requires truth, and we had better take to the barricades to defend it.

New York Times: Facebook Loves to Pass the Buck

By Kara Swisher

[N]ot much will change at Facebook; it will continue to have a hands-off approach to political ads. Facebook’s plans…boil down to one basic idea: Dear consumer ensnared in our digital panopticon, you might want to fashion a homemade shiv right about now because you are on your own in this prison of hate speech and dangerous lies we built.

Too harsh? I suppose I could give soft claps to Facebook for tweaks to make its political ad storehouse more transparent – a boon for those who have time to fuss with a complex dashboard (presumably the same folks who fix their own cars and such) – and for offering tools to let consumers see fewer of these ads (more do-it-yourself!).

But this is the same tiresome ruse that Facebook leaders have used many times: pushing away responsibility for the ugly parts of their inventions onto the rest of us and conflating different, complex concepts – like paid ads versus free speech – in order to … well, I am not sure why.

And it’s all perfumed with the faint odor of undeserved victimhood that Facebook executives apparently feel for being so maligned, even as they continue to benefit extravagantly from sucking all of our data into their maw, and even though they do less than they should to contain some of the damage of social media that they are so clearly responsible for.

Daily Beast: Facebook Helped Decimate the Media Industry but Wants Journalists to Do Its Job

By Blake Montgomery

[W]hat Facebook defines as newsworthy may be different than how journalists, tasked with reporting facts, do so. And whether reporters can even keep pace with the sheer volume of political speech on such a sprawling platform in a time of industry consolidation, job cuts, and widespread disinformation is far from certain.

“Newsworthiness is an editorial decision. Journalists decide it by finding and verifying information that their readers can trust is accurate,” said Ryan Thomas, associate professor of journalism studies at the University of Missouri. “Facebook is not playing that role. It’s taking a hands-off approach. But the absence of fact-checking is an editorial decision. Newsworthy information can’t be any old lie.”…

“Facebook’s influence on journalism has been disastrous. By extension, so has its influence on democracy,” Thomas said…

Facebook’s own fact-checking partners have said they can’t keep up with the firehose of falsehoods on the platform…

“Facebook is terrified of being accused of partisan bias. What it’s instead decided to do is tip the marketplace in favor of lies,” said Thomas. 

New York Times: Buckle Up for Another Facebook Election

By Kevin Roose

Don’t get me wrong: Facebook has made strides since 2016 to deter certain kinds of election interference. It has spent billions of dollars beefing up its security teams to prevent another Russian troll debacle, and it has added more transparent tools to shine more light on the dark arts of digital campaigning, such as a political ad library and a verification process that requires political advertisers to register with an American address. These moves have forced would-be election meddlers to be stealthier in their tactics, and have made a 2016-style foreign influence operation much less likely this time around.

But despite these changes, the basic architecture of Facebook is largely the same as it was in 2016, and vulnerable in many of the same ways. The platform still operates on the principle that what is popular is good. It still takes a truth-agnostic view of political speech – telling politicians that, as long as their posts don’t contain certain types of misinformation (like telling voters the wrong voting day, or misleading them about the census), they can say whatever they want. And it is still reluctant to take any actions that could be construed as partisan – even if those actions would lead to a healthier political debate or a fairer election.

Facebook has argued that it shouldn’t be an arbiter of truth, and that it has a responsibility to remain politically neutral. But the company’s existing policies are anything but neutral. They give an advantage to candidates whose campaigns are good at cranking out emotionally charged, hyperpartisan content, regardless of its factual accuracy. Today, that describes Mr. Trump’s strategy.

Candidates and Campaigns

Washington Post: Mike Bloomberg is right. But he’s not the right messenger.

By Jennifer Rubin

Let’s unscramble Bloomberg’s argument. First, it is true that Iowa and New Hampshire should not be up front. However, since they presently are and everyone else is competing there, his decision to skip them because of a late entry shouldn’t be considered an act of virtue. It’s a political calculation that’s only possible for someone spending unprecedented amounts of money…Finally, the elephant in the room, and the reason that Bloomberg’s argument about diversity rings hollow, is his own self-financing.

There are a whole bunch more white, male billionaires than women and/or nonwhite billionaires in the United States. Democrats who have fallen out or failed to make recent debates, including all nonwhite candidates with the exception of Andrew Yang, do not have Bloomberg’s resources. If Democrats maintain this system that allows or even encourages billionaires to finance their own campaigns, they will have a limited number of people who can win presidential nominations and will significantly diminish the chances of getting a nonwhite, non-male candidate.

The Democratic Party, which has long bemoaned the role of money in politics, should address this head-on. Unlike a general election, a primary election can be run under rules that the party sets. There is nothing to prevent the party from saying that you cannot get on the ballot unless at least three-quarters (or 90 percent?) of your financing comes from individuals. The party could also deny superdelegates or otherwise penalize candidates who have self-financed or declined to participate in debates.

Campaigns & Elections: The Risks of a Purity-Driven Fundraising Strategy

By Nick Daggers

By putting such a significant emphasis on [campaign finance reform], some Democrats risk leaving millions of dollars on the table in their fight to defeat Donald Trump in 2020. If Democrats are serious about defeating Trump, they’ll need every dollar they can raise…

While I salute [Sanders’s and Warren’s] commitments to running campaigns consistent with their beliefs, I believe it ultimately weakens them, should either become the presidential nominee.

Whoever wins the Democratic nomination must be prepared for the constant attacks from the Trump campaign, and the millions of dollars Republicans have stockpiled over the last four years preparing for the 2020 election…

Sanders and Warren have set records raising money from their low-dollar base, but each risk leaving millions of dollars on the table in a general election…

It’s also likely that these tactics could have some unintended consequences for races down-ballot. In 2018, we saw many successful Democratic congressional candidates refuse corporate PAC money. These pledges likely had little to no-impact in an election when running as a challenger. Corporate PACs tend to support incumbents. It’s rare that they even consider supporting a challenger…

Candidates also risk putting their foot in their mouths by opening fundraising events to the media. Fundraising events our environments where candidates feel exceptionally safe, and would say things they would never say to voters.

Some of the biggest political-blunders in recent memory have come at large dollar fundraisers.


Tiffany Donnelly

Tiffany Donnelly


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