Election Fraud: Take Action
This is the fifteenth and final blog in our election integrity series. It reviews the topics in our series and makes suggestions for action.
According to surveys conducted by the Pew Research Center in 2017, 50% of registered voters are either Democrats or leaning Democratic, while only 42% identify as Republicans or leaning Republican. This 8 percentage point advantage favoring Democrats is bigger than at any point since 2009, and double the 4% Democratic advantage in 2016. Furthermore, the increase in communities of color in the future will most likely favor Democrats, as the Republican share of the electorate will shrink.
Republicans could choose to respond to this demographic shift by making their party more responsive to voters, by reducing inequality and offering programs that help the majority of voters. Instead, they have chosen to respond by using divisive issues to manipulate voters and by rigging elections. Following is a review of the threats to election integrity, with some suggestions for counteracting them.
The Electoral College (see blog, September 2017)
Although the Electoral College is legal, it prevents each citizen from having an equal vote, and many argue that it should be abolished because it is undemocratic. But since the Electoral College works to the advantage of Republicans at this point in history, we can consider it very unlikely that Republicans would support abolishing it. Abolishing it would require a constitutional amendment, which would mean a two-thirds vote in both the House and the Senate and the ratification by three-fourths (38) of the 50 states. I imagine that most American voters favor repeal, but the chances of repeal actually happening are slim to none.
However, several other options have been suggested. The one that seems the most workable is the National Popular Vote Interstate Compact. Under this plan, each state’s electoral votes would be given to the winner of the national popular vote. So, in 2016, since Clinton won nationally, all the states, even those like Alabama which vote solidly Republican, would have had to pledge its electors to her. This method would leave the Electoral College in place, so no constitutional amendment would be required, and elections would still be controlled by the states. But every vote would be equal, and every voter would matter in every state; we would achieve a national popular vote. The National Popular Vote bill has been enacted into law in 12 jurisdictions which have 172 electoral votes (CA, CT, DC, HI, IL, MA, MD, NJ, NY, RI, VT, WA). However, the bill won’t take effect in any of them until it is enacted by states possessing an additional 98 electoral votes, for a total of 270. (a majority of the total 538 electoral votes).
The constitutionality of the National Popular Vote Interstate Compact has been questioned because Article I of the Constitution says that Congress must approve compacts between states. On the other hand, Article II reserves to the states the exclusive power to bind their electors. In the end, the constitutionality might have to be decided by the Supreme Court.
There is also a political problem. All the states that have signed on so far have been heavily Democratic. The red states have been resistant, probably because the Electoral College helps Republicans win elections. And the swing states, which receive a huge influx of media and money every four years, have every incentive to leave the old system in place.
Nevertheless, for those who believe in democracy, the effort to pass the National Popular Vote seems very worthwhile. Any readers who would like to get involved can start by contacting National Popular Vote and/or by contacting your state legislators.
The two-party system (see blog, October, 2017)
The two-party system is undemocratic because neither party represents the will of most voters, and the electoral system used in the United States prevents the rise of third parties.
So how can we reform the two-party system to make it more democratic? The route chosen by Bernie Sanders has been to try to reform the Democratic Party from within. This is what conservatives did with the Republican Party; in the 1960s they rejected the idea of forming a new right-wing party in favor of transforming the Republican Party to suit their ideology. As we can see, the conservatives were very successful in moving the Republican Party to the right. Bernie also seems to have made some progress in moving the Democratic Party to the left, but the problem is harder for Democrats than for Republicans, because moving to the right would not require Republicans to stop prioritizing the interests of the big donors, but Democrats moving to the left would require exactly that. Bernie was able to get his campaign funded by small donors, but it’s unlikely that all Democrats could do the same.
Bernie’s movement has formed a new group called Our Revolution, headed by Nina Turner. Turner is a Democrat who served as a member of the Ohio State Senate from 2008 to 2014. Our Revolution is supporting a new generation of progressive leaders and trying to elevate the political consciousness with the goal of making American political and economic systems responsive to the needs of working families. I assume they mean for the new progressive leaders to run as Democrats. Justice Democrats is another group seeking to reform the Democratic party. Our Revolution and Justice Democrats endorse some of the same candidates.
If either movement ever succeeds in getting state level offices filled by progressives, they could possibly change laws to ease ballot access so third parties could be more competitive. Maybe third-party candidates could even be included in debates.
Another option avoids the issue of changing or creating political parties. Instead, it aims to change the electoral structure that prevents the rise of third parties: plurality voting in single member congressional districts (SMDs). For an explanation, click here. The nonpartisan election reform group FairVote.org is advocating Fair Representation Voting, and U.S. Representative Don Beyer (D-VA-8) has introduced the Fair Representation Act (HR3057). Under this Act, there would be a form of proportional representation (PR) called Multi-Member Ranked Choice Voting (MM-RCV). Congress would remain the same size, but congressional districts would change.
To start, each state would create an independent commission of ordinary citizens who would draw multi-member districts (MMDs) without gerrymandering. States with more than six representatives would draw districts with three to five representatives each, and states with five or fewer representatives would have one statewide, at-large district.
Representatives from each district would be elected through ranked-choice voting (RCV) with instant runoff, in which voters rank candidates in order of choice. If no candidate reached the cutoff needed to win, then the candidate with the fewest votes would be automatically eliminated and the candidates ranked again. If a voter’s first choice candidate were eliminated, then his or her vote would go to the candidate that the voter ranked second. For a visual explanation of RCV, you can look at this You Tube.
When it comes to multi-member districts, the same principles apply, but since voters are electing more than one candidate, things are a bit more complicated. This You Tube shows how RCV would work if we were electing three representatives from a field of five candidates. Representatives would be elected proportionately to their share of the vote. Voters would be much better represented and third parties more likely to thrive.
The Fair Representation Act applies to the House of Representatives, which is a good place to start, but some of its principles could apply in other elections. FairVote supports parallel efforts in states and cities around the country to bring RCV to elections at every level, including both SMDs and MMDs. In SMDs we would not have proportional representation (PR) because we are electing only one member, but RCV would still help third parties because voters would not be afraid of splitting their vote, nor would they feel compelled to vote for the lesser evil. For example, if a progressive voter lived in a swing state in 2016, she could feel free to vote for Jill Stein without fear that her vote might help to elect Donald Trump. FairVote says on its website that ranked-choice voting “has improved elections in cities and states across the United States” and “has majority support in every U.S. city that uses it.”
In November, 2016, voters in the state of Maine approved a ballot initiative on RCV, and Maine became the first state in the nation to adopt Ranked Choice Voting for state and federal elections. The following year, however, the legislature voted to delay the new system for five years, until 2022, citing concerns about whether ranked-choice voting conflicted with the state constitution. The courts declared that the system would be in place for this year’s primaries, allowing voters to test out ranked-choice voting and simultaneously decide whether to keep it.
The people of Maine ultimately overruled the politicians, voting in another statewide ballot initiative to maintain the system they had already approved and veto the law delaying it. In a boost to advocates who want to expand ranked-choice voting nationwide, the most recent ballot measure passed with a larger margin—nearly nine points compared to four points in 2016—than the first referendum did.
If you want to get involved, you can help any of the organizations mentioned in this article. If you want to help Our Revolution, you can volunteer and/or donate. You can also volunteer or donate to existing third parties, such as the Green Party. You can get involved in FairVote by contacting your Representative, signing a petition, or donating.
Gerrymandering (see blog November 2017)
Gerrymandering is undemocratic because it makes some votes count more than others. For an explanation of gerrymandering that is both astute and amusing, you can watch John Oliver here.
Citizen-led efforts to reform redistricting
Grassroots and advocacy groups in many states are working to reform gerrymandering ahead of the 2021 redistricting. Some are creating ballot initiatives such as those that led to the independent redistricting commissions in Arizona and California. Arizona’s Proposition 106, passed in 2000, and California’s Proposition 11, passed in 2008, took redistricting out of the hands of legislators and gave it to citizens. While no system is perfect, the consensus seems to be that independent commissions have resulted in districts that have less gerrymandering of all types: partisan, racial, and incumbent. Of course, partisan legislators challenged the commissions, but the U.S. Supreme Court ruled in 2015, along the usual left-right lines with Justice Kennedy as the swing vote, that the commissions are legal.
Twenty-four states allow ballot initiatives, a form of direct democracy. Citizens can gather a certain minimum number of signatures on a petition and bring about a public vote. Two states, Maryland and New Mexico, allow a veto referendum instead: after a state legislature passes a law, citizens can collect signatures to place that law on the general election ballot; then they can vote whether to keep it or nullify it. Both ballot initiatives and veto referenda give citizens some control over gerrymandering. Unfortunately, twenty-four states allow neither ballot initiatives nor veto referenda. However, citizens of all states still have the option of trying to elect legislators who support redistricting reform.
Currently, citizens are working on ballot initiatives to reform the redistricting process in Colorado, Michigan, Missouri, Ohio, Oregon, Pennsylvania, South Dakota, and Utah.
Legislative efforts to reform redistricting (federal, state)
Although states are responsible for redistricting, the U.S. Congress can set rules about how the districts are drawn. They have used this power in the past, and they are proposing some federal-level reforms now. Ten federal bills about redistricting were filed as of September, 2017.
On the state level, nearly 150 bills affecting gerrymandering have been introduced. The Brennan Center for Justice has a state reform tracker that allows you to look at the reform proposals in each state.
Redistricting cases in state and federal courts
For a description of all the pending state and federal cases, click here.
National Democratic Redistricting Committee
Recently, Democrats formed the NDRC to counter the Republicans’ REDMAP. Chaired by former Attorney General Eric Holder with the support of former president Barak Obama, the NDRC hopes to influence the next round of redistricting in 2021. They have a four-part strategy which includes legal action, mobilizing grassroots energy, supporting reforms, and winning targeted elections.
Although the aim is partisan, if it works, it should result in a more equal voice for voters. You can join the NDRC here.
Organizing for Action (OFA)
The National Democratic Redistricting Committee (NDRC) and Organizing for Action (OFA) will join forces to reform gerrymandering. OFA will use its grassroots infrastructure to organize, educate, and engage supporters to help NDRC’s mission. There are many opportunities for citizen involvement on its website.
What can citizens do? If you support the Democratic Party, you can get involved with NDRC and/or OFA. In each state, different groups will be in charge of redistricting, but there are things you can do to influence the process. Each state has a website that you can look at to get started. For example, I clicked on the California redistricting website and found a lot of information about redistricting and also a number to call if I have questions. You can ask questions such as: whether the data used to draw the districts are publicly available; whether there are public hearings that allow constituents to have input, and whether that input will be incorporated in the maps. If there are hearings, you can attend them; if there are no hearings, you can demand them. In many cases there are community organizations that will coordinate attendance at these meetings to make sure community voices are heard
In addition, there are many grassroots advocacy groups working on redistricting or on related issues, such as trying to make sure there is an honest census. A site called Reclaim the American Dream has a page called Where to Get Help: Grassroots Reforms Fight Gerrymandering. There is a list of organizations with descriptions and contact information. Some of them want members, volunteers, and/or donations. You can be as involved as you want to be.
Black Box Voting machines
The term black box voting was popularized by Bev Harris, owner of the website and author of the 2004 book by the same name. The book defines black box voting as “Any voting system in which the mechanisms for recording and/or tabulating the vote are hidden from the voter, and/or the mechanism lacks a tangible record of the vote cast.“
In 1974, the first Direct Recording Electronic (DRE) voting machine was patented. DREs do not use any ballots. Instead, the voters use touch-+screen terminals or push-buttons to record their votes. The problem with the lack of a hard-copy ballot is that there is nothing that can be recounted, so there is no way to verify the reported results. Voters imagine that manufacturers of DRE machines have taken steps to protect the results from tampering — but that is unfortunately not true. Numerous studies, including this one from Princeton University, demonstrate that rigging election results is quite easy. If fact, anyone who wants to learn to rig our elections can watch this YouTube video, which explains how to do it. In an effort to make DREs safer, 27 states now require a voter verifiable paper audit trail (VVPAT). However, it’s important to understand that DREs with (VVPATs) are not any safer.
Another technology uses optical or digital scanners to count paper ballots. Many people consider scanned ballots to be safer than DREs because there is a paper ballot that can be recounted or audited, but elections using scanners have been flipped from the beginning. For example, Bev Harris discusses (p. 42) a report from an election official in a California district in 1980. Jimmy Carter beat Ronald Reagan by a large margin in that district, but the scanner reversed the results, giving Carter’s votes to Reagan and vice versa. This came to light because there was an audit in which the ballots were hand counted, but when the election official requested that the state of California do more audits to see whether the same thing was happening in other districts, her request was ignored. Where there is no system for proper audits, optical scanners are no safer than DREs.
Researchers have proven that elections can be easily stolen using black box voting technologies, and they have also recommended ways to prevent the stealing of elections. Protecting our elections is not very difficult. However, there are two reasons why the necessary protections have never been put in place. The first is that voting machines are owned by private companies, which are in turn owned mostly by partisan Republicans, and they have proprietary software. Most will not allow access to the source code, so we have no way to verify that the machines are not rigged.
The second problem is that for the most part, election administrators have failed to adopt the recommendations that would make elections safer. There have never been consistent, mandatory security standards governing the operation of computerized voting, so vendors have had a relatively free hand selling their flawed products. Furthermore, election officials are often partisans with overwhelming conflicts of interest.
According to Computer Science and Engineering Professor Alex Halderman (Univ. Michigan), the only way to verify if an electronic vote tally is correct is to hand count the paper ballots or to forensically analyze the machines. Private vendors, however, block forensic analyses on the grounds that their code is proprietary. Thus, as a practical matter, the only way to verify an electronic vote tally in the United States is to hand count the paper ballots. However, since it is too costly and time consuming to hand count all the ballots, the paper ballots are counted electronically and, in case of problems, can be recounted and audited.
Recounts and audits
In order for a recount to be valid, the paper ballots must be recounted by hand. If the “recount” is done by just putting the ballots through the same rigged scanners a second time, the recount will not be any more accurate than the original count.
The problem with hand recounts is that many, if not most, states, have laws blocking them. We saw examples of this when the Green Party’s Jill Stein attempted to recount the votes in the three states that gave the 2016 election to Trump: Michigan, Wisconsin, and Pennsylvania. Another problem is that, even where hand recounts are allowed, they are expensive and slow. A better way is to start with an audit and only recount if the audit shows that it is necessary.
An audit means hand-counting a sampling of ballots to determine whether a full recount is needed. As of early 2017, about half the states require some form of post-election audit, but most of these audits are useless because they aren’t rigorous or timely enough to detect and correct counting errors before election results are declared final.
The best type of audit is called a risk limiting post-election audit. Because of the power of statistics, it is possible to use surprisingly small sample sizes, which makes the audits reasonably cheap and fast. A risk-limiting audit tests whether the election results identified the correct winner by using statistically-selected selections of paper ballots that are counted by hand. If few discrepancies are found, it means that there is a limited risk that the initial winners are wrong. If samples find greater discrepancies, the risk-limiting audit will require a 100% recount by hand, to identify the correct winner.
In 2017, Colorado became the first state to implement rigorous risk-limiting audits, auditing one race in each of 50 of its 64 counties. Following the 2018 General Election, Colorado will conduct audits in the 62 of its 64 counties that use automated vote counting equipment (the two remaining counties hand count the ballots).Rhode Island passed legislation requiring that state’s Board of Elections to implement risk-limiting audits beginning in 2018. Individual jurisdictions elsewhere may be using the method on the local election clerks’ initiative.
Auditing is done several days after the election, so paper ballots and computer files need to be kept securely. This is a very big problem. For example, the Government Printing Office issued a report about the 2004 Bush-Kerry race in Ohio that revealed serious problems with the chain of custody. Triad, the company that owned the voting equipment, was run by partisan Republicans who “essentially admitted that it engaged in a course of behavior during the Ohio 2004 recount in numerous counties to provide ‘cheat sheets’ to those counting the ballots.” The report further stated that the Hocking County Elections Director had “firsthand knowledge that a Triad employee advised election officials how to manipulate voting machinery to ensure that a preliminary hand recount matched the machine count.” Furthermore, the Directors of the Election Boards in two Ohio Counties stated that the company had remote access to the computer used in the recount. There is more misconduct mentioned in the report, and in the end, two Ohio officials were indicted for colluding with voting machine companies to assure that the hand recount would match with the initial machine recount. A Cleveland news report later confirmed that “two election board workers were convicted of illegally rigging the 2004 presidential election recount so they could avoid a more thorough review of the votes.” But it does not appear that Triad ever faced criminal charges for its conduct relating to the 2004 recount.
Since 2004 the situation has not improved. No US state has adequate laws for physical security of the ballots.
Digital ballot images
Digital ballot images can also potentially be used to verify results. They are created when the optical or digital scanner takes a photo of each paper ballot and stores it as an electronic file. Ballot images are anonymous and do not identify voters, but it is possible to verify that the images have not been altered by using a serial number that appears on both the ballot and ballot image. The number makes it possible to compare the paper ballot with the ballot image.
You can access ballot images by submitting a public records request or freedom of information request to the custodian of the records, which is usually the county election office. It should be possible for you to inspect the ballots or ballot images at the time you ask to do so. Asking for copies sometimes produces a time delay that in elections is often used to “run out the clock” — delaying your ability to get the documents until after recount and contest periods have expired.
The beauty of public access to ballot images is that it becomes difficult to tamper with election results without being detected, and it costs almost nothing. Ballot images allow anyone to do their own recount of any or all elections. Bev Harris explains how to access ballot images on her website.
We need a nationwide policy requiring that all ballot images be placed on the Web along with a linking serial number to enable comparison with the original paper ballot. Everyone should be allowed to see them at any time so the public can do its own verification.
Public access to ballot image records, though, is phase two of a longer process — many counties do not save ballot images at all. Alabama was home to much controversy surrounding the 2017 US Senate special election when it surfaced that the state failed to even keep ballot images.
Digital voting equipment can be set to either preserve or toss ballots, a design feature that violates federal law, Chris Sautter — a political media strategist and election attorney — told WhoWhatWhy. States must preserve election materials for six months in state elections and 22 months in federal elections. Alongside John Brakey, co-founder of the Arizona chapter of Americans United for Democracy, Integrity, and Transparency in Elections (AUDIT), Sautter is evaluating the ballot image question state by state.
They’ve found that leadership on ballot image preservation from local Secretaries of State and chief election officials is lacking. In many cases, local election officials aren’t aware of the ballot image question at all. Some don’t know if their jurisdictions preserve the images or not.
In most cases, state elections officials are letting their local constituents make their own decisions about ballot images. “It’s totally in the public interest to preserve and use digital ballots,” Sautter said. Without such a record, election officials blindly trust the accuracy of the program counting votes — and the contractors who developed the software. “There is no place for trust in election administration,” said Kellner. “The process should be accurate, transparent, and verifiable.”
While ballot images offer a public window into the election process, they do not take the place of audits, or eliminate concerns over the security of electronic voting equipment in the first place.
“We need every state to have a law requiring manual audits for every single race,” said Jennifer Cohn, an attorney and advocate for paper ballots. “Because we don’t have [regular audits], the images are useful a stop gap, but they don’t take the place of it.”
What we can do
One organization that needs your help is AUDIT USA. Its mission statement: To restore public ownership and oversight of elections, work to ensure the fundamental right of every American citizen to vote, and to have each vote counted as intended in a secure, transparent, impartial, and independently audited election process. You can volunteer with their Ballot Images Project and you can donate.
Another organization is Bev Harris’ Black Box Voting. Founded in 2003, Black Box Voting is a nonpartisan investigative reporting and public education organization for elections. You can donate to help their work.
VerifiedVoting.org is “a non-partisan non-profit organization that advocates for legislation and regulation that promotes accuracy, transparency and verifiability of elections. We believe the integrity and strength of our democracy relies on citizen’s trust that each vote be counted as cast. Our primary concern lies in ensuring that the means for verifying election outcomes are in place and used for that purpose. We also focus on the reliability and security of voting systems. We connect those who are making and implementing policy that shapes how we vote to those who understand the particular risks associated with the emerging digital landscape, particularly on-line and electronic voting.” You can support their work by donating.
Voter suppression is about making it harder to vote. Most of the voter suppression efforts in recent decades have been Republicans suppressing Democratic voters, and they have had a substantial effect. A new report by three political scientists from Northern Illinois University, Jacksonville University, and China’s Wuhan University studied factors about ease of voting in each state and how those factors affected voter turnout. They created a “Cost of Voting Index,” or the time and effort it takes to vote, which takes into account 33 different variables dealing with registration and voting laws. The study is published in the September issue of the Election Law Journal.
The higher the Cost of Voting Index, the lower the voter turnout, and much depends on laws designed to suppress voting. As a story on the study in The Washington Post pointed out:
What sort of effect do these laws have on voter turnout? Some quick calculations suggest that the effect is potentially quite large: The five most restrictive states had turnouts in 2016 that were, on average, nearly nine percentage points lower than turnout in the five easiest states to vote in. …
Those findings strongly suggest that high turnout in some states is at least partly a direct consequence of choices made by policymakers to expand access to the ballot box. The converse would also be true: The low turnout rates seen in places like Mississippi, Tennessee and Texas are in part a result of lawmakers’ deliberate efforts to make voting harder.
Voter suppression disproportionately targets groups who are likely to vote Democratic, including racial and ethnic minorities, immigrants, low-income, handicapped, and students. According to the Brennan Center for Justice, since the 2010 election, state lawmakers nationwide started introducing hundreds of harsh measures making it harder to vote. The new laws range from strict photo ID requirements to early voting cutbacks to registration restrictions.
Here is a detailed list of the restrictions, based on the Brennan Center for Justice’s tracker, the Leadership Conference Education Fund’s recent report on poll closures, and Project Vote’s voter purge database:
Voter ID requirements: Alabama, Mississippi, New Hampshire, Rhode Island, Virginia, South Carolina, Tennessee, Texas, and Wisconsin passed new laws that require voters prove their identity with a voter ID. Indiana also passed a law letting party-nominated election officers demand voter IDs at the polls. The laws can severely limit which IDs are valid — Texas, for example, allows a gun permit and other government-issued IDs but not a student ID. Some states allow exceptions to their laws, but the process of obtaining an exception can be arduous, especially for poor, time-constrained voters.
On October 9 2018, the US Supreme Court permitted the State of North Dakota to implement a voter ID law that discriminates against Native American voters. The law requires voters’ IDs to include a residential address. Native American voters will be especially affected because homes on the reservation do not have addresses on them. The Supreme Court decision has taken away the opportunity to vote for thousands of Native American United States citizens on the eve of the 2018 midterm elections.
Early voting cuts: Ohio cut a whole week from early voting, eliminating the “golden week” in which voters could register and vote on the same day. And Nebraska cut its early voting period from 35 days to no more than 30 days.
New requirements to register to vote: Kansas passed a law that requires new voters to show proof of citizenship to register to vote. Virginia also required groups submitting 25 or more voter registration forms to register with the state, and reduced the amount of time to deliver the forms from 15 days to 10 days.
Limits on mail-in ballots: Arizona made it a felony to collect and turn in someone else’s mail-in ballot, even with that voter’s permission. The US Supreme Court let the law stand for 2016.
Provisional and absentee voting changes: Ohio passed strict rules that can invalidate absentee and provisional ballots if forms accompanying those ballots aren’t filled out in a very specific way.
Polling place closures: Southern states, from Arizona to North Carolina, have closed down at least 868 polling places since the US Supreme Court struck down part of the Voting Rights Act in 2013. (The Voting Rights Act could have allowed the Department of Justice to stop these closures before, but not anymore.) These are only the closures tracked in about half the counties that were once covered by the Voting Rights Act due to their long histories of racial discrimination, so there have likely been hundreds or even thousands more closures nationwide.
Polling places in areas that vote Democratic have also been moved to places that are hard for voters to reach, and very long lines have been created.
Voter roll purges: Several states have attempted to conduct sweeping purges of voter rolls, potentially undoing voters’ registration without their knowledge. In June 2018, the U.S. Supreme Court declared this practice legal in many cases, so it will likely be instituted very widely.
Other voter suppression tactics include
Disinformation about voting procedures
Inequality in allocation of polls and voting equipment
Closure of DMV offices
Absentee voting limitations
Provisional ballot limitations
Handicapped access restrictions
Registration deadlines: number of days prior to election that registration must occur
Voter registration restrictions:
Failure to process applications because of “exact match” requirements
Purging voters under spurious “no match, no vote” policies or Interstate Crosscheck
Same day registration not allowed for all election
Same day registration not located at poll locations
Felons not allowed to register
No online voter registration
Same day registration not allowed in presidential electionc
No automatic voter registration
Preregistration limits for voters under 18
Following are some organizations that seek to counteract voter suppression. Some of them need volunteers, and they all need donations.
The information made available in the Cost of Voting Index could be used to correct voter suppression. Similarly, the MIT Election Data Science Lab keeps abreast of changes to the administration of elections in all 50 states by updating its Election Performance Index every two years. Should the political will to correct voter suppression ever become available, there will be some solid science to help.
The ACLU is engaged in advocacy and litigation across the country to get rid of voter suppression
NAACP Legal Defense Fund has been involved in precedent-setting litigation, public education and advocacy relating to minority voting rights.
League of United Latin American Citizens: According to Bloomberg, League of United Latin American Citizens (LULAC) along with League of Women Voters and Lawyers’ Committee for Civil Rights Under Law are training poll watchers to protect voters. “Poll watchers left unchecked may unfairly target minority voters,” said Kristen Clarke, president and executive director of Civil Right Under Law. “It creates the potential for a lot of mischief, chaos, and disruption on Election Day.”
Drive2Vote: Officials have tried to keep people of color from voting by reducing the number of polls in predominantly Latino and black neighborhood. Warren Buffett set up Drive2Vote to take people to and from polls. “To vote, you need to be present,” the site reads. “If you need a ride to the polls, ask me. Either I or one of my friends who pledges on this site, will get you to the polls.” Other organizations like Women Votes are offering similar services.
Congressional Voting Rights Caucus: The 2013 Shelby County v. Holder decision did away with requiring all governments with a history of voter discrimination to get approval before making any changes to their voting laws. As a result, the Congressional Black Caucus, the Congressional Hispanic Caucus, and the Congressional Hispanic Caucus joined forces to form the Voting Rights Caucus. According to its mission statement, “The goal of the Congressional Voting Rights Caucus is to educate the public on the current voter suppression tactics in place in their home states, districts, and counties, inform constituencies on their rights as voters, and to create and advance legislation that blocks current and future suppressive and discriminatory tactics that deny American citizens the sacred right to vote.”
Vote Riders: While there’s conflicting reports on how many people Voter ID laws actually target and what kind of impact they have on elections, Vote Riders wants everyone to go into Election Day knowing exactly what they will need. That’s why the organization made wallet-sized cards for every state that lists all forms of acceptable IDs, as well as what other documents a voter needs to present. On the back of the card, the group urges people to call them for more voter ID assistance – making it a necessary tool come Election Day.
Let America Vote was started to fight back against proposals across the country that make it harder for eligible voters to exercise their constitutional right to cast a ballot. Whether it’s extreme identification requirements, questionable purges of voter rolls, voter intimidation, new and extreme voter registration processes, or anything that makes voting harder, Let America Vote will be there to lead the way against it. Through online and grassroots organizing, an aggressive earned media strategy, and advertising, Let America Vote will play a crucial role among the existing network of organizations fighting for voting rights.
Uber and Lyft are offering free rides to the polls. Lyft has shared the message through social media that it will offer free rides to the polls for voters who otherwise would have trouble getting to their voting stations. It teamed up with Voto Latino, the Urban League, and the National Federation of the Blind to offer free rides on Nov. 6, and worked with Vote.org, Nonprofit Vote, and TurboVote to offer half-off coupons. Not to be outdone, the ride-sharing service Uber joined the free-ride train. Uber has partnered with Democracy Works and #VoteTogether to share that message through social media.
Campaign finance in the United States (see blog September 2018)
In 2014, professors Martin Gilens of Princeton University and Benjamin Page of Northwestern University studied more than 20 years of data to find out whether the U.S. government really represents the people. They analyzed nearly 2000 public opinion surveys to find out what the people wanted, and they compared those results to what the government actually did. What they found was that the wishes of people whose incomes were in the bottom 90% had approximately zero impact on what the government did. To quote from the study: “The preferences of the average American appear to have only a minuscule, near-zero, statistically non-significant impact upon public policy.” Only the opinions of the economic elites, business interests, and people who could afford lobbyists had significant influence. This is because in the United States, purchasing political influence is perfectly legal. You can watch a You Tube with an excellent graphic explanation of this system here.
The fact that 90% of the population is not represented by their “elected representatives,” is a direct result of our current system of campaign finance. A second result is that it’s not feasible to become a candidate for the House or Senate (from which we usually get presidential candidates) or for many state and local offices without having either vast personal wealth or a willingness to engage in nonstop fundraising. This reduces the pool of candidates to those who have more in common with donors than they do with voters. It’s not surprising that many people in the unrepresented group see little point in voting.
A recent Pew Research Center report finds widespread bipartisan agreement that people who make large political donations should not have more political influence than others, and there is extensive support for reining in campaign spending: 77% of the public (85% of Democrats and 71% of Republicans) say “there should be limits on the amount of money individuals and organizations” can spend on political campaigns; just 20% say they should be able to spend as much as they want. So what is the next step?
Change the Supreme Court
One way to reduce the influence of money in politics would be to appoint liberal Supreme Court justices to reverse rulings like Citizen’s United. However, this will not be happening any time soon, so we can rule it out for now.
Pass a constitutional amendment
Another way would be a constitutional amendment. In fact, several organizations, such as Move to Amend, have campaigned for this, and several state legislatures across the country have put forward measures to form committees to review the ruling and call on the United States Congress for a constitutional amendment to overturn Citizens United v. FEC and McCutcheon v. FEC. While most of the legislation has not moved forward, some states, such as Illinois, have had such legislation passed by both houses of the state legislature. However, altering the Constitution is not easy. An amendment must be proposed either by Congress with a two-thirds vote in both the House of Representatives and the Senate or by a convention of states called for by two-thirds of the state legislatures. If the amendment passes that hurdle, it must then be ratified by three-fourths of the states. This is also not going to happen any time soon.
Find small donors
Since it appears impossible in the foreseeable future to block big money donors, we can try to make elections fairer by increasing the influence of small-money donors. Bernie Sanders raised more than $200 million for his primary campaign from donors giving an average of $27 each; only 2% of his money came from Wall Street. However, it seems unlikely that voters’ enthusiasm for Bernie could be shifted to mainstream Democrats. Knowing this, mainstream Democrats are likely to continue their reliance on the tried and true big-donor approach.
Use public money
Another idea is to try to increase the influence of small donors by using public money. The problem is that the flood of private money after Citizen’s United has rendered public financing insignificant. One way to counter this is to use matching funds. For example, Arizona had a system that established public financing for campaigns for statewide offices. If a candidate who qualified for public funds was outspent by an opponent who was not participating in public financing, then the participating candidate received added government money (sometimes called “rescue funds”) to match the amount raised by the opponent. However, in 2010, the U.S. Supreme Court ruled in its usual 5-4 lineup that the use of rescue funds was unconstitutional (McComish v. Bennett). This decision also destroyed public financing in other places, including the city of Albuquerque. In 2005, Albuquerque approved a method to publicly finance local candidates. Through this program, eligible candidates who agreed not to take private donations got $1 for each voter in their constituency per year, from a special fund in the city budget. Candidates were also entitled to additional funds to compete with privately financed opponents, but that part of the program was struck down by the Supreme Court’s decision in McComish v. Bennett. With that part of the program gone, publicly financed candidates in Albuquerque could no longer compete with candidates who accepted money from big donors.
In 2017, the city of Seattle rolled out a pilot program, funded through property taxes, called “democracy vouchers.” Eligible residents would receive vouchers totaling $100, which they could donate to local candidates of their choice, subject to guidelines. The intent was to enable constituents who don’t usually have the resources to support candidates, such as people on low incomes or homeless, to participate in the political process. It was also hoped that the program would help to mitigate the vast influence wealthy campaign donors have on local elections. A recent analysis found that the program did boost political participation among low-income and younger voters, and created a more ethnically diverse pool of voters in their last election, although it does not seem that it kept big money out of the election.
In 2015, South Dakota and Washington state passed versions of “democracy vouchers,” as part of larger anti-corruption packages favored by voters, and both received pushback. In the case of South Dakota, a judge blocked the ethics overhaul of which the vouchers were a part, and then the Republican state legislature ended up repealing it altogether. Seattle’s measure also faced legal obstacles after a libertarian law firm sued on behalf of property owners. Citing Supreme Court precedent, it argued that the program was “grossly inefficient, wasted taxpayer money,”and violated the First Amendment because residents’ taxes were going to fund candidates they didn’t support.
In a 2011 op-ed in The New York Times, Lawrence Lessig, a professor of law at Harvard, supported democracy voucher programs saying, “It’s also my money, or your money, used to support the speech that we believe: this is not a public financing system that forces some to subsidize the speech of others.” In response, a blog post from the libertarian Cato Institute called his argument “old wine in new bottles, barely masking the fact that it puts the government in the business of promoting political speech.”
In the case of Seattle, lawyers and political experts predicted that the libertarian argument wasn’t likely to stand in court, and so far they’ve turned out to be right. In November 2017, a Superior Court judge upheld Seattle’s program, ruling that it was a “viewpoint neutral method” for achieving political participation. In other words, it did not violate free speech rights, but corrected for an existing imbalance.
Other cities are showing interest in the idea. This includes Albuquerque, New Mexico, after the McComish decision shut down its public financing, as well as Austin, Texas. Other local governments, including those in Maryland, Oregon, Missouri, and California, are working on campaign finance at the local level. In New York, there are calls to use the city’s ongoing charter revision to strengthen public financing. Given that campaign finance laws at the national level are likely to be further weakened in the future, activists are hopeful that change can take place at the city-level.
Fair Elections Now Act
Democrats in the Senate have introduced a Fair Elections Now Act every year since 2007, and there is a companion bill in the House, called the Government by the People Act .
The following description is taken from the website of Dick Durbin (D-IL), who introduced the Act in the Senate:
The Fair Elections Now Act amends the Federal Elections Campaign Act of 1971 to establish a voluntary method for financing Senate campaigns. The Fair Elections system is composed of three stages:
1) To participate, candidates would first need to prove their viability by raising a minimum number and minimum dollar amount of small-dollar qualifying contributions from in-state donors. Once a candidate qualifies, that candidate must limit the amount raised from each donor to $150 per election.
2) For the primary, participants would receive a base grant that would vary in amount based on the population of the state that the candidate seeks to represent. Participants would also receive a 6-to-1 match for small-dollar donations up to a defined matching cap. After reaching that cap, the candidate could raise an unlimited amount of unmatched $150 contributions if needed to compete against high-spending opponents, as well as contributions from small-donor People PACs.
3) For the general election, qualified candidates would receive an additional grant, small-dollar matching, and media vouchers for television advertising. The candidate could continue to raise an unlimited amount of $150 contributions if needed, as well as contributions from small-donor People PACs. The bill also establishes a “My Voice Tax Credit” to encourage individuals to make small donations to campaigns. The maximum refundable amount for the tax credit would be $25 for individuals and $50 for joint filers. To ensure that the tax credit targets small donors, it is only available to individuals who do not contribute more than $300 to a candidate or political party in any given year.
The bill also creates a type of small-donor political action committee, known as a “People PAC.” In contrast to traditional federal PACs that can accept contributions of up to $5,000 per year from individuals or Super PACs that can accept unlimited contributions, People PACs would only be permitted to accept contributions of $150 or less per election from individuals. People PACs would thus allow average citizens an opportunity for making their collective voices heard. Small donors would be able to aggregate their funds in a People PAC to make campaign contributions of up to $5,000 per election to qualified Fair Elections candidates. Coupled with the Fair Elections public financing system, People PACs would elevate the views and interests of a diverse spectrum of Americans, rather than those of the traditional, wealthy donor class.
Special rules would apply for runoff and uncontested elections. Participating candidates would receive enough funding to compete in every election, without having to spend most of their time raising money.
The Fair Elections Now Act wouldn’t add a dime to the deficit. It would be financed by a 0.5 percent fee on annual federal contracts over $10 million, with a maximum annual fee of $500,000 per contract.
I imagine that the future of these kinds of reforms depend on Democrats gaining control of the House and Senate.
Some groups are working on broader anti-corruption goals, of which campaign finance is a part.
A Better Deal for Our Democracy
In May 2018, Democrats rolled out their campaign platform for the midterms, taking aim at corruption and pay-to-play politics in Washington under the Trump administration.
“A Better Deal for Our Democracy” is a spin on their economic platform, “A Better Deal.” It includes proposals to protect and improve voting rights, new ethics laws, and campaign finance reforms, including policies that would make lobbyists’ activities more transparent and tighten rules around bribery and fraud convictions.
Democrats are focusing on voting rights. Their platform ranges from access to polling places and gerrymandering to concerns about hacking on Election Day. They’re pushing to bolster the Election Assistance Commission’s resources and implement automatic voter registration and gerrymandering reform. House Democrats will propose mandating independent commissions across the country to ensure district lines are not partisan.
2. They’re highlighting corruption and ethics violations in the Trump administration. Democrats plan to hit the campaign trail with policy proposals aimed at tightening lobbying rules.
Among these proposals would be legally requiring presidential candidates to disclose their tax returns. That’s a direct reaction to Trump, who has yet to release his financial records, bucking decades of political precedent and breaking his own promises of transparency.
There is also a proposal that would tighten lobbying rules and institute statutes against former lobbyists becoming Cabinet officials in agencies that have oversight over industries that previously employed them.
3. Democrats take a swing at campaign finance reform. This third pillar focuses on transparency in campaign donors. Sarbanes also cited a proposal that would create a 6-1 small-donor match program — a federal public financing system aimed at bolstering donations under $175.
The Disclose Act
The Democracy Is Strengthened by Casting Light On Spending in Elections (DISCLOSE) Act was first introduced in 2010 In response to the Supreme Court’s decision in Citizens United v. Federal ElectionCommission, and it is a key part of A Better Deal for Our Democracy—the Democratic plan to end corruption in Washington. In June 2018, all Senate Democrats and 145 House Democrats introduced an updated DISCLOSE Act.
The DISCLOSE Act of 2018 takes a number of steps to ensure disclosure of dark money spending. Among those steps is a requirement for organizations spending money in elections – including super PACs and certain nonprofit groups – to promptly disclose donors who have given $10,000 or more during an election cycle. The bill includes clear transfer provisions to prevent political operatives from using layers of shell corporations and front groups to hide donor identities. Among new features of the bill is a “stand by your ad” provision requiring corporations, unions, and other organizations to identify those behind political ads – including disclosing an organization’s top five funders at the end of television ads.
The bill protects against foreign spending in American elections. Under current law, foreign nationals and foreign corporations are prohibited from engaging in any election spending. However, domestic companies with significant foreign ownership are not subject to the same restrictions, and dark money channels are available to foreign interests. The DISCLOSE Act would prohibit domestic corporations with significant foreign control, ownership, or direction from spending money in U.S. elections. Shell corporations would also be required to disclose their true owners. A full summary of the bill is available here. Bill text is available here. Of course, the DISCLOSE Act has no hope of becoming law in the current Congress.
In 2017, California passed a state DISCLOSE Act, which took effect January 1, 2018. The law requires that some form of “paid for by” statement appear on almost every political advertisement. It also requires that ballot measure ads and some outside candidate advertising carry prominent disclosures of the sponsor’s top funders. Finally, the law alters the rules for “earmarked” contributions, with the goal of disclosing the real source of a group’s funds. More controversially, it also allows undisclosed earmarks for certain small contributions of less than $500 per year. Proponents of the Act were initially inspired by the 2010 federal DISCLOSE Act bill that came within one vote of passing but couldn’t break the GOP’s filibuster. They hope that the Act’s success in California will create pressure on Congress and on other states to take similar action.
Sen. Elizabeth Warren’s Anti-Corruption and Public Integrity Act
In August 2018, Sen. Elizabeth Warren released the Anti-Corruption and Public Integrity Act, a wide-ranging new bill designed to reduce Washington corruption and undue influence from lobbying. It goes beyond campaign finance to try to end the influence of money on all three branches of government — legislative, executive, and judicial. The bill would institute a lifetime ban on the president, vice president, Cabinet members, and congressional lawmakers becoming lobbyists after they leave office. It would place restrictions on other government workers entering lobbying firms. The act would also bar federal judges from owning individual stocks or accepting gifts or payments that could potentially influence the outcome of their rulings.
Warren’s bill would require presidential and vice presidential candidates to, by law, disclose eight years’ worth of tax returns and place any assets that could present a conflict of interest into a blind trust to be sold off (neither of which President Donald Trump has done). Members of Congress would have to do the same with two years of tax returns.
Of course, there’s no way Warren’s bill will pass the current Congress. This bill is more of a mission statement as Warren explores a 2020 presidential run, as well as a challenge for other 2020 Democrats.
American Anti-Corruption Act
The American Anti-Corruption Act (AACA) is a piece of model legislation designed to limit the influence of money in American politics by overhauling lobbying, transparency, and campaign finance laws. It was crafted in 2011 by former Republican Federal Election Commission chairman Trevor Potter in consultation with dozens of strategists, democracy reform leaders and constitutional attorneys from across the political spectrum. The Act was unveiled in 2012 and is supported by reform organizations such as Represent.Us, which advocate for the passage of local, state, and federal laws modeled after the AACA. It is designed to limit or outlaw practices perceived to be major contributors to political corruption. Its provisions cover three areas:
- Stop political bribery by overhauling lobbying and ethics laws
- End secret money by dramatically increasing transparency
- Give every voter a voice by creating citizen-funded elections
The AACA’s authors state that its provisions are based on existing laws that have withstood court challenges, and are therefore constitutional. The stated– goal of the Anti-Corruption Act is to serve as “model legislation that sets a standard for city, state and federal laws that prevent money from corrupting American government.” Organizations such as Represent.Us advocate for state and local laws that reflect the provisions of the AACA, often using the ballot initiative process. Since the provisions of the AACA are likely to be found constitutional, this differs from the approach taken by other electoral reform groups such as Move to Amend, which advocate for a constitutional amendment to overturn Supreme Court decisions such as Citizens United v. FEC and Buckley v. Valeo. The AACA has already been influential; the following jurisdictions have passed laws modeled after the AACA: Tallahassee, San Francisco, Seattle, Portland OR, Miami-Dade, South Dakota, and Multnomah County OR.
Anti-Corruption Resolutions are public mandates calling for Anti-Corruption legislation at the state and federal level. On July 14, 2014, Princeton, NJ, “became the first municipality in the country to adopt an Anti-Corruption Resolution sponsored by Represent.Us“. Since then, Anti-Corruption Resolutions have been passed in 54 locales.
You can get involved by joining a chapter or starting a chapter at Represent.us. RepresentUs chapters are local groups of people (like you!) who power the anti-corruption movement. Chapters are strategic and focused on winning real change: RepresentUs volunteers have helped win more than 80 Anti-Corruption victories across America. Chapters start with 3-4 people and have grown to be as large as 30-40 and beyond. Read more. RepresentUs members aren’t waiting for Congress to fix corruption – we’re doing it ourselves by passing Anti-Corruption Acts in cities and states across America. Our members win because they work across the political spectrum to build power in their communities. Conservatives and progressives worked together to pass America’s first citywide Anti-Corruption Act in Tallahassee, Florida in 2014, and in 2016, RepresentUs members passed the first statewide Act in South Dakota (learn more). Now, voters have passed more than 75 Anti-Corruption Acts and Resolutions across America.
Between 2012 and 2017, the MacArthur Foundation made multi-year grants totalling $31.3 million to 45 institutions working on campaign finance reform, elections administration, and voting rights. Their goals were to:
- Advance a modern system of voting administration that will be more cost-efficient and resistant to political pressures;
- Push back against laws that have the outcome of preventing groups of eligible citizens from exercising their right to vote; and
- Advocate for regulation, public dialogue, and programs to lessen the influence of money in politics.
The first group of grantees in March 2012 included the Center for Responsive Politics, known for its comprehensive databases and research on money in politics, particularly federal campaign contributions and lobbying networks; and the National Institute on Money in State Politics, which compiles campaign finance data for thousands of state-level candidates and develops best practices for transparency. Both organizations offer training to journalists seeking to understand the labyrinthine paths of political influence and donations. A later partner was MapLight, a source of data showing what it calls a “pattern of influence” between campaign money and government policy.
They also supported the Campaign Legal Center, which tracks the burgeoning array of state laws on campaign finance and voting rights, launching court challenges to measures likely to narrow the franchise or tilt the political playing field away from ordinary citizens. The Democracy 21 Education Fund received support for its work in favor of campaign finance reform, and the Democracy Program at the Brennan Center for Justice for its multidisciplinary research, legal, and communications work in favor of voting rights, campaign finance reform, and equitable election processes. They supported the ACLU Center for Equality for its work on voting rights, and Justice at Stake, which aims to reduce special interest pressure and partisan attacks on the judiciary. The program also contributed to the work of the Aspen Institute’s Congressional Program, designed to inform lawmakers and encourage open discussion beyond Capitol Hill.
Voting rights, particularly for citizens of color, were at the core of a group of grants announced in August 2012. Mindful of intensifying efforts by state legislatures to impose stricter regulations under the guise of virtually non-existent voter fraud, they supported an array of organizations that labored to make voting more accessible and fair. These groups included the League of Women Voters Education Fund, the “next generation civil rights organization” Advancement Project’s Voter Protection Program, and the Lawyer’s Committee for Civil Rights Under Law, as leader of the Election Protection Coalition.
More efficient voting systems would mean shorter lines and less confusion on Election Day. Sharper ballot design plus more secure and reliable voting machines would increase the likelihood that every vote will be counted. The program supported the Verified Voting Foundation, a group focused on safeguarding elections in the digital age, and the Humphrey School at the University of Minnesota’s Election Academy created Field Guides for Ballot Design for use by elections officials. Democracy Works aims to increase turnout by streamlining voting procedures and helping eligible citizens vote by sending alerts, or reminding them to vote by mail. They supported Project Vote’s Elections Administration program, created to remove barriers to registration and voting, as well as the ambitious elections technology project run by the National Conference of State Legislatures. The Pew Charitable Trusts’ Election Initiatives developed a network of county and state elections’ officials, major technology companies, academic experts, and others who work together to examine pressing elections problems, share successful practices, and undertake projects to help states implement efficient and cost-effective voting process improvements.
Support to the State Infrastructure Fund at NEO Philanthropy allowed them to work with other foundations to support a set of organizations working at the state and regional level in support of civic engagement and voting rights.
After the Supreme Court invalidated Section 5 of the Voting Rights Act in the Shelby County v. Holder decision of 2013, it became apparent that there was a growing need for more oversight of voting law changes, and for a response on the part of the legal community. In December 2015, they provided $1 million in inaugural support to help establish the Voting Rights Institute, developed by the Campaign Legal Center and American Constitution Society and housed at Georgetown University’s Law School – the United States’ first and only legal clinic devoted to voting rights. The Institute’s website allows people to report voting law changes in their communities, and Institute staff provide trainings for attorneys across the United States to develop the next generation of voting rights attorneys.
In 2014, the Campaign Legal Center received a MacArthur Award for Creative and Effective Institutions grant to apply their legal expertise to reduce the corrosive influence of money in politics.
Use of Media to Influence Elections (see blog October 2018)
The main reason candidates have to raise so much money to get elected is the enormous cost of campaign advertising. U.S representatives have a re-election campaign every two years, U.S. senators every six years, and the president has one or two four-year terms. Terms for state and local offices vary, but candidates for elected positions, even for judgeships, have to campaign.
Issues involving digital platforms
Another media issue is disclosure, especially for digital platforms. In the absence of clear guidelines from the Federal Election Commission (FEC), digital platforms such as Facebook and Twitter have been able to avoid revealing buyers of political ads. The lack of regulation makes it more difficult to determine who may be legally and illegally buying digital messaging. “It makes it difficult to monitor whether political advertisers are complying with the law,” said Brendan Fischer of the Campaign Legal Center. “It makes it harder to counter false messages….It makes it much harder to hold candidates accountable if they’re elected.”
The tech companies, under pressure because of alleged Russian meddling in the 2016 election, have begun moving toward increased disclosure. Mark Zuckerberg and other Facebook executives said the platform was taking steps to increase transparency and disclosure of political ads on Facebook. Days before that, Twitter announced a similar policy. Facebook said that enforcement of its new Political Ads policy would begin in May, 2018.
Facebook also launched a new initiative to help provide independent, credible research about the role of social media in elections as well as democracy more generally. It will be funded by several foundations and, in consultation with the funders, Facebook will invite respected academic experts to form a commission which will then develop a research agenda about the impact of social media on society, starting with elections. Goals are to understand Facebook’s impact on upcoming elections, such as in Brazil, India, Mexico and the US midterms, and to inform future product and policy decisions.
A second very serious problem with media, especially the digital platforms, is censorship. Facebook is fighting “fake news” by using third-party fact-checkers. If the fact-checkers rate a story as “false,” then Facebook reduces its distribution. The reason this practice is controversial is because the third-party fact checkers are often biased. For example, when Facebook selected the right-wing magazine The Weekly Standard as an official fact-checking partner, progressives warned that the conservative publication would use its power to suppress accurate articles published by center-left and left-wing outlets. And apparently this is exactly what happened. Several popular left-leaning and progressive content creators on Facebook have either been booted from the site with no clear explanation as to why, or they have seen their traffic take a nose dive after being erroneously flagged as fake news. While it’s true that right-wing extremist Alex Jones of Infowars was also booted off, progressives believe that booting anybody is a mistake, since censoring free speech is always anti-democratic. And of course, Alex Jones’ hate speech is not the equivalent of accurate reporting by left-leaning journalists.
The same kind of censorship is also reported at Google. Progressive websites say they’re being unfairly penalized by Google’s efforts to stamp out fake news. A number of left-liberal and socialist websites appear to have been impacted negatively by Google’s adjustments. Andre Damon, who has written a number of articles on the subject for the World Socialist Website, accuses the search giant of intentionally trying to silence leftist voices.
“Not only are people being essentially blocked from accessing leftist viewpoints, they are not even being told they exist,” he said. “Utilizing tools from Google, a web analytics company called SEMrush, and other methods, Damon calculated that between April and September, 2017, search result traffic to the World Socialist Website has dropped 45 percent. He found similar declines at several other left-leaning sites, including AlterNet, Democracy Now!, Common Dreams, and Truthout, all of which have editors who review articles for accuracy before they are published. Google’s undermining of progressive journalism means those sites have lost a major chunk of audience and as a result are looking at big potential losses in ad revenue.
But the tech giants’ attempts to self-regulate haven’t stopped federal, state and local governments from proposing their own regulatory measures ahead of the 2018 midterms.
On March 26, 2018, the FEC published a Notice of Proposed Rulemaking (NPRM) seeking comment on proposed revisions to the disclaimer regulations as applied to public communications over the internet. Although some witnesses testified against additional regulations on free speech grounds, most witnesses supported the Commission’s adoption of revised rules to address disclaimers on internet ads. As of this writing, no further action has been taken.
The move follows similar legislative attempts by Senators Amy Klobuchar (D-Minn.), Mark Warner (D-Va.) and John McCain (R-Ariz.), who introduced the Honest Ads Act in October 2017. The bill, which also had a companion in the House, would require digital platforms like Google, Facebook and Twitter to release information about the purchasers and targets of online political ads, and require those ads to be made publicly available.
A third issue with digital media involves the rates charged. While there are rules regarding rates paid for political advertising on traditional media, the rules don’t apply to digital media. For example, there were complaints that Facebook charged Clinton more than Trump for political ads. This could not have happened with traditional media because The FCC’s rules for radio and TV ads require that all candidates for political office receive equal time, cost, and treatment as their opponents and also equal to other businesses buying ad time. In addition, the ads must make it clear to the viewers who purchased the ad and whether or not the ad is part of the candidate’s campaign effort.
Who owns the airwaves?
It has been suggested that one way to solve the campaign finance problem is to require radio and TV stations as well as digital media to provide free air time for political ads the way they do in some other countries. After all, don’t the taxpayers own the “public” airwaves and the Internet? By law they do, but you would never know it.
The Radio Act of 1927 declared the airwaves a public resource. As the Federal Radio Commission (FRC), forerunner of the Federal Communications Commission (FCC) explained, “the station must be operated as if owned by the public.”
The U.S, could have created something like the British Broadcasting Company (BBC), which is required to be free from both political and commercial influence and to answer only to its listeners. The BBC may not show commercial ads on TV, radio, or on the Internet in the UK. It receives its funding from a license fee paid by buyers of radio and TV sets, and it is expected to produce programs that commercial broadcasters normally would not.
The U.S. rejected the BBC model and opted instead for commercial broadcasting on privately owned stations. But the frequencies were public, as specified in the Radio Act of 1927. Broadcasters did not pay for their station licenses and they received no property rights to the frequencies. The renewal of their licenses was supposed to depend on how well the station served the public interest. As the (FRC) explained, “the station must be operated as if owned by the public…It is as if people of a community should own a station and turn it over to the best man in sight with this injunction: ‘Manage this station in our interest…’” The Commission made clear there was no room for “propaganda stations” as opposed to “general public-service stations”.
In 1930 the FRC denied a license to a Los Angeles station used mainly to attack Jews, Catholics, and law enforcement because the station was not operating in the public interest.
In 1949, the FCC introduced the Fairness Doctrine: Broadcasters had to devote “a reasonable percentage of time to coverage of public issues; and [the] coverage of these issues must be fair in the sense that it provides an opportunity for the presentation of contrasting points of view”.
In 1959, Congress affirmed the Fairness Doctrine, and in 1969, the Supreme Court upheld its application. In 1974, the FCC called the Fairness Doctrine “the single most important requirement of operation in the public interest….”
When Ronald Reagan became president in 1980, the rules for broadcast licenses changed. The FCC eliminated the requirement that licensees provide detailed program information as the basis for license renewal. In 1984, the FCC eliminated programming guidelines that set minimums for news and public affairs programming, and stopped enforcing the Fairness Doctrine. When citizens groups sued to reinstate the doctrine, Appeals Court Judges Robert Bork and Antonin Scalia, two Reagan appointees, concluded that the Fairness Doctrine itself was not a law but a guideline. In August 1987, the FCC unanimously decided that the Fairness Doctrine was contrary to the public interest.
Congress then stepped in. The House voted by an overwheming 3-1 margin and the Senate by a margin of almost 2-1 to pass a bill that clarified that the Fairness Doctrine was indeed the law. However, Ronald Reagan vetoed the bill and there were not enough votes in the Senate to override the veto.
Radio, and then television, became a one-sided political voice. Rush Limbaugh’s right-wing talk radio show was syndicated and marketed by offering it free of charge to stations across the nation. Within weeks, 56 stations had picked up the show; within four years over 600 stations were carrying it, the fastest spread of any talk show in history, and others imitated Limbaugh’s format. In 1993, the Democratic Congress and newly elected Democratic White House revived the effort to make the Fairness Doctrine law. Limbaugh mobilized his listeners and the bill never came up for a vote
In 1994, talk radio made itself felt in national elections. When the Republicans stunningly captured the House of Representatives that year, for the first time in almost 40 years, Newt Gingrich called it “the first talk radio election.” In early 1995, the Republican Party held a special ceremony in honor of Limbaugh, naming him “an honorary member of Congress.” They dubbed him, “the majority maker.”
The new conservative majority led to waves of giveaways to powerful media corporations, the outright sale of frequencies, and the reversal of the foundational rules of the airwaves, nearly wiping out any acknowledgment that the airwaves belong to the people and should be managed as a public trust.
Talk radio has changed the nature of political discourse, and some say it has changed our very culture. Media scholar Henry Giroux describes a “culture of cruelty” increasingly marked by racism, hostility and disdain for others coupled with a simmering threat toward any political figure who comes into the crosshairs of what many now call hate radio.
Seventy five years after the Federal Radio Commission declared no room on the public airwaves for “propaganda stations” and denied a license renewal to a station that attacked Jews and law enforcement agencies, the air waves are filled with both propaganda and venom. Today the airwaves, stripped of commons rules, feed hatred.
Since election laws are affected by who is in power and the judges they appoint as well as who owns the airwaves and other historical issues, American political campaigns are quite different from campaigns in other democracies.
As we have seen, the United States does not provide free air time to candidates. The UK, France, and Germany, by contrast, ban paid political advertising and instead offer a certain amount of free broadcasting time during election periods. Allocation, length and frequency of political advertisements are decided and enforced by independent or state regulators. Provision of free air time to parties and candidates relative to their electoral influence gives media access to smaller players, creating a more level playing field. This type of regulation is considered necessary to control the corrupting influence of big money on politics.
Of course, the explosion of social media has both decreased the influence of print and broadcast media and opened a new platform for candidates all over the world. Efficiently regulating digital media to create equal access for parties and candidates is a challenge everywhere
Overseas election campaigns also tend to be much shorter than ours. The UK’s 2015 election lasted 139 days, and Canada’s longest election lasted just 78. In Japan, campaigns are limited to 12 days by law. But here in the United States, the Supreme Court has struck down most limits. Their decisions were usually along party lines, suggesting that we would have quite different election laws if we had a different court.
The media is in a state of flux. On the one hand, media consolidation has reduced the number of perspectives that are represented and made sure that the mainstream media present the corporate point of view. On the other hand, the rise of the Internet has undermined the finances of print media, so it has fewer resources for things like investigative journalism. The administration in Washington considers the mainstream media to be “fake news” and “the enemy of the people,” and journalists are regularly threatened by the right wing. The ongoing threat sometimes leads journalists to censor themselves.
The rise of the Internet has allowed citizen journalism and alternate news, both right and left, to flourish, but now those alternate sources are experiencing censorship, making it harder to access non-corporate points of view. Who knows how it will all shake out? We live in interesting times.
Media reform means trying to refocus the media toward an agenda that serves the public more than it serves corporations and politicians, and includes the voices of marginalized groups. Following are some organizations that are working toward media reform. Most offer opportunities for involvement.
The Center for Media Justice (CMJ) was launched in 2008 to organize the most under-represented communities into a national movement for media rights, access and representation. Today, CMJ coordinates MAG-Net – the largest racial justice network for media rights, access, and representation in the United States, and remains a powerful network hub, winning racial equity through media policy change. They organize a national membership of affiliate groups, mobilize and support media justice campaigns, and strengthen the power of social justice movements to win the media representation they deserve through research, training, and strategic convening.
If you opt in to their list, you’ll receive: opportunities to take action, urgent policy updates, and news, events, and resources impacting media and digital rights for communities of color, low-income families, and other under-represented people.
FAIR is a national media watch group that has been offering well-documented criticism of media bias and censorship since 1986. They work to invigorate the First Amendment by advocating for greater diversity in the press and by scrutinizing media practices that marginalize public interest, minority and dissenting viewpoints. As an anti-censorship organization, they expose neglected news stories and defend working journalists when they are muzzled. As a progressive group, FAIR believes that structural reform is ultimately needed to break up the dominant media conglomerates, establish independent public broadcasting and promote strong non-profit sources of information.
Uniquely, FAIR works with both activists and journalists. They maintain a regular dialogue with reporters at news outlets across the country, providing constructive critiques when called for and applauding exceptional, hard-hitting journalism. They also encourage the public to contact media with their concerns, to become media activists rather than passive consumers of news.
FAIR’s Action Alert network is a powerful activism tool that encourages the public to become critically engaged with media. FAIR distributes timely, focused reports via email, critiquing a particular instance of media inaccuracy or bias, and encourages members to communicate directly to journalists to demand more responsible reporting. With the help of readers and podcast listeners, FAIR has forced rewrites of stories, propelled important but under-reported stories from the sidelines to the mainstream and succeeded in getting different perspectives into the news. Get involved in the FAIR fight for better media coverage – sign up today.