Agree, I think that’s a tortured reading.
Pick one :) Toobin become an unhinged hack (most recently over Kavanaugh) is one of the bigger disappointments recently. Of course, if you have specific arguments from him it might be good to post those.
This is a good example of how Toobin tends to drop factually incorrect bits into his rants nowadays:
Yep – this is the most democratic response to this situation.
Where does it say this and more importantly, where is the legal argument supporting this contention? The piece simply has none, so it cannot be a counterpoint to Volokh. I see this mentioned, but he makes clear there is no evidence of coordination with the hacked emails.
The “thing of value” is the oppo research, not the “news story or commentary.” You are badly misreading Volokh here, again.
Finding another constitutional justification for a law is different from what you seem to want to do here, which is have a judge rewrite the statute’s terms.
Sending dirt to the newspaper would necessarily not be an electioneering communication – it’s not targeted to the electorate and it’s not broadcast on satellite /cable /etc. So the “expenditure” provision you link would not apply. It would fall under this:
Again,to keep this statute constitutional, this needs to implicitly exempt oppo research/information sharing from being a “thing of value.” Contrary to Scott’s claims, the other portions of the statute do not do that work for him, because they apply to electioneering communications only.
Here is the definition of electioneering communication – makes it clear they’re talking about things like ads, not giving dirt to media:
I can’t really understand what you think that comment means. But, I’m not misreading Volokh now. Volokh acknowledges the language I pointed out, he just interprets it in the worst possible light, which is exactly the opposite of what a judge will do. This language:
B) The term ‘‘expenditure’’ does not include— (i) any news story, commentary, or editorial distributed through the facilities of any broad- casting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party,
political committee, or candidate;
can quite reasonably be read to solve Volokh’s problem with the law. He just chooses to read it some other way, which is exactly the opposite of what a court would be supposed to do. If you read the language in the manner most favorable to the statute and the legislature, you conclude that the statute does not prevent a foreign person from giving any information at all to the press. Reading it that way Volokh’s entire problem with the law evaporates. There is no first amendment problem with the press, so there is no problem with the FEC’s understanding of ‘thing of value’, so no problem with the law.
If you disagree, please summarize your understanding of Volokh’s argument, and explain how it survives a charitable reading of the text of the law I’ve offered here.
The statute explicitly protects media outlets from soliciting or receiving from foreign nationals any “news story, commentary or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, etc.” But that’s not what I’m talking about here. Instead, we are talking about oppo research.
So you are simply wrong to repeatedly claim that the statute “explicitly permits … a foreign person to give information to the press.”
My argument is your expansive definition of “thing of value,” which you seem to want to include mere information sharing, would unconstitutionally restrict the media’s ability to communicate with foreign nationals.
The law uses the term “thing of value” or “anything of value” in various places, and by principles of statutory construction, we should not read the meaning arbitrarily in different places. Here’s one spot where it appears:
The term “expenditure” includes “anything of value” in the statute’s definitions section. The term “electioneering communication” basically means a broadcast satellite or cable transmission targeted to the electorate – like an advertisement.
As you point out, this section does not limit foreign nationals from communicating with media for purposes of “any news story, commentary, or editorial distributed through the facilities of any broad- casting station, newspaper, magazine, or other periodical publication” – but that’s not oppo research, which is a privately shared bit of information.
So, this section isn’t much help – and we must revert to the earlier section of the law that precludes foreign nationals from giving, and media outlets from soliciting, this:
There’s that “thing of value” language again.
If “anything of value” means what you say – in other words, oppo research – then you have just criminalized a media outlet speaking to a foreign national and receiving oppo research on a candidate, because that’s not an electioneering communication such that it falls with in the exception you cited. Instead it falls under this:
And so your expansive definition of “thing of value” would end up biting the media in the ass. It’s therefore unconstitutional. (Your suggestion a judge should simply rewrite the statute, and adopt one definition of ‘thing of value’ for the media and another definition for Trump campaign officials, would also be highly questionable ethically and legally).
What was all that about premature victory declarations again? :)
Stop changing the title of this damn thread!
That is pretty good, fellow Quarter to Three human folk, I am in on the joke.
What prevents a foreign person from handing opposition research to the NY Times and saying ‘here’s a story, you might want to run it’?
I’d say nothing in this law prevents that. Anything can be a newspaper story, and certainly bad information about a candidate is a newspaper story.
It is not my expansive definition, it is the FEC’s understanding of the law, and they’re the authority.
There’s no reason to read anything arbitrarily. The words ‘thing of value’ don’t appear in the text of a1C, and the definition of ‘expenditure’ explicitly permits giving information to the press. There is no first amendment issue.
(You do understand, don’t you, that the Chapter heading of this statute is ‘Federal election campaigns’, and the Subchapter is ‘Disclosure of Federal Campaign Funds’, and the Section is ‘Contributions and Donations by Foreign Nationals’? Do you still maintain that the actual text of the law doesn’t necessarily relate to contributions and donations by foreign persons to campaign funds in Federal elections?)
Not necessarily and certainly not literally. Oftentimes, media outlets solicit all kinds of information on background that can’t end up in news stories.Sometimes, curious political consultants or even interested citizens might also seek such information from foreign nationals. While you are equating “news story that is broadcast” with “information that leads to a news story that is later broadcast”, this seems like both a literal leap, as well as an ad hoc way to protect media outlets that would still unconstitutionally leave ordinary private citizens high and dry.
I remember vividly all the people claiming the the trademark office, with all its lawyers, couldn’t possibly have erred when it barred the registration of the Washington Redskins trademark on indecency grounds. I don’t know the contours of the FEC opinion you reference, but an FEC judgment gets about as much deference in the courts as Volokh’s.
Edit: I’ve looked into the FEC ruling I think you’re referring to. Is it this?! From 2004?
This doesn’t even directly refute my point. It looks specifically at one instance of a ‘thing of value’ that had an ascertainable price (printed materials previously used in an election) and cites this from the CFR – not that the oppo research Trump got was not on the market, and never was, by contrast:
There is no substantive engagement in this FEC opinion with the scope of the phrase ‘thing of value,’ nor its First Amendment implications. This would not have any weight in a court challenge to the constitutionality of the statute as applied to the Trump oppo research.
?? They appear in the definition of “expenditure,” which appears in a1C…
This is literally false. The statute protects giving a news story or opinion commentary to the press for broadcasting, and says nothing about general information.
Of course it relates to that, as well as to electioneering communications.
Yep, once some information-sharing communication with foreign nationals regarding elections is constitutionally OK, it becomes very hard to limit such communications at all. One thing that came up yesterday at the Aspen Security Forum was that the DOJ is going to be more aggressive about alerting the public to foreign election meddling, but it adopted no new policy on dealing with domestic misinformation campaigns. Rosenstein said they are fundamentally different, which is true, but I wonder which has a more direct impact on elections. I wonder if you think that such domestic misinformation campaigns can possibly be addressed.
I’ve maintained that Trump’s existence as our president is the shameful fruit of the US public education system.
“I love the uneducated” (or whatever he said), indeed.
A focus on education could help stop the domestic misinformation campaigns; the Breitbarts and Info Wars of the country. That’s one of the things I like about this forum. Education level is high, and folks generally won’t fall for the bullshit.
I think the younger generations have some advantage here. I think you’re right that education is a problem, but the Boomers and Gen-Xers were not raised in a education system that taught the student how to discern legitimate from illegitimate online sources.
I’m an old millennial, but that was something that appeared in my education starting in high school and carried through college.
I’m not saying the younger generations are immune, or perfect in this regard - but at least it is being taught in schools.
Well, for now at least, eh? With one party’s constant attacks on the education system, I expect things to keep gradually deteriorating.
This actually isn’t true. This was actually EXPLICITLY taught in public school, albeit not for online sources.
Gen Xers were the first ones who really had to apply those lessons to the internet, since we were the first ones to really use the internet, but I haven’t seen my generation have that much trouble dealing with it.
I’ve absolutely seen my parents seemingly lose all of their ability to perform that kind of filtering, and i have no idea why that is.
Respectfully, my personal experience is different. I’m not saying that previous generations weren’t exposed to understanding academic sourcing - they were… it was just in libraries. That sourcing process is different for online sources - I watched the debates rage in classrooms about the validity of Wikipedia or SparkNotes, how to identify sources within those (and other) tools, how to source them, etc.
My personal experience with Gen-Xers is that they very much embraced the digital and information available on the internet, but were never taught how to sort through that information. That’s why in my experience (again, I’m just speaking from the I here) I see the conspiracy theories and anti-vaxxer sentiment permeate those cohorts. When I’ve personally pushed individuals on those topics, I get junk science or junk websites. They’ve embraced the information, but they haven’t embraced the academic rigor.
I get less of that with Millennials, and even less of that with Gen-Z.
I’m fairly certain “contribution” only applies to people who are running for office, parties, and campaign organizations. If I give a gift to some random person in the hopes that that person will do something with it that somehow influences the election, that is an expenditure, not a contribution. I can’t make a political contribution to a newspaper.
Actually this has less to do with the specifics of online sources and more to do with critical thinking in general. The brain is a muscle and if you don’t work it, it atrophies. Unfortunately, our public schools just aren’t doing that for our kids, and as a result folks are much more susceptible to the type of bullshit that is espoused as “alternate facts”.
Reading and writing volumes does quite a bit towards understanding logic loops and how manipulation occurs.
I’ll assume this is hyperbole, as it is unlikely you are unaware of Chevron deference, but of course the court - even if it finds other interpretations of the statute more reasonable - must defer to the FEC’s interpretation in this case (as long as it is “reasonable”*).
From the right-wing blogger’s theory you have been quoting, I would guess your position is that it may be judged unconstitutional at some point in the future - ok, but again, this is a big claim that would require better evidence to be persuasive to an audience.
*a low bar, btw - it is reasonable as long as it is not “arbitrary, capricious, or manifestly contrary to the statute.”
Objection. Irrelevant digression.
Objection. Irrelevant digression.
That’s actually a second case which shows your understanding of ‘thing of value’ is wrong. This bit is particularly relevant:
Oppo research reports are goods or services. They are routinely purchased by campaigns. So they must be ‘things of value’.
Objection: Irrelevant under current law.
Objection: Substance-free word games. If you gave oppo research on a candidate to the NY Times, they would surely treat it as a news story.
…along with a carve out which eliminates the problem Volokh (and you) find with the law.