In the News
Center for Individual Freedom (Audio): Citizens United: The 10 Year Anniversary
Featuring Renee L. Giachino and Bradley A. Smith
Bradley A. Smith, Chairman and Founder of the Institute for Free Speech, discusses Citizens United after ten years, the effects of the case over the last five election cycles and how politics is more diverse today.
Washington Examiner: Trump and Bloomberg Super Bowl ads are a novelty, but are they worth it?
By Luke Wachob
President Trump and former New York City Mayor Michael Bloomberg each spent more than $10 million for 60 seconds of ad time during the game. They will become the first political candidates to air national advertisements during a Super Bowl since those ads have been tracked – and possibly ever.
Expensive political ads during the country’s most-watched TV event are sure to make some people shake their heads. Many turn to sports for an escape from things such as politics. Others will wonder how candidates from average backgrounds can compete against opponents who can afford $10 million Super Bowl ads.
These reactions are themselves cause for comfort in the face of expensive advertising. People are often unpersuaded by the biggest spenders or are even put off by them. Ads give candidates a platform, but the voters still have to like what they see. Just ask Jeb Bush and Hillary Clinton.
Most viable presidential campaigns eventually raise tens of millions of dollars. But down the ballot, budget campaigns also score big upsets. Alexandria Ocasio-Cortez became the star of the 2018 midterm elections after defeating incumbent Joe Crowley in a primary where she was outspent 18-to-1. In the 2014 midterm elections, Republican Dave Brat ousted then-House Majority Leader Eric Cantor in a primary where Cantor outspent Brat 40-to-1.
By Alex Baiocco
Can voters handle exposure to unfettered speech? Some politicians will say the answer is no. They believe limiting your right to hear from certain speakers is the key to achieving their policy goals. That is a main reason many of these lawmakers want to overturn Citizens United v. Federal Election Commission, which has just marked its tenth anniversary. In that decision, the Supreme Court told Congress that it could not ban speech simply because the source of that speech was a corporation or a union.
While some lawmakers will blame their inability to achieve just about any part of their agendas on Citizens United, legislation to address climate change is commonly cited…
It is true that, before 2010, some climate legislation received votes from Republicans and Democrats. But both Republicans and Democrats also opposed those bills. In fact, more Democrats voted no than Republicans voted yes. When Senator John McCain and Senator Joseph Lieberman introduced legislation in 2003 to limit carbon emissions, that bill was defeated with 10 Democrats voting no and six Republicans voting yes.
The same duo introduced a similar bill in 2005. It was again defeated with 11 Democrats voting no and with six Republicans voting yes. In 2007, when Democrats controlled both chambers, an amended version of the bill died in committee, as did the Global Warming Pollution Reduction Act. In that same Congress, the Climate Security Act failed to overcome a Republican filibuster with four Democrats voting not to invoke cloture…
No fair analysis of this history could blame a Supreme Court decision a decade ago for a sudden lack of bipartisan consensus on climate policy.
New from the Institute for Free Speech
By Tyler Martinez
Taxpayer-financed campaigns are a bad idea. The latest evidence comes from the D.C. Council, where longtime incumbent Jack Evans recently “resigned in disgrace” from his post – only to seek reelection to the very seat he vacated. After he repeatedly violated the District’s conflict of interest rules, taxpayers may be forced to pay for Evans’ campaign to regain his old position of power. In 2017, the Institute for Free Speech warned the D.C. Council of the dangers of a taxpayer-financing system for political campaigns. We gave examples of rampant corruption where these systems have been tried.
A few examples might help refresh the memory. “Cash and Carry” Larry Seabrook took over $16,000 in taxpayer dollars in New York City and was convicted of accepting bribes, extorting money, and other crimes resulting in his imprisonment. Los Angles candidate Robert L. Cole, Jr. faked small-dollar donations to get more public money in that city’s tax-financing system. Similar abuses happened in statewide taxpayer-financing systems in Arizona and Maine.
In 2020, as the Jack Evans saga shows, forcing D.C.’s taxpayers to finance political campaigns is not an anti-corruption measure. If anything, the opposite is true. The vast majority of the corruption charges affecting Washington, D.C.’s elected officials stem from either the misuse of tax dollars for personal gain or the misuse of campaign funds. Far from weeding out corruption, the District’s matching funds program combines the two problems, opening the door for public money to go straight to those already under investigation for corruption.
Because of the Council’s actions, the District’s residents might be forced to help fund the campaign of a man who recently resigned his seat under a cloud of corruption scandals – all due to D.C.’s misguided taxpayer-financing system.
By Tiffany Cheung and Thomas Benjamin Davidson
On January 10, 2020, the Supreme Court granted certiorari to review the Fourth Circuit’s decision to strike the Telephone Consumer Protection Act’s (TCPA) “government-debt exemption.” …
The potential outcomes have a range of potential impacts on the current TCPA landscape.
First, the Court may overturn the Fourth Circuit. The government asserts that the Fourth Circuit was incorrect in applying strict scrutiny, arguing that the government-debt exemption “does not depend on the content of the speech at issue. Rather, it depends on the call’s economic purpose…
Second, the Court may uphold the Fourth Circuit’s decision and sever the government-debt exemption…
Third, as some observers believe, the Court may invalidate the TCPA altogether, finding that the statute’s restriction on which mediums can be used for speech contravenes the First Amendment. By taking this approach, the Court would upend the entire TCPA landscape, providing a defense for companies and organizations that have faced decades of lawsuits. It would remain to be seen whether such a decision would lead to new legislation…
This latest TCPA case is poised to further define the bounds of First Amendment protections in a new era of technology and communication.
By Emma Cueto
Several libertarian public interest groups have urged the U.S. Supreme Court to take up a challenge to mandatory state bar membership, arguing that the current required membership in the Wisconsin State Bar is similar to the mandatory union membership the court struck down in Janus v. AFSCME…
Public Legal Foundation, Cato Institute, Reason Foundation and others filed a joint amicus brief Thursday arguing that an “integrated” state bar, in which attorneys are required to join the bar association in order to practice law in the state, violates attorneys’ First Amendment rights by essentially forcing them to subsidize the bar’s political stances…
“To harmonize First Amendment jurisprudence across analogous union and bar compelled dues contexts, and to protect individual rights of free speech and association, the petition for writ of certiorari should be granted,” the brief said…
Similar cases made their way to other federal appeals courts in 2019.
The Eighth Circuit held in August that the dues collected by North Dakota’s bar association do not violate the First Amendment, as the group clearly spells out its payment fees and options for a relatively sophisticated audience of lawyers.
Attorneys opposed to paying fees in Oregon told the Ninth Circuit in September that the District of Oregon made a mistake in May when it dismissed their claims, as it failed to fall in line with Janus, which the lawyers argued effectively bars the notion that their right to practice law should be predicated on paying dues to an organization that takes on political or ideological issues.
The majority of states, approximately 30, have mandatory or integrated bar associations…
The case is Jarchow et al. v. State Bar of Wisconsin et al., case number 19-831, in the U.S. Supreme Court.
Courthouse News: Nonprofit Loses Beef Over City’s Campaign-Disclosure Rule
By Victoria Prieskop
A federal judge in New Mexico has ruled that a Santa Fe ordinance requiring disclosure of campaign spending over $250 on a ballot issue passes constitutional muster.
Senior U.S. District Court Judge Judith C. Herrera’s ruling stems from a 2017 lawsuit brought by nonprofit Rio Grande Foundation which claimed that disallowing anonymous donations to the foundation chilled free speech…
In the course of the campaign [opposing a proposed soda tax in Santa Fe], the group set up a website, a Facebook page and a link to a YouTube video explaining its objections to the tax. Because the group was deemed to have spent more than $250 in costs and in-kind contributions from third parties on the campaign, it was required by Santa Fe’s campaign code to disclose its donors and was officially reprimanded by the city for failing to do so…
After the election, the foundation sued Santa Fe and its Ethics and Campaign Review Board, claiming First and 14th Amendment violations. It sought a declaratory judgment that the city law was unconstitutional, so that “nonprofit groups may speak freely and openly about issues that matter to them, free from the fear that, by doing so, they will be forced to violate the privacy of their donors and potentially subject those donors to harassment and retaliation.”
On Wednesday, Judge Herrera acknowledged the delicate balance of privacy rights and public welfare. “This case presents colliding interests of constitutional significance – a person’s or collection of persons’ rights to donate anonymously for speech on ballot issues against the electorate’s right to know who is spending money and in what amounts advocating for or against ballot measures.” …
Herrera found that, “although the court remains concerned about the potential chilling effect of the ordinance for groups raising and spending small amounts on ballot initiatives, the factual record is insufficient to support the sweeping invalidation of the ordinance that [the Rio Grande Foundation] requests.”
By Mark Tapscott
“Put simply, the Presidential Election Campaign Fund is a welfare program for politicians that’s doing nothing else but ballooning our deficit,” Sen. Joni Ernst (R-Iowa) told The Epoch Times…
[Ernst] has introduced a bill-the “Eliminating Leftover Expenses for Campaigns from Taxpayers (ELECT) Act of 2020”-to abolish the program…
The program that was once the first bright hope of advocates for public funding of all federal campaigns has dwindled dramatically since its creation, in the aftermath of the Watergate scandal.
Soon after its creation, more than a fourth of all federal tax filers checked the box to contribute $3 to the fund in 1976, and it reached its participation peak in 1980, when nearly 30 percent of filers devoted $68 million.
But it’s been downhill ever since…
While the fund was a major factor in campaigns for several decades, the big disincentive was the fact that candidates who accepted public funding had to decline all other contributions.
Thanks to the internet making it easier and cheaper to reach potential donors, and the Supreme Court’s 2010 Citizens United decision removing many of the federal restraints on political expression through contributions, White House seekers can typically raise far more from private donors than they would get from the fund.
By Nabilah Islam
I love campaigning, but in the back of my mind there’s always the fear that I’ll catch the flu and need antibiotics. Getting sick is always a pain – but I’m also running for Congress, and I have no health insurance.
Here’s why: the federal government doesn’t let candidates spend our campaign funds on health insurance. Since many candidates quit their jobs to campaign full-time (myself included), the [FEC] assumes we can pay for health care out of pocket – using savings or trust funds to pay thousands in insurance premiums.
But I was raised by working-class Bangladeshi immigrants who lived paycheck to paycheck. I’m 30 years old, have nearly $30,000 in student loans, and my savings are dwindling down to zero. So for the first time in history, I’m asking the federal government to let me spend campaign funds on health care…
For decades, the [FEC] has dictated that candidates can only spend campaign funds on campaign expenses like office space and staff wages, lawn signs and TV ads. The implicit assumption? The FEC thinks candidates can afford to pony up thousands of dollars for health insurance premiums for more than a year – taking on a massive new expense while we’re also losing our income from work. It’s no surprise then that many of the folks who decide to run for office are incredibly wealthy…
[A] campaign’s early viability is judged based on fundraising numbers – far easier to accumulate for a wealthy candidate with a vast network of high-dollar donors or the money to self-fund. With the deck already stacked against us, we’re then told that health care is not an appropriate campaign expense. It’s no surprise so few working-class candidates run in the first place.
Politico: Super PAC ads swamp Dem primary
By Maggie Severns
The Democratic primary – distinguished for most of the past year by how forcefully its contestants rejected big money – is awash in super PAC ads and dark-money spending.
After a year of focus on small-dollar donors, voters in Iowa and other states are being bombarded by messages from outside groups, some of them backed by anonymous donors, who are trying to sway the presidential race just before the Iowa caucuses. And increasingly, the messages are turning negative…
Together, outsiders have dropped more than $14 million in television advertisements, radio ads and other campaigning into the Democratic presidential race…And the spending surge is likely just getting started. The outside groups expect the candidates running for president will need all the help they can get in the coming weeks in order to compete in the coming slate of ultra-expensive primary contests in the early states and beyond…
Two leading candidates, Biden and entrepreneur Andrew Yang, have given the go-ahead to single-candidate super PACs that were formed to help them exclusively…
Other candidates who did not want help from a dedicated super PAC created to help their candidacies are now receiving outside money in other ways…
Warren is the only leading candidate who currently does not have any outside groups sending money to air ads on her behalf…
“I do find it ironic that some of the folks who complain about money in politics are running organizations that don’t disclose their donors,” said [Dem. strategist Steve] Schale of the pro-Biden PAC, which will disclose its donors this Friday.
Broadcasting+Cable: State Associations Call FCC Political Ad Guidance ‘Unconscionable’
By John Eggerton
State broadcast associations from A to Z (actually from Alabama to Wyoming) this week added their weight to the National Association of Broadcasters petition for changes to the FCC’s guidance on political ad disclosures.
NAB joined with Hearst Television, Graham Media Group, Nexstar, Fox, Tegna and Scripps to ask the FCC to narrow its definition of non-candidate ads on “any political matter of national importance” (i.e. “issue” ads) and the disclosure obligations on broadcasters to identify the issues in those ads.
Broadcasters want the FCC to narrow the interpretation of “national importance” by specifying that the term applies only to national political actors in position to take national action, which would exclude ads targeted at state and local races, even ones that might mention issues of national importance…
“[T]he FCC has veered sharply from that approach, placing not just heavier burdens on broadcasters’ and issue advertisers’ political speech, but imposing an unconscionable regulatory burden on all broadcasters, from the smallest to the largest,” they told the commission, calling it a “sudden deviation” unsupported by the law.
The FCC issued the guidance as part of the resolution of complaints about TV station political ad disclosures, or the lack of them. The FCC admonished the stations and issued the guidance.
The FCC said: “For each request to purchase broadcast time that triggers disclosure… licensees must include in their political files the names of all candidates (and the offices to which they are seeking election), all elections and all national legislative issues of public importance to which the communication refers.”
Cable operators, who are subject to disclosure rules as well, also support the NAB petition.
New York Times: We May Never See John Bolton’s Book
By Jameel Jaffar and Ramya Krishnan
Thanks to a leak to the press, we all now know that John Bolton has written an explosive account of President Trump’s fateful decision to withhold hundreds of millions of dollars in security assistance from Ukraine. But it is far from clear how much of this story the public will be permitted to read, and when…
The logic behind the requirement of prepublication review is easy to understand…
The system amounts to a prior restraint on speech, because it gives the agencies the chance to censor manuscripts before their publication. Though prior restraints are usually unconstitutional, including in the national security context, the government argues that they are justified because they are imposed through nondisclosure agreements signed by employees.
But as our organization, the Knight Institute, and the American Civil Liberties Union argue in a case before a federal court in Maryland, the review system is far more sweeping than the government’s argument admits, and lacks the limits and safeguards that courts have required of prior restraints in other contexts.
All 17 intelligence agencies now require prepublication review for at least some former employees, and in many agencies, even for those who never had access to classified information. Submission requirements are vague and confusing and leave former employees uncertain of their obligations…
All this means that the prepublication review system provides government agencies with unchecked power to suppress speech. And as we and others have documented, the agencies frequently use their power not to protect national security secrets, but to protect officials from embarrassment, public scrutiny and accountability.
Online Speech Platforms
By George Soros
[L]ast week in Davos, Switzerland, I was asked if I thought Facebook was behaving more responsibly today than it did during the 2016 presidential election.
“Not at all,” I answered. “Facebook helped Trump to get elected and I am afraid that it will do the same in 2020.” I explained that there is a longstanding law – Section 230 of the Communications Decency Act – that protects social media platforms from legal liability for defamation and similar claims. Facebook can post deliberately misleading or false statements by candidates for public office and others, and take no responsibility for them.
I went on to say that there appears to be “an informal mutual assistance operation or agreement developing between Trump and Facebook” in which Facebook will help President Trump to get re-elected and Mr. Trump will, in turn, defend Facebook against attacks from regulators and the media…
Let’s look at the evidence: In 2016, Facebook provided the Trump campaign with embedded staff who helped to optimize its advertising program. (Hillary Clinton’s campaign was also approached, but it declined to embed a Facebook team in her campaign’s operations.) Brad Parscale, the digital director of Mr. Trump’s 2016 campaign and now his campaign manager for 2020, said that Facebook helped Mr. Trump and gave him the edge…
More recently, direct contact between the two men has raised serious questions…
Facebook’s decision not to require fact-checking for political candidates’ advertising in 2020 has flung open the door for false, manipulated, extreme and incendiary statements…
What’s more, Facebook’s design tends to obscure the sources of inflammatory and false content, and fails to adequately punish those who spread false information.
Candidates and Campaigns
By Zach Montellaro, Sally Goldenberg, and Christopher Cadelago
The Democratic National Committee is drastically revising its criteria to participate in primary debates after New Hampshire, doubling the polling threshold and eliminating the individual donor requirement, which could pave the way for former New York City Mayor Mike Bloomberg to make the stage beginning in mid-February.
Candidates will need to earn at least 10 percent in four polls released between Jan. 15 and Feb. 18, or 12 percent in two polls conducted in Nevada or South Carolina, in order to participate in the Feb. 19 debate in Las Vegas. Any candidate who earns at least one delegate to the national convention in either the Iowa caucuses or New Hampshire primary will also qualify for the Nevada debate.
The new criteria eliminate the individual-donor threshold, which was used for the first eight debates, including next week’s debate in New Hampshire. Bloomberg, the self-funding billionaire, has refused to take donations from other individuals, which had precluded his participation in any of the debates since he joined the race late last year…
The new rules do, however, open the door for Bloomberg to participate after New Hampshire. Previously, the donor threshold had proved an insurmountable barrier for Bloomberg, who did not want to alter his promise to never accept campaign contributions – which he touts in promoting what he says is his independence from special interests…
The now-eliminated donor threshold was controversial last year. Campaigns charged that the threshold forced them to divert resources into collecting donors instead of investing in field work.
By David Harsanyi
Democratic presidential hopeful Elizabeth Warren on Wednesday unveiled an alarming new plan to punish companies that knowingly disseminate “disinformation” online. The Massachusetts senator’s proposal would hold firms like Facebook and Twitter criminally and civilly responsible for platforming users who spread lies intended to undermine voter turnout. She also hinted at expanding her efforts to other areas of speech…
Her plan, which mainly focuses on Election Day disinformation, would almost surely be unconstitutional. And if it did survive constitutional review, who would be charged with determining what counts as “disinformation” in the future? Will there be an army of government fact-checkers sifting through Twitter accounts, or will Warren farm out the task of monitoring billions of daily interactions to our trusted media?
Plus, if the state can criminalize disinformation about elections, what is to stop it from criminalizing “disinformation” about candidates or science or public policy – or anything that supposedly undermines the common good?
If, say, a person prone to hyperbole publicly accuses Warren of being a proto-fascist scoundrel, is he “misleading” voters? What if an elected official claimed to be Native American but really wasn’t? Would she be banned?
How about social-media users who assert once widely accepted scientific statements that have fallen into disfavor – statements such as “life begins at conception” or “there are only two genders”? What about the rhetoric of “climate-change deniers”? One wonders if Warren realizes that her plan is a precedent that authorizes the next Donald Trump to dictate the parameters…
Warren’s effort, like attempts to overturn the First Amendment protections of the Supreme Court decision Citizens United, is based on the view that Americans are too weak-minded to be able to scrutinize information on their own.
By Fred Mogul, WNYC
The Public Campaign Finance Commission created last March, completed its work this fall. Its primary purpose was to create a system that would allow candidates to rely more on small donors, amplifying their contributions with public matching funds. The commission overhauled the eligibility criteria for getting on the ballot, also, and is facing a legal challenge…
[T]he recommendations were binding unless the legislature – which was out of session – reconvened and rejected them.
“If a commission ‘recommends’ legislation, then it’s ‘advisory,'” Benjamin said. “But if it’s empowered to act, pending a legislative veto — the legislature saying, ‘No, we don’t want to do that’ — then it’s constitutionally suspect.”
Sen. Brad Hoylman (D-Manhattan) expressed regret for supporting the public campaign financing commission.
“I voted for it, I have to take responsibility for it, but I wish the process had had different results,” he said.
He would have liked the public campaign financing system to have matched small donations more aggressively and prior to 2022, when it kicks in, and he would have liked the commission to not weigh in on fusion voting, the New York system of giving small parties spots on the ballot to back other parties’ candidates.
“I think we should be reluctant to empanel too many of these commissions and not go down this path too often,” Hoylman said. “And I think you’ll see, as court cases go forward, that might not be the best way to make public policy, even though it seemed convenient at the time.”
By Eric Tegethoff
Oregon is among a handful of states with no limits on campaign contributions in elections. The 2020 session offers lawmakers another chance to change that.
Senate Bill 1524 would cap donations from individuals to candidates for state office at $750, and $15,000 from committees, including political parties. The limit for statewide offices, such as governor, would be $2,000 from individuals and $40,000 from committees.
Dan Meek, an attorney and campaign finance expert, says the bill is [flawed].
“Oregon politicians have so little experience with limits on contributions, they don’t know how to write a bill to limit them,” says Meek. “In other states where they already have limits, they understand how they work and what the loopholes are.”
Meek says Oregon has the most expensive races in the country — and legislative candidates are raising 10 times more than they did two decades ago.
The Oregon Legislature’s session begins on Monday.
Meek says 2018 gubernatorial candidate Knute Buehler received the third-largest contribution for any race in US history. That was from former Nike CEO Phil Knight, for $2.5 million.
Together, Buehler and Gov. Kate Brown raised $37 million in the race, more than twice the previous record in Oregon…
“It’s bizarre that Oregon politicians are so heavily dependent on large contributions,” says Meek. “They take contributions here that would, of course, be criminal in 45 other states.”
He thinks the best shot at campaign finance reform is a constitutional amendment allowing limits that is being referred to voters in November.
Herald and News: It’s not complicated: Oregonians want big money out of politics
By Jeff Golden
As chair of the Senate Campaign Finance Committee, I get media requests to comment on money in politics. The last one asked about a recent Oregon Public Broadcasting story detailing large contributions to state attorney general and treasurer candidates from class-action attorney firms that sometimes get lucrative contracts from those two state offices…
What this is about is a fundamentally messed-up campaign finance system – one that flows naturally from our status as one of very few states that doesn’t regulate the size or timing of political donations; doesn’t mandate that funders of political ads be named; and doesn’t come close to the common-sense restrictions that other states have adopted…
A clear majority of Oregonians I know don’t want individuals or groups writing huge checks to candidates. Even more feel that way when considering donors who have a special financial stake in what those candidates decide after they’re elected. Some call our current system legalized bribery. I’m not sure about that…
[M]ost of my legislative colleagues are high-integrity people…
So we’re really not talking about corruption. We’re talking about distraction at moments when we least want our decision-makers distracted. If we want our leaders making crucial policy decisions on the merits of proposals and the merits alone, the jumbo campaign checks have to go.
We can make that happen. The first step is a proposal you’ll see on the November ballot to add language to the Oregon Constitution that empowers the Legislature, local governments, or the people through the initiative process to regulate campaign financing.
Missoula Current: Montana organizations, Tester push to overturn Citizens United ruling
By Renata Birkenbuel
[Sen. Jon] Tester introduced a constitutional amendment to overturn what he called the “harmful” 2010 Citizens United decision. The amendment would counter Citizens United and declare that corporations are not people and give Congress greater authority to regulate the nation’s campaign finance system.
Nancy Leifer, board president of the Montana League of Women Voters, said her organization does not support the [Citizens United] decision…
Leifer added that the “explosive growth” of super Political Action Committees (PACS) since the decision undermines the integrity of elections…
“At the very least, there must be complete transparency in disclosing where contributions for political advertising have come from,” she said…
Tester introduced the Disclose Act, which would increase transparency in elections. It would force political organizations to disclose their biggest donors’ names, ban foreign nationals from participating in any election decisions and require more disclaimers on digital and political ads.
Tester leads the Spotlight Act, which would reverse a rule Treasury Secretary Steven Mnuchin imposed. The rule allows non-profits engaging in political activity to hide their donors.
By Ivan Pereira
Librarians and free speech advocates are fighting back against a proposal in the Missouri House of Representatives that would ban certain books from the state’s libraries with the threat of a misdemeanor charge.
Missouri House Rep. Ben Baker introduced the bill, dubbed the “Parental Oversight of Public Libraries Act,” in January that calls for the creation of a panel made up of non-library workers who will determine the removal of “age-inappropriate sexual material,” from their local branch.
Libraries that don’t comply will lose their funding. Library employees providing material deemed inappropriate would be hit with a misdemeanor charge and liable for a $500 fine or a maximum jail sentence of a year…
Each of the state’s library systems, which account for a total of 365 branches, already have their own protocols in place to determine which materials are allowed for their younger members.