In the News
Cato Daily Podcast: AFPF v. Bonta and Donor Privacy
Hosted by Caleb O. Brown
Bradley Smith of the Institute for Free Speech details key takeaways from the Supreme Court’s AFPF v. Bonta case.
New from the Institute for Free Speech
Issue Analysis No. 12: Did Citizens United Harm Political Participation?
By Alec Greven
When the Supreme Court decided Citizens United v. FEC in 2010, many critics argued it would have a devastating impact on democracy. For example, in his dissent in that case, then-Justice John Paul Stevens opined that, “[i]n the real world, we have seen, corporate domination of the airwaves prior to an election may decrease the average listener’s exposure to relevant viewpoints, and it may diminish citizens’ willingness and capacity to participate in the democratic process.” This analysis investigates the claim echoed by Justice Stevens about the effect of the independent spending set free by Citizens United undermining political participation in the democratic process.
To evaluate this claim, we examined the impact Citizens United had on voter turnout. Turnout data is one important indicator of a healthy democracy because it reflects both the willingness and capacity of citizens to engage in the political process. If critics of Citizens United were correct about the destructive effects the decision would have on engagement in the democratic process, then one of the factors most likely to be impacted would be political participation, as measured by voter turnout.
In terms of real-world effects, Citizens United’s largest impact can be seen through an increase in independent expenditures urging the election or defeat of federal candidates. If the decision was harmful to participation in the democratic process, as Justice Stevens asserted in his dissent, one would expect voting turnout rates to decline as independent expenditures increase. This analysis compares that relationship.
ICYMI
This Constitution Day, Thank the Supreme Court for Protecting Americans Who Give
By Luke Wachob
On Constitution Day this Friday, Americans should take time to celebrate the fantastic victory for First Amendment rights that took place at the Supreme Court this July in Americans for Prosperity Foundation v. Bonta (AFPF). In striking down California’s demand to know the names and addresses of all major donors to all registered charitable and nonprofit organizations in the state, the Court gave charities the freedom they need to function and Americans the security they need to give. Thanks to the Court’s strong ruling, charities can now ask Californians for support without turning over their members’ private information to state bureaucrats. The same is true in Hawaii, New Jersey, and New York, states which maintained similar policies prior to the Court’s ruling.
Events
Freedom Forum: ‘The First Amendment: Where America Stands’ Survey Release
September 22 @ 2:00 PM EDT
Join us as we unveil the results of a groundbreaking Freedom Forum survey that asked 3,000 Americans how they feel about the First Amendment in the 21st century.
“The First Amendment: Where America Stands” surveyed people across geographic, demographic and ideological lines on their attitudes about the freedoms of religion, speech, press, assembly and petition.
This event will feature interviews with survey participants from across the country, plus First Amendment experts analyzing the diverse and divided results.
The Courts
Providence Journal: RI donor-disclosure laws upheld again; conservative group says it will appeal to high court
By Patrick Anderson
A federal appeals court has upheld Rhode Island’s campaign-spending disclosure laws against a constitutional challenge by a coalition of conservative groups. Those groups say they intend to appeal to the Supreme Court.
A three-judge panel of the First Circuit Court of Appeals on Tuesday said Rhode Island laws making top donors identify themselves in certain election advertising does not infringe on those donors’ free-speech rights.
In a 37-page written decision, Judge Bruce Selya wrote that the state’s interest in informing the electorate is “as vital to the survival of a democracy as air is to the survival of human life” and Rhode Island’s campaign finance laws are sufficiently tailored to that purpose.
He also likened the argument from Rhode Island’s right-leaning Gaspee Project and Chicago’s Illinois Opportunity Project that disclosing donor identities would subject them to harassment and reprisals as “a Rumpelstiltskin-like effort to turn dross into gold.”…
In an email Thursday, Daniel Suhr, managing attorney at the Liberty Justice Center, said they would fight on.
“Free speech and citizen privacy are fundamental to our democracy. We continue to believe in the strength of our arguments, and we plan to appeal to the Supreme Court to vindicate these foundational constitutional rights,” Suhr wrote.
Reuters: U.S. court agency struggles to revive bar on employee political activities
By Nate Raymond
A federal appeals court on Monday appeared unlikely to allow the judiciary’s administrative agency to reinstate rules barring its employees from attending campaign events, making contributions to candidates or engaging in other off-duty political activities.
Two members of a three-judge U.S. Court of Appeals for the District of Columbia Circuit panel voiced concern about why the Administrative Office of the U.S. Courts needed to restrict its 1,100 employees’ speech, which one called a “bogus issue.” …
The Administrative Office, which performs administrative and policy-related functions for the judiciary but whose employees are not involved in handling specific cases, had imposed new restrictions in 2018 on partisan activities they could undertake.
Those restrictions included bans on donating to a candidate, displaying a campaign bumper sticker or yard sign, attending fundraisers or posting about political candidates on social media.
Houston Chronicle: Judge calls for changes to Texas ban on political apparel at the polls
By Taylor Goldenstein
A U.S. magistrate judge this week recommended striking down parts of Texas law that prohibit wearing political apparel within 100 feet of a polling place as unconstitutionally vague — but upholding a narrower provision that specifies that clothing bearing messages related to what’s on the ballot can be banned…
The case puts to the test a U.S. Supreme Court ruling…in which the justices struck down a Minnesota law that banned voters from displaying “issue-oriented” apparel at the polls for being overbroad. The Texas suit was brought by Pacific Legal Foundation, the same California-based libertarian public interest law firm that won the Minnesota case.
“It’s a win for free speech and for objective standards,” said foundation attorney Wen Fa.
The parties to the suit will now have 14 days to respond to the magistrate’s recommendation. A U.S. district judge will ultimately make the final ruling.
Congress
New York Times: Joe Manchin Got the Voting Bill He Wanted. Time to Pass It.
By The Editorial Board
The Freedom to Vote Act, introduced by Minnesota’s Amy Klobuchar, would address longstanding flaws in the electoral system along with some of the Republicans’ recent machinations. It is a compromise proposal of sorts, crafted by a coalition of moderates and progressives after a more sweeping reform bill, the For the People Act, was blocked in June by a Republican filibuster. This slimmed-down package jettisons some of the more controversial elements of the earlier plan. It would not, for instance, restructure the Federal Election Commission…
Having waited for Mr. Manchin to get behind a bill, the majority leader, Chuck Schumer, is now eager to move forward. He says a vote on the new package could take place within the week.
Mr. Schumer has also made clear that he considers this Mr. Manchin’s moment to try to drum up whatever bipartisan support he can. “He has always said that he wants to try and bring Republicans on, and now, with the support of Democrats and this compromise bill — which Senator Manchin had great input into — he can go forward in that regard,” Mr. Schumer said Tuesday.
Fundraising
Politico: GOP online donation platform tweaks fees, sending millions more to midterm campaigns
By Alex Isenstadt
WinRed, the GOP’s principal small-dollar donation processor, is lowering the fees it charges candidates and committees for each contribution they receive through the platform.
The shift — which follows months of behind-the-scenes deliberations involving the party’s most senior officials — could result in millions of dollars more being funneled into campaign coffers next year.
Tax-Financed Campaigns
New York Post: Jumaane Williams is out to milk taxpayers for unneeded campaign cash
By Post Editorial Board
Public Advocate Jumaane Williams has no real opposition in this fall’s election, but he’s still pushing to raise enough donor cash to collect the 8-to-1 taxpayer match. In other words, the public advocate wants to milk the public fisc for millions more for his personal war chest…
His nominal GOP challenger has raised about $40,000; the Conservative candidate, $70,000. Neither is likely to qualify for public funds, let alone do much “to stop the progressive movement.”
As of June, city taxpayers were on the hook for more than $109 million in matching funds this year. Williams may add another $4 million to that total — an “overdog” exploiting a system that’s supposed to help underdogs…
Count this whole sordid scheme as more proof that the public-finance system empowers the political “haves” — and that Williams is just another politician chasing his own ambitions while mouthing progressive pieties.
Free Speech
Wall Street Journal: ‘Banned Books Week’ Isn’t Actually Interested in Banned Books
By Thomas Spence
[This] year, for the first time in the 40-year history of Banned Books Week, writers and publishers face the threat of real book-banning. Strangely enough, the sponsors of Banned Books Week have nothing to say about it…
[The] singular power of “Earth’s Biggest Bookstore” makes possible a new and more efficient form of censorship. If Amazon doesn’t carry a book, it is practically invisible.
Woke Amazon employees know this, and so do politicians. Sen. Elizabeth Warren, for example, finds intolerable the journalist Alex Berenson’s relentless dissent from the pandemic party line. His four self-published eBooks appear on a list that the senator recently presented to Amazon’s CEO, Andy Jassy. The unsubtle suggestion: If he knows what’s good for him, he’ll throw them onto a digital bonfire…
So welcome to Banned Books Week 2021. The theme this year is “Books Unite Us. Censorship Divides Us.” The list of featured titles, almost entirely limited to progressive works, does present a united front. But what about the second part of that theme? When will Banned Books Week pay attention to banned books?
Internet Speech Regulation
New York Post: Our outdated laws are letting tech giants get away with everything
By Rachel Bovard
Twitter CEO Jack Dorsey may have admitted that prohibiting circulation of a politically damaging New York Post story about then-candidate Joe Biden’s son weeks before the 2020 election was a mistake, but the Federal Election Commission is here to make Twitter’s excuses for them.
The agency has determined, unanimously, that Twitter’s brazen actions did not constitute election interference…
Far from being simple speech platforms, Twitter, Facebook, Google, Amazon, and Apple manage huge swaths of commerce, act as massive digital advertising firms, are now the primary areas of news and information gathering, and the market access point for millions of businesses.
Yet when confronted with legal responsibility in any of these areas, our porous legal framework allows the tech platforms to choose which hat suits them depending on the regulatory spat, only to shapeshift into something else to evade capture in a different forum.
Online Speech Platforms
Washington Post: Facebook, Google and Twitter are the new ‘oligarchy of speech’
By George F. Will
As the price of something precious, the dissemination of speech, declines steeply, society is facing some disquieting consequences of the cheap speech that the Internet enables. Among the anomalous responses are conservatives demanding new government regulations of privately owned but liberal-leaning businesses (Facebook, Google, Twitter). And liberals, who excoriated the Supreme Court’s Citizens United decision that corporations and unions have a constitutional right to fund speech about political candidates (independent of the candidates’ campaigns), are defending the freedom of some enormous corporations to influence political speech.
Such oddities are explored by Eugene Volokh in “What Cheap Speech Has Done: (Greater) Equality and Its Discontents” in the UC Davis Law Review. Volokh, law professor at UCLA, notes that the Internet, by making it possible for almost anyone to speak to many others, has radically reduced the importance of the “oligarchy of speech” that existed when large media entities acted as gatekeepers to the public forum.
Says Volokh, “Oligarchy, how quickly many have come to miss you!” Here are some reasons why.
The States
Wiley: Maine Enacts Corporate Contribution Ban
By D. Mark Renaud and Eric Wang
Maine recently enacted a ban on contributions by corporations and labor unions to candidates for state and local office. The ban, which takes effect on January 1, 2023, does not appear to apply to contributions to Maine state PACs or political parties.
Previously, Maine had permitted corporations and unions to contribute to state and local candidates according to the same limits as contributions from individuals and PACs. With the new ban, Maine will join the slightly less than half of U.S. states that prohibit corporate contributions in some general form in connection with state and local elections. (Federal law prohibits corporate and union contributions to candidates for federal office.) A few other states, such as New Jersey, take a more targeted approach by banning contributions from corporations involved in certain regulated industries.
