Trump’s SCOTUS List of 21
By David Keating
Using our screen to find cases, and adding other cases that have come to our attention, Judge Sykes wrote or joined a number of opinions in cases that raised significant First Amendment free speech arguments while on the Seventh Circuit.[1] This post is the first in a series exploring her views on free speech.
– Right to Life State PAC v. Barland, 664 F.3d 139 (7th Cir. 2011) (“Barland I”)
– Right to Life, Inc. v. Barland, 751 F.3d 804 (7th Cir. 2014) (“Barland II”)
– ACLU v. Alvarez, 679 F.3d 583 (7th Cir. 2012)
Judge Sykes wrote all three of these opinions. In each, she strongly favors free speech over government regulation. Barland I and II challenged different sections of the Wisconsin campaign finance laws following Citizens United v. FEC. Alvarez involved the public’s right to record police officers in public. All three evince Judge Sykes’ commitment to free speech. The Barland II case opinion is one of the strongest, if not the strongest, pro-free speech circuit opinions post-Citizens United. However, in some cases we’ve not yet reported on, Sykes rejected significant First Amendment claims.
CCP
Amicus Curiae Brief of Center for Constitutional Jurisprudence in Support of Independence Institute
The Court should grant review to settle an area of law that is now the subject of substantial confusion. Speech about political issues is at the core of the Freedom of Speech protected by the First Amendment. Further, the right of petitioning government for redress of grievances is both inherent in our republican form of government and expressly protected by the First Amendment. Yet, the decisions of this Court seem to treat political speech differently than other forms of speech, with speech concerning an election receiving less protection than a directional sign message, flag burning, or nude dancing. It is not just that results differ in different cases. This Court applies different tests to the regulation of speech in order to permit greater regulation of that which the First Amendment was enacted to protect. Regulation of core First Amendment Speech is now treated on par with commercial speech, while other speech regulation is subject to strict scrutiny. Review should be granted to resolve the confusion and to return to a jurisprudence that protects core First Amendment values.
Supreme Court
SCOTUS Blog: Potential nominee profile: Thomas Hardiman
By Amy Howe
In Easton Area School District v. B.H., he dissented from a ruling in favor of students who wanted to be able to wear silicone bracelets with the slogan “I [Heart] Boobies” as part of a breast-cancer awareness campaign. Hardiman argued that the decision was “inconsistent with the Supreme Court’s First Amendment jurisprudence.”…
And in NAACP v. City of Philadelphia, Hardiman dissented from a panel opinion holding that the city’s ban on non-commercial advertisements by private advertisers at the city’s airport violated the First Amendment. Hardiman characterized the ban as “a reasonable attempt to avoid controversy at the airport” and thereby “create a comfortable environment” there…
Hardiman’s lone campaign finance opinion suggests that he would vote to relax restrictions on campaign donations, although in the specific case before the 3rd Circuit his views worked for the benefit of police unions. He wrote for the court in striking down a provision in Philadelphia’s charter that barred police officers from making contributions to their union’s political action committee.
Independent Groups
Washington Free Beacon: Liberal Dark Money Network Behind Trump Ethics Complaints
By Lachlan Markay
Citizens for Responsibility and Ethics in Washington, a left-wing legal advocacy group, filed two legal complaints against Trump over the weekend…
Though presented as efforts to ensure integrity in government, the complaints are part of a broader strategy to impeach the president by a network of political groups run by a leading Democratic operative.
“We do not yet know just to what extent this violation goes,” said CREW executive director Noah Bookbinder in a statement on the complaints. “But we do know that there must be accountability for anyone, including the president, for violating the Constitution.”
When CREW filed those complaints, Bookbinder was in Florida for an exclusive retreat for donors to CREW and other groups founded and run by David Brock, a Hillary Clinton loyalist and Democratic operative…
Brock’s network is redirecting significantly more resources into CREW’s legal strategy. It will double the group’s budget to $5.8 million this year, documents state, and increase its staff to 38, more than doubling the size of its legal team while adding staffers to its communications and research divisions.
Politico: Trump’s biggest donors consider abandoning new political arm
By Elana Johnson and Kenneth P. Vogel
Tensions between President Donald Trump’s senior political aides and a pair of his most important donors are threatening to upend plans for an outside political group expected to play a key role in advancing his agenda.
Now, just days after Trump’s inauguration, the donors expected to provide much of the funding for the group – the hedge fund billionaire Robert Mercer and his daughter, Rebekah Mercer – are considering abandoning the effort and launching an independent effort of their own, a half-dozen sources with knowledge of the situation told Politico…
The unrest has senior Trump aides, well aware of the risk that rival groups could hamper efforts to drive the administration’s message, scrambling to unite the disparate factions. “The Trump people are putting a ton of pressure on everybody to fall in line on this thing,” said a Republican source familiar with the conversations. Those efforts, however, may be floundering…
The chaos surrounding the outside group and the potential for the creation of multiple vehicles that would drive Trump’s message is drawing comparisons to the disorder that characterized the cluster of super PACs created to support Ted Cruz’s presidential campaign, one of which was controlled by the Mercers.
USA Today: A GOP group steps up to boost Jeff Sessions
By Fredreka Schouten
A Republican non-profit group that pummeled Democrat Hillary Clinton with negative advertising last year is back on the air with a new commercial, this time urging the U.S. Senate to confirm Alabama Sen. Jeff Sessions as attorney general…
The 45Committee, which started in April 2015, is spending $750,000 on the pro-Sessions television and digital advertising campaign, officials said. The commercial is airing on national cable television. Later this week, the group will launch TV and digital ads to back Georgia Rep. Tom Price, Trump’s pick to head the Department of Health and Human Services and is likely to spend as much on those ads…
Another conservative group, the Judicial Crisis Network, funded a digital advertising campaign to support Sessions ahead of his confirmation hearings in the Senate earlier this month.
The Judicial Crisis Network and other conservative groups are expected to spend big sums on another confirmation fight looming in Washington: Trump’s still-to-be-named pick for the Supreme Court.
FEC
Sacramento Bee: Why it’s up to states and cities to protect our democracy
By Ann M. Ravel
There is ample reason to conclude that the new Trump administration and Congress may roll back some of the laws that were intended to protect our democracy, including those ensuring equal access to the ballot and limiting the disproportionate influence of money in the political process.
As a member of the Federal Election Commission, I have seen stalemates paralyze the agency, leaving it unable to act on matters that affect the integrity of the electoral process. Despite the obvious risk we have offoreign money illegally influencing our elections, the FEC has not been able to muster the votes necessary to even get public input on a rule to respond to this reality.
Because the prospects of federal action are bleak, it will take sustained efforts at the state and local levels to advance the values of an open, transparent and inclusive democracy. By banding together, states can ensure compliance with laws that are meant to encourage participation and a fair political process.
Lobbying
The Hill: Lobbyists expect boom times under Trump
By Megan R. Wilson
Monday was the deadline to submit disclosures on lobbying spending and earnings that took place during the fourth quarter of 2016.
Nine of the 11 firms that earned $15 million or more in revenue last year experienced a decrease versus 2015, according to figures provided or calculated by The Hill…
But many firms are expecting business to bounce back in 2017. They say the flurry of activity at the present moment feels similar to when President Barack Obama took office in 2009 and Democrats controlled Congress.
“As we saw in 2009, companies and associations are gearing up for significant reform opportunities occasioned by an energetic new administration taking office with a supportive Congress,” said Bruce Mehlman, a Republican lobbyist at Mehlman Castagnetti Rosen & Thomas…
But those on the left won’t be left out in the cold, as there will be plenty of opportunities for lobbying from the other side of the aisle.
One Republican on K Street confessed anonymously to The Hill that he had some of his best years financially in 2009, while Democrats controlled government.
Trump Administration
Politico: Trump: Never Trumpers are ‘on a respirator’
By Louis Nelson
President-elect Donald Trump praised Mike Pence Wednesday night at a dinner honoring the incoming vice president…
He also took aim at the way political campaigns have come to be financed, specifically the super PACs that attract unlimited sums of money from donors whose identities are undisclosed.“I think we ought to straighten out the PACs – right, folks? I think they should be able to give to a campaign and expose it and everything. But I think this PAC stuff – maybe we can get it straightened out, because it’s a little ridiculous,” he said. “You have no idea. It’s like the great sinkhole. You have no idea who’s doing it, who’s running them. I think people get very rich running PACs, but we’re going to try and get that straightened out because it’s crazy.”
The States
New York Daily News: Gov. Cuomo hires First Amendment attorney in lawsuit challenging disclosure law of political donors
By Kenneth Lovett
Gov. Cuomo has hired prominent First Amendment lawyer Floyd Abrams to defend him against a federal lawsuit challenging a new law that requires politically active non-profit organizations to publicly disclose their donors.
The lawsuit brought by Citizens Union, which claims the law violates First Amendment protections of free speech, names Cuomo and state Attorney General Eric Schneiderman as the defendants…
Abrams represented the New York Times in the landmark Pentagon papers case, and the Brooklyn Museum of Art in its legal battles with then-Mayor Rudy Giuliani.
More recently, he filed with the U.S. Supreme Court a friend-of-the-court brief on behalf of U.S. Sen. Mitch McConnell (R-Ky.), supporting the controversial Citizens United case that loosened limits on political contributions and led to the creation of Super PACs that could spend and raise unlimited amounts of money on campaigns.
WNYC News: Cuomo Again Rakes in LLC Cash – While Proposing to Cap It
By Fred Mogul
In his latest campaign filing, Gov. Andrew Cuomo netted at least $1 million from close to 100 different LLCs out of $4.4 million raised in the past six months…
The filing comes just after he announced a new campaign finance reform proposal, which is expected to be similar to a slate of bills he proposed last year. Those bills would have treated LLCs as traditional corporations, with a $5,000 contribution limit.
Some advocates are calling on Cuomo to lead by example and voluntarily limit or suspend LLC donations, even without a law change…
The governor’s office has no intention of doing so.
“We abide by all campaign regulations while the governor leads the fight to change them,” spokesman Rich Azzopardi said, via email. “The governor has done everything in his power to close the LLC loophole and will continue to fight for the legislature to join him.”
Susan Lerner, of ethics watchdog Common Cause New York, doesn’t fault Cuomo for not “disarming unilaterally.” She says he and lawmakers for too long have benefited from a state election statutes that are much more lax than federal law when it comes to imposing limits.
San Francisco Chronicle: Legislature runs afoul of First Amendment advocates
By Laurel Rosenhall
Now the president of the Screen Actors Guild, Carteris said she would never have been able to land the career-making role today because of websites like IMDb.com that publish actors’ ages.
In response, lawmakers – sweeping aside First Amendment concerns that the government doesn’t have the right to keep anyone from publishing information such as a birth date – approved AB1687, and Gov. Jerry Brown signed it into law.
That law is now being challenged in federal court with a lawsuit that says it amounts to unconstitutional censorship. It’s one of a handful of policies to come out of the Democratic-controlled Legislature that limit unfettered speech – some of them prompted by pressure from liberal allies such as the actors labor union and Planned Parenthood. And when the state has to defend them, taxpayers wind up footing the bill…
It’s impossible to know exactly how much First Amendment legal challenges cost the state, because they are handled by the attorney general’s office as part of its overall case load…
Free speech advocates will be watching to see if Democrats’ response to the latest liberal cause celebre escalates into a constitutional violation.
Sioux Falls Argus Leader: Lawmakers vote to gut ethics law, call on voters to ‘give us a chance’
By Dana Ferguson
In a joint meeting of the Senate and House State Affairs Committees lawmakers for more than two hours considered a bill that would repeal the extensive ethics and campaign finance law narrowly approved by South Dakota voters as Initiated Measure 22.
Republican lawmakers grilled supporters of the law and asked them to substantiate claims set forth in their campaign. The House committee approved the repeal on a 10-3 vote then asked that South Dakota voters give them a chance to win back their trust…
Legislators filed a set of bipartisan bills Monday aimed at replacing pieces of the measure including establishing gift limits for lobbyists and establishing a state accountability board. Members of the committee said the new proposals would deliver on the promises made, but not kept by the backers of IM 22.
