In the News
Washington Examiner: Gorsuch’s record shows strong support for the First Amendment view of campaign finance laws
By David Keating
In his time on the United States Court of Appeals for the 10th Circuit, Gorsuch consistently wrote or joined pro-free speech rulings. The Center for Competitive Politics found four cases Gorsuch has ruled on concerning press freedom, one case concerning petition rights, and one case on contribution limits. In each instance, he came down on the side of the First Amendment…
Critics of campaign finance laws will be particularly heartened by Gorsuch’s concurring opinion in the contribution limit case Riddle v. Hickenlooper. Riddle was a challenge to Colorado’s contribution limit laws, which allowed Democratic and Republican candidates to raise twice as much money as minor party and independent candidates. The majority struck down the law as a violation of the equal protection clause.
More interesting than that is Gorsuch’s concurring opinion in the case. He expressed “some uncertainty about the level of scrutiny the Supreme Court wishes us to apply” to contribution limit cases, and signaled that he might support the application of strict scrutiny, the most stringent standard of judicial review.
Fast Company: Should Nonprofits Have To Tell The Government Who Donated To Them?
By Ben Paynter
One of the longest held rules in charity is that nonprofits don’t have to publicly disclose who has given them money. It’s a First Amendment issue, since the Supreme Court intervened during the Civil Rights era when state governments in the South tried to make the NAACP publicize its donor lists. Knowing a donor’s association with a controversial cause might lead to them or their group being threatened, limiting their chance for free expression…
Perhaps most surprisingly, while left-leaning groups created the precedent, it’s now right-wing organizations that are paying to defend it. The two cases in question are Americans for Prosperity Foundation v. Becerra, in which the group, which organizes grassroots support of conservative political action, has challenged the California attorney general’s request that all tax-exempt nonprofits submit non-redacted donor lists, ostensibly to give the state more oversight into organizational scams or group corruption. And Independence Institute v. Federal Election Commission, where the organization, a think tank devoted to research and advance libertarian causes, is arguing that if a group issues only policy-influencing ads (instead of candidate-supporting ads) during a campaign election period, they should be exempt from federal election laws that require sharing political donations.
CCP
By Brad Smith
Senator Jon Tester (D. Mont.) has introduced another constitutional amendment to strip rights from corporate entities. His amendment would provide that “(1) the rights enumerated in the Constitution and other rights retained by the people are the rights of natural persons; (2) the terms “people,” “person,” and “citizen” as used in the Constitution do not include corporations, limited liability companies, or other corporate entities established by the laws of any state, the United States, or any foreign state.”…
What brings all this about, of course, is the Supreme Court decision in Citizens United v. FEC, now over 7 years old. There, the Supreme Court held that Congress could not limit the ability of people, organized as a corporation, to speak about political candidates and issues. It can’t limit the incorporated Washington Post, it can’t limit the incorporated CNN, and it can’t limit corporations such as the Sierra Club, the National Rifle Association, or a rather small corporation formed specifically for political advocacy called Citizens United. Oddly enough, no member of the Court, not even the dissenters, ever mentioned the issue of “corporate personhood.” Why? Because they all understood that corporate personhood is a longstanding doctrine that is not controversial in law, and was not what the case was about.
Free Speech
Reason: Super Bowl Ads Illustrate Importance of Free Speech Rights for All, Even Corporations
By Ed Krayewski
Breitbart commenters, among other Trump loyalists, have been concerned about political ads at the Super Bowl since last week, when the Budweiser ad hit the news cycle. Fox initially rejected one ad from a lumber company that featured a long journey to a border wall, and a big beautiful door, although the beginning of the ad, from Lumber 84, did air-the whole thing was put online. Nevertheless, there was no paucity of ads from which viewers gleaned political messages. And that’s a good thing-despite the heated rhetoric against Citizens United and corporate speech rights during the 2016 election, the Super Bowl ads and the discussions they’re inevitably launching are an illustration of why protecting free speech rights from government regulation is important, even for corporations. Free expression is a crucial component of a free society and a healthy democracy, and sustains a marketplace of ideas. The notion that government interference can have anything but a deleterious effect is ridiculous-it shouldn’t have to take a character like Trump to head the government for people to realize that; there have been enough examples of what supposedly well-intended regulations have done.
Supreme Court
Wall Street Journal: Trump’s Supreme Court Whisperer
By Kyle Peterson
By Wednesday afternoon, as Leonard Leo returns to his office from a post-announcement huddle at the White House, the mood is cautiously optimistic. “In the first 24 hours,” says Mr. Leo, a lawyer advising Mr. Trump on the court, “it appears as though the nominee has been defined very, very well, and that the left has not done a particularly good job of sowing seeds of confusion and doubt. So there is that. But the fact of the matter is that the process can still turn in the other direction.”
Mr. Leo is one to know. A decade ago, he helped usher George W. Bush’s two Supreme Court appointees, John Roberts and Samuel Alito, to confirmation. Now Mr. Leo is on leave from his day job, as executive vice president of the Federalist Society, to do the same for Judge Gorsuch…
But first he must get past Senate confirmation-and a potential Democratic filibuster. Mr. Leo is hopeful it won’t come to that. Ten Senate Democrats up for re-election in 2018 come from states Mr. Trump carried, and the Judicial Crisis Network is planning $10 million of pro-Gorsuch advertising.
Mr. Leo also says that President Trump “has taken unprecedented steps to try to be bipartisan and to try to be reasonable.”
FCC
Broadcasting and Cable: FCC’s Media Bureau Sets Aside Political File Complaint Decisions
By John Eggerton
The FCC under chairman Ajit Pai has gotten busy undoing some late-stage actions under former chairman Tom Wheeler-or what Pai had signaled were last-minute efforts to cut process corners to pursue “partisan, political agendas” before the change of administrations.
On Friday, the FCC’s Media Bureau set aside its actions on political file complaints involving a host of TV stations, saying they were more appropriately handled at the bureau level…
Separately, in resolving complaints against a number of stations, the FCC took no enforcement action but provided clarification going forward about how political ads need to be disclosed, clarification that has been mooted for the moment.
Groups looking for better disclosures of the funders of ads, in the wake of the Citizens United Supreme Court decision that allowed corporations and unions to fund TV and radio ads in the run-up to elections, had pushed for tighter rules and complained that stations were violating the FCC disclosure rules already on the books.
The Courts
Wall Street Journal: A Libel Suit Threatens Catastrophe for the Climate of Public Debate
By Michael A. Carvin and Anthony Dick
The First Amendment provides robust protection for political and scientific debate, but it faces a new threat from a climate activist determined to silence his critics. In a case pending before the District of Columbia Court of Appeals, Penn State professor Michael Mann is waging an aggressive campaign of lawfare, accusing of defamation those who dare to question his work. So far, the courts have given this assault on free speech a green light…
Not content to answer his critics in the public square, Mr. Mann has sued them. One target of his lawsuit is the political magazine National Review, which published a 270-word blog post criticizing Mr. Mann as “the man behind the fraudulent . . . ‘hockey-stick’ graph.”…
National Review has filed a petition for rehearing along with its co-defendants, the Competitive Enterprise Institute and Rand Simberg. If the full court of appeals does not correct the error and end this assault on the First Amendment, the case will doubtless proceed to the Supreme Court.
Those hoping Mr. Mann prevails because they agree with him about global warming are missing the point. If he succeeds in diminishing the right to free speech, he and his fellow climate activists have just as much to lose.
Courthouse News: FEC Loses Court Battle With Election-Reform Groups
By Brandi Buchman
A federal judge upbraided the Federal Election Commission for mishandling complaints by a group that wants to see third-party candidates in the presidential debates…
In 2014, a nonprofit called Level the Playing Field and a voter named Peter Ackerman brought an administrative complaint with the FEC complaining about the staging of the 2012 general election debates. Barred from joining the initial challenge, the Green and Libertarian parties brought their own complaint on the same issue a year later.
But the FEC dismissed both complaints and rejected a rulemaking maneuver that mean polling thresholds could no longer be the sole criterion by which parties access the debates.
After the challengers banded together to sue the commission in Washington, U.S. District Judge Tanya Chutkan granted them summary judgment Wednesday, finding that the commission’s conduct violated the Administrative Procedure Act.
Congress
Public News Service: Bill Introduced in U.S. House to Fight Dark Money in Politics
By Suzanne Potter
A group of lawmakers in the U.S. House of Representatives has introduced a bill to amend the Constitution in an effort to fight the influence of so-called “dark money” in politics.
The “We the People” Amendment would overturn the Supreme Court’s 2010 Citizens United decision, which said corporations have the same constitutional rights as individuals and identified political donations as a protected form of free speech. Keyan Bliss, communications director for the group Move to Amend, said that ruling freed up corporations, some backed by foreign entities, to pour cash into American elections to influence the outcome.
“This basically has precipitated the rise of super PACS, which have now helped increase campaign spending during general elections to record highs, every election,” he said. “In short, our voices are being drowned out in favor of wealthy corporate interests.”
People who agreed with the Supreme Court decision take the view that corporations should have the First Amendment right to free speech and the right to donate as much as they want privately to any candidate or cause.
NBC Monatana: Tester reflects on Trump’s first 2 weeks in office
By Will Wadley
On Friday he introduced three new bills, all of which deal with government transparency, accountability and fundraising limits.
“The e-file bill is a no-brainer, it brings us into the 21st century,” Tester said about the Senate Campaign Disclosure Parity Act, a bill which Tester’s office said requires candidates for the Senate to file their campaign finance reports electronically with the fed rather than to the Secretary of the Senate.
“The second one is just a good government bill that allows people to know who’s trying to influence the elections in this country and why,” Tester said, referencing the Sunlight for Unaccountable Nonprofits Act.
Tester describes the third piece of legislation he filed Friday as “just common sense.” The constitutional amendment seeks to overturn the Supreme Court’s controversial Citizens United decision, which dropped certain campaign donations limits for corporations.
“People know the corporations aren’t people. Let’s just define it,” he said.
Trump Administration
Los Angeles Times: Don’t listen to the complainers on the religious right. We need the Johnson Amendment
By Randall Balmer
Donald Trump’s promise to “totally destroy” the Johnson Amendment, delivered at the National Prayer Breakfast on Thursday, is a totally bad idea, one that compromises the 1st Amendment…
I have no doubt that Johnson, consummate politician that he was, had his own reasons for pushing the legislation in 1954; he was running for reelection and didn’t want adversarial groups working against him under cover of tax-exempt organizations. But those motives should in no way diminish the wisdom of the measure.
Leaders of the religious right in recent years, however, have been pushing for a repeal of the Johnson Amendment. They argue that pastors should be able to make political endorsements from the pulpit without jeopardizing their churches’ tax exemptions. The fact that they cannot now do so, they argue, represents an infringement on their religious freedom.
That’s utter nonsense. The Johnson Amendment merely ensures that taxpayers do not subsidize partisan politicking. It also ensures that tax-exempt organizations do not serve as the conduit for tax-exempt contributions to political candidates.
New York Daily News: Mr. Trump, keep this Johnson Amendment wall barring religious congregations from partisan campaigns
By Editorial Board
If you thought money in politics was already out of control, just wait and watch as mega-churches pass the plate in support of political candidates – all fully tax-deductible for the donors.
And if those barriers were to fall for churches and synagogues, there would be no principled way to keep them in place for non-religious non-profit charitable groups.
As it stands, the campaign finance limits Congress put in place in the early 1970s, capping donations to candidates to limit the buying of influence by the wealthy, lies in tatters, shredded by the Supreme Court’s Citizens United ruling and big money from groups like the NRA, labor unions and the U.S. Chamber of Commerce.
To weaponize religious groups in the big-money era as tax-exempt vessels for backing candidates for public office would make a mockery of an already strained system.
The States
Sioux Falls Argus Leader: After ethics law repeal, lawmakers try to channel voter intent
By Dana Ferguson
At the Capitol, Republican lawmakers and Gov. Dennis Daugaard were the subject of protests this week as they took the final steps to strike the law set in statute as Initiated Measure 22. Opponents of the repeal efforts chanted “shame on you” and “respect our vote” as lawmakers approved House Bill 1069, which instantly erased the law from state statute when Daugaard signed it Thursday…
Lawmakers filed 18 bills aimed at addressing various topics set out in Initiated Measure 22 ahead of the filing deadline this week. Some set restrictions to the gifts public officials can accept from lobbyists, prohibit elected officials from becoming lobbyists for a longer period of time, set up whistle-blower protections and create ethics commissions as well as government accountability boards in various forms…
At least one proposal brought forth in IM 22 won’t be considered in the Legislature this year. Legislative leaders and Daugaard on Friday said they hadn’t heard from constituents who wanted to keep the “democracy credit” program, which would have allowed some of the state’s voters to contribute two $50 vouchers funded by the state to the political campaigns of their choice.
Washington Post: How far can protesters go before the government steps in?
By Tom Jackman
The protests of 2016, against pipelines and police shootings and a presidential candidate, have sparked lawmakers in eight states to consider bills boosting penalties for unlawful demonstrations. They include one that would protect drivers who “unintentionally” run over activists blocking roads and another aimed at forcing protesters to pay up to three times the costs of any damage they caused…
Lee Rowland, a senior staff attorney with the American Civil Liberties Union specializing in First Amendment issues, said she had seen occasional attempts to crack down on protests over the years.
“But I’ve never seen a coordinated attack on protesters’ rights anywhere near this scale,” Rowland said. “What all of these bills have in common is they may be dressed up as being about obstruction or public safety, but make no mistake about it: These are about suppressing protests with draconian penalties so that the average person would think twice before getting out on the street and making their voice heard.”
