By Jon Schweppe –
Last week, Big Tech crossed a line. The largest corporations in the country are now brazenly colluding with the Democratic Party in an un-American attempt to rig the election and ensure that Joe Biden defeats President Trump in two weeks. Republican politicians who have previously run interference for Big Tech suddenly have no choice but to fight back. Fortunately, they have plenty of tools at their disposal to do this — even in the very near-term — because these companies are quite obviously breaking the law.
Enforce Campaign Finance Law
Let’s start with the best short-term solution. Under U.S. campaign finance law, it is illegal for corporations to contribute to candidates or parties unless they form a Political Action Committee (PAC) and contribute directly from the PAC. It is also illegal for corporations to provide any sort of in-kind contribution to candidates or parties — in other words, a non-cash contribution of a good or a service. In-kind contributions are to be valued at their fair market value.
One of Facebook’s well-paid lawyers might suggest that the “fair market value” for access to a free service is $0. That would be true if the service was equally accessible to all political actors and if all political content was treated equally. But by promoting some candidates, parties, and political messages, and censoring others, the platforms inadvertently create material value to their service where there may have been none previously. Campaigns that have access to a platform’s bevy of users will gain a measurable advantage over campaigns that do not. Parties that are provided free, unencumbered use of a platform realize significant value when that same platform is denied to their opponents.
Similarly, when a platform like Facebook removes negative advertisements against a particular candidate, that candidate enjoys a material financial benefit that will translate directly into votes. Last month, my organization’s affiliated PAC, the American Principles Project (APP) PAC, was censored by Facebook when the company pulled one of our political ads running in Michigan. The reason? A “fact-checker” had dubiously ruled the ad was “missing context.” Our organization roughly estimates the value of removing that particular ad to be worth an in-kind contribution of at least six figures to the campaigns of Biden and Democratic Michigan Senator Gary Peters. That contribution translates to a swing of several thousand votes in a battleground state. APP PAC isn’t alone. A number of organizations — including the pro-life Susan B. Anthony List and the Trump campaign itself — have found themselves in the same situation in recent weeks.
So what do Republicans do about it? For starters, Senate Majority Leader Mitch McConnell (R-Ky.) should schedule a vote for President Trump’s nominee to the Federal Election Commission (FEC). The FEC currently has only three seated commissioners out of a possible six. Four are needed to establish a quorum to do business — and there’s going to be a lot of business.
On Friday, the RNC announced they were filing a FEC complaint against Facebook and Twitter. Republican campaigns across the country should follow suit and file FEC complaints every time Facebook, Twitter, or any other Big Tech company censor anything election-related, whether it be a news story, a viral post, or a political ad. If there’s a case to be made that the act of censorship provided a material benefit to the Democrats, report it. Meanwhile, Republican lawyers need to get even more aggressive — the FEC isn’t going to act before Election Day. It’s time for some creative lawsuits, given that the companies are providing so much ammunition.
Oh, and let’s not forget about Google. While Facebook and Twitter seem to be tapping into their inner Leeroy Jenkins these days, Google is just as busy interfering in the election — but they’re doing it in a much more sophisticated way. The Wall Street Journal has previously reported on Google’s subtle manipulations of their search algorithm to control what users see and suppress certain terms and articles. In retrospect, the search engine’s purge of Breitbart News earlier this year was just another canary in the coal mine. Renowned psychologist Robert Epstein estimates that Google swayed 2.6 million votes toward Hillary Clinton during the 2016 election — it’s fair to assume the company will top that number in 2020.
If we somehow manage to thwart Big Tech’s plan to rig the election, install Joe Biden, and destroy our republican form of government, we will need to use our political power to make sure they never have the opportunity to have such an outsize influence on the campaign process ever again. There are several ways to do this.
Enforce President Trump’s Executive Order on Section 230
In May, President Trump signed an “Executive Order on Preventing Online Censorship.” The goal of the executive order is to significantly weaken — or at least condition — the immunity from civil liability provided to the Big Tech companies by Section 230, a law passed as part of the Communications Decency Act in the 1990s.
There are two key provisions in Section 230. One provides companies with a protection to avoid legal responsibility for user-generated content on their platforms. The second provides them with a protection for the “good faith” removal of “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable” material, “whether or not such material is constitutionally protected.” Courts have granted supremacy to the first provision, basically making the “good faith” provision irrelevant, an interpretation of the law which was called into question recently by Justice Clarence Thomas. In short, under this interpretation of the law, Big Tech companies can remove any content they want — “otherwise objectionable” allows for nearly any justification — and they can’t be sued for it.
Trump’s executive order would read into the law more importance for the second provision, thus conditioning the platforms’ immunity on their acting in “good faith” — i.e. requiring that they apply their terms of service fairly, adequately explain moderation decisions, stop discriminating on the basis of viewpoint, etc.
There’s still a long way to go on in terms of enforcing this executive order, but the process is moving along. Recently, as directed by the President, the U.S. Department of Commerce petitioned the Federal Communications Commission (FCC) to clarify any ambiguities in Section 230. FCC Chairman Ajit Pai announced last week that the commission had agreed to proceed with rulemaking.
Pass a Legislative Rewrite to Section 230
A number of Republicans, perhaps most notably Republican Missouri Senator Josh Hawley, have come up with proposals to rewrite Section 230 by conditioning the immunity provided to these companies. Earlier this year, my organization, American Principles Project, also came out with a proposal to amend the statute. If Republicans win and decide to do this next year (and they should!) they should make sure to include three important provisions:
A requirement that Big Tech platforms adhere to a “First Amendment standard” with regard to content moderation in order to continue to receive immunity;
- A market dominance test to protect “Small Tech,” innovators, and ordinary users from losing immunity under the law;
- An enforcement mechanism, such as a private right of action, to ensure that Big Tech is actually held accountable and could face stiff penalties if they continue to discriminate on viewpoint.
Classify Social Media Platforms as Common Carriers
“Common carriers” are required under U.S. law to provide their goods or services to all who are willing to pay. They certainly can’t discriminate on viewpoint the way Big Tech companies do. We regulate a number of industries as “common carriers,” including utility companies, airlines, and the telecommunications industry. Why should Big Tech be any different?
As Matthew Stoller, author of Goliath: The 100-Year War Between Monopoly Power and Democracy recently tweeted: “It’s ridiculous to assert tech platforms have a free speech right to control how users engage with their platforms. These are common carriers, not speakers.”
Break Up Big Tech
And finally, of course, there’s the “nuclear” option: enforcing Antitrust law and breaking up the largest companies in American history. Earlier this week, the Department of Justice filed its highly anticipated suit against Google.
While conservatives and Republicans have been understandably reluctant to consider aggressive government action to curb activity by private companies, Big Tech’s frightening power grab is an extraordinary circumstance which ought to necessitate such action. The overwhelming ability that these tech giants have to manipulate public opinion and control what enters the national discourse — and ultimately affect election results — is unprecedented. And the threat they pose to our free society is real.
If Republicans truly care about preserving America’s republican form of government, they must confront head on the dangerous overreaches of Big Tech. Rhetoric, floor speeches and hearings alone will not do. Silicon Valley must be put on notice that if they attempt to abuse their power to the political benefit of a particular party or movement, they will be made to pay a price. There is simply too much at stake to avoid this fight.
Jon Schweppe is the director of policy and government affairs at American Principles Project. He is co-author of “Protecting Free Speech and Defending Kids: A Proposal to Amend Section 230” and the newly released report, “Black Lives Matter & The BREATHE Act.” He is also a 2020 alumnus of the Claremont Institute’s Lincoln Fellowship. Follow him on Twitter @JonSchweppe.
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