In the News
Wall Street Journal: Supreme Court Disclosure Test
By Editorial Board
Donor disclosure has become a weapon of political intimidation, and it could get worse. The Supreme Court will soon consider whether ads that discuss policy issues without advocating for a candidate can be regulated and the names of their financial backers disclosed under campaign-finance laws…
The 2002 McCain-Feingold Act says that any group that runs an ad including the name of a candidate within 30 days of a primary or 60 days of a general election must disclose its donors like a political-action committee. Yet the Independence Institute merely intended to communicate with voters on issues, not advocate for a candidate…
The Supreme Court will consider the Independence Institute appeal in a private conference Friday. If the Justices uphold the lower court, much more political speech will fall under the federal campaign-finance dragnet. Here’s hoping Justice Anthony Kennedy, who wrote the majority opinion in Citizens United, will clarify that donor disclosure violates the Constitution when it imposes undue burdens on Americans who advocate for causes-especially those that might be unpopular.
Cato: The Left Should Want a Robust First Amendment (Podcast)
Featuring Luke Wachob and Caleb O. Brown
Massive protests greeted Donald Trump upon his inauguration, but speaking out against the president will require a robust First Amendment. Will the American Left support it? Luke Wachob of the Center for Competitive Politics believes so.
Bloomberg BNA: `Soft Money’ Case a Test for Trump, Supreme Court
By Kenneth P. Doyle
A filing due next month in a key Supreme Court case could provide the first indication of whether the Trump administration will seek to uphold or challenge longstanding campaign finance laws that restrict unlimited “soft money” contributions to political parties (Republican Party of Louisiana v. Federal Election Commission, U.S., No. 16-865, jurisdictional statement filed 1/6/17)…
The high court also has another pending campaign finance case challenging FEC disclosure rules for political ads known as “electioneering communications,” Independence Institute v. FEC. The justices are set to consider at their private conference Feb. 17 whether to accept the Independence Institute case for a full review and oral argument.
With the death last year of Justice Antonin Scalia, the court is now evenly divided between four justices who have voted consistently to roll back campaign finance rules and four justices who have generally supported current rules. Neil Gorsuch, President Trump’s nominee to fill the Supreme Court vacancy left by Scalia’s death, has been criticized by supporters of strong campaign finance rules, who say that, like Scalia, Gorsuch is expected to continue on the path toward less regulation of money in politics.
CCP
Gorsuch Joins Opinion Stating Dancing Doesn’t Cause Public Alarm
By David Keating
This post reviews an opinion Judge Gorsuch joined that raised constitutional questions about the vagueness of an as-applied challenge to a disorderly conduct ordinance.
Galbreath v. City of Oklahoma City, (10th Cir. 2014)
A high-heeled man with a cane performing ballet routines and speaking loudly on the phone unnerved a grandmother with her grandchildren in an Oklahoma City park. The distressed woman called 911 and a peace officer quickly arrived.
Former ballet dancer Allen Galbreath told the officer his dancing was physical therapy for a bad hip. The officer arrested Galbreath for disorderly conduct, convinced his conduct created public alarm.
Galbreath claimed the City violated his civil rights and sued. The Tenth Circuit panel had to decide whether the city ordinance applied to Galbreath’s conduct was unconstitutionally vague. Judge Gorsuch and the other panelists decided it was…
The panel remanded the case to the district court.
Supreme Court
Washington Post: Neil Gorsuch could be the most conservative justice on the Supreme Court
By Ryan Black and Ryan Owens
Our analysis suggests that if confirmed, Gorsuch might be the most conservative justice on the Supreme Court…
To be sure, the kinds of appeals the Tenth Circuit was forced to hear are different than the kinds of cases the Supreme Court chooses to hear. It is possible that this mandatory docket makes Gorsuch look more conservative than he is. On the other hand, it is also possible that a discretionary docket would provide greater opportunity for Gorsuch to undo liberal doctrine. Conservatives will hope for the latter; liberals for the former.
Moreover, although Gorsuch may wind up being more conservative than Scalia, his overall judicial philosophy is quite in line with Scalia’s. He writes opinions that are as clear and engaging as Scalia’s opinions, but with fewer attacks. He is also a textualist as Scalia was. He interprets legal provisions according to the meaning they had when adopted. He appears to shun balancing tests and legislative history.
Free Speech
Forbes: How Twitter’s New Censorship Tools Are The Pandora’s Box Moving Us Towards The End Of Free Speech
By Kalev Leetaru
Earlier this morning social media and the tech press lit up with reports of users across Twitter receiving half-day suspensions en masse as the platform abruptly rolled out its decade-overdue hate-speech filter to its platform. The company has refused to provide details on specifically how the new system works, but using a combination of behavioral and keyword indicators, the filter flags posts it deems to be violations of Twitter’s acceptable speech policy and issues users suspensions of half a day during which they cannot post new tweets and their existing tweets are visible only to followers…
Many outlets this morning picked up on a frightening instance of the Twitter algorithm’s new power to police not only the language we use but the thoughts we express. In this case a user allegedly tweeted a response to a news report about comments made by Senator John McCain and argued that it was his belief that the senator was a “traitor”…
If Twitter really did suspend a user for criticizing a politician and exercising his free speech rights to argue that he believes that that politician broke the law, that presents a frightening, dystopian “1984” world in which criticism of the state could be simply wiped from existence.
The Courts
Annapolis Capital Gazette: Decision expected next week in robocall case
By Morgan Brockett
A District Court judge denied motions Wednesday for an acquittal and dismissal in the trial of Dennis Fusaro and Stephen Waters, Republican strategists charged with violating Maryland election law in connection with robocalls during a 2014 Anne Arundel County Council race.
Judge John P. McKenna Jr. is expected to issue a decision in the misdemeanor case early next week, following closing arguments Wednesday in Annapolis.
After hearing lengthy arguments from both sides Wednesday, McKenna ruled that circumstantial evidence presented by the state could support a conviction in the case, denying the defense’s motion for acquittal.
He also ruled against the defense’s argument for dismissal, saying in part that robocalls are covered in the state statute that outlines election law requirements.
Fusaro, the former campaign manager of County Councilman Michael Anthony Peroutka, and Waters, a Republican political consultant based in Virginia, are charged with violating and conspiring to violate the authority line requirements of Maryland election laws.
The Media
Washington Times: Will Comcast pick the next president?
By Peter Roff
As traditional media companies go, few are bigger and more influential than Comcast, the Philadelphia-based company that owns NBC, MSNBC, “Saturday Night Live,” Universal Studios, Telemundo and cable television systems serving much of the United States. They’re such a big player, in fact, that one might call them the dominant actor in media.
That, per se, is not a problem. But with great power and media concentration come great responsibility to ensure diversity in the marketplace. This is true for both programming and advertising. The prospect, therefore, of Comcast trying to monopolize the business of selling ads on local cable systems is troubling.
Even with advent of internet-based messages sent to targeted voters directly, many believe local cable remains a powerful political advertising platform…
Comcast could use its control of local ad markets – which overlap 20 of the 33 U.S. senators up in 2018, 20 of the 36 gubernatorial contests, and 234 congressional campaigns – to sway the outcome of elections.
Wall Street Journal: Jared Kushner Delivers Critique of CNN to Time Warner Executive
By Keach Hagey and Damian Paletta
In a meeting at the White House, Mr. Kushner complained to Gary Ginsberg, executive vice president of corporate marketing and communications at CNN’s parent Time Warner, about what Mr. Kushner feels is unfair coverage slanted against the president, the people said.
The Trump administration’s hostile posture toward the news media, especially CNN, has been evident in the president’s own statements and those of his press secretary and top aides. On Thursday, Mr. Trump lashed into CNN once again at a news conference, calling it “very fake news”…
While the administration is battling a large swath of the media, the fight with CNN has special intrigue because its parent company has a massive piece of business awaiting government approval…
In the final stretch of the presidential campaign, Mr. Trump said he would block the agreement and singled out the news network in his statement. “AT&T is buying Time Warner, and thus CNN, a deal we will not approve in my administration,” he said. The deal will be reviewed by government agencies including the Justice Department.
Candidates and Campaigns
Washington Post: New progressive PACs warn Democrats to oppose Trump – or get primaried
By Dave Weigel
We Will Replace You is the latest of several projects designed to warn Democrats of consequences in their primaries – or in 2018’s general elections – if they make deals with Trump. Justice Democrats, launched last month by progressive commentator Cenk Uygur, issued a detailed progressive platform and hinted at primary challenges if Democrats ignored it. Last week, a small crew of Sanders campaign veterans launched Draft Bernie for a People’s Party, arguing that progressives needed to give up on the Democrats altogether and break the two-party system.
“Even the most progressive candidates for DNC chair do not oppose large campaign contributions to party politicians from billionaires and super PACs,” Draft Bernie co-founder Nick Brana wrote in a Huffington Post op-ed. “How can we free our government from the influence of the oligarchs without even challenging their mechanisms of political control? Our country was much more sharply divided over slavery than it is over present-day money in politics and inequality. Yet Lincoln’s Republicans replaced the Whig Party in four years.”
The States
Santa Fe New Mexican: Senate passes bill to shine light on ‘dark money’
By Andrew Oxford
The state Senate voted Wednesday to require more transparency about the political spending of so-called dark money groups while also doubling the amount of money that individuals can donate to candidates for public office…
Its sponsor, Senate Majority Leader Peter Wirth, D-Santa Fe, has filed similar bills each year since 2011, partly in response to a series of court rulings he argues has left New Mexico’s existing campaign finance laws largely unenforceable.
Wirth’s proposals have passed the Senate on four occasions but died each time in the state House of Representatives.
But with a new secretary of state in office after last year’s election, the Legislature may not be necessary for at least a few campaign finance reforms.
Maggie Toulouse Oliver, a Democrat, campaigned on reining in the influence of money in state politics. And Wirth told the Senate on Wednesday that if his latest bill fails, Toulouse Oliver may undertake some reforms on her own through regulatory power.
“If we don’t get this bill,” he said, “they have to get something to enforce.”
