ICYMI
2017 DISCLOSE Act Would Unconstitutionally Restrict Speech, CCP Analysis Finds
The Center for Competitive Politics released an analysis today by Senior Fellow Eric Wang regarding the latest iteration of the DISCLOSE Act. Similar proposals have been introduced in Congress dating back to 2010 with the aim of creating a “deterrent effect” on political speech. The “DISCLOSE Act of 2017” (S. 1585) may be a new bill, but Wang’s analysis concludes that it suffers from the same constitutional deficiencies as previous versions and is even more brazen in its attempt to shut down speech…
“The DISCLOSE Act is a misnomer. Rather than implement meaningful disclosure requirements, the bill attempts to make speaking so burdensome that groups will decide it is not worth the risk,” said Eric Wang, Senior Fellow at the Center for Competitive Politics. “By imposing conditions on political speech that are practically impossible to comply with, the DISCLOSE Act will greatly discourage Americans from exercising their First Amendment rights.”
Analysis of the “DISCLOSE Act of 2017” (S. 1585): New Bill, Same Plan to Crack Down on Speech
By Eric Wang
Ever since the Supreme Court issued its Citizens United ruling in 2010, opponents of the decision in Congress have been trying to counteract it with the “DISCLOSE Act” (“Democracy Is Strengthened by Casting Light on Spending in Elections Act”). Sen. Charles Schumer freely acknowledged the bill’s intent was to create a “deterrent effect” on political speech. Having failed to pass the bill initially in the 111th Congress, its supporters have introduced variants of the bill in each of the four successive Congresses.
In this analysis, we focus on the latest iteration of the “DISCLOSE Act” recently introduced and sponsored by Sen. Sheldon Whitehouse…
Notwithstanding its name, the 2017 DISCLOSE Act would not implement any meaningful disclosure requirements. Rather, the bill uses the language of “disclosure” to disguise its true effect of shutting down political and issue speech by for-profit and nonprofit corporations alike. The bill would do so by drastically expanding the existing time windows during which speech is regulated, and by imposing conditions for speaking that are practically impossible to comply with. While the bill purports to address foreign spending in American elections, its actual provisions are not targeted at foreign nationals, but instead would cover all domestic public corporations as well.
Federal Appeals Court Urged to Rule that Missouri Can’t Force Volunteers to Register as Lobbyists
Ron Calzone volunteers his time and pays his own expenses to promote limited government when he travels to the state capitol to speak to lawmakers and testify at public hearings. He has never been paid to lobby on anyone’s behalf.
Despite the fact he isn’t paid a cent, the Missouri Ethics Commission (MEC) demands that Mr. Calzone register as a lobbyist and file regular reports with the Commission like a professional lobbyist. Forgetting to include an issue he discussed in lobbyist reports or missing a filing deadline can result in stiff fines. In June, a federal judge ruled in favor of the MEC. Now, in an appeal filed late yesterday, the Center for Competitive Politics (CCP) and the Freedom Center of Missouri have asked the Eighth Circuit Court of Appeals to overturn that decision.
The argument is simple: Forcing Mr. Calzone to register as a lobbyist for his volunteer advocacy violates the First Amendment right to petition government for a redress of grievances…
“This case is not just about me,” says Calzone. “The Ethics Commission’s claims and this federal judge’s logic puts everyone’s free speech rights at risk. We are all fortunate to have principled public interest law firms fighting to protect our liberty.”
Plaintiff-Appellant’s Opening Brief Before the Eighth Circuit Court of Appeals in Calzone v. Hagan
This case raises a First Amendment question of first impression: May an individual be regulated as a “lobbyist,” and forced to comply with burdensome registration and reporting requirements, even if he acts solely as an unpaid volunteer? The U.S. Supreme Court last addressed lobbyist reporting requirements in 1954, when it determined that the First Amendment permitted the government to demand information concerning “who is being hired, who is putting up the money, and how much.” United States v. Harriss, 347 U.S. 612, 625 (1954). This Court has reviewed similar laws involving paid lobbyists and, after apparently applying strict scrutiny, has upheld them under Harriss. Minn. State Ethical Practices Bd. v. Nat’l Rifle Ass’n, 761 F.2d 509 (8th Cir. 1985) (per curiam). The district court, however, applied mere exacting scrutiny to hold that Missouri could require unpaid volunteers to carry the same burdens as professional, compensated lobbyists…
Lobbying disclosure laws strike at the heart of First Amendment activity: citizens directly petitioning their representatives on matters of public concern. Accordingly, both this Court and the Supreme Court have suggested that strict scrutiny is the appropriate standard when reviewing lobbying rules.
Congress
Washington Post: Facebook, Google and Twitter face proposed bill targeting shadowy political ads
By Hamza Shaban and Matea Gold
Democratic lawmakers are pushing for new legislation that would require greater disclosure of political ads that run on Internet platforms, despite a pledge by Facebook chief executive Mark Zuckerberg that the company will voluntarily pull back the curtain on political advertising on the social network.
Sens. Amy Klobuchar (Minn.) and Mark R. Warner (Va.) urged colleagues Thursday to support a bill that would create new transparency requirements for platforms that run political ads online akin to those already in place for TV stations…
The bill would require digital platforms with more than 1 million users to create a public database of all “electioneering communications” purchased by a person or group who spends more than $10,000 on political ads online. In addition to storing a digital copy of the ad, the database would include a description of the targeted audience, the ad’s view count, the date and time the ad ran, its price, and contract information for the purchaser.
The measure would create a reporting system similar to the one required of television stations by the Federal Communications Commission, which collects public information about political ads aired on TV and the names of the groups that sponsor them.
HuffPost: Legislation Would Require More Transparency From Facebook, Google On Political Ads
By Paul Blumenthal
While legislation has not yet been introduced in the House, Rep. John Sarbanes (D-Md.), the head of House Democrats’ democracy taskforce, told HuffPost in a statement, “Congress should also get in the game by enacting appropriate legislative reforms to stop hostile actors from threatening the integrity of our elections.”…
Keegan Goudiss, a partner at the digital advertising firm Revolution Messaging and director of digital advertising for the presidential campaign of Sen. Bernie Sanders (I-Vt.), said that any digital public filing system, whether self-imposed by Facebook or written into legislation, would need to be better than the slow and complex public files reported by broadcasters…
In particular, he wants to know whether the burden for maintaining and reporting the public files would be placed on the digital platforms or the purchaser of the advertisements. If the burden was placed on the purchasers, that would mean “a lot more time on administrative tasks that we’re going to have to focus on.”
Another question is whether the public file would list the original purchaser of the advertisement – a campaign or outside group – or the agency paid by the purchaser. In their FEC disclosures, campaigns often solely list the agency that they have paid to make digital advertising purchases.
Free Speech
Georgetown University: New Project at Georgetown to Track Free Speech Incidents Across Country
A new two-year academic inquiry at Georgetown, funded by the John S. and James L. Knight Foundation, is documenting and analyzing hundreds of incidents around the country in which free speech has been challenged.
The Free Speech Project, directed by Sanford J. Ungar, a veteran journalist and former college president, will study the condition of free speech in America today, both in higher education and in civil society.
“At the heart of this project is how universities and American society at large can uphold the First Amendment while also protecting people from harassment and threats of violence,” says Ungar, who was president of Goucher College for 13 years. “We will study the condition of free speech in America today, both in higher education and in civil society, in an attempt to create frameworks that promote public discussion about divisive issues in a civil manner.”
The project’s Free Speech Tracker, perhaps the first of its kind, documents incidents across the country over the past two years and going forward, as well as monitoring activity in state legislatures seeking to curb or calm public protest.
Washington Post: The civil rights and Vietnam protests changed America. Today, they might be illegal.
By Margaret Sullivan
What’s the state of free speech in America?
Sanford Ungar, who teaches about it at Harvard and Georgetown, has a simple, depressing answer.
“It’s a mess,” he says…
An insidious problem also is developing in dozens of states where legislatures are considering – and sometimes approving – new laws that restrict free speech.
“They are criminalizing things that are pretty routine,” Ungar told me. “Much of the activism of the Vietnam and civil rights era would be completely illegal” under the new laws…
Traci Yoder, National Lawyers Guild director of research and education, predicts that whether this wave of bills ends up passing or not, the effect may be the same – to tamp down dissent.
“Few people would be as willing to protest if they thought they could easily be arrested, fined, imprisoned or even killed,” Yoder wrote. And most regular citizens aren’t keeping track of the details, she said, but may know that the penalties have been vastly toughened.
It amounts to a nationwide movement to chill speech.
Independent Groups
Washington Post: The mysterious group that’s picking Breitbart apart, one tweet at a time
By Paul Farhi
Sleeping Giants is a mysterious group that has no address, no organizational structure and no officers. At least none that are publicly known. All of its leaders are anonymous, and much of what it claims is difficult to independently verify. A spokesman for the group wouldn’t identify himself in interviews for this article.
But the group does have a singular purpose, pursued as relentlessly as Ahab chasing a whale: It aims to drive advertisers away from Breitbart. “We’re trying to defund bigotry,” the spokesman says…
Sleeping Giants’ spokesman says. “We are doing this on a voluntary basis, so we need to keep our day jobs going,” he says.
Hence the group’s anonymous nature. The spokesman says some leading members are employed by companies that might not take kindly to their employees engaging in a prolonged activist effort…
The group has raised about $1,500 from T-shirt sales and about $7,000 from an online fundraiser, but it otherwise operates with little overhead, he notes. “If I had a nickel for every claim that we’re being funded by [liberal billionaire activist] George Soros, I’d be well off. It’s crazy. There’s not much need for funding. Tweeting is free.”
Disclosure
WIRED: Why Facebook Will Struggle to Regulate Political Ads
By Issie Lapowsky
“Facebook is so gargantuan, it’s exceeded our capability to manage it,” says Siva Vaidhyanathan, director of the Center for Media and Citizenship at the University of Virginia, who is writing a book on Facebook.
Nothing Zuckerberg announced Thursday or that Congress is considering would have stopped Russian trolls from buying ads during the election, Vaidhyanathan says. Facebook says the Russian ads-like the Pepe billboard–didn’t explicitly mention the candidates or the election. Instead, the ads focused on social issues related to immigration, LGBT rights, and guns, among other things. If Facebook only requires official campaign organizations, or even political action committees, to disclose who’s paying for their ads, it seems these Russia-linked ads would still have been able to fly under the radar…
Even if Facebook radically expanded the definition of a political ad, though, or if Congress tracked every single dollar spent on Facebook’s political ads, there would still be ways to work around it. Anyone could, for instance, form a fake news website, then pay to boost their “news” articles to a broader audience.
The Media
Daily Beast: Jimmy Kimmel Got a Hand From Chuck Schumer in His Fight Against Obamacare Repeal
By Lachlan Markay, Asawin Suebsaeng, and Sam Stein
Jimmy Kimmel’s nightly monologues decrying Sen. Lindsey Graham (R-S.C.) and Bill Cassidy’s (R-LA) bill became must-see TV…
Kimmel and his team were in touch with health care officials, charities and advocacy groups, multiple sources told The Daily Beast. He also was in touch with the office of Senate Minority Leader Chuck Schumer (D-N.Y) who, according to a source familiar with their conversations, “provided technical guidance and info about the bill, as well as stats from various think tanks and experts on the effects of [Graham-Cassidy].”
The three episodes in which Kimmel tore apart both Cassidy-who had previously insisted that any health care bill pass a so-called “Jimmy Kimmel test”-and the bill’s specifics helped galvanize public and political opposition to the legislation…
Democrats on Capitol Hill have viewed the ABC host as highly effective in large part because of his encouragement to viewers to call Senate offices to urge lawmakers to vote against it…
By Thursday, Kimmel was featuring prominently in Democratic political messaging, with the party’s senate campaign arm launching digital ads in a dozen states targeting vulnerable Republican senators by invoking the late-night host’s viral pleas for health care measures that protect those with preexisting conditions.
The States
Los Angeles Times: Don’t miss the fine print in this big California campaign disclosure bill
By John Myers
You wouldn’t expect to see the leader of California’s campaign watchdog agency rooting for Gov. Jerry Brown to veto sweeping new disclosure rules for political donors. And yet, that’s where things stand in a seven-year debate over helping voters follow the money.
“I think we can do better than this bill,” said Jodi Remke, chair of the California Fair Political Practices Commission…
AB 249 would add several new layers, and some exclusions, to what’s considered a reportable “earmarked” contribution. And that’s what worries the FPPC’s attorneys.
“It’s narrowing the circumstances where we can track earmarking,” Remke said during a public hearing last week…
Labor “acquiesced” to more advertising disclosure during 2016 negotiations, wrote Dave Low of the California School Employees Assn., “in exchange for new and clear language as to what constituted an earmarked contribution.” The letter says unions wanted the rules governing earmarked donations “narrowly drafted” to “effectively protect labor from any allegations that it was ‘laundering’ contributions from its members” when eventually weighing in with help “for a specific candidate.”
Meriden Record-Journal: SEEC asks Malloy to keep campaign finance law out of future budget negotiations
By Mike Savino
With Gov. Dannel P. Malloy vowing to veto the Republican budget adopted a week ago, the State Elections Enforcement Commission is asking him to ensure changes to campaign finance laws stay out of future negotiations.
The Republican budget would end the Citizen’s Election Program, which provides public financing to candidates, saving the state a combined $34.8 million over two years, but the five-member commission said in a recent letter that proposal ignores the program’s value.
They also asked in the letter to Malloy that he veto the budget and keep the topic out of future negotiations…
Senate Republican Leader Len Fasano, R-North Haven, responded, saying “we just cannot afford to spend taxpayers dollars on pencils, and postcards, and rulers, while we’re telling folks we’re not going to give them proper services.”…
Aside from costs, Fasano said SEEC has used CEP to help create “almost a cottage industry” for itself. He said the commission has sought to expand its reach and ability to investigate, an issue that has ruffled feathers within both parties.
San Francisco Chronicle: Open up the black box of political advertising
By Christopher S. Elmendorf, Ann Ravel and Abby Wood
Facebook’s voluntary efforts should be reinforced and extended by public mandates. San Francisco’s Board of Supervisors could pass an ordinance compelling Internet platform companies – not just Facebook, but Twitter, Instagram, Google and their ilk – to establish a public archive of all paid advertisements that mention by name a candidate for public office in the city, a currently serving city official, or an initiative or referendum measure on the city ballot. Platform companies would be required to disclose through this archive the targeting criteria for each ad, much like FCC regulations bring to light the media markets in which paid political ads were broadcast.
An archive-and-disclosure mandate backed by civil penalties would position the city to monitor compliance and ensure that all platform companies that deliver targeted political advertising abide by the same rules, so odious content doesn’t just migrate from Facebook to another, “darker” platform.
San Francisco has a proud legacy of innovation. It’s high time we use our pioneering spirit to open up the black box of online politics. We can establish a new model for the rest of the nation.
