Daily Media Links 9/27: People Are Worried About DHS Plans To Gather Social Media Info, Bill would make it illegal to lie in political ads, and more…

September 27, 2017   •  By Alex Baiocco   •  
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CCP Statement on Russian Purchases of Internet Ads

By Bradley A. Smith

The extent and impact of foreign ad buying is not yet known. A central question so far is whether current requirements for political ads on social media are adequate. Federal law requires disclaimers on paid ads supporting or opposing candidates, including on the internet. There are exemptions for small items, such as pens and bumper stickers, or where providing a disclaimer is impractical. This is why the FEC has not required disclaimers on some small internet ads such as Google search ads. These exemptions balance two key campaign finance principles: allowing speech about candidates and informing voters about who is speaking. Maintaining this complex balancing act is critical to any effort going forward.

Any new requirements will affect not only foreign nationals, but also the rights of American citizens. Before Congress or the FEC acts, they must first understand what happened, and can happen in the future. A rush to regulate speech and press rights poses serious risks to these First Amendment rights. At the same time, an ill-considered response might also be ineffective.

Internet freedom has empowered citizen journalists and grassroots organizations as well as large groups. More information is available than ever before to voters. These are great developments. As Congress and the FEC consider new rules, they must avoid damage to this vital outlet for free expression.

Free Speech

BuzzFeed News: People Are Worried About DHS Plans To Gather Social Media Info

By Adolfo Flores

The Department of Homeland Security published the new rule in the Federal Register last week, saying it wants to include “social media handles, aliases, associated identifiable information, and search results” as part of people’s immigration file. The new requirement takes effect Oct. 18…

Adam Schwartz, an attorney with the Electronic Frontier Foundation, which advocates for privacy and free expression, said the plan was disturbing…

“There’s a growing trend at the Department of Homeland Security to be snooping on the social media of immigrants and foreigners and we think it’s an invasion of privacy and deters freedom of speech.”

This would also affect all US citizens who communicate with immigrants, Schwartz said, who could self-censor out of fear that information they exchange with someone overseas could be misconstrued and used against them…

Another concern, Patel said, is that the information would be used for ideological vetting by the US government who will be looking at people’s political and personal views of people abroad and in the US.

“The question is do we really want the government monitoring political views?” Patel said. 

Supreme Court

Politico: Why Banning Russian Facebook Ads Might Be Impossible

By Richard Hasen

Lost amid the debate over whether Facebook can be trusted to police itself to stop Russian and other foreign interference in future U.S. elections or whether new legislation is necessary to accomplish this task is a potential insuperable roadblock to effective regulation: the conservative justices on the United States Supreme Court and their views of the First Amendment…

My worry: The Court might eventually hold that neither the FEC nor Congress has the power to stop most attempts at foreign interference in American elections…

We don’t yet have the language of a Klobuchar-Warner bill that would apparently extend the definition of electioneering communications to cover foreign spending on Facebook and other digital media ads, but if that language is broad, the same conservative Supreme Court that brought us Citizens United could hold that the First Amendment prevents Congress from regulating any foreign spending on elections that is not the functional equivalent of express advocacy.


U.S. News & World Report: Pink Slip the Blue Slip

By Peter Roff

The “blue slip,” as it’s called, allows an individual senator to object at the committee level to consideration of a judicial nominee for a federal district or circuit court seat involving their state. For practical purposes, this gives senators a veto that not only prevents a nomination from ever getting anywhere close to the floor but stops a nominee from getting a hearing.

Count Senate Majority Leader Mitch McConnell as one in favor of reform. “My personal view is that the blue slip, with regard to circuit court appointments,” he told The New York Times, “ought to simply be a notification of how you’re going to vote, not the opportunity to blackball.”

As long as blue slips are taken as a blackball, to use McConnell’s word, the Ninth Circuit, which produces some of the most bizarre decisions of any of the nation’s circuit courts, can never be reformed…

For those who argue this violates a tradition and will remove the last barrier Republicans can erect to any liberal whack job named to a federal court by a future Democratic president, does anyone really think for one second they’d hesitate to make the blue slip process advisory? They’d do that in a heartbeat, especially when the decision to change the policy rests solely with the chairman of the Judiciary Committee.


Bloomberg: BlackRock Executive’s Kasich Donation May Cost $37 Million

By Miles Weiss

BlackRock Inc. faces a ban on collecting about $37 million in fees from Ohio public-sector clients after discovering that one of its top executives ran afoul of pay-to-play rules during last year’s presidential campaign.

Mark Wiedman, the head of BlackRock’s iShares unit, donated $2,700 to John Kasich in January 2016 during a fundraiser for the Ohio governor’s campaign to become the Republican presidential nominee, according to a regulatory filing.

Wiedman inadvertently triggered anti-corruption measures that the U.S. Securities and Exchange Commission adopted in 2010 after scandals involving money manager contributions to state officials, the firm said…

Many people don’t realize that the rule extends to state and local officials who run for federal office, including the U.S. presidency, as well as those who campaign for elections within their state, said Samuel Brown, a senior counsel at Allen & Overy who focuses on political law.

“A presidential election is going to draw people who don’t ordinarily make campaign contributions,” Brown said. “These two things came together in the form of Kasich,” who kept his position as governor of Ohio while campaigning for the nomination.

MapLight: Wall Street Cash Flows Into New Mexico, Despite Pay-To-Play Rule

By Andrew Perez

When federal regulators in 2010 instituted new ethics rules to prevent Wall Street executives from using campaign contributions to influence government investments, they pointed to New Mexico as an example of a state mired in pay-to-play practices. Just after those rules were enacted — with New Mexico still reeling from an influence-peddling scandal involving state investments — voters elected a new Republican governor promising a swift crackdown…

And yet as the Republican’s second term in office draws to a close, an IBT/MapLight investigation shows that when it comes to campaign cash from managers of state investments, Martinez turned a blind eye to the ethical standards she championed. During her tenure, New Mexico has been giving lucrative investment deals to financial firms whose executives have delivered big campaign donations to Martinez and to groups that have supported her election campaigns — a situation that may have violated the very pay-to-play rules that were passed in the wake of New Mexico’s previous scandals. 


Wall Street Journal: More Company Boards Add Oversight of Political Spending

By Theo Francis

The CPA-Zicklin Index of Corporate Political Disclosure and Accountability, in its seventh year, scores companies on how thoroughly they disclose their policies governing a variety of political spending…

Companies, especially publicly traded ones, continue to account for a relatively small portion of overall spending on federal elections. An analysis by the Conference Board found companies and trade associations accounted for less than 2% of the $7.5 billion spent in the 2016 election cycle…

The trend toward greater disclosure reflects a growing sense that good corporate governance requires it-but it also provides companies some cover, says Bruce Freed, president of the Center for Political Accountability, which seeks to increase such disclosure.

“They recognize that having disclosed, and having policies, lets them better manage their political spending,” Mr. Freed said. “It’s much easier to say no-then when you say no, it’s not personal, it’s policy-based.” …

The number of S&P 500 companies disclosing at least some dollar figures for political spending fell slightly, to 295 from 305, in part because of turnover in the S&P 500. In addition, more companies are simply prohibiting some or all political expenditures, the group found. 

San Francisco Chronicle: Russians exploited our weak laws on online political ads

By John Diaz

Who could have imagined in 2015 that Russian operatives would exploit the great modern tools of democratic discourse – social media, a free-flowing Internet – to meddle in our elections?

Ann Ravel, a member of the Federal Election Commission, not only imagined it. She said it out loud.

“Think of it, do we want Vladimir Putin or drug cartels to be influencing American elections?” she said at an October 2015 FEC meeting in which she was arguing for the commission to require greater disclosure on foreign contributions. Ravel had been a crusader for updating election law to include regulation of political advertisements on the Internet.

The FEC, hopelessly deadlocked, did nothing.

“They scoffed at me, of course,” Ravel, a Democrat, said of the three Republican commissioners. “They put out a statement saying how histrionic I was.”

Ravel said she did not have any particular suspicions about Putin’s intentions when she made that prescient remark.

“I just knew that he was evil,” Ravel said by phone from Washington, D.C. last week. “The thought of him intervening in our national election seemed so inappropriate. But apparently that did not sway my fellow commissioners.”


CNN: Exclusive: OGE crafting a new advisory on legal defense funds

By Cristina Alesci and Curt Devine

The Office of Government Ethics (OGE) is crafting a new advisory on legal defense funds for the first time in 24 years, according to an official with knowledge of the plan. The updated guidance addresses a controversy that recently arose about the agency’s policies on the funds and comes at a critical moment for some White House staff who are racking up bills from attorneys.

The forthcoming OGE guidance will make clear that the identities of donors to these funds should be disclosed, said the official, who has seen the draft document.

It will also call for political appointees to comply with the Trump administration’s ethics pledge, which prohibits gifts from lobbyists.

The document will not change long-standing practice and advice OGE has been providing for at least 20 years. But the official said OGE wanted to formalize its position on a 1993 legal opinion that allowed anonymous donations. Changes to a header on that document this year stoked controversy and questions over whether the agency currently permits anonymous donations, the official said.


New York Times: American Democracy Is Drowning in Money

By Celestine Bohlen

Do the gigantic sums doled out to campaigns – and later lavished on elected representatives as they are lobbied for their votes – amount to attempts to buy political power? Or is it, as the Supreme Court agreed in the Citizens United case, an exercise in constitutionally protected free speech?

Transparency International, the Berlin-based anti-corruption group, defines corruption as the “abuse of entrusted power for private gain.” In light of that, perhaps the American system isn’t so crooked after all. In fact, the United States performed well on Transparency International’s 176-country Corruption Perceptions Index from last year…

Of course, it takes more than money to win elections. In both the 2012 and 2016 presidential elections, the candidates who spent the most money lost. And for every candidate who loses, millions, even billions, of dollars in contributions are spent for naught.

Nor are all contributions potentially venal; they come in all forms – in support of causes and issues, as well as corporate interests and industrial lobbies.

Too sharp a focus on money also overlooks the other ways politicians can be influenced.

The States

Fitchburg Sentinel & Enterprise: Bill would make it illegal to lie in political ads

By J.D. Capelouto

The bill, filed by Rep. Colleen Garry, a Democrat whose district covers Dracut and Tyngsboro, is just one paragraph long. It states that “If a candidate or PAC is proven to have falsified or wrongly stated an opponent’s stand, vote and/or background” in an advertisement, the candidate or PAC must forfeit all of their funds to the state.

The Joint Committee on Election Laws will hear testimony on the bill Wednesday, along with about 30 other bills related to campaign finance.

Garry claims the bill does not violate free speech, according to a Saturday post on her official Facebook page.

“You can say whatever you want BUT if you LIE about your opponent, you have to pay for it!!” she wrote.

Constituents deserve a “clean honest exchange of information,” she wrote.

Barton Carter, a communication and law professor at Boston University, said Garry’s bill is “clearly a violation of the First Amendment.”

The text of the bill is too broad, he said, and attempts to clamp down on political speech, which is protected under the First Amendment. 

Boston Globe: How Massachusetts can fight foreign influence in our elections

By Laurence H. Tribe and Ron Fein

Can Massachusetts take a stand against foreign influence in our elections? On Wednesday, a legislative committee will consider a bill to plug a loophole that the federal government has left wide open for foreign influence…

The Massachusetts bill, filed in January and now having its first hearing, bans political spending in Massachusetts elections from a foreign-influenced corporation – a company of which 5 percent is owned by a single foreign national, or 20 percent is owned by a group of foreign nationals. It also imposes a disclosure requirement on outside spending groups that take corporate money: Either get a certification from the corporation that it is not foreign-influenced, or disclose to the public that it may be.

In the face of federal inaction, other states and localities are also considering steps to protect their elections from foreign influence.

Newsworks: Philly Ethics Board backs public financing for campaigns

By Dave Davies

The Philadelphia Board of Ethics has approved a proposal to use city tax dollars to fund the campaigns of candidates for political office in Philadelphia. The idea now goes to City Council, where enabling legislation has five co-sponsors…

To qualify, you’d have be on the ballot and have an opponent, and, before you got any public funding, you’d have raise a certain threshold of contributions of $150 or less from residents of the district where you’re running…

Once the candidate did that, he or she would be eligible for a four-to-one match of city dollars, up to a limit…

If a candidate enters the public financing system and gets the city matching dollars, there’s a limit on how much he or she can spend in the race. It’s $2 million in a mayoral primary, for example. There are also limits on how much candidates can accept from PACs and businesses.

Ethics board staffers say that, right now, they can’t constitutionally restrict what candidates spend or how much they take from special interests. It would be considered a violation of free speech.

Gothamist: NY Senator Wants To Make It Illegal For Powerful Interests To Hide Behind LLCs

By Emma Whitford

[A] loophole in state campaign finance law permits individuals to anonymously shovel campaign donations.

Under legislation announced Monday by Democratic State Senator Brad Hoylman, property owners would be required to list their names and addresses alongside any affiliated LLC. The New York Department of State would be required to create a public database of LLCs and their owners, and “false, fraudulent, incomplete, or outdated” ownership information would be punishable with up to three years in prison.

The goal of the legislation, Hoylman said Monday, is to pull back shrouds of secrecy that notorious property owners, from Steve Croman to President Donald J. Trump, have taken advantage of. And, on the campaign finance front, for New Yorkers to “know exactly who is pulling the levers in Albany, and City Hall for that matter.”

Alex Baiocco

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