Daily Media Links 3/20

March 20, 2020   •  By Tiffany Donnelly   •  
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New from the Institute for Free Speech

Bloomberg Campaign Shows Why Contribution Limits Should Be Eliminated

By Alex Baiocco

“Democracy is not for sale” became a popular tagline opposing billionaire Michael Bloomberg’s short-lived run for president. Fortunately, the phrase is true. History has shown time and again that American democracy is, in fact, not for sale. Voters, not money, decide the outcome of elections. And money has never been able to “buy” voters’ support. For all the handwringing over Bloomberg’s spending, Americans’ fatigue with seeing him on their screens seems to be the only damage done to our democracy…

The obvious next step in the march towards truly free election campaigns is to remove all contribution limits. If billionaires like Bloomberg can contribute oodles of money to their own campaigns, why can’t all campaigns accept unlimited contributions from supporters? Besides benefiting wealthy candidates, contribution limits exacerbate the advantages of incumbent and celebrity candidates. Such candidates already have a large platform and require far fewer resources to reach voters…

Restricting funding of campaign speech undermines the right of voters to hear the speech that funding allows. It shouldn’t matter whether donations or a candidate’s own wealth make that speech possible.

Supreme Court

Washington ExaminerSCOTUS could take up a case like Janus, but for lawyers

By Elad Hakim

The U.S. Supreme Court recently refused to get involved in a case involving mandatory bar-association fees (Fleck v. Wetch). However, the court may have another opportunity to address this issue in the case of Jarchow v. State Bar of Wisconsin. Given the important constitutional questions presented, the court will hopefully agree to hear this case.

The general question involved in Jarchow is whether states may require all practicing lawyers to be members of a bar association. Wisconsin lawyer Adam Jarchow sued the Wisconsin Bar and its officers and sought declaratory and injunctive relief. Despite his effort, Jarchow was unsuccessful in the district court and in the Seventh Circuit Court of Appeals in light of the current Supreme Court precedent.

The Courts

Philadelphia InquirerFired public defenders sue, alleging Montgomery County retaliated for bail practice criticism

By Samantha Melamed

Montgomery County’s former top two public defenders filed federal lawsuits Tuesday accusing the county of firing them for criticizing bail practices…

Last month, the county abruptly fired Chief Defender Dean Beer and Deputy Chief Public Defender Keisha Hudson, sparking protests from national advocates, a rally outside a Board of Commissioners meeting, a protest letter from the defender’s office’s lawyers, and fiery criticism from those who saw it as blatant political interference.

Their removal came two weeks after the county forced the defender’s office to withdraw an amicus brief before the Pennsylvania Supreme Court alleging illegal bail practices in the county – setting bail in hearings without lawyers or consideration of ability to pay…

“Hudson was fired because she challenged statewide injustice by exposing the truth about Montgomery County’s unjust and unconstitutional bail system,” reads her complaint, which alleges that the county retaliated against her for exercising her First Amendment rights…

A letter from the county executive to Beer cited the amicus brief as a source of concern, but also said Beer and Hudson misused resources last summer when they assigned interns to review police officers’ social media accounts for racist language.

Congress

Center for Public IntegrityA Massive Government Fund Sits Idle and Bloated. Could Lawmakers Tap It for Coronavirus Relief?

By Dave Levinthal 

Could Congress raid the Presidential Election Campaign Fund and direct it to people most in need of COVID-19 relief?

Yes, Federal Election Commission spokesman Christian Hilland confirmed, although such action would require Congress to change federal law. Several election lawyers concurred…

Sen. Joni Ernst, R-Iowa, on Friday announced that she would file a bill calling for money in the Presidential Election Campaign Fund to be redirected to the Department of Health and Human Services’ Strategic National Stockpile, which stores and distributes supplies for emergency situations.

Reason: The EARN IT Act Is the New FOSTA

By Elizabeth Nolan Brown

A new bill with high-powered bipartisan backing takes aim at free speech and privacy online under the pretense of saving sexually abused children. Sound familiar?

Like the 2018 “sex trafficking” law FOSTA, the new Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT) Act could strip crucial legal protections from a huge array of apps, blogs, social media, messaging services, crowdsourced content platforms, and much more, upending the internet as we know it in the process…

Failure to follow the commission’s practices-to “earn it”-could mean internet companies lose the protections of a federal communications statute known as Section 230…

Lately, industries that failed to adapt well to tech-forward competitors (such as newspapers) or industries that simply resent new competitors for cutting into profits (like hotel chains losing money to Airbnb or besot-from-all-sides Match.com) have also joined the fight against Section 230. Their opposition lends credence to claims that the law’s destruction would also doom social media, amateur journalism, “peer-to-peer” business models, and more.

FEC

Roll CallAt the Races: Uncharted territory

By Bridget Bowman, Kate Ackley, and Stephanie Akin

Fundraising confusion: The primaries postponed out of fear of spreading the coronavirus at the polls are causing concerns among campaigns and compliance lawyers about whether their campaign finance deadlines still stand. The Federal Election Commission is issuing new guidance. The delayed elections affect preelection reports, among other filings, the FEC noted. Campaigns affected by the changes “may continue to accept primary contributions until the date of their rescheduled elections,” the agency said.

Axios: FEC commissioner recommends voting by mail to safeguard against coronavirus

By Orion Rummler

Americans should vote in the 2020 general election by mail if physically going to the polls remains unsafe due to the novel coronavirus outbreak, Ellen Weintraub, commissioner of the Federal Election Commission (FEC), said in a statement on Thursday…

The FEC “has no jurisdiction over the administration of elections, including whether states decide to offer mail-in ballots,” Republican FEC chair Caroline Hunter told Axios.

“I hope my colleague will cease misleading the American people about the role of the FEC in American elections, particularly during this unprecedented crisis,” Hunter said, referring to Weintraub.

WhoWhatWhy: Misplaced Loyalties: Will FEC Nominee Put Trump Over Country?

By Gabriella Novello

When President Donald Trump’s nominee to the Federal Election Commission (FEC) was asked during his confirmation hearing last week whether he agreed with the intelligence community’s conclusion that Russia interfered in the 2016 election, he appeared to be choosing his words carefully.

“Yes, I believe that there has been foreign interference in our elections and I believe that there is still the potential for our elections to be targeted by foreign entities,” James E. “Trey” Trainor, a Texas-based Republican attorney, told Sen. Amy Klobuchar (D-MN).

That answer, which was conspicuously missing an acknowledgement that Russia interfered in the 2016 election, has election integrity activists worried…

“It appears that many people around President Trump, or who are hoping to be nominated by President Trump, are declining to be straight with members of Congress about Russia’s role in the 2016 election for fear of angering President Trump,” Brendan Fischer, a staff attorney for the Campaign Legal Center’s federal reform program, told WhoWhatWhy…

“It’s not clear that it necessarily reflects on his attitude about the ban on foreign nationals spending money in US elections,” said Fischer, “but it very well may reflect on his recognition that President Trump nominated him to this position and he needs to stay on President Trump’s good side.” 

IRS

National Law ReviewIRS Rules that PAC Sponsored by a For-Profit Subsidiary of a 501(c)(3) Health Care System Parent Violates Prohibition on Political Campaign Intervention

By Benjamin B. Genzer, Jason J. Kohout, and Richard F. Riley Jr. (Foley & Lardner)

In a January 31, 2020 private letter ruling (PLR 202005020), the IRS ruled that where a Parent 501(c)(3) non-profit organization was providing administrative services to a for-profit Subsidiary, the Subsidiary’s creation and operation of a political action committee (PAC) would violate the prohibition on political campaign intervention by Section 501(c)(3) organizations. This is a surprising and potentially troubling IRS ruling. 

Independent Groups

Center for Responsive PoliticsSuper PACs outmaneuver outdated rules to leave voters in the dark

By Karl Evers-Hillstrom

Super PACs on both sides of the aisle are abusing loopholes in campaign finance law to keep their donors secret, leaving primary voters in the dark about who is trying to influence them.

These groups are required to disclose their donors. But by launching a new super PAC just before an election, political actors can spend unlimited sums influencing races without disclosing their funding sources until after votes are counted.

Between the Nevada Caucuses and the March 17 primaries, at least 11 groups used this tactic to conceal the source of nearly $24 million in election spending in presidential, House and Senate races.

Capital Research CenterArabella Advisors’ “Dark Money” Helped Democrats in the 2018 Midterms-Expect More in 2020

By Hayden Ludwig

Two things marked the 2018 midterm elections: historic turnout among Democratic voters and rivers of hidden spending by groups on the Left. In the 2020 race, turnout may be lower for Democrats, but don’t expect the liberal special-interest money spigot to run dry.

Arguably the darkest of these special interests is Arabella Advisors, a philanthropy consulting company in Washington, DC, that runs a network of in-house nonprofits dedicated to funneling money from huge liberal donors such as the Ford and Gates Foundations to professional left-wing activists…

Since 2006, the Arabella “dark money” network has raised $2.4 billion and spent $1.9 billion, making it one of the largest-if not the largest-funding networks in American politics. Yet the extent to which it aided Democratic-aligned get-out-the-vote groups has gone virtually unreported by the mainstream media.

In 2018, the Sixteen Thirty Fund, Arabella’s 501(c)(4) lobbying group, sent its biggest grant that year-over $27 million-to America Votes, a self-described “hub” for coordinating the Left’s get-out-the-vote operations in the elections. Unlike other liberal voter registration nonprofits, which hide behind their IRS-imposed “nonpartisan” status (nonprofits can’t be officially aligned with a political party), America Votes is proudly “progressive” and aims to flip America’s congressional map Democratic blue.

Online Speech Platforms

The HillTwitter declines Trump campaign request to tag Dem video as ‘manipulated media’

By Jonathan Easley

Twitter on Thursday denied a request by President Trump’s campaign to put a “manipulated media” warning tag on content spread by Democrats under the social media giant’s new policy aimed at curbing the spread of misinformation.

According to emails reviewed by The Hill, the Trump campaign flagged new content on Twitter that it said had been deceptively edited to make it seem like the president had called the coronavirus a “hoax.”

At issue is a new video that has been viewed millions of times featuring audio of Trump saying: “The coronavirus, this is their new hoax.”

The Washington Post’s fact checkers gave Four Pinocchios to a previous advertisement from former Vice President Joe Biden’s campaign using the same audio.

Trump’s full quote was: “Coronavirus. They’re politicizing it. We did one of the great jobs, you say, ‘How’s President Trump doing?’, ‘Oh, nothing, nothing.’ They have no clue, they don’t have any clue … And this is their new hoax. But you know we did something that’s been pretty amazing.”

The Post determined that Trump was talking about Democratic efforts to politicize the virus, rather than the virus itself.

“CBS This Morning”: Facebook is removing fake coronavirus news “quickly,” COO Sheryl Sandberg says

By CBS News

Facebook is working to “quickly” remove false information about the coronavirus from its platform, according to its Chief Operating Officer Sheryl Sandberg…

“These are unprecedented times, maybe the defining time of a century,” Sandberg told “CBS This Morning” co-host Gayle King in an exclusive interview…

Facebook also partnered with the World Health Organization to make sure that the information about coronavirus on its platform is correct…

Facebook has been criticized for not taking the same approach with political ads that have inaccurate information.

“I wanna be really clear. For this crisis, any fake information is down. It is down no matter who the source is. It can be a politician, it can be anyone. If it’s harmful and it’s fake, it’s down,” Sandberg said.
But the company’s policy on campaign ads and political speech is different.

“What we’ve really done is made sure that anything that’s harmful can’t be put on the site in terms of regular content or groups or ads. When it comes to generalized political speech, whether that’s in ads or that – we really think that, as one company, being the arbiter of truth is too much power and something that kind of sounds like we should do it, but as soon as we started doing it, everyone would be, like, ‘Oh my God, Facebook’s deciding what’s true and false,'” Sandberg said. “And political speech is very heavily scrutinized. One politician says something, they run it in an ad, they say it in a speech. The person running against them says it’s false, and that process we think continues and needs the full-throated opportunities people have.”

Candidates and Campaigns

Wall Street JournalFor Candidates, Coronavirus Prompts More Digital Appeals for Dollars

By Emily Glazer and Julie Bykowicz

The coronavirus pandemic has upended daily life for millions of people stuck in their homes. Yet one American tradition continues: politicians asking for money.

To comply with health guidelines urging social distancing, candidates have scrapped in-person events and ramped up their digital and telephone fundraising efforts, more than a dozen people involved in campaigns, fundraising and digital organizing said.

Campaigns and state parties are also scrambling to arrange virtual fundraising events, using teleconferences or digital tools such as Zoom, people familiar with the discussions said. But those are largely untested strategies, and using them effectively is a work in progress…

It is too soon to tell how much the public health crisis will cause campaigns to shift their financial resources. Most voter registration and door-knocking efforts, and everything from roundtables to arena rallies, have been suspended.

New York Times: Tulsi Gabbard Drops Out of Presidential Race

By Lisa Lerer and Maggie Astor

Representative Tulsi Gabbard of Hawaii, who ran a foreign policy-focused campaign for the presidential nomination of a party she sharply criticized, announced on Thursday that she was dropping out of the race.

Ms. Gabbard, who had been one of only three candidates and the only woman remaining in the Democratic primary, said she would throw her support to former Vice President Joseph R. Biden Jr., who has accumulated a nearly insurmountable lead in the delegate count.

The States

GoverningLegislative Watch: Paper Files, Bots and Deepfakes

By Carl Smith

Banning bots in elections: A pair of northeast states have bills that would regulate the use of bots -software that executes automated tasks over the Internet – in elections. A Maryland bill, HB0465, would require clear disclosure that a bot was in use to disseminate campaign material and give election officials the power to remove bots from the process altogether if needed. New Jersey legislation, S654, would require anyone using a bot in election (or commercial) communications to disclose at the outset “in clear and conspicuous fashion” that the communication is being originated by a bot, not a person.

Tackling deepfakes: The state of Texas prohibited deepfakes in 2019 with the passage of SB 751, making it a criminal offense to fabricate a deceptive video with the intent to influence the outcome of an election. By the time this year’s session gaveled to order, Illinois, New Jersey, and Hawaii introduced their own legislation to make visual misinformation illegal. A pair of bills in Illinois, SB3171 and HB532, went after still photography and AI-assisted deepfake videos that “appear to depict a real person performing an action that did not occur in reality,” making them illegal under the state’s election code. 

Governing: Election Meltdown: How to Ensure Voting Integrity in 2020

By Carl Smith

Richard L. Hasen, Chancellor’s Professor of Law and Political Science at the University of California, Irvine School of Law, is one of the nation’s leading experts on election law and campaign finance regulation…

Hasen talked with Governing about the steps election officials can take to reduce the potential for abuses and disruptions during the 2020 election…

[Governing:] A bill was recently introduced in Illinois that could make it a felony to use a deep fake in an election. Do you think there’ll be more things like that in coming months?

[Hasen:] California has passed a law regulating deep fakes, as has Texas. This technology is really new and the danger of trying to regulate synthetic audio or video is the risk that it’s going to infringe on First Amendment rights. I think a lot of this regulation needs to happen not at the level of government, which is subject to the First Amendment, but through pressure on social media, companies like Facebook to take steps to ensure that people are not being manipulated by false audio and false video.

Wiley: Pennsylvania Fines Advocate for Stricter Lobbying Laws $19K for Violating Lobbying Law

By Caleb P. Burns and Eric Wang

The Pennsylvania State Ethics Commission recently handed down a large penalty to Common Cause Pennsylvania. The group has advocated for a more expansive state lobbying law, and so perhaps the fine was a case of the proverbial “man bites dog.” The fine nevertheless is a reminder of several important aspects of the lobbying laws that must be taken seriously.

Orange County Register: Fullerton must stop anti-speech lawsuit

By Editorial Board

An Orange County Superior Court judge has once-again crossed what has traditionally been viewed as the bright red line in First Amendment cases by issuing a “prior restraint” order against a Fullerton blogger who gained access to sensitive city information.

Prior restraint refers to efforts by lawmakers or the courts to suppress the publication of information beforehand. Under the First Amendment, the government “carries a heavy burden of showing justification” for such censorship, the U.S. Supreme Court noted in a seminal 1971 prior-restraint case.

The city of Fullerton’s case falls far short of that burden, which is why this local dispute is garnering national attention. Last week, Judge James Crandall gave the city the go-ahead to sue Joshua Ferguson and another blogger with Friends for Fullerton’s Future, and re-instated a gag order that forbids them from publishing city personnel documents.

Washington Times: N.H. residents sue over gatherings ban: ‘We can choose to assemble if that is our desire’

By Holly Ramer, Associated Press

Three people who planned to attend political and religious events in the next few weeks are challenging New Hampshire’s statewide emergency ban on gatherings of 50 people or more to prevent spread of the coronavirus.

David Binford, Eric Couture and Holly Rae Beene filed a lawsuit Tuesday, the day after Republican Gov. Chris Sununu issued the order prohibiting large scheduled gatherings for social, spiritual and recreational activities. They argue there is no emergency, and that the governor is violating their constitutional rights.

“We can choose to assemble if that is our desire. What cannot occur is one man in a position of power deciding to strip us of our rights in the name of safety and without due process,” Couture said in press release.

A judge on Wednesday denied the group’s request for an immediate order halting enforcement of the ban and scheduled a hearing for Friday in Merrimack County Superior Court…

In their complaint, the plaintiffs describe a variety of events they planned to attend, including meetings of the Grafton County Republican committee, services and Sunday school at a Baptist church and a Meetup group to discuss “petitioning the government for redress of grievances.” 

Tiffany Donnelly

Tiffany Donnelly