When "Please Vote" Becomes Political

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Under federal election law so-called "express advocacy" messages expressly advocate for candidate X. For example, if a famous celebrity publishes an advertisement that says "Please vote for John Doe," he would have engaged in express advocacy. Any funding used to promote that message would be strictly regulated.

Now, let me modify the hypothetical. That same celebrity is a known supporter of John Doe. The celebrity has given the maximum contribution to John Doe, to John Doe's political party, and to various advocacy groups that support John Doe. The celebrity has appeared at public rallies in support of John Doe and has hosted fundraisers for John Doe. More importantly, the celebrity has repeatedly criticized John Doe's opponent. The night before the election, this celebrity sends a two word message to his millions of followers on social media: "Please vote." The celebrity doesn't mention the name of a candidate, or even what race he was referring to. He only tweets, "Please vote."

This message would be clear to anyone who knows about the celebrity: he is urging people to vote for John Doe, with a wink and a nod. The celebrity is certainly not urging people to vote for John Doe's opponent, who he has publicly criticized. Under federal election law, this message would not be "express advocacy" or "issue advocacy."

This hypothetical, of course, is not a hypothetical. Countless celebrities have been urging people to "please vote." The NBA and other sports leagues urge people to "please vote." The message is persistent. None of these entities want people to vote for Trump. They all want people to vote for Joe Biden. It is painfully clear.

I am not urging any reforms to campaign finance laws. Much to the contrary. This hypothetical illustrates how easily these rules can be evaded, with a message as innocuous as "please vote."

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  1. Privileged entities, such as sports franchises, churches, and schools, should lose their privileges for any political utterance, including, please vote.

    1. Exactly what “privileges” are you imagining that sports franchises have that they should not have if they make political utterances? I’m sorry Dallas Cowboys, you’re not allowed to play football any more, because Jerry Jones said something about players supporting social justice causes. Isn’t it enough punishment that the Cowboys have to be in the NFC East?

  2. I suppose the takeaway I have, from this hypothetical, is that it’s awful peculiar that some right-wing hack can observe that a neutral message like “Please vote” is implicitly an endorsement for the Democratic candidate, but their main critique is about campaign finance laws – and not, say, the moral corruption of Republicans.

    1. Nearly everyone would agree that in evaluating a statement or promotional message, it is appropriate to “consider the source.” Indeed, there were a number of instances in which Trump family members or associates were taken to task by the media nannies over relatively innocuous, but somewhat questionable statements about properties or products associated with the Trump family. This is not really different: “please vote” from a speaker known to support one candidate strongly can be presumed to be advocacy.

      Should that be considered punishable? I do not think so, but then I thought (and still do) that Citizens United was a fine decision, based as it was on an expansive understanding of the first amendment.

  3. This message would be clear to anyone who knows about the celebrity: he is urging people to vote for John Doe, with a wink and a nod. The celebrity is certainly not urging people to vote for John Doe’s opponent, who he has publicly criticized.

    I don’t see how that follow in the slightest.

    1. Prof. Blackman would claim to be unable to see it, too, if the context involved clergy at clinger churches.

    2. Yeah, by this logic “please go see my new movie” is also electioneering.

      1. By this logic, “please go to the movies” is electioneering.

  4. When rules are that easily evaded, perhaps it’s a clue that you should reconsider the rule.

  5. Actually there is a much better and more blatant example of this exact theme. Start by having a private social media company censor your opposition. Then, any complaint of bias can be met with the standard “but they are a private corporation” excuse. As a reward, funnel the private company massive amounts of cash by taking out “neutral” go vote messages funded with public funds

    Then all you have to do is have your usual partisans drool a bit on social media and claim you are a Qanon believer if you notice them gaming the system with cash from the public purse.

    1. I thought the whole point was that there is perfect competition everywhere in the economy, so that discrimination on the basis of anything, including political POV, can be solved by customers taking their business elsewhere? Or am I misunderstanding something about libertarianism?

      1. I think the characterization of perfect competition existing isn’t in the minds of libertarians but is more a staple of the usual dishonest crowd trying to build a nice strawman to burn. An actual honest libertarian point would be that as competition approaches perfect the more likely the problem is to actually be solved.

        This might come as a total shock to you, but pumping public funds that were seized by threat of force into a private entity is not exactly an expression of “perfect competition” regardless of the talking points of sophists.

        1. The actual libertarian answer isn’t to assume that perfect competition exists, but rather, that a large unserved market provides an opportunity for somebody to go seize and monopolize. So, for example, Fox News had an opportunity to take the market of news for people who wanted to hear about the superiority of their preferred ideology when all the existing news providers were reality-based instead.
          so, the theory goes, there’s a huge market share out there for anyone who can build a functioning social media platform that censors liberals but lets conservatives spread whatever lies/conspiracy theories the misleadership wants to spread.

      2. The last time conservatives successfully “took their business elsewhere” and started up a new company to compete with the ones they saw as biased, they got Fox News, which has been wildly successful by all counts.

        For some reason though, this lesson hasn’t stuck, and they refuse to try it again. Instead, they just whine that tech companies aren’t nice enough to them. On the platforms provided by the tech companies. To an audience of millions, who the tech companies connect them to free of charge.

        There’s a reason it’s hard to take the complaint seriously.

        1. All they have to do is cancel their memberships and demand full refunds. If enough of them do this, the tech companies will have to take notice!

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  8. That’s an interesting hypo but it’s far from clear these people don’t want everyone to vote. People often simultaneously believed they have a deontic responsibility to try and convince others to vote even if they vote for the wrong guy. Also, surely any law must allow for people to read it and decide they will comply which is ultimately why CU is a great decision.

    1. Exactly right. Moreover, these people may think that distinct values happen to be practically aligned in this case (i.e., civic participation is good, but high voter turnout will also favor my party).

      Also many of these people are likely saying “please vote” not because they’re worried about election law but because they don’t WANT to be explicitly partisan.

  9. Maybe the real issue is why is there a problem with advocacy? But I am not the one running around trying to claim every action or word that helps a candidate has a cash equivalent, and thus can be banned or fined under campaign finance laws.

    We shouldn’t even be having this discussion in a free country.

    1. A free country does not have any stinkin’ democracy.

      1. A free country doesn’t have anything else.

  10. “I am not urging any reforms to campaign finance laws. Much to the contrary. This hypothetical illustrates how easily these rules can be evaded, with a message as innocuous as ‘please vote.'”

    Yeah, but that’s OK. The cost to enforce such strict compliance would do more harm than good. Plus, we’re not children. We don’t need the battleship of the state to bring the heavy guns to bear on mere winks and nods.

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  12. There is certainly a slippery slope once you’ve decided that speech needs to be limited. Some hypotheticals.

    1) Someone sends a text “Please vote” to a list of people identified to be very likely to vote for a particular party. (Probably most people would call this partisan political speech).

    2) Someone posts “Please vote” to a group that is ostensibly nonpartisan, but whose members tend to lean one way or the other, like a college student body or NRA forum.

    3) Someone posts “Please vote” to their own twitter followers, knowing that they tend to lean one way or the other.

    As you move down the list, the comments are less obviously slanted, but they’re all on the same continuum.

  13. This seems like a weak argument to me. Isn’t it just as reasonable to read the “please vote” message from the hypothetical celebrity as communicating, “I would vote for candidate X, but want you to just vote, even if that means voting for candidate Y”?

    There’s no wink or nod here. Almost everyone prefers one candidate to another in any given race they are knowledgeable about; that doesn’t somehow transform an exhortation to vote into a political message for the preferred candidate.

    1. The vast majority of American voters do NOT vote the way they do because somebody famous asked them to support their candidate(s). They DO vote based on the little letters next to the candidates’ names, but that isn’t illegal (yet). In an ideal world, disclosing membership in a political party would be considered disqualifying for government office. Alas, I’m well aware that this world is NOT ideal.

  14. After the lessons of this 2020 election, I look toward the Democrats as embracing voter suppression as a strategy for the 2024 election.

    They were shocked to learn that get-out-the-vote movements get red voters as well as blue ones.

    1. Yes, I can see how Democrats may not have anticipated that someone can set the country and its constitution on fire for four years and still get more votes than the last time.

      1. You’re assuming that everyone judges the performance of elected officials by comparing what they do to what they WOULD do if they were good at their job. The thing is, Trump voters like him because he drives the libs nuts, and he caters to them by breaking things the libs like, such as, say, the federal government, and American prestige overseas.

    2. Or, and I’m just spit-balling here, it could be because Democrats value our democracy and want to encourage participation in the hopes that we remain an actual democracy.

  15. If you want to make this argument, then the Trump admin just added a huge fucking pile to it’s already huge fucking pile of Hatch Act violations.

  16. Can’t we all just agree that this is one of many stupid election laws, and people should be able to expressly advocate for whomever they want using whatever resources are at their disposal?

    1. Yeah, I don’t see anything morally or ethically wrong with a police cruiser blaring it’s sirens in the middle of the night in urban neighborhoods while shouting “Vote Republican” on the loud speaker.

      Or do you not consider those “resources […] at their disposal”?

      1. I was talking about the speech of private citizens, not the government. Thought that was pretty obvious.

        1. Free speech restrictions on the political speech of government employees outnumber those on any other Americans, so no, it really isn’t obvious that when you said “people should be able to expressly advocate for whomever they want using whatever resources are at their disposal?” that what you meant was “people [who aren’t government employees] should be able to expressly advocate for whomever they want using whatever resources are at their disposal?”

    2. “Can’t we all just agree that this is one of many stupid election laws, and people should be able to expressly advocate for whomever they want using whatever resources are at their disposal?”

      It’s odd to see someone coming out in favor of the rioting and looting

  17. It’s sad if encouraging everyone to vote has become a partisan message. It’s sadder that there’s a political party whose primary campaign strategy this year has been to prevent many people from voting.

    1. “It’s sad if encouraging everyone to vote has become a partisan message. ”

      Encouraging people NOT to vote is definitely a partisan thing.

  18. “The celebrity is certainly not urging people to vote for John Doe’s opponent, who he has publicly criticized.”

    I don’t see how someone could be certain about that at all. But if you require a partisan explanation to make that lack of certainty believable…

    Consider that there are far more registered Democrats than Republicans in the country. And the number of “Democrat leaning” independents is similarly large. If everyone votes, regardless of party, there should then be more votes for Democrats than Republicans and Libertarians (and Greens, and bizzaro parties.)

    Perhaps this is why Democrats support the “democratic” portion of our “democratic republic” and Republicans are more focused on the “republic” portion and limiting people’s right to vote.

    1. Getting all the Democrats and independents to vote might be expected to produce a Democratic victory, but it doesn’t always, as anyone who can remember back to 1984 will attest. Give them a popular Republican, and some of them will jump ship. Donald Trump is NOT a popular Republican, as St. Ronnie was.

  19. There is no restriction on Lebron James expressly advocating on his social media sites for his followers to vote for Biden (unless he is somehow coordinating with the campaign). This is an entirely made-up issue. And, also, plenty of people think it is a good idea to encourage people to vote without regard to whom they are voting for.

    1. Shut up and dribble.

      (this is directed at Donald Trump, not Lebron James.)

  20. Obviously, people have a stated preference between two candidates can’t ALSO have a preference for election decided by polling all the voters, that would be CRAZY.

    Similarly, people can’t advocate for free speech if they have political preferences, because obviously they don’t mean that their political opponents should be free to speak.

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