Daily Media Links 9/9

September 9, 2020   •  By Tiffany Donnelly   •  
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We’re Hiring!

Legal Director – Institute for Free Speech – Washington, DC or Virtual Office

The Institute for Free Speech anticipates the need for a highly experienced attorney to direct our litigation and legal advocacy. President Trump announced plans to nominate our longtime Legal Director to the Federal Election Commission, in which case he likely would be confirmed in late summer or fall.

This is a rare opportunity to develop and implement a long-term legal strategy directed toward the protection of Constitutional rights. You would work to create legal precedents clearing away a thicket of laws and regulations that suppress speech about government and candidates for political office, that threaten citizens’ privacy if they speak or join groups, and that impose heavy burdens on organized political activity. The Legal Director will direct our litigation and legal advocacy, lead our in-house legal team, and manage and expand our network of volunteer attorneys.

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.

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

ICYMI

NCSLWhere Money and Free Speech Intersect Webinar

Thursday, Sept. 3, 2020, 2 p.m. ET/ 1 p.m. CT/ Noon MT/ 11 a.m. PT

With technological advancements, an evolving legal landscape, and changing political tactics, how are states ensuring transparency at the same time they’re protecting free speech? Learn about state efforts to regulate money in politics (whether on the campaign trail or in the legislature) and when those efforts bump into free speech.

Moderator:

-Senator Daniel Ivey-Soto, New Mexico

Speakers:

-Bradley Smith, Institute for Free Speech

-Danielle Caputo, Issue One

-Christi Zamarripa, NCSL

Watch the video here.

In the News

Daily Caller: Libertarian Candidate Files Lawsuit Against FEC That Could Force Michael Bloomberg To Rollback His Giant DNC Donation

By Chris White

A libertarian who unsuccessfully ran for president is suing the Federal Election Commission to force the agency to determine the legality of former New York City Mayor Michael Bloomberg’s donation to the Democratic National Convention, a copy of the complaint shows.

The FEC did not rule on Shaun McCutcheon’s previous attempt to challenge the legality of Bloomberg’s $18 million contribution to the DNC, so the former candidate is suing for protection to donate his own campaign funds to the Libertarian National Committee, according to the Friday complaint.

Individuals can donate a maximum of $35,500 each year to national party committees, according to the FEC. McCutcheon filed an advisory opinion request with the FEC in June asking the agency if he can bypass individual contribution limits by transferring $50,000 that he contributed to his campaign committee directly to the Libertarian Party. 

“Federal election law allows an individual to only contribute up to $35,500 per year to a political party – and that same limit applies to Mike Bloomberg’s transferred money- unless and until the FEC or courts approve Shaun McCutcheon’s request to do the same,” Dan Backer, attorney for McCutcheon, said in a press statement announcing the lawsuit…

Bloomberg could set a precedent, according to former FEC Commissioner Brad Smith. “The statute is pretty clear that such transfers are allowed,” Smith told the DCNF in June. “Note that it’s right in the statute – this is not a creation of FEC regulation, but of Congress.” …

“We may see more of it – now that the tactic has been demonstrated, we should expect that others will probably use it,” Smith said, explaining what he believes will happen if FEC does acknowledge the legality of such transfers. 

New from the Institute for Free Speech

Presidential Nominating Convention Accounts’ Expenditure Limit: A Cap on Political Expression

By Heather McGuire

While individuals may only contribute $35,500 per year to a national party committee, individuals may contribute $106,500 per year to a convention committee. Despite being able to receive larger contributions, 52 U.S.C. § 30116(a)(9)(A) places a $20,000,000 aggregate expenditure limit on convention committees with respect to any single convention.

In 2016, the DNC spent $16.6 million and the RNC spent $10.6 million on their respective presidential nominating conventions. This year, the DNC and RNC accounted for the usual convention costs that tend to rise slightly each cycle with inflation. Then, a pandemic arrived, and the parties were forced to bear the added cost of executing a first-of-its-kind, COVID-19-safe, digital operation from multiple venues. Those added costs will likely be tacked onto the price tag of a traditional convention format that was scrapped just months prior as a result of the pandemic. It is very much within the realm of possibility that each national party hits the $20,000,000 expenditure limit at some point in the next several election cycles.

The Supreme Court has decided that limits on political expenditures deserve closer scrutiny than restrictions on political contributions, as the former tend to curb expressive and associational activity more than the latter.Moreover, the Court has found that expenditure limits are rarely justified, as they have a less direct link to political corruption.

Section 30116(a)(9)(A)’s $20,000,000 cap unconstitutionally limits national parties’ ability to engage in political expression. Further, it disincentivizes convention committees from raising as much as they can; why raise more money than you are allowed to spend?

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The Courts

Washington Post: The Trailer: It’s not 2016 for third-party candidates

By David Weigel

And in the U.S. District Court for the District of Columbia, Republican donor Shaun McCutcheon sued the FEC with an argument that, if successful, would allow self-funding candidates to donate more to their parties; if not successful, it would stop Mike Bloomberg from donating leftover money from his presidential campaign to the Democratic National Committee. (The FEC lacks a quorum and can’t adjudicate such things on its own right now.)

Ironically, it was McCutcheon whose successful lawsuit against candidate contribution limits to political parties led to a 2014 decision lifting the ceiling on individual donations to candidates, parties and PACs, allowing donors who might have given a combined $117,000 to all three to give, in that cycle, $3.5 million. The rules have been different for candidates themselves. Bloomberg donated $18 million to the DNC, proportionately less than the $4.5 million Beto O’Rourke donated to Texas’s Democratic Party after the failure of his 2018 Senate bid. 

McCutcheon’s lawsuit asks whether self-funding candidates, like Bloomberg, get to take advantage of a loophole, giving more than an ordinary donor can to a party. His argument began with a blink-and-you-missed it, 18-day run for the Libertarian Party’s nomination. McCutcheon, a Trump donor, filed to run 14 days before the Libertarian convention, invested $65,000 in his campaign, spent $15,000 and wanted to give the rest to the LP.

Law360: How Ohio Case May Alter Corruption Law Landscape

By Peter Koski and Randall Friedland

When federal agents arrested former Ohio House Speaker Larry Householder on corruption charges, the headlines were jaw-dropping: $60 million in bribes in exchange for a controversial $1.3 billion legislative bailout for two aging nuclear power plants. The fallout was predictable and swift…

But despite the sensational headlines, the 82-page criminal complaint contains none of the salacious details commonly associated with such bribery schemes. There are no allegations of cash-filled suitcases, private jets or exotic vacations.

Instead, the complaint alleges that the company that wanted the legislative bailout spent $60 million on far more prosaic fare: media ads, lobbying activity and campaign literature, including $3.5 million for postage.

The complaint alleges that FirstEnergy Corp., identified in the complaint as “Company A,” contributed $60 million to Generation Now Inc., an IRS 501(c)(4) entity, created to fund a lobbying campaign to enact the legislative bailout and defeat Ballot Campaign, a referendum seeking its repeal.

The complaint alleges that Generation Now spent the money on polls, media buys, and mailers; two media services firms;a political strategy group; Ballot Campaign Organizers to collect the signatures of registered voters; and “a media blitz – television ads, radio ads, mailers, and digital media,” among other First Amendment protected activity…

This case raises several consequential issues at the core of the federal corruption statutes, and it creates significant legal risks for companies engaging in political speech.

Above the Law: The Constitution Was Not Made Only For A Religious People

By Tyler Broker

Last week, a ruling out of the Seventh Circuit presented the latest example that this country is facing an increasingly theocratic judiciary seeking to expressly favor religion and religious citizens at the great expense of nonbelievers. To be clear, the case is only at the preliminary injunction stage, so the Seventh Circuit panel was not making a decision on the merits. However, where the panel did make legal conclusions, they were downright alarming. For example, Judge Diane Wood declared that the court is convinced “that the speech that accompanies religious exercise has a privileged position under the First Amendment.” If your alarm bells went off at the mention of a “privileged position” within the First Amendment just wait, because somehow this opinion gets even worse:

We conclude by explaining that a comparison between ordinary speech (including political speech, which all agree lies at the core of the First Amendment) and the speech aspect of religious activity reveals something more than an “apples to apples” matching. What we see instead is “speech” being compared to “speech plus,” where the “plus” is the protection that the First Amendment guarantees to religious exercise.

Declaring that religious expression is entitled to some special, privileged status within the First Amendment that is superior to political speech is incredibly difficult to justify. For one thing, the free speech law that I thought we were all operating under, seems pretty clear that unless it is determining whether certain speech falls into a narrowly defined list of historical exceptions, government is not supposed to be in the business of making viewpoint or content-based restrictions. Yet, if courts are granting better treatment to expressive gatherings simply because they contain religious speech than other expressive gatherings such as political ones, this would seem to be a pretty clear-cut case of content-based restriction. 

Congress

The Verge: Republicans pressure platforms with new 230 bill

By Makena Kelly

A group of Senate Republicans introduced a new bill Tuesday aimed at chipping away some of the protections provided to social media companies through Section 230 of the Communications Decency Act.

The Online Freedom and Viewpoint Diversity Act, introduced by Sens. Lindsey Graham (R-SC), Roger Wicker (R-MS), and Marsha Blackburn (R-TN), would strip away the liability protection provided by Section 230 if a platform restricted access to content without providing specific rules that it violated. The bill would require platforms to have an “objectively reasonable belief” that content violated a specific policy in order for it to be removed, or they could be held liable for their moderation actions.

The bill would also amend language in the original law, changing vague terms like “objectionable” with “promoting terrorism” and “unlawful” as guidance for moderating content.

“Social media companies are routinely censoring content that to many, should be considered valid political speech,” Graham said in a statement Tuesday. “This reform proposal addresses the concerns of those who feel like their political views are being unfairly suppressed.” 

NPR: House Democrats Investigating Postmaster General Over Campaign Finance Allegations

By Merrit Kennedy

House Democrats say they are investigating Postmaster General Louis DeJoy over allegations reported by The Washington Post that he asked employees to donate to certain political candidates and then reimbursed them through bonuses.

“If these allegations are true, Mr. DeJoy could face criminal exposure – not only for his actions in North Carolina, but also for lying to our committee under oath,” House Oversight Committee Chairwoman Carolyn Maloney, D-N.Y., said in a written statement.

“We will be investigating this issue, but I believe the Board of Governors must take emergency action to immediately suspend Mr. DeJoy, who they never should have selected in the first place,” Maloney added.

Wall Street Journal: Make the Senate Great Again

By Ben Sasse

One of the biggest reasons Congress gives away its power to the executive branch is that it’s politically expedient for both parties to avoid the decisions that come from the work of legislating. Lawmakers are obsessed with staying in office, and one of the easiest ways to keep getting re-elected is by avoiding hard decisions. We ought to propose a constitutional amendment to limit every senator to one term, but we should double it from six years to 12…

If that’s a bridge too far, at least ban fundraising while the Senate is in session in Washington. It’s an everyday experience to sit down at a $2,000-a-plate lunch fundraiser and then run over to make committee votes. Lobbying is protected by the First Amendment, but it shouldn’t be the primary focus of senators when we’ve got work to do.

IRS

Wisconsin Examiner: Watchdog: Outside group omitted campaign spending on GOP from tax return

By Erik Gunn

A tax-exempt lobbying group with close ties to the Republican Party spent nearly $1 million to help elect 13 GOP lawmakers in the 2016 and 2018 election cycles – without filing required reports, according to a complaint filed Tuesday with the federal Internal Revenue Service.

The Jobs First Coalition (JFC), founded in August 2009 and exempt from taxes under Section 501(c)(4) of the federal Internal Revenue Code, transferred $920,000 in the tax years of 2016 through 2018 to a separate political fund it operates, states the complaint, filed by the Campaign for Accountability in Washington, D.C.

Contrary to IRS requirements, the complaint states, “JFC failed to report any of this political campaign activity to the IRS.”

Instead, the Campaign for Accountability complaint states, “JFC reported to the IRS – under penalty of perjury – that it spent nothing on political campaign activities between 2016 and 2018.”

The money was transferred to the Jobs First Coalition Political Fund, which was established in 2013 and made independent expenditures on behalf of Republican legislative candidates and against their Democratic challengers in the 2016 and 2018 elections.

Under Wisconsin campaign finance law, organizations that make independent expenditures in political campaigns must file an itemized report of the contributions they receive, identifying each donor and the amount it has contributed, with the Wisconsin Ethics Commission.

Online Speech Platforms

The Verge: Trump’s latest attack on Section 230 is really about censoring speech

By Casey Newton

Trump brought [Section 230] up today when a Twitter account with fewer than 200 followers posted an obviously doctored image of Senate Majority Mitch McConnell dressed up in Soviet military garb, with the caption reading “Moscow Mitch.”

“Why does Twitter leave phony pictures like this up, but take down Republican/Conservative pictures and statements that are true?” the president wanted to know. “Mitch must fight back and repeal Section 230, immediately. Stop biased Big Tech before they stop you!” …

The reason Twitter (usually) leaves phony pictures like that up is that the United States permits its citizens to speak freely about politicians – even to say mean things about them. Repealing Section 230 would likely have no impact on the tweet in question, because the Twitter user’s speech is protected under the First Amendment.

It might, however, make Twitter legally liable for what its users post – which would lead the company to remove more speech, not less…

As it so happens, there’s a sharp new report today out on the subject. Paul Barrett at the NYU Stern Center for Business and Human Rights looks at the origins and evolution of Section 230, evaluates both partisan and nonpartisan critiques, and offers a handful of solutions.

To me there are two key takeaways from the report. One is that there are genuine, good-faith reasons to call for Section 230 reform, even though they’re often drowned out by bad tweets that misunderstand the law. 

New York Post: Facebook will pay users to log off before 2020 election

By Selim Algar

Facebook is offering users money to refrain from using the site and Instagram in the weeks leading up to the bitterly contested November elections.

To assess the impact of social media on voting, the company will pay selected members up to $120 to deactivate their accounts beginning at the end of September…

The Silicon Valley giant said it expects 200,000 to 400,000 people to take part.

“Representative, scientific samples of people in the US will be selected and invited to participate in the study. Some potential participants will see a notice in Facebook or Instagram inviting them to take part in the study,” Facebook said…

“To continue to amplify all that is good for democracy on social media, and mitigate against that which is not, we need more objective, dispassionate, empirically grounded research,” Facebook said in describing the plan.

The research will be carried out by independent data scientists, company officials said.

Candidates and Campaigns

PBS: Why the 2020 presidential election is likely to be the most expensive in history

The presidential election of 2020 is expected to be the most expensive in history. Both President Trump and Democratic presidential nominee Joe Biden are drawing hundreds of millions in contributions — despite a difficult year for fundraising. What’s behind the rising costs of campaigning? Amna Nawaz talks to Campaign Legal Center’s Adav Noti, formerly a Federal Election Commission lawyer.

Politico: Trump deploys YouTube as his secret weapon in 2020

By Alex Thompson

As Trump’s reelection effort pulled back on television advertising over the past month, it is pouring money and staff time into Youtube. The campaign and its joint fund with the Republican National Committee have spent over $65 million on YouTube and Google – about $30 million of it since July. Joe Biden and the Democratic National Committee joint committee, by comparison, have spent about $33 million on YouTube and Google during the entire campaign. (Google doesn’t provide an exact breakdown of the spending, but the Trump campaign said most of the money was for YouTube as opposed to search ads.) …

Trump’s campaign has also devoted significant resources to generating organic content on YouTube – regular videos uploaded by supporters as opposed to ones it pays to promote. In August, the campaign posted nearly 900 videos, while the Biden campaign posted just over 100.

Many digital strategists say YouTube’s algorithm is more likely to recommend to viewers channels that are updated regularly with new content. “The name of the game with algorithms is to flood the zones,” said Eric Wilson, a veteran Republican digital operative. “The Trump campaign is putting on a master class in advertising according to algorithms – it just rewards the side that will produce more content.”

Politico: GOP congressman spent $70K in campaign cash on meals

By Ally Mutnick

Dinners at international sushi bars, steakhouses and a wine boutique. A $220 meal in London. A $300 meal in a posh hotel in Belgium on Boxing Day.

Rep. Mike Turner has used campaign funds for hundreds of trips to restaurants – and occasionally to stay at lavish hotels – according to a POLITICO analysis of the Ohio Republican’s campaign-finance filings over the past 3½ years.

He has spent over $70,000 from his campaign account since 2017 to fund meals at some 370 meetings. The individual receipts are fairly modest in most cases – typically ranging from $12 to a few hundred dollars.But together, ethics watchdogs say, they suggest a consistent pattern: Turner uses his donors to subsidize his personal dining costs, expensing an average of two meals a week…

In a statement, Turner denied any impropriety and called the story “a political hit job initiated by my opponent.”

The States

Gaston Gazette: Gaston judges lift ban on courthouse protests, activists call it a First Amendment win

By Adam Orr

Activists notched a win this week after a judge rescinded a ban on protests and demonstrations at the Gaston County Courthouse.

Gaston County Resident Chief District Court Judge John Greenlee said Tuesday an order signed last month that banned all expressive conduct within 300 feet of the Gaston County Courthouse and Magistrate’s Office has been lifted.

Greenlee said the decision was made, in part, after a protest held on the sidewalk in front of the courthouse on Friday was orderly and failed to cause disruptions for people entering and exiting the courthouse…

The order went into effect Aug. 3, after it was signed by Greenlee and [Gaston County Superior Court Judge Jesse] Caldwell, but only became known publicly after the order was delivered last week to a small group of protesters demonstrating near Gaston County’s Confederate monument.

The order drew criticism from the American Civil Liberties Union of North Carolina, which compared it to a similar order in Alamance County that a judge had recently blocked officials from enforcing.

Greenlee said Tuesday that court decision played a factor in rescinding the Gaston County order.

 

 

Tiffany Donnelly

Tiffany Donnelly

https://www.ifs.org/author/tdonnelly/

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