Respect For Free Speech Dwindles Under The Left’s Assault

Last week's op-ed by RNLA Vice President for Election Education David Warrington on efforts by Democrats on the FEC to regulate political speech on the Internet provoked an odd, though perhaps predictable, response on Twitter, ending with former FEC Commissioner Ann Ravel tweeting that the "point of the article" was to generate death threats against her.  This week in the Daily Caller, RNLA Executive Director Michael Thielen responded:

No, former Commissioner Ravel, it is not. The purpose of the editorial was to oppose Commissioner Weintraub’s veiled attempt to retrench the free speech rights of American citizens on the Internet, regulations such as your proposal to establish a national database of the names of all Americans who post political opinions on the Internet and to regulate even free posts, and your calls—even as late as this morning—to “rethink all the exemptions for the internet.”

Mr. Thielen then described how former Commissioner Ravel's response was a classic avoidance technique used by the left to avoid engaging in a policy debate on the issues that they will lose:

But liberals like Ravel apparently prefer not to defend the substance of past votes or the effects of current proposals but instead dismiss our opinion as just another extremist threat.  It’s certainly a more convenient tact. It is much easier to dismiss a contrary opinion than to debate it on the merits.  But resorting to that old liberal meme that conservative speech can be so easily dismissed as extremism or invitation to violence does a disservice to the American people whose free speech rights are at stake.

After repudiating the use of violence, shouting down speakers, threats, and other inappropriate responses to speech that a person disagrees with, Mr. Thielen pointed out how liberals' favorite tactics to intimidate and regulate threaten free speech rights of all Americans:

Ravel and her allies on the left are trying to promote their worldview by limiting speech through intimidation (dismissing all criticism as a threat) and regulation.  Regulation—the favorite tool of liberals for every issue—suppresses speech in subtle and not so subtle ways. 

Regulations, especially vague ones, make speech cost more.  Consider the complex web of campaign finance laws that organizations wishing to speak on political issues and candidates have to navigate simply to express their views: disclaimer requirements, registration and reporting requirements, disclosure rules, and so on.  Consider how Democrats are constantly trying to raise the price of speaking through even more regulation, such as through the DISCLOSE Act reintroduced in Congress every year.  Consider how campus groups such as the Berkeley College Republicans have had to retain counsel and file lawsuits simply to invite conservative speakers to campus on the same basis as liberal speakers, due to campus speech regulations.  Fortunately, there are many civic-minded attorneys, such as RNLA Board of Governors member Harmeet Dhillon, to represent these individuals and organizations at greatly discounted or pro bono rates.

Mr. Thielen also discusses how there is a very important policy debate -- the regulation of political speech on the Internet -- underlying this, and liberals' tactics only distract from the debate and the threat to citizens' free speech rights.

California’s Campaign-Advertisement Disclosure Laws Become Toughest in the Country

Last week, Governor Jerry Brown signed the California DISCLOSE ACT, AB 249, which by some standards makes California’s campaign-advertisement disclosure laws the toughest in the country.

This new law requires the three largest contributors (of $50,000 or more) to be listed on ballot measure ads and independent expenditures.

On video and TV, the disclosures must be displayed against a solid black background in a clear font that is not all-caps, fill the bottom third of the screen and stay up for a full five seconds during a 30 second ad. Each of the three major funders’ names must appear on a separate line. Disclosures on radio ads would need to be made with the same speed as the rest of the ad. Committees must keep track of donations on a daily basis to make this calculation. If the top contributors change, committees have five business days to make a new ad and update it. Top funders would have to be identified in TV, radio, online and print ads about ballot measures on the ad itself.

This law applies to print, online, TV, and radio ads as well as mass mailers and robocalls. It requires radio ads and robocalls to name the two largest funders.

It also requires that if the funds were earmarked, the “true” source of the funds be disclosed. However, California Fair Political Practices Commission chair Jodi Remke raised a red flag about the fine print tucked inside the bill – particularly how, for example, labor union earmarks are disclosed. Granted, the FPPC chair thought the bill might need to require additional disclosure requirements. But the new earmarking rules benefit labor unions – likely to the detriment of Republicans:

Critics of the bill, including Republican Assemblyman Matthew Harper, R-Costa Mesa, who voted against it, complain that it stacks the deck for Democrats by making an exception for membership dues, helping the labor unions that fund Democrats’ campaigns. 

If a member’s dues are used to pay for a campaign, the organization — not the individual dues-payer — would appear as the contributor as long as the total amount is below $500. Mullin and others argue the change eases the paperwork burden for membership organizations while making it easier for the public to follow the money. But Republicans have cast the provision as union-friendly politics as usual. 

“What this does is it creates a massive, dark-money loophole that unions can drive through,” Harper said. “It’s what Democrats do over and over again.”

Although Republicans may be currently outnumbered in the California legislature, that has not stopped the RNLA from working to set-up a robust lawyer organization in the state. On October 21, RNLA’s California Chapter is hosting National Republican Congressional Committee General Counsel Chris Winkelman at a MCLE event during the California Republican Party Convention in Anaheim. Mr. Winkelman will be discussing the lawyer's role protecting the integrity of elections. He will also highlight important Congressional races in 2018 and discuss how lawyers can help next November. We will also be introducing our statewide leadership and new California Regional Chairs. Register for the event here.

California’s RNLA Chapter is growing and recruiting lawyers around the state to help in 2018 races. If you haven’t already joined RNLA, now is the time!

By Audrey Perry Martin, RNLA California State Chapter Chair and Of Counsel to Bell, McAndrews & Hiltachk, LLP.

Political Speech At Risk, Again

RNLA members Brad Smith and Eric Wang coauthored an op-ed in The Hill debunking proposed legislation in Senate, which would have vast consequences if enacted. The piece looks at the "DISCLOSE Act of 2017" introduced by Senator Whitehouse (D-RI) which would restrict and heavily regulate political speech in America ahead of elections.

This is not the first introduction of a bill like this. Rather, it is just the latest version to drop into the "legislative hopper" in the wake of the 2016 Election and alleged Russian attempted interference with the presidential election. This 2017 version is just an opportunistic way to limit political speech at home.

Mr. Smith and Mr. Wang write:

Foreign interference with our elections is already illegal. Under existing law, foreign nationals and foreign corporations are strictly prohibited from making political contributions and independent expenditures in connection with elections for federal, state, and local office. . . Under existing law, foreign nationals and foreign corporations are strictly prohibited from making political contributions and independent expenditures in connection with elections for federal, state, and local office. However, the Federal Election Commission (FEC) has properly recognized that millions of Americans have not surrendered their right to political speech simply because they work at foreign-owned corporations. Thus, domestic subsidiaries of foreign companies like Anheuser-Busch, Bayer Health and Honda Motor, which are integral parts of the national and local economies, are permitted to engage in certain political activities, so long as those activities are directed by American citizens.

The Disclose Act of 2017 introduced by Whitehouse would upend the existing law by categorically prohibiting any political activity by a corporation or subsidiary if more than 20 percent of its voting shares are foreign-owned. This percentage ownership limit is a smokescreen, however, as the bill also would much more severely prohibit any corporate political activity if a foreign national “has the power to direct, dictate, or control the [corporation’s] decisionmaking process.” Because the owner of even one share of a publicly traded corporation generally has such power through a shareholders meeting or a proxy vote, this provision likely would strip away the political speech rights of any public company with even one foreign shareholder.

In a vacuum, perhaps we could be accused of over-reading this extreme result into the bill. But FEC Commissioner Ellen Weintraub outlined this very same legal approach in a New York Times opinion last year as a way to counteract the Supreme Court’s 2010 Citizens United decision, which permitted certain corporate political activity. Thirty-seven of the 38 Senate sponsors and co-sponsors of the latest Disclose Act who were in the chamber in 2014 also voted to amend the Constitution to override Citizens United. While that effort failed, it now appears those Senators are trying to use a mere bill to accomplish the same result, a maneuver that is clearly unconstitutional.

Aside from its foreign national provisions, the latest Disclose Act also contains numerous purported disclosure requirements (hence its name). But those disclosure provisions are also ploys to shut down political speech. For example, the bill would require any corporation (even one that has no foreign owners at all) making a “campaign-related disbursement” to disclose all of its “beneficial owners,” a term which likely includes any shareholder. For a company with tens of thousands of shareholders, including many who own shares through mutual funds and are unknown to the corporation, complying with this requirement would be practically impossible, and thus political speech would be essentially prohibited. . . .

This is yet another example of the left trying to politically capitalize on the alleged Russian attempted interference with our past election. Rather than directly addressing what allegedly occurred last year, the left would rather limit political speech overall, even from domestic sources and especially from those who may disagree with them.  Private entities such as Facebook are also changing their practices, which raises concerns about private regulation of political speech by unaccountable--but nonetheless powerful--brokers of communication in our modern era.

REG 2014-01 Earmarking, Affiliation, Joint Fundraising, Disclosure, and Other Issues (McCutcheon)

RNLA release a detail letter commenting on proposed FEC regulations on speech.  A copy is here.  

"If the Commission implements new disclosure rules it would usurp a Congressional prerogative, ignore the rich history of anonymous political advocacy, and place unnecessary burdens on advocacy groups."  

The Vast Leftwing Conspiracy Against Political Speech

The election may be over, but the left is scrambling to find ways to rewrite election law.  The progressive quest is still to undo Citizens United.  To this end, they have resurrected the DISCLOSE bill yet again, are lobbying the SEC for an administrative rule and are brainstorming more ideas in a new task force.

Democrats are hoping the third time is a charm.  That’s why on the first day of the 113th Congress, Rep. Chris Van Hollen reintroduced the DISCLOSE Act in its third iteration.   The RNLA has opposed the DISCLOSE Act since its first appearance in 2010.  (For more RNLA discussion of the DISCLOSE Act, see here and here.)

RNLA Member Eric Wang recently published an op-ed entitled “DISCLOSE Act Causes Less Disclosure” in Roll Call where he calls the DISCLOSE Act “monumental distraction and detour on the road to actual disclosure.”  Wang also notes that the “DISCLOSE also introduces a whole slew of ancillary provisions having absolutely nothing to do with the recent court decisions. One requires groups that are not PACs to report all of their sources of income if they engage in political speech. Disclaimers for political ads, which already are the butt of pop culture jokes, also would become even wordier and more meaningless.”

Leftist advocates are also lobbying the Securities and Exchange Commission to promulgate a rule to require all publicly traded corporate to disclose all money used for political speech.  This would include tax-exempt groups and trade associations.   A group of ten law professors sent a letter to the SEC in August petitioning the Commission to develop such a rule.  Yesterday, the SEC agreed to consider it.

Meanwhile, Democrat Representative John Larson of Connecticut is chairing a new task force in the House of Representatives to investigate further ways to Congress can sidestep the United States Supreme Court decision in Citizens United.