I spoke on a panel yesterday sponsored by OpenSecrets.org on the future of campaign finance reform. In the course of the panel, an opinion piece by Fred Wertheimer, who was not at the event, but who is one of the most visible advocates for campaign finance reform, came to mind. The ACLU and Wertheimer’s progressive Democracy 21 agree on many issues of the day. But we’ve been at loggerheads on the big issue of campaign finance reform.
The ACLU believes common-sense reform should focus on public financing and somewhat expanded disclosure rules. Wertheimer and Democracy 21, on the other hand, want to expand disclosure so much that issue advocates as diverse as the NRA, Planned Parenthood, The Heritage Foundation, and ACLU would have to reveal personally identifying information on thousands of their general fund donors as the price to pay for advocating on issues of the day. That’s what the recently re-introduced DISCLOSE Act would do, among other things. But in his opinion piece Wertheimer said those making ‘independent expenditures’ aren’t always so independent.
Independent expenditure is legal jargon for political ads run by organizations that are presumably ‘independent’ of the candidates they support. Organizations supporting Mitt Romney and others – the Super PACs - have spent millions supporting their candidates or – more frequently – bashing rivals. Because these organizations carefully avoid the regulatory definition of ‘coordinating’ with a candidate, they are allowed to spend unlimited sums. In truth, connections between most of these organizations and the candidates they support run deep. To suggest these organizations don’t make sure their candidates approve of their work is like saying Abe Lincoln was a weak leader – the facts suggest differently.
When Newt Gingrich was still a viable candidate, he announced to the world how much he would benefit from an upcoming independent ad campaign. His public comments clearly gave a clue to his benefactors that he approved. The Super PAC supporting Mitt Romney – Restore Our Future - is led by a group of people deeply involved in the 2008 Romney campaign. Priorities USA is President Obama’s Super PAC and it was founded by a former key staffer to Rahm Emmanuel and a former campaign press secretary. The candidates are allowed to help the Super PACs raise money and, despite rules to the contrary, the campaigns and the Super PACs share consultants and communicate routinely across the public airwaves and otherwise.
Why does the level of coordination between Super PAC and candidate make a difference? The law says any expenditure that is ‘coordinated’ with a candidate must be treated as if it is a contribution to that candidate – and therefore is capped at $2500 max. You can’t buy too many TV ads for $2500. The basis for that limitation rests in the idea that a big money donation directly to a candidate runs the risk of corruption. That’s also why – in theory – there is no limit on ‘independent’ expenditures. If an expenditure is truly independent, how can it be corrupting? Neither the candidate nor the person or organization spending the money is coordinating actions with the other, so it is difficult to make the connection between the money being spent and improperly influencing the candidate.
Regulations that define ‘coordination’ are different from what a normal person would think. An ad is considered to be coordinated with a candidate – and thus restricted – if it meets certain ‘content’ and ‘conduct’ standards. Most ads do NOT avoid the content standard because they all advocate the election or defeat of a candidate. To avoid the conduct standard, a Super PAC has to avoid employing or contracting with someone who worked for the candidate in the past four months or must make sure the ads are based on publicly available information. Guess what? Most Super PACs supporting major candidates employ plenty of people closely aligned with the candidates – but, oddly enough, they haven’t worked for them for over four months.
It’s a sham. Because candidates are permitted to help the Super PACs raise money, candidates know exactly who is funding them. As such, the notion of corruption or the appearance of such is just as legitimate a concern for these organizations as it is for direct contributions to candidates. In that sense, Wertheimer gets it exactly right.
There has been too much unproductive noise about the Citizens United decision. We need to step around the shrill rhetoric and find a rational solution that builds a wall around truly independent expendituresA t least we should be able to agree that instead of outing the personal identity of donors to legitimate issue advocacy organizations, as a first step we should just make independent expenditures truly independent of the candidates. Tightening the coordination rules would make it less attractive for wealthy and corporate donors to give to Super PACS since they would no longer be presumed to be connected to the candidates.
And without that big money, the Super PACs wouldn’t be so super anymore.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.