Daily Media Links 9/8

September 8, 2020   •  By Tiffany Donnelly   •  
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CREW v. FEC’s Impact on Independent Expenditures and Donor Privacy, Explained

By Bradley A. Smith

Over the past few years, Citizens for Responsibility and Ethics in Washington (“CREW”) has been on a targeted lawfare campaign against the Federal Election Commission…

One of CREW’s longstanding white whales has been Crossroads Grassroots Policy Strategies, the money pit run by Karl Rove that managed to light millions of dollars of donor cash on fire in fruitless efforts to elect people like former Ohio Treasurer Josh Mandel to the U.S. Senate in 2012.

Crossroads GPS, whatever its flaws, conducted much of its business back in the early 2010s. In particular, it sought to protect the privacy of its donors by relying on a longstanding FEC regulation that said only donors giving for the purpose of a particular independent expenditure needed to be disclosed in connection with that expenditure. This wasn’t a controversial interpretation of the regulation. The language is quite clear, and the FEC’s Office of General Counsel agreed that Crossroads was protected by its terms.

CREW disagrees with this regulation and seeks greater disclosure from nonprofit groups (and less privacy for donors to nonprofits generally). But, as the court noted on page 15 of its opinion, rather than seek to open a rulemaking before the Commission, it went after Crossroads itself. This end-run around the Commission’s regulatory apparatus found success in late August, in a 2-0 opinion written by Chief Judge Sri Srinivasan of the D.C. Circuit…

That decision found that the FEC’s regulation was invalid because it conflicts with Congressional guidance. And with that regulation gone, an important question arises: precisely which donors to an organization making independent expenditures must now be reported?

Has Citizens United Increased Corruption? An Examination of Public Corruption Prosecutions

By Alec Greven

The Citizens United decision is not correlated to an increase in corruption. As independent expenditures rapidly rose on the national level, public corruption prosecutions declined. A similar trend is observed in the states. If you isolate states that were most affected by Citizens United, the data show that those states experienced a steeper decline in corruption. 

These findings are in line with similar academic research…

Most importantly, however, there is simply no evidence of a causal relationship between Citizens United and increases in public corruption. Corruption levels are generally unaffected by independent political expenditures. Campaign finance laws, by their very nature, limit the freedom of individuals to engage in political activities. This limitation, otherwise disallowed by the First Amendment, rests on the necessity of preventing corruption. Government officials should be careful to only implement coercive laws when those laws actually target corrupt behavior. The absence of any link between independent expenditures and corruption indicates either no relationship or one where increased speech through independent expenditures actually benefits society. In light of these findings, we should be very cautious before we take any action to overturn or undermine Citizens United. Additionally, critics of Citizens United should re-evaluate their beliefs about the relationship between independent expenditures and corruption until further evidence is found.


Free Speech

Wall Street Journal: Land of Free (and Fettered) Speech

By Adam Kirsch

Today, Americans are less worried about government censorship than about navigating the unwritten rules of socially acceptable speech. Violating those rules doesn’t bring jail time, but the prospect of losing your reputation or your job has a chilling effect all on its own…

The challenge facing Americans today is primarily cultural: We have to relearn the role that free speech plays in a pluralistic society. Declaring speech out of bounds in certain contexts, especially when it expresses views that are actually widely held, glosses over conflict without resolving it.

On the contrary, when people are told that they can’t say what they think, rather than being presented with an argument for why it’s wrong, they may comply, but they won’t change their minds. As the philosopher Benedict Spinoza wrote in the 17th century, when religious opinions were the ones being censored, people “are most prone to resent the branding as criminal of opinions which they believe to be true…In a democracy, everyone submits to the control of authority over his actions, but not over his judgment and reason.”

To overcome our current divisions, Americans need to be confident enough to hear and express differences without giving in to fear or rage, which are mute emotions, capable of expressing themselves only in violence. Free speech represents the possibility that society can change peacefully, that today’s unpopular cause can become tomorrow’s consensus. The more urgently change is needed, the more that freedom is worth defending.

The Courts

Reason (Volokh Conspiracy): Facebook Need Not Remove “Russia State-Controlled Media” Label from Maffick’s “In the Now,” “Waste-Ed,” and “Soapbox” Pages

By Eugene Volokh

From Maffick LLC v. Facebook, Inc., decided yesterday by Judge James Donato (N.D. Cal.):

Plaintiff Maffick LLC seeks a temporary restraining order directing defendant Facebook, Inc., to take down a “Russia state-controlled media” label that Facebook posted on Maffick’s “In the Now,” “Waste-Ed” and “Soapbox” pages….

Maffick’s TRO application also raises a concern about prior restraint. A court order that forbids speech activities, which is what Maffick seeks, is a “classic prior restraint of speech.” “Prior restraints pose the ‘most serious and the least tolerable infringement on First Amendment rights,'” and there is a “historical and heavy presumption against such restraints.” …

Although Maffick asserted six causes of action against Facebook in its complaint, Dkt. No. 1, it seeks a TRO on just four of those claims: (1) libel under California Civil Code Section 45; (2) Section 43(a) of the Lanham Act (15 U.S.C. § 1125(a)(1)(A)); (3) the California Unfair Competition Law (Cal. Bus. & Prof. Code § 17200); and (4) interference with prospective economic advantage claim under California state law.

The merits inquiry is considerably streamlined by the fact that all four claims hinge on the proposition that the Russian media label is false. Consequently, to win a TRO, Maffick must demonstrate that it is likely to succeed in showing that the “Russia state-controlled media” label is false. It has not crossed that threshold.

New York Times: Julian Assange Appears in London Court for U.S. Extradition Hearing

By Megan Specia

Julian Assange, the embattled founder of WikiLeaks, made his first appearance in a London court in months on Monday, as an evidentiary hearing began in his U.S. extradition case…

In the hearings, Mr. Assange and his lawyers will argue against his extradition on the American charges, which accuse Mr. Assange of violating the Espionage Act. The charges stem from the publishing of secret military and diplomatic documents by WikiLeaks in 2010…

From the start, the charges against Mr. Assange have raised profound First Amendment issues because his actions are difficult to distinguish in a legally meaningful way from those of traditional news organizations. It would be unprecedented in American law for such activity to result in criminal convictions, so press freedom advocates have denounced the charges against him and have been watching the case closely…

On Monday, the defense called its first witness, Mark Feldstein, a professor at the University of Maryland and a former investigative reporter, who appeared by video link.

He testified that the passing of leaked, classified information to news organizations in the United States was common…

“Its routine, every government study in the last 60 years has said that it is widespread, and these leaks, they shed light on decision making by the government,” Mr. Feldstein said, noting that they have also “exposed government deceit” and “go back to George Washington’s presidency.”

Mr. Feldstein also said that U.S. authorities had not pursued charges against publishers of leaked information “because of fear of running afoul of the free press clause in the Constitution.”

Reason (Volokh Conspiracy): Short Circuit: A Roundup of Recent Federal Court Decisions

By John Ross

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice…

The City of Austin allows digitized billboards for “on-premises signs,” i.e., signs that advertise stuff at the locale of the sign, but prohibits digitization of “off-premises signs.” Is this a content-based distinction that violates the First Amendment? Fifth Circuit: It is, notwithstanding Justice Alito’s suggestion in Reed v. Town of Gilbert that such distinctions are content neutral. 

Online Speech Platforms

Fox News: Ex-Acting AG Whitaker calls on DOJ to probe ‘insidious’ influence of Big Tech on democracy

By Charles Creitz

Former Acting Attorney General Matthew Whitaker told “Tucker Carlson Tonight” Friday that he believes the Justice Department is “going to get to the bottom of this insidious, really, censorship of mostly conservative voices on social media.”

“I think the Department of Justice has been looking at this issue, and I also believe that because of the way the algorithms that Facebook and Twitter and the like [are used] to provide your news feed, I think that could be viewed, and maybe viewed by this Department of Justice, as a campaign contribution — an illegal campaign contribution — that ultimately, I think, they will step in and take action.” …

“And I think what is also happening among these companies, Facebook in particular, [is] they have so much data on their individual users that they can essentially manipulate what you see, how you see it, and therefore, based on the feedback loop that is provided, they can then try to influence you to … use a product [or] vote for a candidate,” Whitaker said

Wall Street Journal: Facebook’s Rittenhouse Mistake

By The Editorial Board

Will Facebook let users share this editorial? We’ll see. The social-media giant seems to have declared Kyle Rittenhouse’s fatal shooting of two people amid riots in Kenosha, Wis., a mass murder. Mr. Rittenhouse’s lawyer says his client was attacked and acted in self-defense, but Facebook has banned any “praise and support” for him on the site, including links to contribute to his legal representation. Searches for his name on the platform also come up empty.

This is an alarming resort to censorship on an issue of public concern by a company that has advertised its support for First Amendment values. Even more than most political controls on content, this blackout is troubling because it seems targeted at users’ expectation of freedom of speech and Mr. Rittenhouse’s right to due process…

Facebook’s heavy-handed blackout flies in the face of CEO Mark Zuckerberg’s commitments last year-which we have defended-that the company would protect free expression and not yield to political demands to suppress speech.

Facebook naturally wants to dissociate itself from street violence, but in this case it has made a mistake. It can continue to block incitements to violence, and shut down groups plotting violence, without throwing itself into a murky and politicized criminal case. Prejudging guilt and moving against a person’s legal defense is a bad look for a company that claims to be committed to civil liberties. Voters, and their representatives, will notice.

ProPublica: Facebook’s Political Ad Ban Also Threatens Ability to Spread Accurate Information on How to Vote

By Jeremy B. Merrill

Facebook this week said it would bar political ads in the seven days before the presidential election. That could prevent dirty tricks or an “October surprise” and give watchdogs time to fact-check statements. But rather than responding with glee, election officials say the move leaves them worried.

Included in the ban are ads purchased by election officials – secretaries of state and boards of elections – who use Facebook to inform voters about how voting will work. The move effectively removes a key communication channel just as millions of Americans will begin to navigate a voting process different from any they’ve experienced before.

New York Times: Why Facebook’s Blocking of New Political Ads May Fall Short

By Davey Alba and Sheera Frenkel

To limit voter misinformation ahead of November’s election, Facebook said this week that it would block new political ads from appearing on its site in the week before Election Day…

But just how effective could such a move be in minimizing confusion?

The answer: likely not very effective.

That’s because political ads on Facebook are just one piece of content on the social network; political misinformation also flourishes in messages that people post and in discussions in private Facebook Groups. Facebook is not tackling those areas as part of the changes it announced this week.

Political ads have also been on the rise on Facebook already. Many of those ads are likely to remain online before Election Day because the company is not removing existing promotions.

At the same time, some new political ads may slip onto the site because the social network has sometimes had difficulty identifying which ads should be categorized as political, researchers said.

Candidates and Campaigns

Bloomberg: Trump Weighs Putting Up to $100 Million of His Cash Into Race

By Jennifer Jacobs, Mario Parker, and Bill Allison

President Donald Trump has discussed spending as much as $100 million of his own money on his re-election campaign, if necessary, to beat Democratic nominee Joe Biden, according to people familiar with the matter.

The billionaire president has talked about the idea with multiple people, though he hasn’t yet committed to any self-funding, according to people briefed on internal deliberations. Though Trump personally contributed $66 million to his 2016 campaign, it would be unprecedented for an incumbent president to put his own money toward winning a second term…

Trump said Tuesday that his campaign had to spend “a lot of money” to combat what he called “false reporting” on his handling of the coronavirus outbreak.


Washington Post: Louis DeJoy’s rise as GOP fundraiser was powered by contributions from company workers who were later reimbursed, former employees say

By Aaron C. Davis, Amy Gardner, and Jon Swaine

Louis DeJoy’s prolific campaign fundraising, which helped position him as a top Republican power broker in North Carolina and ultimately as head of the U.S. Postal Service, was bolstered for more than a decade by a practice that left many employees feeling pressured to make political contributions to GOP candidates – money DeJoy later reimbursed through bonuses, former employees say.

Five people who worked for DeJoy’s former business, New Breed Logistics, say they were urged by DeJoy’s aides or by the chief executive himself to write checks and attend fundraisers at his 15,000-square-foot gated mansion beside a Greensboro, N.C., country club. There, events for Republicans running for the White House and Congress routinely fetched $100,000 or more apiece.

Two other employees familiar with New Breed’s financial and payroll systems said DeJoy would instruct that bonus payments to staffers be boosted to help defray the cost of their contributions, an arrangement that would be unlawful…

Although it can be permissible to encourage employees to make donations, reimbursing them for those contributions is a violation of North Carolina and federal election laws. Known as a straw-donor scheme, the practice allows donors to evade individual contribution limits and obscures the true source of money used to influence elections.

Such federal violations carry a five-year statute of limitations. There is no statute of limitations in North Carolina for felonies, including campaign finance violations.

Politico: Trump says he’s open to investigating Louis DeJoy over GOP contributions

By Matthew Choi

President Donald Trump said on Monday that he would be open to investigating and potentially removing the head of the U.S. Postal Service over allegations of campaign finance violations.

Speaking at a White House news conference, Trump made the remarks in response to a Washington Post investigation that reported Postmaster General Louis DeJoy had pushed employees at his former North Carolina-based company to donate to Republican campaigns and reimbursed them using bonuses. If true, the acts would be a violation of campaign finance law.

When asked about the report, Trump said he would be open to an investigation, but stressed that he wasn’t familiar with the details. When asked whether he would be OK with DeJoy’s being dismissed if he were found to have violated campaign finance law, Trump said yes…

The campaign finance allegations were already enough to raise the eyebrows of North Carolina’s attorney general, Josh Stein, who said on Sunday that they were worthy of an investigation.

“It is against the law to directly or indirectly reimburse someone for a political contribution,” Stein said in a pair of tweets. “Any credible allegations of such actions merit investigation by the appropriate state and federal authorities. Beyond this, it would be inappropriate for me as Attorney General to comment on any specific matter at this time.”

The States

Springfield News-Leader: Ballot language set for Clean Missouri do-over. Here’s what you’ll see Nov. 3

By Austin Huguelet

A state appeals court finalized language for one of the most controversial items on the ballot this fall after a months-long legal fight.

At issue was a Republican-sponsored proposal that asks voters to reverse key parts of a redistricting overhaul voters themselves approved in 2018.

Republicans described their proposal with no mention of repeal, prompting supporters of the 2018 proposal, known as Clean Missouri, to cry foul.

Two courts ultimately agreed the legislature erred, and on Monday, a Western District Court of Appeals panel wrote that the original language failed to acknowledge lawmakers’ full intentions. They then rewrote the question as follows:

“Shall the Missouri Constitution be amended to:

  • Ban gifts from paid lobbyists to legislators and their employees;
  • Reduce legislative campaign contribution limits;
  • Change the redistricting process voters approved in 2018 by: (i) transferring responsibility for drawing state legislative districts from the Nonpartisan State Demographer to Governor-appointed bipartisan commissions; (ii) modifying and reordering the redistricting criteria.”

That language became final Wednesday after lawmakers declined to appeal and the court rejected a request from Clean Missouri supporters to modify the language further.

Tiffany Donnelly

Tiffany Donnelly


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