All Citizens Are Entitled to an Impartial FEC

(This is the fourth in a series of five posts on the demonstrated bias of Democratic FEC Commissioner Ellen Weintraub.  The first installment is here, the second here, the third here, and the last installment will be posted in the next few days.)

Former FEC Chairman Brad Smith was the first to warn the American public, detailing the legal problems presented by Commissioner Weintraub's actions in a June 2017 blog post at the Institute for Free Speech.  According to Chairman Smith, "Federal Election Commissioner Ellen Weintraub's actions in recent months cast serious doubt on whether she can continue to credibly carry on her duties as a Commissioner.  She should recognize this predicament and do the honorable thing, which is to resign."  Chairman Smith outlined federal law that requires government officials to act without bias and documented Weintraub's violations of that legal duty.  
  
Chairman Smith also explained the corrosive effects of the anonymous AltFEC Twitter feed in 2017, before it was widely known that the AltFEC twitter feed is sponsored by Weintraub's staff.  

Liberal defenders like Professor Rick Hasen rallied to Weintraub's defense.  Hasen called Chairman Smith "mean spirited" for his analysis of Weintraub's bias.  No doubt Professor Hasen has exhibited some mean spiritedness on his own blog.  More important than his one-sided view of campaign finance discourse, however, apparently liberals like Hasen thinks it's okay for Democratic law enforcement officials like Loretta Lynch and Ellen Weintraub to enforce the law with prejudice.  They are not in the least bit concerned for "good government" when it comes to law enforcement bias, which is its own form of corruption.  

But Chairman Smith was right and it shouldn't take a national controversy like Lois Lerner or Peter Strozk to restore the appearance of fairness and impartiality.  Weintraub's demonstrations of bias are worse than the Peter Strozk controversy.  Her public political jabs at the President go well beyond private texts and emails.  And her votes to punish Trump demonstrate that she will use her public office to get the President.  Yet, there has been little outcry about it.   

The FEC is a law enforcement agency.  Commissioner Weintraub is a law enforcement official.  Nobody looking at this evidence could reasonably conclude that Commissioner Weintraub is unbiased, fair and neutral in her approach to President Trump.  Nor is she known throughout Washington, DC as a dispassionate, objective regulator.  Rather, she has a reputation as a flamboyant, outspoken ideologue, given to partisan infighting and polarization on the Commission.  The strong opinions she and her confidential counsel have expressed about President Trump (and other Republicans) taint everything the FEC does.  

President Trump is entitled to not only actual neutrality but the absolute appearance of neutrality in the enforcement of campaign finance laws by the FEC.  That neutrality does not exist so long as Commissioner Weintraub and her office participate on Trump cases.  Like the FBI fired Peter Strozk, Commissioner Weintraub should do the right thing and remove herself from all cases related to Donald Trump.      

The Importance of Protecting the Privacy of Non-Profit Donors

The IRS recently defended the privacy rights of non-profit organizations by declaring they would no longer collect the names and addresses of donors. Detractors of this new policy, mainly coming from the far-left, argue this will lead to an increase in foreign spending and so called ‘dark money’ in American politics. The Institute for Free Speech's Luke Wachob explains in The Hill why this complaint is not based in reality. 

First, nonprofits can accept money from foreign sources, but they are legally prohibited from using it to support the election or defeat of candidates. The ban also applies to broadcast ads that mention the name of a candidate in the time near an election.

Second, a donor name and address does not tell you whether it is a U.S. citizen or green card holder. Many Americans live abroad, and many people in the United States are not citizens or legal permanent residents.

One of the most important results of the new IRS policy is groups will no longer be targeted for their political beliefs or agenda, something conservatives say was commonplace during the Obama administration. 

The rule. . . should prevent the IRS and partisan state attorneys general from targeting conservative groups, Republicans say, such as the government scrutiny of tea party groups during the Obama era. 

Senate Majority Leader Mitch McConnell, Kentucky Republican, said the move was a victory for free speech and a “straightforward, common-sense policy decision.”

“It’s particularly welcome news to those of us who are intently focused on defending the First Amendment, for those of us who raised concerns during the last administration about activist regulators punishing free speech and free association,” Mr. McConnell said on the Senate floor. “The IRS will no longer pointlessly demand private contributor lists from whole categories of tax-exempt organizations.”

Unsurprisingly, since the decision was announced liberal outlets have painted the picture that this move favors conservative organizations in a disproportionate manner. CNN recently ran a piece insinuating this policy change only benefits the NRA and other conservative groups. This is flat out not true, and Charles Cooke at The National Review explains how the change benefits the majority of non-profits on both sides of the political spectrum.

The change applies to every single 501(c)(4) in America. CNN could just as easily — and just as misleadingly — have placed the story under the headline, “NAACP will no longer need to identify their donors to the IRS.” Or it could have mentioned, say, Planned Parenthood. Or SEIU. Or Everytown for Gun Safety. Or the Sierra Club. Or . . .

Regardless of how the media is portraying this important policy change, non-profit organizations finally have their privacy rights protected. American elections were always meant to defend against intimidation and discrimination against a set of political beliefs. Thankfully, the IRS moved our nation a step closer to that goal.

Judge Brett Kavanaugh Respects First Amendment Rights; Skeptical of Campaign Finance Regulatory Overreach

One of the many advantages of Judge Brett Kavanaugh's long service on the D.C. Circuit is that we have a very clear picture of how he applies the First Amendment to statutes that restrict speech.

The D.C. Circuit hears many campaign finance cases, and the Institute for Free Speech reviewed them, starting with Emily's List v. FEC:

His opinion in Emily’s List is particularly impressive. Foreshadowing later rulings in Citizens United and SpeechNow, Judge Kavanaugh clearly articulated a First Amendment right for associations to spend money in support of candidates. The opinion demonstrates an ability to anticipate trends in First Amendment jurisprudence before they fully take hold. . . . 

Emily’s List v. Federal Election Commission dealt with a spate of regulations that the FEC put in place against certain nonprofit corporations in the aftermath of the 2004 presidential election. Specifically, in response to the so-called “527” expenditures made during the 2004 election against President Bush and Senator Kerry, the FEC imposed a panoply of limits designed to treat nonprofit corporations, functionally, as if they were political parties. 

In an opinion that preceded and foreshadowed the Citizens United and SpeechNow.org opinions, Judge Kavanaugh wrote an opinion for the Court reversing the lower court and striking down these regulations on First Amendment grounds. The Court decided that nonprofits such as Emily’s List, a pro-choice, partisan nonprofit dedicated to electing pro-choice Democratic female candidates for office, ought to have “the right to spend unlimited money to support their preferred candidates” and “receive full First Amendment protection.” 581 F.3d at 8-9. “A non-profit that makes expenditures to support federal candidates,” Judge Kavanaugh wrote, “does not suddenly forfeit its First Amendment rights when it decides also to make direct contributions to candidates.” Instead, so long as it complied with modest regulation, it was “entitled” to make certain “advertisements, get-out-the-vote efforts, and voter registration drives” out of an “account…not subject to source and amount limits.” Id. at 12.

Judge Kavanaugh also wrote for the court in Independence Institute v. FEC in 2016.  The Institute for Free Speech also notes that when he has written upholding campaign finance regulations, he has done so with respect for the First Amendment and how government regulation can endanger the free speech rights of Americans, as he did in Bluman v. FEC, concerning the ban on foreign intervention in U.S. elections:

Nevertheless, Judge Kavanaugh warned that government could easily overstep in this area. He noted that the ruling did not decide whether Congress could constitutionally extend the ban to lawful permanent residents, nor did it decide whether Congress could prohibit foreign nationals from engaging in political speech other than contributions. He also cautioned the government “that seeking criminal penalties for violations… will require proof of the defendant’s knowledge of the law.”

Judge Kavanaugh's extensive judicial record provides a valuable look into his interpretive methods and how he analyzes complicated legal controversies of the type faced daily at the Supreme Court.  As the Senate considers his nomination over the next few months, we will provide insights into his judicial record on this blog, Facebook, and Twitter, in addition to analyzing the political situation.  While Democrats will attack him unfairly however they can, they will find it very difficult to substantively criticize Judge Kavanaugh's strong record on the D.C. Circuit.

RNLA Files Comment with FEC on Internet Ad Disclaimers

Today, the RNLA submitted a comment to the Federal Election Commission on its proposed rule making on Internet advertisement disclaimers:

An important, but often overlooked, part of open, fair, and honest elections is ensuring that the political discourse surrounding elections is free and not subject to over-regulation by the government or the political party currently in power. If voices in the political debate are suppressed through regulation, then voters go to the polls without being truly informed.  

The First Amendment to the Constitution protects against abridgement of the freedom of speech by the government. Core political speech is subject to the highest protection under the Constitution, as the Supreme Court described in Buckley v. Valeo: “Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order ‘to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’” This broad protection includes “discussion of candidates” and the “constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.”   

As the public discourse has increasingly shifted to the Internet, political advertising has shifted as well, prompting the Federal Election Commission (FEC) to consider how to adapt its regulations to new and constantly changing forms of advertisement. Many of the regulations regarding disclaimers and disclosure that were designed for radio, print, and television advertisements are simply impossible to place in a small or short Internet advertisement or, if practicable, would obscure the entire message of the advertisement. The RNLA applauds the FEC for taking a cautious approach and seeking public comment on this important issue to ensure that the FEC’s disclosure goals are met without unduly restricting the rights of the speakers in political advertisements on the Internet.  

A realistic approach to Internet advertisement disclaimers needs to recognize both the opportunities and the limitations inherent in Internet advertisement technology and the constantly changing nature of the medium. The regulations must be clear and flexible enough to adapt to future technological developments and changes.

The RNLA joined other conservative organizations in urging the FEC to take a reasonable, flexible, and clear approach to Internet political advertisements that would not suppress political speakers' right to disseminate their messages online and would adapt with constantly changing technology.

The Institute for Free Speech analyzed the proposal in detail, noting how the FEC's disclaimer regulations are not suited to modern means of advertisement and thereby burden speakers (footnotes omitted):

Requiring disclaimers that will, in many cases, consume a substantial portion of a particular advertisement will impose significant burdens on these speakers. This is especially true for poorly-resourced individuals and groups relying on small or brief online advertisements precisely because they are cost effective. 

These burdens are not hypothetical. Advertisements are getting shorter, but the disclaimer requirements stay the same. Fifteen-second advertisements are an industry standard, and six-second advertisements loom on the horizon. The short run-times forces the speaker to spend more time disclaiming and less time getting their message out. One congressional candidate’s fifteen-second advertisement was cut in half by the required disclaimers. Even those who have more experience running political communications cannot get the disclaimers down to a manageable level. AFT Solidarity produced a fifteen-second video advertisement, where the spoken and visual disclaimers required a third of the advertisement’s run time. Political speakers are already using new platforms, such as Snapchat, that carry strict limitations. For example, New Day for America ran an advertisement on Snapchat featuring Governor John Kasich, and another Snapchat advertisement supported Senator Rand Paul’s view on tax cuts. These are but the start of the new trend in shorter advertisement times on new platforms. 

The fact that the FEC has taken several opportunities to seek public comment and carefully consider any proposals on Internet advertisement disclaimers is a testimony to constant vigilance by current FEC commissioners Caroline Hunter and Matthew Petersen, and many former Republican FEC commissioners, to fight against the Democrats' headlong rush to regulate Internet speech. 

Remember When the IRS Targeted Conservative Organizations?

RNLA member Brad Smith wrote last week in the Washington Examiner to remind us about how the IRS under President Obama targeted conservative organizations, delaying their applications for tax-exempt status and asking harassing and illegal questions as part of the IRS' heightened review process for organizations with names containing such dangerous words as "Patriot":

Finally, last October, the IRS signed a consent decree in federal court in which it admitted to targeting conservative organizations for more than two years, from 2010 through 2013. . . . This IRS targeting of conservative organizations in the run-up to the 2012 election should be one of the major scandals of our time. Researchers from Stockholm University, Harvard’s Kennedy School of Government, and the American Enterprise Institute concluded that a fully mobilized Tea Party, unhindered by IRS harassment, would have brought the Republican Party between 5 and 8.5 million votes. You may recall Obama won the popular vote by just under 5 million votes. 

Yet this issue has quietly gone away without any consequences for the wrongdoers, and the press has already started changing the history books:

Instead, what we are now seeing is an outright attempt to rewrite history so as to whitewash the entire affair. Newsweek has gone so far as to call the scandal “fake news,” with one of its columnists calling it “a lie.” A Dec. 29 editorial by the Washington Post claims that there was “mismanagement … but not deliberate targeting.”

When the left and the media do acknowledge the targeting and harassment, they are quick to point out that liberal organizations were also targeted.  But as Prof. Smith notes, the IRS admitted that 75% of the organizations targeted were conservative-leaning, while less than 5% were progressive-leaning.  Prof. Smith concludes by reminding readers of the source of the targeting scandal:

As we have documented elsewhere, in targeting conservative organizations in the run-up to the 2012 election, the IRS appeared to be acting at the suggestion, though not the direct request, of President Obama and leading Democratic lawmakers. This was not a case of mere “mismanagement,” but a bureaucracy responding to the political demands of the party then in power.

Congress should make sure that this never happens again, and act to get the IRS out of the business of regulating politics. 

The IRS targeting scandal reminds us to be wary of government bureaucracies with the power to regulate political speech, which is why legislation such as the misnamed "Honest Ads Act" and many informal proposals to respond to Russian efforts to interfere in the 2016 election are so dangerous.  

Trump Resistance at FEC Misstates First Amendment Law

The @alt_fec Twitter account is run by self-proclaimed FEC employees who are experts in campaign finance law.  But they managed to mis-state First Amendment law three times in one Tweet attacking the Institute for Free Speech and requesting IFS' "views on the First Amendment implications of a letter from a private attorney to a private publisher concerning Fire and Fury: Inside the Trump White House."  IFS accepted the invitation to analyze the letter under relevant First Amendment law (footnotes omitted):

The author behind @alt_fec suggests that this is our “chance to denounce the President’s attempted prior restraint of a book – just about the worst [First Amendment] violation there is.” . . . 

First, the letter protesting Fire and Fury is from Donald Trump’s private attorney. Donald Trump, the man, is different from Donald Trump the President. The letter isn’t an attempt by the President to prevent publication using the powers of his office. It’s a warning from a private party that he will sue for libel if the book is published. 

Second, this isn’t a prior restraint. By definition, a prior restraint involves a legal prohibition on publishing something. Threatening to sue after publication isn’t a prior restraint. 

Third, there is no First Amendment violation when a private party sends such a letter. The First Amendment prohibits action by the government, not private individuals.

IFS then describes how proving libel against public figures requires a showing of falsehoods printed with "actual malice," a very high bar established by N.Y. Times Co. v. Sullivan.  This is the actual First Amendment question at issue here, not the prior restraint question identified by @alt_fec:

Such errors are among the reasons why @alt_fec has little credibility on First Amendment matters, and why we do not intend to respond to future attempts to bait us with patently ill-informed, partisan broadsides. But this particular tweet provides a teachable moment which, as a nonpartisan organization dedicated to a robust (and accurate) view of the First Amendment, we couldn’t let pass.

Yet, the FEC resistance movement is unperturbed by misstatements of the law and has since reiterated their initial, faulty analysis of the letter.  This is just a microcosm of the tactics of the movement to resist President Trump: partisan attacks, little respect for facts or law, and manufactured outrage.

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.  

Supreme Court Grants Cert re Minnesota's Ban on Political Apparel at the Polls

Today, the Supreme Court granted a writ of certiorari in Minnesota Voters Alliance v. Mansky to decide whether "Minnesota statute Section 211B.11, which broadly bans all political apparel at the polling place, is facially overbroad under the First Amendment":

The justices said they will review a Minnesota law whose challengers include Andrew Cilek, a man who wore a Tea Party Patriots T-shirt and a "Please I.D. Me" button when he went to the polls in 2010. 

Minnesota is one of at least 10 states with broad bans on political apparel at election sites, according to the challengers. A decision striking down those laws would mark a significant shift for the high court, which in 1992 upheld a Tennessee law that barred campaign materials promoting a specific candidate or party. That law didn’t mention more general political items.

This case has important implications both for free speech rights and for election administration:

That ruling "plainly does not endorse a categorical ban on all types of ‘political’ speech," the challengers argued in their appeal. The group includes the Minnesota Voters Alliance and Cilek, its executive director. 

Minnesota’s law bars the wearing of a "political badge, political button or other political insignia" inside the polling place. . . . The law "is a reasonable method to ensure that the polling place is a location where citizens can exercise the right to vote without confusion, distraction or distress, and election officials can preserve the integrity and reliability of elections," the state officials argued.

On the one hand, states have a strong interest in ensuring the orderly conduct of elections, including prohibiting certain conduct, such as electioneering, at polling places.  On the other hand, voters do not abandon their rights of free speech at the polling place door, and broad bans on anything "political" clearly infringe on a voter's free speech rights.  Even more disturbingly, a vague prohibition such as Minnesota's allows a low-ranking government official, often a poll worker hired just for the day, to determine the limits of a voter's right of free speech by defining "political" (which, in our current culture, has been expanded to embrace almost everything) according to the government official's opinions.  This is the type of tyranny, petty though it may seem, that the First Amendment was designed to combat. 

Of note, prominent free speech advocates and election integrity supporters have already filed amici briefs in support of Minnesota Voters Alliance's challenge to the law: Cato Institute, Rutherford Institute, Reason Foundation, and Individual Rights Foundation; Center for Competitive Politics (now called Institute for Free Speech); and American Civil Rights Union and Association for Government Accountability.

Testimony to House Oversight Committee on Threat to Free Speech from Online Ad Regulation

Yesterday, Allen Dickerson of the Center for Competitive Politics (as of today, now called the Institute for Free Speech) testified to the House Oversight and Government Reform Committee’s Subcommittee on Information Technology on the dangers posed to free speech by proposals to regulate internet advertisements (footnotes omitted):

It is not obvious that anything will be gained in exchange for these burdens on fundamental liberties. Whatever modest advances may be made in preventing foreign influence will be on the backs of regulated Americans, who will bear the overwhelming burden under any proposed campaign finance regulation. . . . [B]roadcast mass advertising is not a game for small grassroots speakers. . . . By contrast, Facebook or Google AdWords advertisements calling for named members of Congress to, say, repeal the Jones Act in the immediate aftermath of a devastating late September hurricane, are more likely to be engaging in those “issue discussions unwedded to the cause of a particular candidate” that are “vital and indispensable to a free society.” The Supreme Court is less likely to bless the regulation of that speech. . . .

Mr. Dickerson points out the current proposals are impractical and would expand the definition of electioneering communications to include genuine issue speech:

Unless Congress can assure itself that it is regulating electioneering, and not mere political discussion about issues of public interest, it ought to act with care. After all, as the Supreme Court noted in the landmark case of Mills v. Alabama, “[w]hatever differences may exist about the interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes.”

In addition, there are practical concerns with merely cloning the electioneering communication standard applied to broadcast ads. What constitutes a communication reachable by 50,000 persons in the “relevant electorate?” Do the technical means exist to determine that answer without imposing insurmountable compliance costs? After all, basic economics dictates that such costs will be passed on to the consumer. And increasing compliance costs will crowd out precisely the small, grassroots speakers that are most vulnerable and rely most upon the Internet to disseminate their message. Conversely, removing the targeting requirement entirely will simply expand the scope of regulated communications, sweeping in discussions of key legislators, such as committee chairs, even where those conversations are not directed at constituents and are almost certainly not intended to affect electoral results.

In the end, Mr. Dickerson cautions against a broad regulatory approach that may or may not actually prevent foreign advertising (some of which already prohibited by law) but would certainly infringe on Americans' important rights of political speech online:

These concerns suggest caution. The Internet’s role as a conduit for grassroots speech and association is delicate, and too-easily crushed by overzealous or ill-considered restrictions. In particular, Congress should be wary of burdening an enormous swath of Americans’ grassroots political advocacy in the name of preventing, or attempting to prevent, relatively small foreign purchases. That concern is especially acute where such foreign meddling is already regulated under an unrelated statutory regime that does not burden Americans’ First Amendment liberties.

Mr. Dickerson's entire testimony is well worth reading.  A point that he makes throughout is worth remembering: the internet allows small, grassroots organizations and individuals to speak (i.e., advertise their message) in a way that is unprecedented.  If liberals are truly concerned about "dark money," the influence of the rich and powerful, and corporate speech drowning out the little person, as they claim they are, they will stay far away from regulations that restrict internet speech, as those regulations would disproportionately impact individuals' and small organizations' ability to disseminate their messages.