Supreme Court
New York Times: Please Don’t Follow This Money
By Andrew Ross Sorkin, Jason Karaian, Michael J. de la Merced, Lauren Hirsch and Ephrat Livni
A new Supreme Court case is calling into question the sincerity of corporate America’s reckoning with political giving. Many companies and trade groups say they are re-evaluating political donations after the riot in the Capitol, demanding accountability for lawmakers who challenged the electoral count. But in a matter accepted for review by the high court a few days after the mayhem, some of those organizations had argued for a constitutional right to anonymous charitable donations, a position that would make accountability more difficult. (It’s known as “dark money.”)
The case “nominally involves a tiny technical question” about the tax disclosures of charities’ major donors in California, wrote Senator Sheldon Whitehouse, Democrat of Rhode Island, in the National Law Journal. But it “could lock in dark money influence as a constitutional right,” he added, and it comes as “the country faces a dark-money crisis as anonymous influence spreads malicious disinformation and corrupts and disrupts our politics.” More than 20 “friends of the court briefs” supporting donor anonymity were filed, including from business groups.
The petitioner says anonymity protects “dissident beliefs.”
The Courts
TribLive: Judge: Port Authority cannot ban Black Lives Matter masks
By Paula Reed Ward
A federal judge on Tuesday ruled that the Port Authority of Allegheny County cannot ban its employees from wearing Black Lives Matters masks, finding that a policy banning political speech was “arbitrary and over broad.”
U.S. District Judge J. Nicholas Ranjan said in his 45-page opinion that Port Authority’s argument that the policy was necessary to prevent disruption among employees or with customers was unsupported by the evidence.
Instead, Ranjan wrote that it violated employees’ rights to free speech and equal protection.
While he sympathizes with the authority’s “good-faith desire to maintain a safe and productive workplace,” Ranjan wrote, “[T]he vast majority of the employee speech it has banned here – including its effective ban on ‘Black Lives Matter ‘masks – would not materially undermine that goal. Moreover, any of the truly disruptive behavior that the Port Authority fears can be readily deterred and dealt with on a case-by-case basis, and likely using non-speech-based means.”
Ranjan’s decision enjoins Port Authority officials from enforcing its ban on Black Lives Matter masks.
Trump Administration
Washington Post: Hours before leaving office, Trump undoes one of the only measures he took to ‘drain the swamp’
By Josh Dawsey
President Trump rescinded an executive order early Wednesday morning that had limited federal administration officials from lobbying the government or working for foreign countries after they leave their posts, undoing one of the few measures he had instituted to fulfill his 2016 campaign promise to “drain the swamp.” …
The order required executive branch appointees to sign a pledge that they would never work as registered foreign lobbyists, and it banned them from lobbying the federal agencies where they worked for five years after leaving the government…
He promised he would push Congress to pass a five-year lobbying ban into law so it could not be lifted by a future president. But he never proposed such legislation. Nor did he ask Congress to impose a similar five-year lobbying ban on its members, as he had promised he would do…
He also never tried to seek to “close all the loopholes” used by former government officials who get around registering as lobbyists by calling themselves “consultants” and “advisers.” And he never acted on his pledge to stop foreign lobbyists from campaign fundraising – and in fact, benefited from their financial support.
Free Speech
USA Today: Sen. Josh Hawley isn’t a censorship victim, he’s a free speech menace
By Ilya Somin
Simon & Schuster recently terminated its contract to publish Republican Sen. Josh Hawley’s book, “The Tyranny of Big Tech,” because of his role in promoting dubious objections to congressional certification of Joe Biden’s victory in the 2020 presidential election. Hawley responded by condemning the decision as “a direct assault on the First Amendment.”
Numerous commentators justifiably derided Hawley’s claim – and not just because he’d get picked up by another publisher. Under Supreme Court precedent, Hawley has no constitutional right to force Simon & Schuster to publish his book. Indeed, any such effort would be a violation of the publisher’s own First Amendment rights to refuse to publish authors it disapproves of.
Nonetheless, Hawley’s statement is not simply the result of ignorance. It is rooted in a broader worldview under which government should have vastly expanded power to control the private sector and thereby restrict constitutional rights. That vision is widespread on the right, among “national conservatives.” But it also has close analogues on the left. Both variants are menaces to liberty.
By Eliott C. McLaughlin
With most Americans hoping this week’s expected inauguration protests look nothing like the Capitol siege, questions emerge about unrestrained free expression, long championed by First Amendment theorists as a benefit to society, no matter how ugly and hateful…
Is allowing this type of expression “good” for America? An old First Amendment theory — known as the safety valve — says it is, that permitting groups to express themselves releases pressure, ensuring objectionable ideas aren’t driven underground where they might boil over into violence.
Permitting free speech, including hate and extremist speech, is often cast as a universal boon, reinforced in idioms such as, “Sunlight is the best disinfectant” and “I don’t agree with what you say, but I’ll defend your right to say it.”
Not all First Amendment scholars are buying the safety valve theory, especially after the deadly episode at the Capitol. They question if extremist speech demands more limitations when it’s inextricably linked to the violence at the nation’s legislative headquarters, after hateful online rhetoric dovetailed with politicians and activists delivering speeches to revved-up crowds that marched to the Capitol, some bent on insurrection.
Even the American Civil Liberties Union, the consummate guardian of speech, has sought to address the “competing values” its long-held defense of expression presents, and some experts say free speech theories need to take into account the way social media has been used to manipulate the marketplace of ideas.
Online Speech Platforms
New York Times: Parler Tries to Survive With Help From Russian Company
By Jack Nicas
Parler, the social network popular with Trump supporters, is trickling back to life.
The social network went offline last week after Amazon booted it from its computer servers for not consistently removing violent posts, an accusation that Parler denied. But after a week in which Parler executives sued Amazon and predicted that their site might never return, they are forecasting it will be back up and running by the month’s end.That turnabout is thanks, in part, to a Russian company.
Parler has entered into business with DDoS-Guard, a Russian firm that routes internet traffic and protects websites from cyberattacks. With its help, visitors to Parler.com now find a basic webpage with a promise from Parler’s chief executive, John Matze, that “our return is inevitable.”
But the use of a Russian company is worrying some researchers who study the internet and Russia. If Parler routes its web traffic through DDoS-Guard when its full website returns, the experts said, Russian law could enable the Russian government to surveil Parler’s users.
Biden Transition
The Hill: A First Amendment agenda for Biden’s first 100 days
By Larry Siems and Jameel Jaffer
American democracy is struggling – a struggle made worse by four years under a president who launched assaults on press freedom and who undermined trust in public discourse and the very notion of free speech with his endless distortions and lies. Reasserting and strengthening the freedoms of speech, the press and association should be among the Biden administration’s top priorities.
The range of speech-related challenges the new administration will confront is daunting. Many of these challenges involve novel questions at the intersection of free expression and new technologies and will require careful thought and creative solutions from federal agencies, Congress and the courts. But there are steps the administration can take on its own, in its earliest days, to roll back, revise or improve a range of practices and policies that are now undermining First Amendment freedoms and weakening our democracy.
Politico: I Wrote President Obama’s Ethics Plan-Biden’s Is Better
By Norman Eisen
I had the privilege of implementing President Barack Obama’s demanding ethics vision for his administration…
Biden’s new executive order on ethics does us one better. It restores the fundamentals of the Obama plan, closing loopholes Trump opened-but going further, including new crackdowns on special interest influence. If implemented rigorously (always a big if) Biden’s plan promises to go further to “drain the swamp” than either of his predecessors…
For example, take one of the centerpieces of the Obama plan: “Reverse” revolving door restrictions. Most ethics plans focus on officials leaving government, but in the Obama administration, we also imposed limits on those coming into government, with even tougher restrictions on ex-lobbyists. Trump’s executive order loosened those lobbying rules, lifting our limitation on lobbyists serving at an agency they lobbied. It is little wonder a flood of lobbyists inundated Trump’s administration-more than four times the number in just one Trump term than served under Obama in twice that time.
The Biden plan puts that core Obama restriction for lobbyists back in place, barring them from jobs in agencies they previously sought to influence. That makes sense: letting the fox into the henhouse he just stalked is simply too dangerous, as proved by the numerous controversies involving Trump officials who led agencies they once lobbied.
Candidates and Campaigns
Washington Post: Lawmakers who objected to election results have been cut off from 20 of their 30 biggest corporate PAC donors
By Douglas MacMillan and Jena McGregor
The 147 Republican lawmakers who opposed certification of the presidential election earlier this month have lost the support of many of their largest corporate backers – but not all of them.
The Washington Post contacted the 30 companies that gave the most money to election-objecting lawmakers’ campaigns through political action committees. Two-thirds, or 20 of the firms, said they have pledged to suspend some or all payments to their PACs…The dollar amounts given by corporate PACs tend to be relatively small: They can legally give each candidate’s campaign only up to $5,000 per election. “They spend more money on paper clips in the corporate office,” said Doug Schuler, an associate professor of business and public policy at Rice University.
But the donations can help ensure companies access to key policymakers overseeing their industries. “If they’re sitting on the right committee, you give them money,” Schuler said. “It’s kind of expected.”
At the same time, these donations attach corporate benefactors to politicians in visible ways, which can affect their images in the eyes of customers and employees. “You have the reputation risk, you have the business risk and you have legal risk from political spending,” said Bruce Freed, president of the nonprofit Center for Political Accountability, which scores companies on how transparent they are about political giving.
The States
Cleveland.com: FBI investigation revealed vast FirstEnergy-backed political network hidden through lax state disclosure rules
By Andrew J. Tobias
Legal filings and media reports over the past six months gradually have peeled back the layers of a dark-money political network funded by FirstEnergy, the Akron-based utility company.
But because state and federal law don’t require political nonprofits to disclose their donors, the only reason the public knows [about it]…is the federal investigation into House Bill 6, the nuclear bailout law which prosecutors say passed due to a $61 million bribery scheme, funded by FirstEnergy and its affiliates through secret or difficult to trace political donations…Following the emergence of the HB6 scandal, a bipartisan pair of state lawmakers introduced a bill to require more transparency in state political spending…
Despite its bipartisan backing, the bill…never even got a committee hearing.
The FirstEnergy-backed group, and the network of groups it funded, are a textbook example of “dark money” groups…[which] have proliferated since the 2011 “Citizens United” ruling by the U.S. Supreme Court.
Investigators have said FirstEnergy gave $61 million in bribes, nearly all of which was given to political groups with scant disclosure requirements, that spent the money to help elect Householder as speaker and to push [HB6]…through the state legislature.
The co-sponsors of last year’s campaign-finance bill…said they plan to re-introduce their bill in the new legislative session.
