In the News
Washington Examiner: Trump will get great advice on the First Amendment
By David Keating
The flag is a symbol of our nation, the best in the world, and our freedoms. But burning it is also free speech…
While the First Amendment is always under assault, two key members of the incoming Trump administration are good friends of free speech.
Vice President-elect Mike Pence is one. He proved this in 2006 when he was one of just 18 Republicans to vote against a GOP-backed bill aimed at shutting down Democratic-leaning advocacy groups. Not only did Pence vote against the bill, he tried to get his colleagues to join him in opposing the measure.
Over Thanksgiving weekend, Trump named Don McGahn as his White House counsel. McGahn did a fantastic job when he was on the Federal Election Commission. He successfully implemented many meaningful reforms there to protect due process rights and free speech. You won’t find a stronger advocate for First Amendment free-speech rights than McGahn.
Trump’s tweet is disturbing. But knowing that he’ll get advice on free speech from Mike Pence and Don McGahn makes me feel a lot better.
CCP
At present, confusion as to the proper application of two decisions – Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) and Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam) – has led lower courts to “treat[ ] speech, a constitutional right, and transparency, an extra-constitutional value, as equivalents.” Van Hollen v. Fed. Election Comm’n, 811 F.3d 486, 501 (D.C. Cir. 2016). This appeal, which comes to this Court as part of its mandatory docket, presents an opportunity to squarely address whether the genuine discussion of issues, unconnected to any campaign for public office or other electoral contest, may constitutionally trigger mandatory reporting to the government, including the public disclosure of a nonprofit’s donors.
By Luke Wachob
What do activists do when the government isn’t prioritizing their cause? What does the head of a federal agency do when she doesn’t get her way? What do “good government” crusaders do when corruption is uncovered in their state? When the cause that unites them is “getting money out of politics,” you might be surprised.
This Issue Brief tells the alarming story of radical activists and government leaders pushing for new restrictions on political speech in the wake of Citizens United v. FEC – and doing so in the most bizarre ways imaginable. From unsanctioned protests at the Capitol, to quixotic presidential campaigns, to attempting to amend the First Amendment to the Constitution, these so-called “reformers” are far more extreme than they first appear.
“Drain the Swamp” Means Different Things for Trump Supporters and Speech Regulation Supporters
By Joe Albanese
It seems that Trump’s critics are most upset that he is deviating from their very specific notion of what draining the swamp ought to entail: greater regulations governing campaign finance, restrictions on lobbyist and donor influence, and fewer wealthy appointees. That is, items that would already be on the political agenda of the “reform” lobby regardless of who the next president is. (And, notably, items that Trump voters rejected when they were included in Hillary Clinton’s platform.)
One should not confuse the universal goals of fighting corruption and improving politics with the particular policy proposals promoted by today’s “reformers.” After all, political spending and lobbying are essential methods of participating in government, which is why the First Amendment protects them. And conversations with Trump voters show that not everybody has the same idea of what makes DC “swampy,” or what to do about it.
Events
NYU School of Law Sidley Austin Forum (ICYMI)
Vice President Joe Biden will deliver remarks at the inaugural Sidley Austin Forum hosted by NYU School of Law at NYU Washington DC. The day-long program titled A New American Political System? will feature a range of nationally known experts on elections and the law of democracy. Participants will address the evolving role of political parties, the state and direction of campaign finance law, changes in news and social media, and related topics…
David Keating, President, Center for Competitive Politics, will be featured on Panel I: The Role of Parties (and Third Parties), along with Benjamin Ginsburg, Partner, Jones Day, former General Counsel to the Republican National Committee, and MSNBC Commentator, and Richard Pildes, Sudler Family Professor of Constitutional Law at the NYU School of Law. The panel will be moderated by Rick Boucher, Partner, Sidley Austin LLP, and former Member of the United States House of Representatives (D-VA).
When: Thursday, December 8, 10:10 – 11:00 a.m.
Where: NYU Global Academic Center, 1307 L Street, NW
Free Speech
The Hill: Free speech is a right, not a political weapon
By Steve Simpson
Campaign finance laws are not supposed to be used to silence speech that politicians don’t like. At least that’s the theory. In practice, though, laws are inevitably used that way, and their supporters often see that as a virtue…
Too many people – among intellectuals, politicians and the media on both left and right – either don’t understand the right to free speech or don’t care to. They treat free speech not as a principle but as a weapon to be used against their political enemies. When your enemies are in power, complain about the threats to speech you like; when you are in power, use government to intimidate and silence your critics.
But free speech is a right, not a political weapon or a privilege of those in power. It applies to everyone, no matter what their views – whether they offend you or try to convince voters to support politicians or policies you oppose. Importantly, it also protects the right to take the actions necessary to make one’s speech heard, whether that means spending money on political ads or publishing books or newspapers free of the crushing costs of frivolous libel lawsuits.
FEC
Bloomberg BNA: FEC to Eye Super PAC’s Hiring of Trump Campaign Workers
By Kenneth P. Doyle
An advisory opinion set to be considered Dec. 8 by the Federal Election Commission could clarify FEC rules regarding illegal coordination between candidates and super political action committees, but prospects for a definitive decision remain uncertain.
The advisory ruling was requested by a super PAC that supported President-elect Donald Trump, and it involves an apparently narrow question. The super PAC-called Great America PAC-said it wanted to hire former Trump campaign workers to help canvass and mobilize voters to turn out for Trump and asked if hiring the Trump campaign workers would make the super PAC’s spending an illegal contribution to Trump’s campaign, rather than an “independent expenditure.”
A dearth of FEC decisions drawing legal lines between candidates and super PACs means that, if at least four commissioners can agree, any decision on the Great America PAC advisory opinion (AO 2016-21) could have a wider impact on candidates and groups active in the 2016 campaign and beyond.
Congress
Roll Call: Stopgap Bill Adds Money for Flint, Paves Way for Mattis Confirmation Vote
By Ryan McCrimmon
Congressional negotiators released a stopgap spending bill Tuesday night to avert a partial government shutdown at midnight Friday and to fund federal agencies and programs through April 28.
Final details of the 70-page continuing resolution were hammered out behind closed doors Tuesday while both Republicans and Democrats warned that various provisions and possible additions to the package were causing problems…
The CR contains controversial riders on campaign finance and political activities, according to an appropriations aide.
The text continues language that blocks the Securities and Exchange Commission from finalizing a rule that would require public companies to disclose more about their donations to outside groups, such as trade associations, that engage in political spending. It also maintains another provision that prevents the Internal Revenue Service from issuing new guidance about what constitutes political activity by nonprofit organizations.
The Media
Business Insider: Time Warner CEO: The ‘real threat’ to the First Amendment came from Democrats, not Trump
By Allan Smith
Bewkes was speaking at Business Insider’s annual IGNITION conference, during which he was asked about Trump’s frequent campaign threats to open up libel laws.
Trump has also set his sights on Bewkes’ own media property, CNN, which he consistently ridiculed along the campaign trail and even after Election Day…Bewkes said he didn’t “think that’s a serious thing,” adding that “we should all worry” if someone were seeking to change the First Amendment. He suggested that came from the Democratic Party, which “had a campaign plank to change the First Amendment, and they were doing it in the guise of campaign finance reform.”
“And that was worrying me more,” Bewkes said. “The press tends to miss that because they tend to lean that way, and therefore they were supporting what they were viewing – I think overly charitably – as something in cleaning up money in politics when in fact what it would do is restrain multiple voices.”
Daily Caller: Earnest Forced To Cite First Amendment Four Times, As Press Corps Insists White House Censor News
By Rachel Stoltzfoos
White House press secretary Josh Earnest was forced to remind the press corps the federal government can’t censor news because of the First Amendment, in a bizarre exchange during a White House press briefing Monday.
“Obviously, there are some important First Amendment issues that come into play when we’re having this discussion,” Earnest said, rebuffing a call for the White House to work toward censoring “fake news” on social media. He brought up the constitutional prohibition on censorship three more times before the conversation ended…
Facebook would have to decide for itself how it wants to treat the use of its platform to spread certain ideas, and balance whether it wants to risk alienating a large portion of its users in order to censor information. “They’ve got their own built-in interest in protecting the First Amendment rights of their users while also creating a community and a platform that people actually want to use,” he said.
Independent Groups
Wall Street Journal: Kellyanne Conway Considers Leading External Group to Support Donald Trump
By Rebecca Ballhaus and Byron Tau
Ms. Conway said in a phone interview that she is deciding between running the group-which could be a super PAC, a nonprofit or some combination-and working for Mr. Trump in the White House. But she said both she and Mr. Trump are inclined to have her head up the group…
Also playing a hefty role in the group would be hedge-fund manager Robert Mercer and his daughter, Rebekah, who have already expressed interest in funding it. Ms. Mercer would likely have a leadership role, Ms. Conway said. The Mercers were top donors to Mr. Trump…
While running for president, Mr. Trump railed against super PACs and the donors who funded them and called for greater transparency in the campaign-finance system. That rhetoric could clash with the formation of the group, particularly if it is organized as a 501(c)(4), which wouldn’t have to disclose its donors.
Ms. Conway disputed that notion, saying Mr. Trump’s “commitment to draining the swamp” would apply to his outside political operation, too.
The States
Sioux Falls Argus Leader: Governor says voters ‘hoodwinked by scam artists’ on IM 22
By Dana Ferguson
During his budget address, Daugaard beat up on a voter-backed law aimed at reforming the state’s ethics and campaign finance programs. The governor said lawmakers should override a provision that would put the state on the hook for $4.91 million for a so-called “democracy credit” program.
“I believe it’s not responsible to use taxpayer money to fund political campaigns at the cost of education. And I’m certain that voters of this state did not support that,” Daugaard said. “They were hoodwinked by scam artists who grossly misrepresented these proposed measures.”
Portland Press Herald: Proposal calls for more detailed data about out-of-state political donors
By Scott Thistle
A proposal to help voters more easily learn which out-of-state groups are bankrolling Maine political campaigns will go before the state ethics commission Thursday.
The proposal follows a high-priced 2016 campaign season that saw entities from outside Maine pour a record $14 million into state political campaigns, including those for ballot questions that legalized marijuana and raised the minimum wage.
Voters were left in the dark about who provided much of that money to the out-of-state groups that then funneled it to the Maine campaigns.
The proposal, suggested by commission Executive Director Jonathan Wayne, would require any out-of-state group donating more than $100,000 in a year to a Maine-based political action committee to disclose its top five donors.
