Daily Media Links 3/3

March 3, 2021   •  By Tiffany Donnelly   •  
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We’re Hiring!

Senior Attorneys – Institute for Free Speech – Washington, DC or Virtual Office

The Institute for Free Speech is hiring three attorneys, including at least one Senior Attorney with at least 10 years of experience and two other experienced attorneys with at least four to six years of experience in an expansion of its litigation and legal advocacy capabilities.

This is a rare opportunity to work with a growing team to litigate a long-term legal strategy directed toward the protection of Constitutional rights. You would work to secure legal precedents clearing away a thicket of laws and regulations that suppress speech about government and candidates for political office, threaten citizens’ privacy if they speak or join groups, and impose heavy burdens on organized political activity.

A strong preference will be given to candidates who can work in our Washington, D.C. headquarters. However, we will consider exceptionally strong candidates living and working virtually from anywhere in the country. In addition to litigation or advocacy-related travel, a virtual candidate would be required to travel for quarterly week-long visits to IFS’s headquarters after the pandemic’s impact has receded.

[You can learn more about this role and apply for the position here.]

In the News

State Policy Network: Week in Review: February 26, 2021

The Institute for Free Speech welcomed Alan Gura as Vice President for Litigation. Gura will direct the Institute’s litigation and legal advocacy in defense of First Amendment speech, press, assembly, and petition rights.

New from the Institute for Free Speech

Letter to U.S. House of Representatives in Opposition to H.R. 1

By David Keating

The Institute for Free Speech strongly opposes H.R. 1, the Orwellian “For the People Act.” More appropriately known as the “For the Politicians Act,” this radical bill would, in fact, greatly harm the ability of the people to freely speak, publish, organize into groups, and petition their elected representatives in pursuit of a better government.

In particular, H.R. 1 would impose onerous and unworkable standards on the ability of Americans and groups of Americans to discuss the policy issues of the day with elected officials and the public. Certain sections of the bill would violate the privacy of advocacy groups and their supporters, limit political speech on the internet, and compel speakers to recite lengthy government-mandated messages identifying some of their supporters by name in their communications.

Importantly, these restrictions would reach far beyond campaign speech to regulate discussion of legislative issues and public affairs. For advocacy groups, unions, and trade associations, several of the limits proposed in H.R. 1 would operate as a total ban on speech.



Amicus Brief: The First Amendment Guarantees All Americans’ Right to Privacy

The Institute for Free Speech filed an amicus brief yesterday urging the Supreme Court to strike down California’s requirement that charities provide state officials a list of their major donors before asking for financial support. “Private associations enjoy a presumptive right under the First Amendment to withhold the identity of their supporters from the government, for any reason or for no reason at all,” the brief explains.

“California’s demand violates the First Amendment in an unusually harsh way. It asks us to give up our right to association as a precondition for exercising our freedom of speech,” said Institute for Free Speech President David Keating.

The brief warns that “[i]f California can demand that private associations disclose a list of their donors as a condition of raising money in the State, its appetite for information will become virtually limitless. The State could require patrons to list the authors they plan to read before it will issue them a library card. It could require organizers of a peaceful protest to disclose the names, addresses, and cell phone numbers of expected participants. It could demand that newspapers turn over a list of their state government sources before it will issue press credentials for official events.”

Supreme Court

ACLU: ACLU, Partner Orgs File SCOTUS Amicus Brief Supporting Privacy Rights of Nonprofit Donors

The American Civil Liberties Union filed an amicus brief with the NAACP Legal Defense and Education Fund, the Knight First Amendment Institute at Columbia University, the Human Rights Campaign, and PEN America urging the Supreme Court to protect the privacy rights of non-profit donors across progressive and conservative organizations. 

The case, Americans for Prosperity Foundation v. Becerra, challenges California’s blanket requirement for nonprofits to disclose their IRS Form 990 Schedule B documents, which identify their top donors… 

“The First Amendment protects associational privacy for a reason. People who fear that they will be subject to threats, harassment, and reprisals if their associations are publicly revealed by the government, whether intentionally or by mistake, will be chilled from exercising their First Amendment rights. If California is allowed to continue sweeping up nonprofits’ sensitive donor information, despite its demonstrated inability to keep that information confidential, civil society will end up paying the price for the government’s failures.” -Brian Hauss, staff attorney with the ACLU Speech, Privacy and Technology Project

“We rarely agree with the views of Americans for Prosperity, a group founded by the Koch brothers, but the First Amendment’s association and speech rights extend to all, and we are committed to defending those rights even when we disagree with the views of those exercising them.” -David Cole, the ACLU’s national legal director

Cato: California Has No Need to Doxx Donors

By Ilya Shapiro, Trevor Burrus, and Mallory Reader

Joined by eight other organizations, Cato has again filed an amicus brief in support of [AFP and Thomas More]. We argue that the Court should reverse the Ninth Circuit because the Constitution protects the right to private, anonymous association and the burden is on the government to overcome that protection with a compelling interest that’s advanced through narrowly tailored means.

Biden Administration

Executive Office of the President: Statement Of Administration Policy

The Administration supports House passage of H.R. 1, the For the People Act of 2021. In the wake of an unprecedented assault on our democracy, a never before seen effort to ignore, undermine, and undo the will of the people, and a newly aggressive attack on voting rights taking place right now all across the country, this landmark legislation is urgently needed to protect the right to vote and the integrity of our elections, and to repair and strengthen American democracy…

H.R. 1 would also reform our campaign finance system to amplify the voices of the public, not the powerful, and establish stronger ethics rules for all three branches of government. These provisions would ensure that government works for the people and guard against corruption across the highest levels of government. 


Washington Post: H.R. 1 could restore our democracy. As it’s written now, it could hurt it, too.

By Kate Ruane and Sonia Gill

[H.R. 1] … contains significant flaws that are detrimental to the health of our democracy and will likely have unintended consequences on the political rights of noncitizen immigrants as well as many nonprofits, including civil rights organizations and other civil liberties movement builders. The House can and must fix these concerns before final passage.

H.R. 1, in an attempt to find a solution to the problem of “dark money,” requires public disclosure of the names and addresses of donors who give $10,000 or more to organizations that engage in “campaign-related disbursements,” which could include paid political speech that discusses a public issue such as immigrants’ rights, voting rights or reproductive freedom if the communication merely mentions a candidate for public office. That means an ad criticizing House Speaker Nancy Pelosi (D-Calif.) for supporting immigration reform or criticizing Sen. Ted Cruz (R-Tex.) for opposing the Equality Act could trigger disclosure of donors that gave $10,000 or more.

Why should H.R. 1’s sponsors and supporters care? Because it could directly interfere with the ability of many to engage in political speech about causes that they care about and that impact their lives by imposing new and onerous disclosure requirements on nonprofits committed to advancing those causes.

We know from history that people engaged in politically charged issues become political targets and are often subject to threats of harassment or even violence. This should be gravely concerning in light of the rise in white supremacist violence that has brazenly targeted private citizens and public officials alike. Moreover, in the time of social media, there is heightened interest in who is supporting these efforts.

Daily Signal: Election Integrity Is a National Imperative

By Mike Pence

HR 1 is also loaded with ill-advised changes to federal campaign laws that would impose onerous legal and administrative burdens on candidates, civic groups, unions, nonprofit organizations, and ordinary citizens who want to exercise their First Amendment rights to engage in political speech, including on public policy issues that are vital to the life of our nation.

Under HR 1, donations to many private organizations would be made public, exposing millions of Americans to the radical left’s cancel culture crusade…

Every citizen deserves the freedom to support, oppose, criticize, or promote the candidates and causes they believe in.

Cato Daily Podcast: Free Political Speech Online vs. Democrats’ Election Reforms

An amalgam of proposals from Democrats would strictly regulate online speech, and make more costly other forms of public communication on policy issues. Will Duffield comments on the proposal.

Washington Times: Green Party accuses Pelosi, Democrats of trying to ‘crush alternative parties’

By Haris Alic

A key provision of the [For the People Act] relating to the public financing of presidential campaigns…raises the threshold to qualify for federal matching funds from $5,000 each in at least 20 different states to $25,000.

That has drawn the ire of third parties, with Green operatives calling it a “poison pill for democracy.”

Tony Ndege, the Green Party’s national co-chairman, accused Mrs. Pelosi and House Democrats on Monday of attempting to demolish “opposition” from outside the two-party system.

“How can they call this bill ‘For The People’ when they are silencing alternative parties at a time when more people than ever are demanding more political choice,” Mr. Ndege said in a statement announcing the Green Party’s opposition…

If Mrs. Pelosi and her colleagues, though, choose not to support an amendment, the Greens are threatening to launch a national lobbying effort to kill the measure.

It is unclear whether Mrs. Pelosi or Rep. John Sarbanes, Maryland Democrat and the bill’s co-sponsor, will acquiesce. 

CounterPunch: HR 1’s Campaign Finance Program: A Reform that Doesn’t Reform

By Howie Hawkins

Progressives should push Congress to cut the matching funds public campaign finance program for presidential and congressional candidates from HR 1 because it does not limit private campaign financing, its 6:1 match increases funding disparities seven times, and it increases qualifying threshold for presidential primary matching funds by five times, which is too high for third-party candidates and many major-party challengers. Progressives should urge Congress to take up campaign finance reform in separate legislation rather than ram this problematic matching funds program through in order to get the other good reforms in HR 1 enacted.

The Campaign Finance section of HR 1 also includes a “My Voice Voucher” pilot program that would run for two two-year election cycles in three states that apply to and are chosen by the Federal Elections Commission. It would give voters, but only those who request them, a $25 voucher that a voter can use to make contributions to congressional candidates. No state may receive more than $10 million in vouchers.

This program is not funded enough to make an appreciable difference in states of any size. Its limited scope and timeframe means it will have no significant impact against the massive amounts of private money in congressional elections. The harm is that the program is just a bromide that distracts from the much stronger election finance reforms that progressives should push for.

Washington Post: Sarbanes was his own campaign-finance guinea pig. The House weighs his bill Wednesday.

By Meagan Flynn

The public campaign-financing system Sarbanes envisions will go up for a vote as part of a sweeping campaign-finance and voting-access package he’s worked on for the better part of 15 years…

House Speaker Nancy Pelosi (D-Calif.) called Sarbanes the “godfather” of the legislation in a speech on the House floor Tuesday, crediting his “long-term dedication” to advancing democracy…

Under the campaign-finance overhaul included in H.R. 1, candidates would be able to opt into a six-to-one matching system for small-dollar donations. Just like in Sarbanes’s experiment, they would only qualify to unlock the funds if they raise $50,000 from at least 1,000 small-dollar donors first, and agree not to take certain PAC money.

The matching funds would be sourced not from taxpayers – as Republican critics have frequently and incorrectly asserted – but from civil settlements or criminal fees the federal government wins against corporate wrongdoers or major tax evaders.

In the future Sarbanes envisions, a $50 donation from a donor of modest means would be worth $350 to the candidate.


Politico: Gensler: SEC should consider corporate political spending disclosures

By Zachary Warmbrodt

Gary Gensler, President Joe Biden’s pick to head the Securities and Exchange Commission, signaled Tuesday that the agency would raise pressure on corporations to disclose their political spending activities, a long-running tension between SEC officials, big business and Democrats.

At a Senate confirmation hearing, Sen. Bob Menendez (D-N.J.) asked the nominee for the SEC’s chair role whether political contributions by publicly traded companies represented “material” information to investors and should be disclosed. In response, Gensler said there was growing investor appetite for the information.

“If confirmed, it is something I think the commission should consider in light of the strong investor interest,” he said.

Democrats, including Menendez and Senate Majority Leader Chuck Schumer, have pressed the SEC for years to impose more political spending transparency on public companies. The SEC has held off from implementing mandatory disclosure rules, including under President Barack Obama, but Gensler indicated a willingness to more directly address the issue. Menendez is proposing legislation that would require companies to disclose details of their political expenditures.

Independent Groups

Fox News: Pro-GOP group takes aim at House Democrats over massive election HR 1 reform bill

By Paul Steinhauser

An outside group that backs Republican causes is going up in 15 congressional districts controlled by House Democrats with ads spotlighting H.R. 1 – the Democrats’ massive election reform and campaign finance bill.

The American Action Network (AAN) on Monday is unveiling a new issue advocacy campaign targeting “the corrupt liberal campaign finance bill.” The ads, shared first with Fox News, will be seen in House districts with Democrats who are potentially vulnerable in next year’s midterm elections…

The AAN digital ads argue that the measure would give every member of Congress up to $5 million in public funding for their campaigns.

“Alert. Liberals want public money for their campaigns,” the ads read.

The ads urge the Democratic House members targeted “to oppose H.R. 1” …

AAN says all 15 representatives, along with an additional 36 House Democrats, will be targeted by a phone call campaign.

Candidates and Campaigns

Washington Post: Donors gave a House candidate more than $8 million. A single firm took nearly half of it.

By Meagan Flynn and Michael Scherer

[U.S. House candidate Kim Klacik’s] campaign is an example of how some consulting firms are profiting handsomely from Republican candidates who have robust appeal in today’s politically charged environment – even when they are running in deep-blue districts where it is virtually impossible for them to win. The more viral the candidate goes, the more money the companies make – a model possible only through the online outrage machine of hyperpartisan politics.

Fundraising companies say their fees are well-earned and still leave candidates with more money than they would have if their ads had not been shared widely. But critics, including Klacik and some other 2020 candidates, say the system is deceptive, trapping first-time politicians in onerous contracts that siphon away cash their donors intended for them…

High-margin fundraising fees – sometimes in excess of 90 percent of a donor’s first contribution – have sucked resources out of conservative politics ever since the movement organized in the 1970s around the costly medium of direct mail. Social media, email and text-message fundraising brought those same steep margins online.

By the end of Klacik’s campaign, she would raise a staggering $8.3 million and pay nearly $3.7 million of it to Olympic Media, according to campaign finance filings and her campaign manager. Klacik, now a frequent Fox News and Newsmax commentator, lost to Mfume in Maryland’s 7th Congressional District by more than 40 percentage points.

The States

Reason (Volokh Conspiracy): New Colorado Bill Would Create Commission to Restrict “Hate Speech,” “Fake News,” “Conspiracy Theories” on Social Media Platforms

By Eugene Volokh

The bill, introduced Friday, would create a state “digital communications division” and “digital communications commission” that would, among other things, “investigate and … hold hearings on claims … that a digital communications platform”-which includes “social media platforms like Facebook, Twitter, and Instagram and media-sharing platforms like YouTube and Twitch”-“has allowed a person to engage in one or more unfair or discriminatory digital communications practices on the platform,” including

  • “practices that promote hate speech;
  • undermine election integrity;
  • disseminate intentional disinformation, conspiracy theories, or fake news; or
  • authorize, encourage, or carry out violations of users’ privacy.”

None of these terms are defined in the bill. And the bill is all about suppressing the “unfair or discriminatory” speech:

If the adjudicator at the hearing determines that the respondent engaged in an unfair or discriminatory digital communications practice, the commission may issue and cause to be served on the respondent an order requiring the respondent to cease and desist from the practice and to take action that the commission orders.

Tiffany Donnelly

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