Daily Media Links 5/17: ACLU says judge’s order stopping ‘dark money’ ads is unconstitutional, Senators Grill Whistleblower on Cambridge Analytica’s Inner Workings, and more…

May 17, 2018   •  By Alex Baiocco
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In the News

Wiley Rein Election Law News: New Study Ranks States’ Campaign Contribution Laws

By Caleb P. Burns and Eric Wang

Based on how campaign finance laws are often portrayed in the news media, the conventional wisdom holds that the campaign finance system is in need of perpetual “reform.” Such reforms typically entail a one-way ratchet in favor of more restrictions on campaign contributions and speech. However, a new study by the Institute for Free Speech (IFS), ranking the 50 states’ campaign contribution laws, challenges that conventional wisdom. In addition to underscoring the challenges that our clients often face when making contributions in connection with state elections, the IFS study suggests that, to the extent “reform” is needed at the state level, it should be in the direction of liberalization.

As the IFS “Free Speech Index” highlights, the United States’ system of federalism is both a boon to policy innovation and a compliance headache for clients that conduct activities in a multitude of states. As IFS notes, its study “challenge[s] the assumption that campaign contributions are regulated in a similar manner by all states. Quite the contrary.” Overall, the study notes that campaign contributions are “more highly regulated than at any time prior to the 1970s, and in some important ways more highly regulated than ever.” …

The policy implications of the IFS study are significant. As IFS explains, “[t]he right to contribute to candidates, parties, and political groups allows citizens to simply and effectively join with others to amplify their voices and advocate for change. The right to speak out about politics is a core First Amendment right, and limits on one’s political donations infringe on that right.”

New from the Institute for Free Speech

No, OpenSecrets, Nonprofits Are Not “Fueling” an Increase in Political Ads

By Joe Albanese

The [Center for Responsive Politics] headline reads, “TV ads in midterms up nearly 90 percent fueled by nondisclosing groups.” …

The report’s data show that, while the number of all political and issue ads aired on TV increased from the 2014 to 2018 election cycles by 89%, much of that increase was not driven by “group” ads (the category sometimes called “outside groups” that includes ads by groups that do not disclose their donors). In fact, “group” ads as a proportion of the total fell from 2014 to 2018, from roughly 40% to 26% of the total. The proportion of ads from candidates, by contrast, rose from 56% to 71.5%. This is quite clearly what is most driving the increase in ads…

No matter how you break it down, ads from non-disclosing “groups” are not the driving factor in the increase in political ads this cycle. The number of all “group” ads did increase by 25% from 2014 to 2018, but the number of ads from parties and candidates rose by 45% and 141%, respectively. Of the roughly 347,000 additional ads run in the 2018 cycle-to-date, 89% come from candidates while only 11% came from outside groups…

By Election Day, you can expect the number of ads to have skyrocketed and, perhaps, the proportion of 2018 spending coming from “outside groups” (including non-disclosing groups) to plummet…

Even if the current breakdown of ads from non-disclosing groups holds for the cycle as a whole…this means the total number of ads from non-disclosing groups would only account for 12% of all ads.

Online Speech

Wall Street Journal: Facebook’s 10,000 New Editors

By James Freeman

Facebook users deserve honest disclosure. If they receive it, no doubt many will continue to trade information about themselves in return for communications services. But some of these consumers may decide that the greater danger lies not in the information Facebook shares but in the information Facebook never allows them to see. The company is now hiring an army of editors to remove objectionable content. The question is how much controversial but valuable speech will be flushed out along with the digital bath water…

In theory, Facebook editing is not about suppressing viewpoints but simply an effort to prevent harm. Facebook’s Community Standards include prohibitions on various forms of speech such as “bullying.” Fortunately in this vague term there is at least one important exception-although there are also exceptions to the exception:

“Our bullying policies do not apply to public figures because we want to allow discourse, which often includes critical discussion of people who are featured in the news or who have a large public audience. Discussion of public figures nonetheless must comply with our Community Standards, and we will remove content about public figures that violates other policies, including hate speech or credible threats.”

Congress

The Hill: Judiciary Dems: Kremlin may have used the NRA to help Trump campaign

By Avery Anapol

The Democrats on Wednesday released a document outlining preliminary findings from their investigation into Russian meddling in the 2016 presidential election. It states that the Kremlin may have “used the NRA to secretly fund Mr. Trump’s campaign.”

“The Committee has obtained a number of documents that suggest the Kremlin used the National Rifle Association as a means of accessing and assisting Mr. Trump and his campaign,” the document reads.

The Democrats identified two figures of particular interest: Maria Butina, a Russian national living in the U.S., and Alexander Torshin, the deputy governor of the Central Bank of Russia…

“[Butina and Torshin] repeatedly offered the campaign back channels to Russia and relayed requests from President Putin to meet with Mr. Trump,” the committee said…

The Democrats said they have requested from Butina an interview and documents related to Torshin’s efforts to arrange a meeting between Putin and Trump. They are also looking into “possible use of the National Rifle Association (NRA) by Russia to contribute money to the Trump campaign,” according to the document.

The Federal Election Commission (FEC) is reportedly investigating whether the NRA accepted illegal contributions from Russians in the 2016 campaign.

Wired: Senators Grill Whistleblower on Cambridge Analytica’s Inner Workings

By Issie Lapowsky

In a highly anticipated hearing before the Senate Judiciary Committee Wednesday, lawmakers questioned Christopher Wylie, a former research director for the shadowy political data firm Cambridge Analytica, about the company’s history of privacy violations, its contacts with Russia, and its work with Donald Trump’s 2016 presidential campaign. But an even more fundamental question formed the crux of the inquiry: Did all of the black magic Cambridge Analytica sold to clients, from politicians to defense agencies, really even work? …

Wylie was joined in the hearing by Eitan Hersh, a professor of political science at Tufts University and author of the book Hacking the Electorate, as well as Mark Jamison, a visiting scholar at the conservative think tank American Enterprise Institute. Both academics expressed skepticism that Cambridge Analytica really had the power to change voters’ minds, even with all of that Facebook data.

“There hasn’t been any evidence presented from Facebook or Cambridge Analytica data…that could answer this question,” Hersh told the committee. “Based on what we’ve seen from public reports and the history of targeting…I’m skeptical of this data and these ads moving people in a substantial way.” …

Though Wylie had the floor for the majority of the hearing, it was Hersh who most succinctly summarized the problem facing tech companies, political groups, and the public. No amount of data, he argued, can persuade people who aren’t ready to be persuaded.

NPR: Senate Committee Releases 2,500 Pages About 2016 Trump Tower Meeting

By Philip Ewing

The Senate Judiciary Committee released more than 2,500 pages of documents on Wednesday related to its investigation about a meeting in 2016 between top Trump aides and a delegation of Russians who promised to help the campaign…

The transcripts and notes reaffirm accounts of the meeting that people involved already have given – that Donald Trump Jr. and his compatriots sought “dirt” offered to them on Hillary Clinton and received at least one political intelligence tip but nothing as explosive as they had hoped…

The June 9, 2016, meeting at Trump Tower is one of several known contacts between Trump campaign workers and people connected with the Russian government at a time when Russia was waging a campaign of active measures during the 2016 presidential campaign…

Judiciary Committee Chairman Chuck Grassley, R-Iowa, authorized the release of the new material following interviews or other interactions with several of the people involved with the Trump Tower meeting…

Committee Democrats said the details about the meeting revealed in the new trove of documents confirm an inappropriate relationship between Trump campaign aides and the Russian government.

“The June 9, 2016, meeting is one piece of a much larger puzzle and confirms that the Trump campaign was willing to accept Russia’s assistance,” the Democrats said in a collective statement. “The committee’s staff interviews reveal that top Trump campaign officials were frustrated and angry that the meeting did not produce enough damaging information on their opponent.”

Independent Groups 

Politico: Mueller sends subpoenas to consultant for Roger Stone super PAC

By Darren Samuelsohn

Special counsel Robert Mueller has issued a pair of subpoenas to a social media consultant who worked on Roger Stone’s pro-Donald Trump super PAC during the 2016 presidential campaign.

An attorney for Jason Sullivan, a Republican consultant based in Southern California, confirmed to Politico that his client received the subpoenas in recent days for both documents and his testimony before the Mueller-charged grand jury in Washington…

Sullivan said in an interview that he worked for Stone’s Committee to Restore America’s Greatness during the final four months of the 2016 White House race, assisting the pro-Trump group with social media strategy namely around Twitter. According to records filed with the Federal Election Commission, Stone’s super PAC reported making two payments of $1,500 payments to Sullivan in July and August 2016.

“All I can say is no collusion,” Sullivan said. He added that he did not know Stone before working on his super PAC. 

Politico: GOP builds massive shadow army in fight for the House

By Rachael Bade

CLF’s midterm strategy, which emphasizes long-term voter engagement, is not normal for a super PAC. Typically, lawmakers’ campaigns and the National Republican Congressional Committee deal with field work and get-out-the-vote efforts – then PACs like CLF swoop in to fill in the blanks with what Bliss often refers to as “shitty TV ads.”

But Ryan’s political allies decided last year that that model wasn’t working – and that CLF, with its seemingly endless resources, was a “sleeping giant,” as they called it. They agreed to turn the PAC into a massive, hyper-local grass-roots organization. And they tapped Bliss, a former campaign manager, to run the operation.

“There was a belief shared by many that super PACs had become bloated in their role and, in some cases, did more damage than good,” said Ryan’s national finance chairman, Spencer Zwick, who helped steer the group’s makeover. “Ryan allies said: ‘How could they become more effective?’ and thought, ‘Why can’t super PACs basically run a shadow campaign?'”

The States

Arkansas Times: ACLU says judge’s order stopping ‘dark money’ ads is unconstitutional

By Benjamin Hardy

The ACLU of Arkansas issued a statement Wednesday condemning Washington County Circuit Judge Doug Martin’s decision to halt some Northwest Arkansas TV stations from airing political ads purchased by the Judicial Crisis Network, an out-of-state “dark money” group…

“This restraining order is clearly unconstitutional given that it involves the pre-emptive suppression of political speech on a matter of public concern – where the First Amendment’s protections are strongest,” ACLU of Arkansas Executive Director Rita Sklar said in a statement. “Judges should not be in the business of policing what can and cannot be said in a political campaign.” 
Sklar said the group is “monitoring the case closely and evaluating our legal options.”

Sklar suggested more disclosure should be required in the campaign finance world, but not more restrictions. “The remedy for false speech is more speech – and in this case, sunshine. Speech that expressly attacks or supports the election of a candidate for judicial office can and should be subject to financial disclosure requirements that give the public timely and useful information about the sources of funds and an opportunity, prior to the election, to evaluate the possible influence of those funds,” she said. 

Alex Baiocco

Alex Baiocco