New from the Institute for Free Speech
By Allen Dickerson
A few commentators have claimed, without evidence, that the proposed rule would “invite illegal foreign spending in U.S. elections” and otherwise encourage unlawful meddling by non-U.S. persons in the nation’s political debates. They assume, again without any evidence, that the Internal Revenue Service’s (“IRS” or “Service”) reporting requirements, specifically Form 990, Schedule B, stops the spending of illegal foreign money on election campaigns. The claim is unfounded and provides no principled or practical basis for rejecting the proposed rule.
Schedule B quite simply does not serve the purpose these commentators propose. As has been explained elsewhere, it is a tool for the administration and enforcement of tax laws. It was not intended by Congress, or the Service, to supplant the mission of the Federal Election Commission and other entities with the mission of enforcing campaign finance restrictions. Moreover, the proposed use of Schedule B simply does not work as a practical matter…
At least one commenter suggests “the risk of inadvertent public disclosure is minute.” But its only evidence is the opinion of a federal appellate court discussing the risk of Schedule B disclosure by the California Department of Justice, not the Service. In any event, that court decision acknowledged a “risk of inadvertent public disclosure based on past confidentiality lapses,” although it ultimately discounted that risk. That ruling was highly controversial, drawing a vigorous opposing opinion from five judges. Nor is that decision final; it is presently the subject of a petition to the U.S. Supreme Court for a writ of certiorari.
By Deborah J. La Fetra, Guest Blogger (Pacific Legal Foundation)
Imagine showing up to vote on Election Day wearing a t-shirt with your favorite candidate’s slogan. The poll workers say your shirt is illegal electioneering and you can’t vote at the polling place until you cover the shirt or go home to change clothes.
Now imagine you’re wearing a “National Rifle Association” hat or a rainbow flag pin. Or maybe you’re proudly wearing a “Deplorable” cap or a “RESIST” t-shirt. Are those also political statements that could get you turned away at the polling place door?
Those examples illustrate how tricky it can be to regulate political speech and the arbitrary power that poll workers in many states possess. A June 2018 Supreme Court victory in the case of Minnesota Voters Alliance (MVA) v. Mansky helped to rein in that arbitrary power some. However, in states like Texas, voters are still fighting for their First Amendment rights.
In 2018, when Jillian Ostrewich tried to vote, a Houston election judge forced her to turn her t-shirt inside out because the shirt had the logo of her husband’s firefighter union on the front. In Dallas, an election judge forced Tony Ortiz to remove his MAGA hat before he was allowed to vote. Texas bans voters from their polling place if they are wearing any symbols or messages related to political parties, candidates, and ballot issues. But what exactly is included in the ban? Texas’ vague law doesn’t say, and election officials can interpret it as broadly as they want. That’s why Jillian and Tony – the plaintiffs in Ostrewich v. Trautman – are challenging Texas’ law in court…
If Ostrewich eventually makes it to the Supreme Court, the Justices could (and hopefully will) reaffirm the rule of MVA and expand it to include other overly expansive political speech bans.
By Jeff Barker
A Maryland law aimed at extending the state’s campaign finance oversight into online political ads goes too far, a federal appeals court ruled.
The Online Electioneering Transparency and Accountability Act, passed in 2018, would require newspapers and other media platforms to publish information on their websites about the political ads they display. The state law followed revelations about a Russian disinformation campaign in the 2016 presidential election, including thousands of ads a Russian internet agency created or promoted on Facebook.
A three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, lauded the intent of the Maryland law, but said in an opinion Friday that some of its terms encroach on the First Amendment.
“This case asks, at bottom, whether these terms can be squared with the First Amendment,” Judge J. Harvie Wilkinson wrote. “For the reasons discussed below, we agree with the district court that they cannot. While Maryland’s law tries to serve important aims, the state has gone about this task in too circuitous and burdensome a manner to satisfy constitutional scrutiny.”
The law’s effective date was July 1, 2018. The next month, media organizations including The Baltimore Sun and The Washington Post, filed for a preliminary injunction in U.S. District Court to block portions of it from taking effect. The district judge temporarily blocked the enforcement of those parts of the law.
New York Times: Federal Appeals Court Rules Against Political Ad Law
By The Associated Press
A Maryland law approved by state legislators to prevent foreign interference in local elections is unconstitutional because it violates the First Amendment, a federal appeals court has ruled.
A three-judge panel of the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals found that the law targets political expression and compels certain speech, and affirmed a lower court’s ruling to strike the law down…
“Despite its admirable goals, the Act reveals a host of First Amendment infirmities: a legislative scheme with layer upon layer of expressive burdens, ultimately bereft of any coherent connection to an offsetting state interest of sufficient import,” [Circuit Judge J. Harvie Wilkinson III] wrote in the ruling released Friday.
The law’s sweeping scope sparked a First Amendment outcry from more than a half dozen newspapers, including The Washington Post and The Baltimore Sun.
The newspapers and the Maryland-Delaware-D.C. Press Association argued in a lawsuit the the statute violates the First Amendment because it requires them to collect and self-publish information about the sponsors of online political ads. It also requires them to keep records of the ads for inspection by the state Board of Elections.
“In the end, each banner feature of the Act – the fact that it is content-based, targets political expression, and compels certain speech – poses a real risk of either chilling speech or manipulating the marketplace of ideas,” Wilkinson wrote.
By Olivia Messer
The Justice Department weighed in on a federal campus free-speech lawsuit on Monday, proclaiming that neither Jones County Junior College in Ellisville, Mississippi, nor any other public educational institution, can “trample on” its students’ First Amendment rights.
Former student J. Michael Brown-along with the non-profit group Young Americans for Liberty-filed the lawsuit in September, claiming that the college had instituted a policy requiring campus administrators to pre-approve all “meetings or gatherings” at least three days before any event for any purpose anywhere on campus, The Clarion-Ledger reported at the time.
Brown’s lawsuit alleged that college officials twice called the campus police on him when he “sought to engage on campus with fellow students about topics such as free speech and civil liberties” and the legalization of marijuana, according to a press release from the Justice Department on Monday. Based on the school’s current policies, a student’s violation of its rules about meetings and gatherings could result in expulsion, according to the statement.
The government’s 14-page statement of interest filed in federal court on Monday points to Supreme Court case law and compares the college’s “extreme preconditions to speech” to the dystopia depicted in George Orwell’s famous novel 1984.
Washington Post: Did Devin Nunes just file a halfway-decent defamation suit?
By Erik Wemple
Rep. Devin Nunes (R-Calif.) on [last] Tuesday filed a lawsuit against CNN in a federal courthouse in Virginia…
“CNN is the mother of fake news. It is the least trusted name,” reads the complaint. “CNN is eroding the fabric of America, proselytizing, sowing distrust and disharmony. It must be held accountable.” Toward that end, Nunes is asking for $435,350,000 in connection with a Nov. 22 piece by CNN’s Vicky Ward…
Ward reported that Lev Parnas, an associate of Giuliani under indictment for campaign finance violations, is prepared to testify about “meetings the top Republican on the House Intelligence Committee had in Vienna last year with a former Ukrainian prosecutor [Viktor Shokin] to discuss digging up dirt on Joe Biden.” That story was sourced to a lawyer representing Parnas.
In his lawsuit, Nunes cites some alleged problems with the story. One, Nunes reports that he didn’t go to Vienna or any other Austrian locale in 2018. Two, he says he has never met Shokin. Furthermore, the complaint makes the case that Parnas is an unreliable narrator who has spun shaky stories in the past, as documented in the media. “From all the evidence in its possession, CNN was well-aware that Parnas was a renowned liar, a fraudster, a hustler, an opportunist with delusions of grandeur, a man in financial in extremis laboring under the weight of a $500,000 civil judgment, and an indicted criminal defendant with a clear motive to lie,” argues the complaint.
By Peter Baker and Maggie Haberman
President Trump plans to sign an executive order on Wednesday targeting what he sees as anti-Semitism on college campuses by threatening to withhold federal money from educational institutions that fail to combat discrimination, three administration officials said on Tuesday.
The order will effectively interpret Judaism as a race or nationality, not just a religion, to prompt a federal law penalizing colleges and universities deemed to be shirking their responsibility to foster an open climate for minority students. In recent years, the Boycott, Divestment and Sanctions – or B.D.S. – movement against Israel has roiled some campuses, leaving some Jewish students feeling unwelcome or attacked.
In signing the order, Mr. Trump will use his executive power to take action where Congress has not, essentially replicating bipartisan legislation that has stalled on Capitol Hill for several years. Prominent Democrats have joined Republicans in promoting such a policy change to combat anti-Semitism as well as the boycott-Israel movement.
But critics complained that such a policy could be used to stifle free speech and legitimate opposition to Israel’s policies toward Palestinians in the name of fighting anti-Semitism. The definition of anti-Semitism to be used in the order matches the one used by the State Department and by other nations, but it has been criticized as too open-ended and sweeping.
By Jonathan Turley
[Justice Department inspector general Michael] Horowitz did say that the original decision to investigate was within the discretionary standard of the Justice Department. That standard for the predication of an investigation is low, simply requiring “articulable facts.” …
In fact, the Justice Department has a standard that requires the least intrusive means of investigating such entities as presidential campaigns, particularly when it comes to campaigns of the opposing party. That threshold finding is then followed by the remainder of the report, which is highly damaging and unsettling. Horowitz finds a litany of false and even falsified representations used to continue the secret investigation targeting the Trump campaign and its associates…
The investigation was largely based on a May 2016 conversation between Trump campaign adviser George Papadopoulos and Australian diplomat Alexander Downer in London. Papadopolous reportedly said he heard that Russia had thousands of emails from Democratic nominee Hillary Clinton. That was viewed as revealing possible prior knowledge of the WikiLeaks release two months later, which was then used to open four investigations targeting the campaign and Trump associates. Notably, Democrats and the media lambasted Trump for saying the Justice Department had been “spying” on his campaign, and many said it was just an investigation into figures like Carter Page…
Horowitz found that investigators and the Justice Department concluded there was no probable cause on Page to support its FISA investigation. That is when there was an intervention from the top of the FBI, ordering investigators to look at the Steele dossier funded by the Democratic National Committee and the Clinton campaign instead…
FISA judges were told that a Yahoo News article was an independent corroboration of the Steele dossier, but Horowitz confirms that Steele was the source of that article. Therefore, Steele was used to corroborate Steele on allegations that were later deemed unfounded.
Broadcasting+Cable: Broadcasters Fight Political Ad Disclosure Changes
By John Eggerton
The FCC’s Media Bureau has sought comment on a petition by major broadcast groups and the National Association of Broadcasters to narrow the agency’s political ad disclosure requirements, giving stakeholders six weeks or so to comment on or oppose the petition. The latter is essentially a given by campaign finance reform groups who have long been trying to get the FCC to tighten the rules on disclosures of issue ads that broadcasters must post in their public files.
The National Association of Broadcasters joined with Hearst Television, Graham Media Group, Nexstar Media Group, Fox Television Stations, Tegna and E.W. Scripps to ask the FCC to decrease the number of ads that require such disclosures and the number of disclosures per ad, all of which station personnel have to identify and report to the FCC.
The broadcasters have petitioned the FCC to reconsider its October order resolving complaints against broadcast groups for failure to properly identify those issue ads…
According to FCC documents, broadcasters want to narrow and clarify the interpretation of “issue of national importance” by specifying that the term applies only to national political actors in a position to take nationwide action.
They also want the FCC to eliminate the mandate that stations identify all political matters of national importance referenced in each ad, and instead only require them to make a “reasonable, good faith” effort to disclose topics that are the “focus” of the ad…
Broadcasters argue that the FCC’s rules could lead to them turning down campaign ads due to the threat of sanction if they fail to identify an issue…
They said not only will this hurt station revenues, but political speech, since advertisers won’t be able to get their message out as broadly as they otherwise could.
By Valerie Richardson
The conservative Media Research Center filed Monday a Federal Election Commission complaint alleging that the policy by Bloomberg News not to investigate 2020 Democratic presidential candidates – but to continue to investigate President Trump – violates campaign-finance laws.
The complaint filed against Bloomberg LP, owner of Bloomberg News, as well as Michael Bloomberg and his 2020 presidential campaign argues that the news outlet’s hands-off policy on Democratic candidates represents “an improper contribution to Bloomberg’s campaign under FEC regulations.”…
Under FEC rules, media outlets are exempt from federal campaign-finance disclosure laws “unless the facility is owned or controlled by any political party, political committee, or candidate,” in which case they must provide “reasonably equal coverage to all opposing candidates,” said the MRC filing…
[T]he complaint argued that the media company must register as a political committee.
“Bloomberg News’s decision to refrain from investigating the Candidate is a thing of value given by Bloomberg News to the Candidate to influence a federal election,” said the seven-page document.
By Dan Backer
On the one hand, the FEC’s deadlock proves the agency isn’t as indispensable a part of our democracy as many claim, particularly as FEC reports continue to be filed. It serves as a stark reminder of how much the agency’s raison d’être had become keeping political outsides out through byzantine rules, complex processes, uneven enforcement, and the activist agendas of certain FEC commissioners.
On the other hand, the status quo isn’t exactly ideal. Without a functioning FEC, those who would abuse their power and break the law for political gain are only emboldened to do so. Corrupt political elites and operatives know the lack of enforcement presents an opportunity to court excessive contributions, conceal illicit money trails, and commit other transgressions…
One of the FEC’s Democratic commissioners, Ellen Weintraub, has long gone rogue, choosing to propagandize against President Trump and for her policy preferences, instead of enforcing campaign finance law.
Weintraub continues to crusade against political advertising, claiming such information “divides our democracy” – thereby promulgating her own views as binding agency policy. You see, Weintraub’s worldview dictates that the American people are simply too stupid or too naive to process electoral information, leaving it up to rogue bureaucrats like her to regulate political speech. If she needs #FakeLaws to control the masses, then so be it.
Do we really need unelected ideological hacks policing our speech? What bureaucrats like Weintraub should be doing is their job – their actual job.
Washingtonian: How the Mueller Investigation Changed K Street
By Luke Mullins
A four-letter acronym that went ignored for decades, says one consultant, has “put the fear of God” into K Street…
The Justice Department division that was responsible for enforcing the statute had a tiny staff and, unlike other units, does not have the power to compel subjects to turn over documents or even answer its questions. Between 1966 and 2015, DOJ brought just seven criminal FARA cases and won only three. “None of us filed FARA back in the day,” says one Washington operative. “Our attorneys never even mentioned it.”…
As Mueller lifted the veil on this illicit economy, this once-laughed-at team of lawyers and bureaucrats instantly became the supporting actors of the biggest news story in the world…
At the same time, DOJ muscled up its foreign-influence unit by increasing its staff, stepping up its overall inspection of advocacy firms and other influencers, and hiring one of Mueller’s former prosecutors to run the unit…
Lawyers quickly realized that the laissez faire days were over. Ron Oleynik, of Holland & Knight, says the relationship used to be “collaborative more than prosecutorial.” He could call up members of the FARA unit at DOJ for informal guidance on his clients’ issues-“it wasn’t adversarial necessarily.” Today such camaraderie is long gone. K Street is subject to the toughest FARA enforcement regime Washington has ever experienced. Since 2018, federal prosecutors have charged more individuals and entities with FARA-related crimes than they had over the prior 50 years.
Online Speech Platforms
By Isaac Stanley-Becker
The technologies Facebook uses to put advertising it deems relevant in front of people may be more responsible for the polarization of American politics than previously understood, a team of researchers has concluded.
Their findings, which have not been previously reported, are the first to demonstrate a skew in the delivery of political ads based on the content of those ads and the information Facebook has on users – not on the targeting decisions made by a political candidate or campaign…
When the researchers sought to force Facebook to show posts to users not already aligned with the ideology of the advertising, the cost of the advertising rose…
The researchers spent more than $13,000 on a set of advertising campaigns designed to test how Facebook promotes political messaging. The partisan skew appeared in their experiment, the authors stress, even though all ads were run from the same account and at the same time. The ads all focused on the same audiences and used the same “goal, bidding strategy, and budget.”…
Light shed on the system’s internal workings by the new paper suggests that Facebook’s algorithm limits exposure to diverse viewpoints, while creating barriers for candidates who aim to reach across the aisle.
“Put simply, Facebook is making decisions about which ads to show to which users based on its own priorities,” the authors conclude, meaning “user engagement with or value for the platform.”
By Craig Timberg
Facebook again is discussing “microtargeting” and weighing whether to restrict a set of advertising tools so powerful that, critics say, it may threaten democracy…
Though political advertising is a relatively small source of revenue for Facebook…the stakes are high because many politicians, including President Trump, are avid users of its microtargeting tools…
Disinformation experts and researchers say limiting or banning political microtargeting would help slow the spread of falsehoods online by exposing problematic ads – by politicians or political interest groups – to a wider audience, where inaccuracies or outright lies would be more likely to be noticed and exposed…
Federal Election Commission Chairwoman Ellen L. Weintraub has repeatedly warned about microtargeting, including in a Washington Post opinion piece last month in which she called the practice “a potent weapon for spreading disinformation and sowing discord.”…
Facebook also allows microtargeting by letting advertisers upload lists of people – by name, phone number, email address or other identifying characteristics – to create a matched “Custom Audience” of Facebook users. Advertisers that create “Custom Audiences” also can create a secondary list called “Lookalike Audiences” of people with similar characteristics.
“No other advertising platform in history comes close to having Facebook’s capabilities,” said Jonathan Albright, research director of the Tow Center for Digital Journalism at Columbia University. “If there was no Custom Audiences, then we probably wouldn’t be talking about microtargeting right now.”
Candidates and Campaigns
By Madison Dibble
New Jersey Sen. Cory Booker condemned the role billionaires have taken in the 2020 Democratic primary and blamed them for Sen. Kamala Harris’s early departure from the race…
Booker blamed billionaires for Harris’s exit from the race during an interview on ABC’s This Week…
“John Kerry, polling like her at 4%. John Kerry pulled out all of his other campaign places, folded it all into Iowa, just like Kamala Harris…But John Kerry made it to Iowa because he loaned himself $5 million,” Booker explained. “Kamala Harris cannot loan herself $5 million.”
He added, “We should be stopping the influence of big money in politics. Kamala Harris stopped her campaign because of the campaign finance rules and the fact that she couldn’t do what we see billionaires doing in this race, which is flooding ads to jack up their poll numbers and get in.”
Two billionaires, Tom Steyer and former New York Mayor Michael Bloomberg, have entered the Democratic primary but have failed to break into the top tier of candidates.
Host George Stephanopoulos pushed back on Booker’s case.
“Joe Biden’s not a wealthy man. Pete Buttigieg is not wealthy. Bernie Sanders is not that wealthy. Senator Warren is not that wealthy. They’re all staying in and doing better,” he said. “So, that doesn’t explain it.”
New York Times: New York Deepens Its Investigation Into the N.R.A.
By Danny Hakim
The New York State attorney general has issued a new subpoena to the National Rifle Association, deepening her eight-month investigation and providing fresh clues about where it is headed, according to people with knowledge of the document.
The subpoena, which was described to The New York Times, was issued last week and covers at least four areas, including campaign finance, payments made to board members and tax compliance…
The subpoena also seeks documents related to internal communications about the N.R.A.’s filings to the Federal Election Commission, as well as communications related to two intertwined political consulting firms, Starboard Strategic and OnMessage. A complaint filed to the F.E.C. by Giffords, a gun-control group, alleged that the N.R.A. had paid millions to Starboard as a way to direct money to Republican candidates advised by OnMessage, circumventing laws restricting how much groups like the N.R.A. can donate to political campaigns. Giffords, which subsequently sued the F.E.C. for failing to act, has alleged that Starboard and OnMessage are “functionally indistinguishable.”
Allegations about Starboard and OnMessage surfaced last year in reporting by The Trace, a nonprofit website funded by Everytown for Gun Safety, a group co-founded by Michael Bloomberg, the presidential candidate who has donated tens of millions of dollars to gun-control groups.
By The News Tribune Editorial Board
Since 1972, the Washington Public Disclosure Commission has rigorously tracked campaign donations and expenditures while making sure some of the country’s strongest transparency laws are enforced…
Now the agency wants the 2020 Legislature to go even further – not with money, but by modernizing rules.
With a pivotal election less than a year away and the integrity of our democratic process under more stress than ever, lawmakers should heed PDC requests to fortify the state’s Fair Campaign Practices Act.
No doubt the various disclosure requirements are a headache for candidates who must account for every postage stamp on a campaign mailer. But it keeps them honest, and most are willing to do it.
Starting next month, candidates can look forward to a Turbo Tax-style web tool where mistakes get caught before they become violations…
[T]hanks to social media platforms and a U.S. Supreme Court decision known as Citizens United – the PDC has a tough time keeping pace.
After the U.S. Supreme Court overturned the federal prohibition against independent expenditures (IEs), America found out quickly what happens when corporations and fat cats are allowed to spend unlimited cash on elections: They do it, and negative campaigning explodes.
By Sandra Fish
Advocates for Proposition CC outspent the opposition by more than double but still lost in the statewide November election.
The two campaign committees behind the ballot question – Coloradans for Prosperity and Great Education Colorado – spent a combined $4.5 million on the failed effort, according to final campaign finance reports filed late last week.
Colorado voters [voted] 54% to 46% to reject Prop. CC, which would have ended the tax revenue caps in the Taxpayer’s Bill of Rights.
The measure’s opponents spent at least $1.8 million, most of it from dark money organizations that didn’t disclose the source of the campaign cash.
By Jeffrey Brindle
In David Thompson v. Heather Hebdon, the U.S. Supreme Court, in a recent opinion involving contribution limits, vacated and remanded back to the Ninth Circuit Court of Appeals a ruling by the lower court that upheld contribution limits in Alaska…
[T]he Supreme Court’s decision in Thompson augurs well for New Jersey’s campaign finance law and its contribution limit schedule.
By establishing limits on contributions in its 1993 reforms, the Legislature, in its wisdom, not only established non-gubernatorial limits that are high enough (now $2600) to withstand constitutional challenge but created a unique formula for adjusting gubernatorial limits and thresholds for inflation every four years.
The formula, which accounts for both advertising and consumer price inflation, was originated and subsequently proposed by the New Jersey Election Law Enforcement Commission (ELEC). The campaign index has served to ensure that the gubernatorial candidates that participate in the Gubernatorial Public Financing Program have enough money to run effective campaigns.
While the Commission has advocated raising non-gubernatorial contribution limits to adjust for inflation, the Legislature has yet to take up the proposal despite the limits remaining stagnant for several election cycles. Nevertheless, the existing non-gubernatorial contribution limits are sufficient to satisfy guidelines suggested by the U.S. Supreme Court in its recent ruling involving Alaska’s contribution limit plan.
By Eric Heinz, City News Service
Campaign donations to elected city officials or candidates for municipal office are now barred for developers who have project applications pending at City Hall, The Eastsider reported. The City Council approved the proposal from David Ryu, who represents Los Feliz and a portion of Silver Lake. Some council members, however, said they were concerned the ordinance wouldn’t restrict contributions to independent campaign committees, which can be clandestine and more difficult to track. “When it comes to campaign finance reform, all we’re doing is feeding a vitamin C tablet to someone with pneumonia until we do full public financing (of campaigns),” said Councilman Mike Bonin.
Truthout.org: Southern States Take Up Fight for Bold Democracy Reforms
By Chris Kromm, Facing South
[H.R. 1, the For the People Act]…expertly led to passage in the House by lead sponsor Rep. John Sarbanes (D-Maryland) and endorsed by a broad coalition…was inspired by a key insight: that in the current political moment, marked by deep voter cynicism about corruption and rigged elections, piecemeal reforms aren’t enough. What is needed…is a far-reaching plan that outlines how all aspects of democracy can work better, and only a bill that tackles voting rights, Big Money, and ethics reform together could offer that larger vision…
With reform stifled in Washington, the task of expanding voting access and curbing Big Money influence has shifted to the states. Especially in the South, states have been critical terrain for struggles over voting and elections since the early 2000s, when conservative lawmakers began pushing a raft of voting restrictions such as stringent photo ID requirements. Those clashes have only escalated in recent years in legislatures and the courts, with pitched battles over voter registration and list purges, gerrymandering, and skyrocketing political spending in the wake of the Supreme Court’s 2010 Citizens United decision.
Taking inspiration from Congress and H.R. 1 – and eyeing recent and potential future Democratic gains in state politics – advocates are proposing far-reaching, pro-democracy agendas across the South.