Daily Media Links 4/7

April 7, 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

Boston Herald: Former FEC chairman warns campaign finance overhaul would limit free speech

By Erin Tiernan

A former Federal Elections Commission chairman is sounding the alarm on a “misguided” bill that aims to overhaul the nation’s campaign finance system to limit the influence of wealthy donors and “dark money,” warning it would instead limit free speech.

“This is a massive — actually — expansion of government regulation of the speech of groups who spend money,” Bradley Smith, chairman of the Institute for Free Speech, said during a Zoom press conference held Tuesday with the Massachusetts Fiscal Alliance.

Smith, who served as FEC chairman from 2004 to 2005, said the campaign finance changes included in a 791-page Democratic-backed bill dubbed the For the People Act would implement a 6-to-1 match for small-dollar donations, restructure the Federal Election Commission, strengthen the prohibition against super PAC-candidate coordination, create new rules for online political ads and attempt to end “dark money” in U.S. elections.

Smith, a First Amendment-rights advocate, said the federal bill would remove the bipartisan makeup of the FEC and mandate that taxpayers would fund future political campaigns, essentially a bailout for politicians.

He estimated the 6:1 matching funds for small donations in federal elections could amount to “several billions of dollars” in an average election year. It would be funded through fees, such as those on corporate malfeasance — but Smith contended the money still counts as “taxpayer dollars.”

Supreme Court

Reason (Volokh Conspiracy): Justice Thomas Suggests Rethinking Legal Status of Digital Platforms

By Eugene Volokh

A very interesting opinion by Justice Thomas in Biden v. Knight First Amendment Institute, concurring in the decision to vacate as moot Trump v. Knight First Amendment Institute (the case in which the Second Circuit held that President Trump violated the First Amendment by blocking certain users from his Twitter account).

As I read it, Justice Thomas is not arguing that platforms are already generally common carriers or government actors under existing legal principles; that argument is quite a stretch, and his analysis seems to me to largely reject that argument, except perhaps when the platforms are restricting speech in response to government threats.

Rather, he is anticipating what might be done through legislation, and whether new state laws that do treat platforms as common carriers (more or less) are going to be seen as blocked by the First Amendment or 47 U.S.C. § 230. (His analysis of the interests involved may also be relevant to whether such state laws violate the Dormant Commerce Clause.) That’s an issue the Court will likely have to deal with in coming years.


The Atlantic: Democrats Are Short on Votes and Long on Irony

By David A. Graham

The challenge of [H.R. 1] is that, aside from advancing the vague concept of democratic reforms, it doesn’t present a single theory of how to reform the electoral system, but is instead a palimpsest of Democratic freak-outs…

[In] the 21st century, campaign-finance reform has largely been a progressive priority. Left-of-center concerns grew especially sharp after the Supreme Court’s 2010 Citizens United decision, and for a time, many Democrats viewed that decision as the most pressing matter in politics. Unrestrained corporate donations would warp democracy, they warned, and also swamp Democratic candidates with donations to GOP candidates.

In 2016, Hillary Clinton placed that worry at the center of her presidential campaign. “We need to appoint Supreme Court justices who will get money out of politics and expand voting rights, not restrict them,” she said in her nomination-acceptance speech. “And we’ll pass a constitutional amendment to overturn Citizens United!” (This was somewhat personal for Clinton—the Supreme Court case centered on a film attacking her—though she also enjoyed the support of super PACs that the decision had enabled during the campaign.)

Of course, Clinton did not move to overturn the decision, because she did not win. But her loss and the 2016 election were the beginning of the eclipse of campaign-finance reform as a central issue for Democrats. The rise of the fundraising platform ActBlue, and especially the astonishing small-dollar success of Senator Bernie Sanders’s primary campaign, showed that Democrats could compete by amassing small donations. Meanwhile, pro-Clinton spending (both by her campaign and by outside groups) far outpaced pro-Trump spending. In 2020, the Democratic candidate, Joe Biden, barely mentioned Citizens United during his campaign.

Biden Administration

The Hill: White House meets little resistance in hiring former lobbyists

By Alex Gangitano

Watchdog groups that warned the White House against hiring former lobbyists who could pose conflicts of interest are giving a pass to two recent hires who lobbied for a union and a major nonprofit advocacy group.

The White House recently brought on Alethea Predeoux, a former lobbyist for the American Federation of Government Employees, and Charanya Krishnaswami, who lobbied for Amnesty International.

The moves come after President Biden signed an executive order placing restrictions on all former registered lobbyists working in the administration, drawing praise from advocacy groups like the Revolving Door Project and Progressive Change Campaign Committee. Those same organizations have taken no issue with the recent waivers.

“Switching between working for a public interest organization and for the government doesn’t involve switching teams, it just involves switching offices. Your North Star remains the same — trying to vindicate your view of what is broadly right or wrong,” said Jeff Hauser, Revolving Door Project executive director.

“Lobbying generally is constitutionally protected and is not the problem with government; corporate lobbying is,” he added.


Insider: ‘A complete rip-off’: Campaign-finance experts puzzled and stunned by Trump camp’s reported ‘money-bomb’ ploy

By Grace Panetta

The Trump campaign’s recurring-donation ploy both perplexed and shocked even the most seasoned campaign-finance professionals interviewed by Insider…

[Beth] Rotman of Common Cause said the revelations…presented a prime opportunity for agencies like the Federal Election Commission and lawmakers in Congress to set updated regulations and standards for solicitation of recurring online donations. 

“It’s not really fraud, but it’s potential trickery,” Rotman said of the Trump camp’s tactics. “You’re talking about attempts at trickery, and you need anti-trickery regulations and statutes. And you can do that with clearer guidance and enforcement. It should not be so easy for people to be mystified as to how much they’re giving and how often.”

Craig Holman, a campaign-finance and ethics lobbyist for the democracy watchdog Public Citizen, told Insider federal campaign-finance laws and the Internal Revenue Code mainly prohibit soliciting campaign donations over the legal limit, not necessarily the tactics used in these solicitations. 

“I have never seen a fundraising practice for candidates and party committees like this before, but the laws and regulations governing solicitations are quite lax,” Holman said. “It could be argued that the solicitation method would likely cause illegal contributions beyond the contribution limits, but it appears that refunds were made in such cases, so it is unlikely that legal action could be taken against the Trump campaign and WinRed.”

Meredith McGehee, the executive director of the campaign-finance-reform advocacy group Issue One, told Insider the Trump campaign’s activities raised new questions about the intersection of campaign finance and consumer protection, including whether fundraising platforms like WinRed would be held to the same standards as other businesses, especially for actions that could be seen as preying on older people. 

AP News: Corporations gave over $50M to voting restriction backers

By Brian Slodysko

State legislators across the country who have pushed for new voting restrictions, and also seized on former President Donald Trump’s baseless claims of election fraud, have reaped more than $50 million in corporate donations in recent years, according to a new report by Public Citizen, a Washington-based government watchdog group…

“It really is corporate America, as a whole, that is funding these politicians,” said Mike Tanglis, one of the authors of the report. “It seems many are trying to hide under a rock and hope that this issue passes.”

More than 120 companies detailed in the report previously said they would rethink their donations to members of Congress who, acting on the same falsehoods as the state lawmakers, objected to the certification of President Joe Biden’s win following the deadly attack on the U.S. Capitol by Trump supporters…

“A contribution of $5,000 to a U.S. senator who is raising $30 million is a drop in a bucket. But in some of these state races, a few thousand dollars can buy a lot of ad time,” said Tanglis. “If corporate America is going to say that (Trump’s) lie is unacceptable on the federal level, what about on the state level?”

Online Speech Platforms

Washington Post: YouTube says it’s getting better at taking down videos that break its rules. They still number in the millions.

By Gerrit De Vynck

YouTube released data on Tuesday arguing that it is getting better at spotting and removing videos that break its rules against disinformation, hate speech and other banned content.

The Google-owned video service said 0.16 percent to 0.18 percent of all the video views on its platform during the fourth quarter of 2020 were on content that broke its rules. That’s down 70 percent from the same period in 2017, the year the company began tracking it.

The States

Review Times: Bill seeks to end ‘dark money’ spending

By Tyler Buchanan, Ohio Capital Journal

Republican lawmakers are proposing to revamp some of Ohio’s campaign finance laws that would shine a light on “dark money” groups…

HB 13, introduced by GOP state Reps. Diane Grendell of Chesterland and Mark Fraizer of Newark, is the latest attempt at ensuring better transparency in political spending. The bill differs from an earlier effort from last fall in that it does not yet have bipartisan support.

Grendell calls it the “Light of Day Bill” and told legislative colleagues the proposals would give Ohioans a “full picture” of campaign finance information…

Ohio law requires political candidates to submit regular campaign finance reports which publicly disclose their donors. Likewise, organizations such as political action committees (PACs) must disclose both their donors as well as their spending.

This system allows Ohioans to search publicly-available campaign finance records to learn who is financing which candidates and political organizations.

There is a notable exception — nonprofit 501(c)(4) groups are not required by Ohio law to disclose who funds them. These nonprofits are ostensibly founded to promote general social welfare and cannot spend a majority of resources on political activity.

Such rules are flouted, however, allowing “dark money” groups the opportunity to influence elections without being publicly exposed.

Inforum: Citing too much paperwork, North Dakota lawmakers sink bills to boost campaign finance transparency

By Jeremy Turley

North Dakota senators have killed two bills that would have required political donors to disclose where their money is going, citing a likely increase in the amount of paperwork expected of partisan groups that help elect lawmakers.

Candidates and political committees are not legally compelled in North Dakota to detail which campaigns they are supporting or opposing with donations. A bipartisan group of lawmakers set out to change that after Republican Gov. Doug Burgum bankrolled millions of hard-to-track dollars in political advertising for and against candidates during last year’s election cycle.

Rep. Bill Devlin, R-Finley, sponsored House Bill 1191, which would have required “multicandidate committees,” like the Burgum-led Dakota Leadership PAC, to divulge details of their spending, including the amount of money going to each promotional or oppositional campaign. Leaders from both parties signed onto the proposal as co-sponsors, but after sailing through the House of Representatives, the bill died on the Senate floor Tuesday, April 6, with only a quarter of members voting for it.

The upper chamber also nixed House Bill 1496 on Tuesday. The legislation, sponsored by Lisbon Republican Rep. Sebastian Ertelt, would have required a similar level of expenditure reporting for candidates and other types of committees.

Tiffany Donnelly

Tiffany Donnelly


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