Liberals Want to Use Russian Ads as an Excuse for Broad Internet Speech Regulation

David Keating, President of the Institute for Free Speech, and RNLA member Paul Jossey wrote in The Hill about how liberals and Democrats are using Facebook advertisements purchased by Russian agents as an excuse to regulate the online political speech of Americans.  First, they pointed out the narrow scope of the Russian ad problem:

As a practical matter, the Russian ads appear to have as much substance as spitting in the ocean. Estimates indicate the ads cost $150,000, and over half was spent after the election. By comparison, the money spent in the 2016 election in support of Donald Trump and Hillary Clinton was over 16,000 times more than the money Russians spent on ads. At most, only four percent of the nation’s voting age population saw one of the Facebook ads at issue. . . . [M]any of the ads occurred in 2015. Importantly, few even mentioned federal candidates. . . . 

Yet, despite their narrow audience and scope and no evidence of the ads having any impact on Americans' voting decisions, liberals are rushing to use them as an excuse to regulate speech:

Various interests have seized on Russian chicanery to push “reforms” lacking priority in less neurotic times. Sens. Amy Klobuchar (D-Minn.) and Mark Warner (D-Va.) sent a “Dear Colleague” letter seeking new rules for online ads. The resulting bill would burden internet speech with suffocating rules, even possibly banning some forms of online speech. Instead of hitting the Russians, the bill instead targets American speech, press and assembly rights guaranteed by the First Amendment. In short, despite the dearth of candidate references in the Russian ads, there is already a rush to chill the world’s most dynamic speech forum. 

After pointing out the sheer impracticality of any rule against foreign "influence" in our world with instant global communications, Mr. Keating and Mr. Jossey describe the real danger here -- government pressure to suppress certain speech:

The Washington Post reported that President Obama confabbed with Zuckerberg to ensure people on Facebook saw only legitimate news sources. The head of the federal government asking a media company to censor unwanted speech is frightening. Facebook says, “We share the values of free speech, that when the right to speech is censored or restricted for any of us, it diminishes the rights to speech for all of us.” 

But when government officials pressure it and other online outlets to police political speech, censorship risks skyrocket. The government should focus on ensuring that our voting machinery is safe from foreign hackers. Protection is also needed to prevent foreign agents from stealing internal candidate campaign communications. But when the issue is speech, we must exercise great caution lest zeal to curb foreign influence instead damages our own free speech rights. 

Lawmakers should exercise caution when considering any rule that limits speech or creates new regulations of speech, and any response to the limited (and quite frankly, incompetent) attempts by Russian agents to influence public opinion last year should be very narrow, targeted specifically to foreign speech, and specifically exempt speech by American citizens.  Any other internet speech regulation would be unconstitutional, in addition to being a bad idea.  Fortunately, Republicans in Congress and at the FEC understand this well.  As Mr. Keating and Mr. Jossey quite correctly point out, American citizens are the ones whose rights are taken away when speech is regulated.  

Ravel Misunderstood FEC's Role and Attacked GOP Commissioners on Exit

Former FEC Commissioner Ann Ravel left the FEC last week in a storm of her usual rhetoric about the FEC's dysfunction and the woes of entities spending money to engage in political speech.  But as RNLA member Paul Jossey points out, she never understood the role of the FEC:

She misunderstood both her and the commission’s role. And when she couldn’t mold the FEC into a federal version of the state agency she previously headed, she lashed out in ways that did little but aid her self-promotion and increase tension. . . .  

In Washington, Ravel tried to remake the FEC into . . . [a] bureaucrat-dominated colossal that overreached, bullied, and pursued “social goals” in the name of democratic integrity. . . . Congress created the FEC shortly after Watergate with six commissioners and barred more than three commissioners from one political party. It rightly worried about partisan control over an agency that would regulate political campaigns.  Without the FEC’s even format, partisan agendas can run wild. . . .  

But Ravel bitterly complained the format enabled intransigent Republican commissioners to cause gridlock. She cited statistics showing increasing ties on enforcement matters. Republicans slice the numbers differently. Regardless, tie votes aren’t nefarious attempts to skirt the agency’s mission. They represent the agency working as planned where actions must be taken on a bipartisan basis. . . .  

Ravel’s complaint about colleagues “thwarting” and “obstructing” the law to produce these ties is especially rich. She blatantly ignored the FEC’s own internet-speech regulations because she didn’t like them. . . . The commission’s lack of control irks Ravel who sees cyberspace as one more place the government can lord over. Bloggers in California became YouTube videos at the FEC.

RNLA member Steve Klein also wrote about Ravel's speech on leaving the agency, in which she attacked her Republican colleagues and continued to misrepresent statements by former FEC Commissioner and current White House Counsel Don McGahn:

Ravel, a Democratic appointee, comes off a tumultuous time at the FEC, a tumult for which she takes no responsibility. In her opening remarks this afternoon, Ravel argued that the ethical duties of attorneys were one reason the Republican commissioners—with whom she quit honestly engaging only “about a week” after arriving at the FEC—were obligated to agree with her about campaign finance law and enforcement. 

More ominously, she charged these commissioners did not “uphold the highest professional and ethical values” as attorneys, claiming Republican commissioners cited cases or law in their arguments that “don’t exist” or stood for propositions different than those claimed. “They don’t cite the part that’s actually applicable to the matter,” she fumed. Not offering a single example of this, Ravel instead moved on to state [a selective quote from then-Commissioner McGahn, misrepresenting his correct position].

Unfortunately, we have not heard the last from former Commissioner Ravel, but at least she no longer has the power to vote to regulate political speech based on her policy ideals instead of on campaign finance law and FEC policy.  We can hope that the next Democrat FEC commissioner better understands the role of the agency in enforcing existing law and his or her role as a commissioner in working with, and not attacking, his or her colleagues.

Former SEC Commissioners Reject Political-Disclosure Rulemaking

The Federalist Society’s Jeff Dinwoodie recently hosted three former Securities and Exchange Commission commissioners to discuss past and future issues at the powerful financial agency. Troy Paredes, Annette Nazareth, and Paul Atkins graded the commission on various issues ranging from Dodd-Frank to esoteric oversight boards.  

While the commissioners disagreed on many issues they spoke unanimously on one major issue where securities law and election law overlap: political-spending disclosure. No one spoke in favor of pressuring the Commission into a rulemaking requiring disclosure of public-company political spending.

The issue has bedeviled the Commission for years. Shortly after the Supreme Court decided Citizens United v. FEC, the Senate considered a bill requiring this disclosure but it failed to garner requisite support. More recently Senators Charles Schumer, Elizabeth Warren, Robert Menendez, and Jeff Merkeley threatened to scuttle Commissioner nominees Lisa Fairfax and Hester Pierce because they refused to declare ex ante they would support a political-spending rulemaking.

Senator Schumer responded to this heresy with trademark vapidity: “If one feels that undisclosed special interest money cascading into our politics is one of the worst problems American faces, then this approach is very logical.” Apparently fighting ISIS, trillions in debt, and stagnant job growth take a backseat to learning whether corporation X supported its trade association. SEC chairwoman Mary Jo White disagrees with Schumer’s priority assessment and has thus far deflected attempts by politicos and agitprops to force her hand.

Paul Atkins has long opposed this potential rulemaking, laying out his rationale in a 2013 law review article, MATERIALITY: A BEDROCK PRINCIPLE PROTECTING LEGITIMATE SHAREHOLDER INTERESTS AGAINST DISGUISED POLITICAL AGENDAS. In it, he articulated three reasons why this disclosure is deleterious: (i.) materiality is lacking, (ii.) cost/benefit analysis is off balance, and (iii.) it is antithetical to the Commission's mission and a low priority compared to 2008 crisis-related issues.

Atkins revived his reasoning at the panel. The SEC’s mission is to maintain fair, orderly, and efficient markets, facilitate capital formation, and to protect investors by ensuring that market participants have accurate material information about SEC-registered securities. Whether corporations support 501(c)(4)s or (c)(6)s that advocate certain policies or support certain candidates is immaterial to that mission. In fact, the groups pushing companies to reveal their political spending do not represent average investors but entities that usually take positions adversarial to corporate objectives. Thus they have incentives to force business perspectives from the political marketplace. These include state and union pension funds (unions coincidentally aren’t affected). 

In fact, more than 75% of the corporate public policy spending proposals in 2012 were proposed by a coalition of special-interest investors coordinated by the Center for Political Accountability, Walden Asset Management, and the American Federation of State, County and Municipal Employees. These groups ‘name and shame’ resisting corporations to bring unwanted publicity so they retreat from important policy battles.

Paredes agreed that the Commission should carefully analyze the cost/benefit to disclosure requirements not directly related to the touchstone “materiality” requirement. So did Democrat Commissioner Annette Nazareth who praised Chairwoman White for not bowing to outside pressure and suggested the SEC was ill-suited for this responsibility with all the other issues facing the Commission.

In his paper discussing this issue, Atkins wrote, “Efforts to force mandatory disclosure of corporate spending on political and other advocacy activities should be viewed as primarily political rather than economic and, as such, would not serve to help shareholders evaluate corporate performance or promote shareholder value.” Commissioners nominated on both sides of the aisle realize the political nature of these disclosure efforts and deserve praise for saying so.

By Paul Jossey 

RNLA's Top 10 Blog Posts for 2015

Here are the top 10 blog posts for The Rep Lawyer Blog for 2015.

10.  Just in Time for Halloween: Zombies Register to Vote in Ohio “They actually had the dead people's drivers license numbers and Social Security numbers, and of course they forged the signatures of these dead people."

9.  Some Poetic Justice in the Fight Against Vote Fraud “Mayor Don Cravins of Opelousas, Louisiana [was defeated after he] famously bragged that you should vote twice for Senator Landrieu and if you did you did no one was going to persecute you.”

8.  Liberal Law Professor Points Out Democrats Won't Criticize Fellow Democrat Hillary  “The most important point to these Democrats is not the breaking of the law or the ethics of the action but rather the Party the alleged lawbreaker represents.”

7.  In Philadelphia, they don't wait for the Election to Start Committing Vote Fraud “Philadelphia went one better/worse.  Allegedly adding votes to the machines BEFORE the election”

6. Over 20 States Have Counties with More Registered Voters than People Alive  “141 counties on notice across the United States that they have more registered voters than people alive.”   

5.  An Interview with Florida Representative Jose Felix Diaz RNLA first interview for its Florida Facebook Page.

4.  Does the Left Only Care About the Campaign Finance Activities of Republicans? “Where are all those on the left that make their money talking about campaign finance?  One thing is for sure, they would not be silent if it was a Republican with the same arrangement as Hillary’s friends and allies.”

3.  Do Democrats Defend Planned Parenthood So Vehemently Because Planned Parenthood Supports Them? “One of the reasons Planned Parenthood is so fervently defended by the Democrats is that Planned Parenthood spends millions of dollars supporting liberal and Democrat political causes.”

2.  The Value of Online Registration “[O]nline registration systems are easier to use, cheaper, and yield a more accurate voter list than traditional paper-based systems.”

1.  Tide turns in FEC battle for regulation-free internet "Last fall, disclosure doyenne and current FEC Chairwoman Ann Ravel made overtures toward regulating online political speech, stating, 'a reexamination of the Commission’s approach to the Internet is long overdue.' . . . In fact, internet regulation would chill the vibrant political debate continuously happening in cyberspace."

Senator Warren's war on academic freedom

Senator Elizabeth Warren (D-MA) obviously doesn’t think much of her former colleagues in academia. Last week she forced the resignation of a Brookings Institute researcher who disagreed with her about the costs of a labor rule she and the president support by claiming his study’s funding source conflicted his findings. 

Apparently Ms. Warren believes economist Dr. Robert Litan would discard a 40-year affiliation with Brookings, including time as its director of economic studies; a government career, which included associate director of the Office of Management and Budget in the Clinton administration; and his reputation for integrity all for the grand total of $38,000.

Her bullying worked; Mr. Litan resigned from Brookings within hours of Warren’s objection.

That Brookings head Strobe Talbot would fold like a cheap suitcase on the pressure of nothing more than a piqued letter says as much about Warren’s power as it does his fortitude.

The progressive icon apparently believes scholarship is illegitimate if funded from an unbefitting, i.e. nongovernment source. As the Wall Street Journal noted, “The Warren agenda is to force liberal intellectuals to report that government is an unalloyed good, business is bad, and corporate sponsorship is corrupt. This is corrosive to the Democratic Party and the country.” (For his part Litan stands by his work and invites academic challenges to his conclusions).

Warren’s approach aligns with her tendency to shut up anyone who doesn’t agree with her all while hiding her own questionable conflicts. And it’s not just the Journal that found her actions untoward. Her war on academic freedom is not playing well even in Democrat circles.

A group of left-leaning economist blasted the Bay State Senator in a letter shortly after the Litan scalping. The group which included Harvard professors and former Clinton administration officials stated, “Those who differ with Litan should offer a substantive rebuttal to the paper in question, which would do much more to clarify the issue than implicitly depicting him as being inherently corrupted by the sponsorship of his work . . . To attack him as being ‘bought,’ or to sever ties with him over an incidental bureaucratic issue, is below the standards that support free and open policy debate.”

But this assumes Warren wants “free and open policy debate.” The evidence suggests the opposite. She has called for ending the democratizing effects of Citizens United v. FEC, through a First Amendment-inimical constitutional amendment. In her last campaign she promoted the so-called “Peoples Pledge” which did nothing to lower costs but lots to diminish the number of speakers hostile to her campaign. And in that same race she demagogued corporatism while coyly avoiding discussing her own former corporate clients.

But that’s just the beginning. As National Review reports:

The senator maintains a cozy relationship with Better Markets, a Washington, D.C.–based 501(c)3 organization funded almost exclusively by multi-millionaire hedge-fund manager Michael Masters. The hedge funder’s advocacy group is so tight with progressives’ favorite senator that the two often operate as a united front in the fight for stricter financial regulations — Better Markets’s stake in the finance industry notwithstanding. . .

By failing to adequately disclose its relationship with Masters to lawmakers, observers say Better Markets is doing exactly what Warren accused Brookings of doing — covertly taking money from a finance-industry player to influence regulators with the power to approve policies from which that player can earn huge profits.

Apparently for Warren, full disclosure and disqualifying conflicts, as her former Harvard colleague Larry Lessig might say, is only for the little guy.

By Paul Jossey

Provisional Ballot Mock Trial Entertains and Informs at RNLA Conference

The relatively early morning Saturday starting time did not deter one of the more informational and entertaining panels at the recently concluded RNLA Election Conference held last week in New York City. The Provisional Ballots Mock Trial simulation provided conference attendees an inside look at various scenarios and arguments that arise with sometimes-arcane provisional ballot protocols.

Voters cast provisional ballots when there is some question about eligibility. As the trial demonstrated, possibilities include questions about party registration, voting in the wrong precinct, voters moving to new precincts, or some other situation where they do not appear on the appropriate voting rolls. Provisional ballots themselves raise a series of questions when they are not filled out correctly, for instance, lack of appropriate signatures, missing affidavits, ballots not being sealed correctly, secrecy envelopes missing, and voters providing inappropriate ballots as instructed by poll workers.

As demonstrated through the mock trial all of these scenarios regularly happen in the provisional voting process and can make a difference in a close election.

The mock trial focused on Office of Judge of the Court of Common Pleas in fictional Broadway County, Pennsylvania. RNLA Board of Governor member Katie Goldman represented one candidate and RNLA Southeast Pennsylvania Chair Linda Kerns represented the other. Ron Hicks, RNLA Counsel, represented the County as Solicitor. The Election Board consisted of Christine Svenson, RNLA Illinois Chapter Chair, this writer, and Joseph Nixon, Co-Chair of RNLA’s Texas Chapter.

Ms. Goldman and Ms. Kerns took opposing sides as each deftly navigated the various pitfalls associated with provisional ballots. Mr. Hicks argued in each case the votes should remain uncounted following the official decision of the County’s Election Bureau Manager. In each instance counsel had to balance the requirements of the Help America Vote Act (HAVA) 52 U.S.C. §21082 enacted to encourage voting and the consequences of administrative error that sometimes occurs with elderly or inexperienced poll workers against fealty to state laws meant to ensure the integrity of the process.

When the often-spirited arguments concluded after each voting scenario the Election Board decided which votes would be counted. Reflecting real-life circumstances, the Board often struggled to reach consensus with most votes ending as 2-1 to accept or reject the particular ballot.

Adding to the drama the solicitor found unexpected “surprises” in envelopes once opened like missing inner “secrecy” envelopes forcing counsel to reargue votes they thought had already been decided.

The audience enjoyed the spectacle often interrupting the proceedings to ask questions and inquire about different scenarios. The participants too shared anecdotes throughout the proceeding to enrich the experience further.

Overall both participants and audience members rated the mock trial high on both the educational and entertainment aspects. It will hopefully provide a more knowledgeable base of Republican lawyers to fight for Republican ballots in future provisional voting contests.

By Paul Jossey

CREW affiliate attempts to stifle speech in Colorado

When Hillary Clinton-votarist David Brock “acquired” Citizens for Responsibility and Ethics in Washington (CREW) last August DC insiders immediately recognized the significance. Politico described it as “a major power play that aligns liberal muscle more fully behind the Democratic Party . . . The reconfigured CREW [will] expand its focus into state politics and donor targeting and will operate in close coordination with Brock’s growing fleet of aggressive Democrat-backing nonprofits and super PACs.”

Brock has since moved on to opposition research for Hillary Clinton’s presidential campaign but his partisan imprint on CREW’s Colorado affiliate, Colorado Ethics Watch (CEW), was hardly necessary. Since 2006, the “watchdog” has used the state’s imprimatur to amass a resume of complaints against Centennial State conservative groups—chilling speech rights in the process. But an upcoming ruling from a federal judge may finally expose CEW’s nefarious methods and motivations.

Last year CEW used a private-enforcement provision in Colorado’s campaign finance statutes to sue Rocky Mountain Gun Owners (RMGO) and Colorado Campaign For Life (CCFL). The alleged illegal activity centered on some mailers sent to Republican primary voters discussing their issues as the election approached. The groups did not engage in “express advocacy”—overt political activity—but merely wished to inform voters of candidate positions during the time they are most likely paying attention.

Courts since Buckley v. Valeo have repeatedly afforded public policy organizations greater relief from campaign finance strictures than straightforward political outfits like candidate committees, parties, and now Super PACs. RMGO and CCFL are 501(c)(4) nonprofits that engage in advocacy about contentious and highly emotional issues. Donor privacy enables these groups to advocate without fear of reprisal from either government or agitprop concerns like CEW. Nevertheless CEW demanded these groups reveal any donors that gave a mere $250 dollars for electioneering communications.

With paramount First Amendment rights at stake, the groups instead sued the state and CEW on constitutional grounds. The groups believe CEW engages in retaliation and viewpoint discrimination against speakers they disagree with, and the numbers back them up. By one count 41 of the 52 prosecutions CEW has undertaken have targeted conservative groups. Of the other 11, 10 were either unknown or against government. 

Like its parent organization, CEW realizes ‘the process is the punishment.’ Forcing policy-oriented nonprofits to defend legal actions at the height of the election season diverts time and resources away from advocacy, stifling their message. The plaintiffs’ lawyers, led by RNLA Board of Governor Member David Warrington, have sought to depose CEW principals to discern whether they bring suits for improper means. According to Warrington:

CEW has employed a pattern of pretextual targeting of conservatives and conservative groups. Plaintiffs anticipate that such discovery will demonstrate CEW’s animus towards their organizations, their bad faith motives in bringing the state court case, and their intent to retaliate for political speech based upon disfavored viewpoints.

Unsurprisingly CEW has reacted with the customary umbrage of ‘ethics’ watchdogs when placed on the defensive.

Regrettably the situation is not unique to Colorado. FEC Commissioner Lee E. Goodman created a stir last week when he asserted employing hard deadlines for resolving enforcement decisions would disproportionately harm conservative groups—currently 49 of 65 docketed FEC actions. Even more than Colorado, Washington is awash in ‘complaint mills,’ like the Brock-connected American Democracy Legal Fund, whose website consists of nothing but actions against Republicans. Campaign Legal Center and Democracy 21 are now even asking the Justice Department to police federal campaign finance statutes because of what they perceive as Republican Commissioner intransigence.  

Of course lost in the calls for “enforcement” of the laws and ever more regulations is the toll on First Amendment guarantees. When a technology executive is hounded out of his job for a six-year-old contribution, or a google cam is focused on one’s home, or as in Wisconsin, overzealous prosecutors turn peoples’ lives upside down on a  coordination “theory,” the system is off kilter. When as little as a $250 donation can potentially wreak havoc on someone’s life and livelihood the real goal is not information but silence. RMGO and CCFL are hopefully taking the first steps toward rebalancing.

By Paul Jossey  

The FEC, ‘the system,’ and the cave

Amidst alleged intractable difficulties, FEC Chairwoman Ann Ravel has been hosting vanity panels and blitzing reverent media with woebegone tales of Commission “paralysis,” “dysfunction,” and “public betrayal.” Despite her full schedule, however, her quest’s philosophical underpinnings remain in tatters. 

Ravel hosted the controversial Women in Politics

forum last week. The confab produced questionable substance even putting aside obvious concerns over authority for taxpayer-funded forays into chromosome politics. 

By the Inter-Parliamentary Union’s count, the U.S. ranks 73rd in female legislators. The top five, however, are hardly preferred realms of emulation: 1. Rwanda, 2. Bolivia, 3. Cuba, 4. Seychelles, and 5. Switzerland.

Nevertheless, what’s to be done about America’s political XX crisis? One panelist suggested dismantling our economic system. ‘No Capitalism, No Cry,’ as the song goes.

Harvard professor Pippa Norris had an equally drastic proposal: “I know in America . . . it’s a radical revolutionary – I won’t say left-wing agenda [editor’s note: go ahead Pippa you can say it] – but nevertheless brand new idea . . . If you’re in Britain and you’re running as a candidate of any party, you can’t really spend that much money – $15,000 to $20,000 maximum . . . You can’t buy ads, so that gets rid of that. You shove a pamphlet through people’s doors, that’s it, and then you meet people.”

Eureka! Abolish the First Amendment and gender parity ensues! Except the percentage difference in U.S. and U.K. female legislators barely registers: lower house 3.4%; upper chamber 4.1%. Eradicating our free speech tradition seems a high price for a miniscule rise in female participation. One might also inquire if the Brits like their constrained system. They don’t. Nine out of ten people say the UK government is run by a few big entities acting in their own interests. A 2006 NGO report stated, “Trust in politics and politicians is low and the UK political establishment is perceived by the public to be the most corrupt of any UK institution.” Of course as Larry Lessig has proven time and again, Harvard’s imprimatur inspires a certain devil-may-care nonchalance about pedestrian issues of academic rigor.

Although unfortunately absent from the forum, Lessig and Ravel do share a populist philosophical view of campaign finance. As articulated by Brookings Institute’s Jonathan Rauch:

The populist school equates legitimacy with direct participation by ordinary individuals and corruption with intermediation or influence on the part of organizations or interests, especially large or wealthy ones. For the populist reformer, the solution to almost any political problem involves more democracy, more participation . . . For the populist . . . private money . . . is corrupting—unless it comes from small donors, in which case it counts as participation (even if the government has to purchase said participation with a tax credit and a six-fold match) . . . . For the populist, transparency is virtuous in and of itself . . .

Ravel concurs: “Somehow we have to get to a system that encourages people to participate not just by voting but by giving money so that the policy needs of most people will be listened to as much as those of wealthy donors . . . The system is bad for everyone . . .”

There are several shortcomings with ‘the system’ approach to campaign finance. First it’s empirically deficient. Second it incorrectly assumes popular political involvement is artificially less than some more perfect baseline. Third, it mistakes ordinary transactional politics with corruption. And fourth it’s doctrinally unworkable; as Rauch explains, “The system is corrupt’ [is] a good statement of the ideology which has made modern progressivism an inherently unstable and uncontainable doctrine.”

As a philosophy major, Chairwoman Ravel is surely familiar with Plato’s allegory of the cave. In it, Socrates explains the existence objective truth beyond what some choose or are even capable of understanding. One who has left the cave and experienced sunlight may find themselves ridiculed when returning to explain truth to the cave’s permanent dwellers.

Lessig and Ravel cast themselves as enlightened sunbathers nobly teaching obdurate cave dwellers. And yet, their real problem is misconstruing the populace. It’s not that those who look askance at hipster adverts, keep electing the wrong gender, and spend their time away from theoretical arguments need teaching, they just aren’t buy ‘the system’ remedy. The internet provided the light; no one is left in the cave. 

By Paul Jossey