CCP
Gorsuch Follows Precedent in Two Retaliation Cases
By David Keating
This post covers two First Amendment retaliation cases by Supreme Court nominee Judge Neil Gorsuch. Judge Gorsuch writes one opinion and joins another in cases constrained by precedent…
Casey v. West Las Vegas Ind. School Dist.
A school board demoted and eventually released a by-the-book school superintendent.
Judge Gorsuch, writing for a Tenth Circuit panel, examined whether the board retaliated unconstitutionally against the administrator. The case halted while the Supreme Court decided a similar case, Garcetti v. Ceballos, 126 S.Ct. 1951 (2006). Garcetti scrambled the arguments and changed the analysis. Following it, the Tenth Circuit panel found one claim survived…
Brammer-Hoelter v. Twin Peaks Charter Academy
Judge Gorsuch joined this opinion ruling against charter-school teachers that claimed a school administrator chilled their First Amendment rights of speech and association.
Supreme Court
Washington Post: Neil Gorsuch sides with big business, big donors and big bosses
By Zephyr Teachout
In a concurrence to a decision on campaign finance in 2014, he suggested that donating to a politician is a “fundamental” right that ought to be afforded the highest form of constitutional protection, which is known as “strict scrutiny review,” more protected even than the right to vote (which is not afforded “strict scrutiny”). This matters because Gorsuch could vote to strike down the existing limits of $2,700 per person for a federal candidate, allowing unlimited personal and corporate direct donations to candidates. Wealthy donors and corporations, already too powerful, would then be legally allowed to directly scheme with candidates and dictate policy and campaign strategy…
A Gorsuch democracy won’t look much like a democracy at all, with donors allowed essentially unlimited avenues for influence.
Gorsuch’s views on antitrust and campaign finance go hand in hand. They reveal a judge who will further open the way for a few wealthy people to rob the American people of their basic freedoms and properties, and to subvert our democracy once and for all.
U.S. News & World Report: New Ad Portrays Neil Gorsuch as ‘Wall Street’s Best Friend’
By Joseph P. Williams
Titled, “Neil Gorsuch: Wall Street’s Best Friend,” the ad by the liberal Constitutional Responsibility Project is simple: It uses photos and captions, but no narrator, to suggest that Gorsuch would become a shadow member of the White House if he reaches the Supreme Court…
“President Trump’s administration is the wealthiest and most pro-Wall Street ever,” the first caption reads, superimposed over images of Trump and Gorsuch shaking hands during the president’s Jan. 31 White House introduction of the judge…
“Now he wants Wall Street’s best friend, Neil Gorsuch, on the Supreme Court,” the caption reads, over photos of Manhattan skyscrapers. “He argued to make it harder to hold Wall Street accountable for fraud and ruled that corporations have the same rights as everyday Americans.”
The kicker features video of Trump and Gorsuch exchanging a warm handshake over an arch caption: “Doesn’t Wall Street have enough friends in Washington?”
Gorsuch’s confirmation hearings are set to start March 20.
FEC
New York Times: Democratic Member to Quit Election Commission, Setting Up Political Fight
By Eric Lichtblau
A Democrat on the Federal Election Commission is quitting her term early because of the gridlock that has gripped the panel, offering President Trump an unexpected chance to shape political spending rules.
The commissioner, Ann M. Ravel, said during an interview that she would send Mr. Trump her letter of resignation this week. She pointed to a series of deadlocked votes between the panel’s three Democrats and three Republicans that she said left her little hope the group would ever be able to rein in campaign finance abuses.
“The ability of the commission to perform its role has deteriorated significantly,” said Ms. Ravel, who has sparred bitterly with the Republican election commissioners during her three years on the panel. She added, “I think I can be more effective on the outside.”…
Ms. Ravel plans to release an analysis her office has prepared on what she says is the worsening gridlock at the commission. The title sums up her feelings: “Dysfunction and Deadlock: The Enforcement Crisis at the Federal Election Commission Reveals the Unlikelihood of Draining the Swamp.”
Sacramento Bee: Ann Ravel steps down from FEC in letter urging Trump to embrace campaign finance reform
By Ellen Garrison
Ann Ravel, formerly California’s chief elections watchdog, has resigned her seat on the Federal Election Commission.
In a letter to President Donald Trump dated Sunday, Ravel called on the president to do something to increase transparency in elections and reduce the influence of “dark money.”
“I respectfully urge you to prioritize campaign finance reform to remedy the significant problems identified during the last election cycle,” Ravel wrote, noting Trump’s own criticism of the campaign finance system during his race for president. “Disclosure laws need to be strengthened; the mistaken jurisprudence of Citizens United reexamined; public financing of candidates ought to be expanded to reduce reliance on the wealthy; and commissioners who will carry out the mandates of the law should be appointed to the expired terms at the FEC.”
National Review: A Democrat’s Self-Dramatizing Departure Could Bring Real Reform to the FEC
By Jeremy Carl
The 2016 election was, for anyone who had eyes to see it, the most dramatic repudiation possible of the false notion that big donors determine the fate of our candidates or our politics…
Real FEC reform would be the opposite of what Ravel and her Democratic colleagues want. We don’t need to increase disclosure – we need to reduce it. Or, to put it more accurately, we need to give normal political donors back their privacy – stop harassing people who give $200 or even $2,000 to candidates by forcing them to share personal information such as their name, address and, employer. Individual checks of these sizes just don’t swing state and national races…
Are there bad actors and genuinely corrupt gifts of money in politics? Sure there are. The FEC should go after them. And people do have a right to know if a small group of people are fundamentally bankrolling a major campaign or candidate. But the truth is rarely so simple as the Ann Ravels of the world want it to be, and the FEC’s confusing and often irrational maze of rules is in no small amount responsible for creating the problems Ravel decries.
Election Law Blog: Rather Than Continued Stalemate, Federal Election Commission May Now Lead Way to Campaign Finance Deregulation
By Rick Hasen
By law, no more than three commissioners on the FEC can be of the same political party. Generally this has meant three Democrats (or commissioners siding with Democrats) and three Republicans. The President has generally given the leadership of the party in the Senate on the other side a chance to pick commissioners from that party (though there was a dispute in 2007-8 over the controversial nomination of Hans von Spakovsky to the FEC).
Suppose President Trump decides not to follow this convention (and given the fact that he hasn’t followed other conventions, this would be unsurprising) He could appoint a libertarian or independent to Ravel’s position, thereby not violating the rules about having more than three Republican appointees. Thanks to Senator Reid, there is no more filibuster of executive nominations in the Senate, so Republicans in the Senate can force this choice through. The result? Four commissioners who can now do rulemaking, advisory opinions, and take positions in litigation that will make the FEC the leader in deregulating the political process.
More Soft Money Hard Law: Commissioner Ravel’s Departure-and the Virtues of Deadlock
By Bob Bauer
Rick Hasen suggests that Mr. Trump could now break the agency deadlock and add a libertarian voice to the agency, creating a majority for active deregulation without violating the rule against one party holding more than half the seats. Once in the past, in the Carter Administration, a president tried a move like this and it did not end well. Maybe in this more deeply polarized time, the outcome would be different. But here again, Mitch McConnell would have a say in the matter, and it would be surprising if he supported this provocative maneuver, which would be mostly a distraction. The FEC is not much of a problem for the Republicans: Deadlock has worked well enough for them.
So why bother to take on this new fight? How much more could the FEC not do?
But if the Republicans did cooperate with the President to pack the Commission with their own, it would cast new light on the reasons why an agency like this might be wisely structured to be 50-50, with no party controlling. Democrats and reformers, resisting the Republican power play, will now appeal to this feature of the FEC’s design. Dreaded deadlock will start to look much better.
Independent Groups
USA Today: Former Clinton super PAC begins targeting vulnerable GOP members of Congress
By Heidi M Przybyla
Priorities USA, the main political action committee behind Hillary Clinton’s 2016 campaign, is rolling out a series of digital ads in an early attempt to target potentially vulnerable members of the GOP ahead of the 2018 midterms elections.
The ads, an initial buy as the group reinvents itself as a major financial investor in a gathering progressive movement, will spread the word about town hall forums and other events during next week’s congressional recess. They will direct citizens eager to engage members of Congress to events taking place in districts that the former Democratic presidential nominee won but are represented by Republicans, for instance Rep. Leonard Lance of New Jersey, and in swing states represented by Republicans, such as Sen. Dean Heller of Nevada.
In the past, Democrats have held off on such spending campaigns until election year. Yet with Clinton’s loss, Republicans in control of both chambers of Congress and Democrats in control of just 13 state legislatures, officials see the need to begin a major effort early on. Further, Democrats face a daunting map in the Senate in 2018, defending 28 seats while Republicans are defending just eight.
Trump Administration
Politico: ‘He’s Going to Be an Enabler’
By Nancy Cook
Today, the FEC ranks as the worst small agency to work for in the federal government, according to an annual survey done by the nonpartisan Partnership for Public Service. But from a strategic perspective, McGahn’s approach worked. In just five years, he ground the FEC to a slow crawl, with fewer disciplinary actions and fines…
Even top Democratic lawyers acknowledge that McGahn’s tenure was one of the most consequential in the agency’s history. “He was the most significant commissioner to ever serve,” says Robert Bauer, one of the Democrats’ top campaign finance lawyers and former White House counsel to President Barack Obama. “He came with the capacity to control three votes on a six-member commission. He set the tone and a relentlessly ideological direction and went about this very aggressively.”…
Years later, McGahn’s FEC tenure is instructive as he settles into his role as the White House counsel, advising President Trump on conflicts of interest, national security, executive orders, campaign finance, regulations and, most recently, Trump’s pick for the Supreme Court, Neil Gorsuch.
Reuters: Trump goes to his comfort zone: campaigner-in-chief
By John Whitesides
After a tumultuous opening month in the White House, President Donald Trump is heading to a friendlier, familiar and potentially rejuvenating place: the campaign trail…
He has replaced Hillary Clinton, his former Democratic presidential rival, with a new foil: newspapers and TV news outlets that have reported unflattering revelations of dysfunction or other problems in the White House. He has described them as “lying”, “corrupt”, “failing” and, late on Friday, as “the enemy of the American people.”…
The Florida rally marks an extraordinarily early start to the 2020 White House campaign for Trump, who filed re-election papers with the Federal Election Commission (FEC) five hours after he was sworn in as president on Jan. 20…
The paperwork was not a formal declaration of Trump’s candidacy, but allowed him to continue raising funds, including the money received from sales of his popular red “Make America Great Again” hats. The Trump campaign raised $9.6 million in December and had about $7.6 million on hand at the end of the year, the last time it was required to file a report with the FEC.
The States
Rapid City Journal: Legislators face Thursday deadline on IM22 fixes
By Bob Mercer
With days running out, Republican legislators look hard-pressed to make good on their promises to pass campaign and ethics laws that would replace parts of Initiated Measure 22.
The Legislature’s super-majorities of Republicans repealed IM22 three weeks ago, after voters had approved it in the Nov. 8 election.
Legislators passed the repeal with an emergency clause, meaning it would go into effect upon the governor’s signature. On Feb. 2, Gov. Dennis Daugaard made it a done deal.
Now, two weeks later, the Legislature is scrambling. Thursday is the self-imposed deadline for a piece of legislation to receive final action in the chamber where it originated…
The legislation dealing with IM22 has been flowing and has been stagnant, depending on the topic and the sponsor. On Tuesday alone, the House of Representatives has five ethics and campaign finance bills on its calendar for action. The Senate has one.
