Trump’s SCOTUS List of 21
By David Keating
The minor party contributors who bring this equal protection challenge suggest (at least in places) that we should consider applying strict scrutiny to this particular aspect of Colorado’s statutory scheme. They say that contributing in elections implicates a fundamental liberty interest, that Colorado’s scheme favors the exercise of that fundamental liberty interest by some at the expense of others, and for this reason warrants the most searching level of judicial scrutiny. For my part, I don’t doubt this line of argument has much to recommend it. The trouble is, we have no controlling guidance on the question from the Supreme Court. And in what guidance we do have lie some conflicting cues.
No one before us disputes that the act of contributing to political campaigns implicates a “basic constitutional freedom,” one lying “at the foundation of a free society” and enjoying a significant relationship to the right to speak and associate – both expressly protected First Amendment activities. Even so, the Court has yet to apply strict scrutiny to contribution limit challenges – employing instead something pretty close but not quite the same thing.
Judge Raymond Gruender Supports Nonprofit Speech Rights in Key Minnesota Case
By David Keating
We found five cases where Judge Raymond Gruender participated in an opinion related to free speech rights. He supported First Amendment speech rights in four of the five cases…
As we noted with our previous report on Judge Steven Colloton, also of the Eighth Circuit, the most significant of these decisions, by far, is Minnesota Citizens. The opinion strongly favored First Amendment free speech rights, and Judge Gruender joined the majority.
After Citizens United was decided, Minnesota passed a law requiring corporations (including nonprofits) wishing to speak out on political candidates to create “political funds” similar to PACs. A group of incorporated entities challenged both that requirement and Minnesota’s ban on corporate contributions to candidate campaigns, and sought an injunction against enforcement of the law…
The majority opinion concluded that “Minnesota’s campaign finance laws unconstitutionally infringe upon the right to engage in political speech through independent expenditures.” The majority found that, even under exacting scrutiny, the burdens imposed by requiring speech to be conducted via political funds and the attendant disclosure and reporting requirements were likely unconstitutional.
By David Keating
We found four cases relevant to First Amendment speech freedoms where Judge Hardiman either wrote or joined an opinion. Additionally, he voted against a petition for en banc review of Delaware Strong Families v. Denn, where CCP represented the plaintiff in one of the most important campaign finance cases of 2016…
The question presented in this lawsuit was simple. Should the state have the power to regulate groups that publish nonpartisan voter guides in essentially the same way that it regulates candidate committees, political parties, and PACs?
Judge Hardiman did not sit on the panel that heard this important case. However, he and the other Third Circuit judges received a petition asking the full en banc court to review the decision. A short brief accompanied the petition, which was denied. Judges Kent A. Jordan and Thomas I. Vanaskie voted to grant the petition, but Judge Hardiman did not…
After en banc review by the Third Circuit was denied, a certiorari petition was filed, unsuccessfully, with the U.S. Supreme Court. Justice Clarence Thomas wrote a highly unusual six-page dissent denouncing the Court’s refusal to hear the case. Such dissents are rare. Justice Samuel Alito also announced that he would have granted review.
In the News
Federalist Society: Campaign Finance Takeaways from the 2016 Election
By Luke Wachob
2016 was a surprising year in politics. One surprise that hasn’t received much attention yet is the minimal role played by “money in politics” in the presidential election. One of the best-funded candidates in history, Hillary Clinton, lost to an opponent who raised less than half of what she did. Not just that, but independent supporters of Clinton outspent those advocating for Trump nearly 3-to-1…
Deregulating campaign finance after the 2016 cycle should become less controversial. (Although the pro-regulation crowd and their media cheerleaders will no doubt work hard to prevent that.) Hillary Clinton’s massive fundraising operation showed that regulations don’t prevent prominent politicians from building a “war chest” to scare off challengers. Donald Trump’s victory, despite comparatively little spending, showed how public figures can leverage their celebrity to make campaign finance restrictions irrelevant. Meanwhile, new voices without the benefit of fame are stifled by the same laws supposedly preventing the wealthy from gaining political advantage.
What is left is to liberalize the system so that everyone – not just the Clintons and Trumps of the world – can thrive in politics.
More Soft Money Hard Law: The New Free Speech Anxieties
By Bob Bauer
The Independence Institute case, a challenge to the regulation of issues speech, has attracted a sizeable roster of amici in support of Supreme Court review. So far the line-up is largely conservative and libertarian, and yet, notably, the arguments are ones that in the Age of Polarization might also -and should- find an audience among progressives. The issue is the constitutional protection available for anonymous issues speech that a speaker, or an association of speakers, may engage in to limit the risk of reprisal or harassment…
Independence Institute is about the protection of issues speech when it is expressed in a campaign season, months out from Election Day, without any reference to candidates or elections, and unquestionably involving public policy issues. As collection of prominent political scientists and constitutional law professors have written in an amicus brief, the courts have left the constitutional question in a state of uncertainty when “the sad fact in today’s world is that people whose viewpoints are displeasing to the modern mob (namely, the bullying power of social media), or to bureaucracies with discretionary power over their lives or businesses, suffer a grave risk if they communicate those unpopular views without the protective cloak of anonymity.”
Pacific Legal Foundation: Supreme Court denies review in Bennie v. Munn
By Wen Fa
This morning, we received disappointing news that the Supreme Court denied our cert petition in Bennie v. Munn.
PLF attorneys represent Bob Bennie, a financial analyst and Tea Party leader in Nebraska. Bennie was targeted for retaliation by state financial regulators because he expressed political viewpoints that they didn’t like…
The Court’s announcement should be disappointing to everyone who values First Amendment freedom – the indispensable right of all Americans to speak their minds without fear of official reprisal. Freedom of speech has little meaning if government officials can get away with punishing people for exercising that right. That’s precisely what happened to Bob Bennie. Vindictive bureaucrats launched a vendetta campaign against him because of his political opinions…
Thanks goes to Gene Summerlin, Steve Grasz, Mark Hill, and Marnie Jensen of Husch Blackwell LLP, who represented Bennie in the courts below and contributed to our petition as local counsel. And to the law professors, state attorneys general, and freedom-oriented organizations who submitted friend-of-the-court briefs. It is encouraging to see that so many are willing to stand up for individual liberty and the First Amendment.
CCP
Many political candidates are also sitting members of Congress who are responsible to their constituency for pending legislation and other constituent services. 501(c)(3) organizations that speak about policy matters or about pending legislation have the fundamental First Amendment right to encourage the public to speak with legislators about such bills. That right does not go away simply because a primary or general election may be on the horizon. To the contrary, given that Congress may well take up bills in the weeks before an election, the BCRA provision threatens to silence genuine issue advocacy that stands at the heart of the First Amendment.
This Court has never upheld an effort by the Government to force a nonprofit corporation to disclose its financial supporters where the speech was not the functional equivalent of express advocacy. Such mandatory disclosure regulations violate our tradition of safeguarding the right to freely speak and associate, including anonymously-a right that ensured the vibrant debate that secured both our Nation’s independence and the adoption of the Constitution, and that has protected unpopular speakers in the two hundred and forty years since.
FCC
Legal News Line: New FCC rule to add paperwork for TV, radio stations
By Kristin Regula
Broadcasters can add a new regulation to follow when airing political advertisements.
The Federal Communications Commission has now ruled that all stations, both TV and radio, must keep an extensive record of all political ads that are aired. While it may seem like the stations do so already, the recordkeeping that was being done before was too lax for activist groups that wanted to monitor the funds of various political campaigns, resulting in complaints filed against 12 TV stations in 2014…
It is also unclear how this new order for broadcast stations will help the American people, [communications attorney Scott Flick] said. While having more information about where a politician is getting donations from is good, it’s not clear how having broadcast stations monitor it would help, versus the Federal Election Commission putting something into place instead.
“It’s creating paperwork for the sake of paperwork,” said Flick. “The FEC should regulate the flow of money, not leave the burden on the broadcasters.”
SEC
Business Insider: A bunch of funds just got fined by the SEC for violating ‘pay-to-play’ rules
By Rachel Levy
The Securities and Exchange Commission has fined 10 investment firms for violating pay-to-play rules.
Bill Ackman’s Pershing Square Capital Management is among them and has agreed to pay $75,000 over a $500 political donation, the SEC said on Tuesday.
Here’s what happened, according to the SEC: In 2013, an employee at Pershing Square made a $500 campaign contribution to a candidate for governor of Massachusetts. Such a donation was not allowed because that candidate, if elected, had the ability to influence the selection of investment funds for the state’s pension plan, PRIM…
At the time, Pershing Square called the donation “an unintended violation,” Reuters reported.
The other nine firms that the SEC fined include Adams Capital Management, Aisling Capital, and FFL Partners, and they are paying $35,000 to $100,000 each, the SEC said. None of them, including Pershing Square, have admitted or denied liability.
Trump Administration
Washington Post: A majority of Americans feel like Trump has done enough on his conflicts of interest
By Scott Clement
A narrow majority of Americans say Donald Trump should not have to sell his businesses to separate them from his duties as president – but a large majority say the president-elect should release his tax returns, according to a new Washington Post-ABC News poll.
The poll finds 52 percent of those surveyed say Trump’s decision to hand over control of his businesses to his adult sons and another executive “is enough” to separate his business interests from his obligations as president. A somewhat smaller share, 42 percent, say Trump should sell his businesses outright…
Americans are sharply divided over whether the president-elect, his family and advisers are complying with federal ethics laws, with 43 percent saying they are and 44 percent saying they are not. The question draws a sharp partisan split, with 79 percent of Republicans saying Trump’s team is complying with ethics laws while 72 percent of Democrats say they are not. Independents split nearly evenly on the question: 44 saying the Trump team is complying, and 43 percent say they’re not.
Politico: The Trump lobbying purge that wasn’t
By Maggie Severn and Isaac Arnsdorf
Despite President-elect Donald Trump’s much-publicized efforts to keep lobbyists out of his administration, they have continued to offer policy advice, recommend job candidates and contribute money to his transition team, according to a POLITICO investigation.
And while they’re barred from donating to the $200 million in inaugural festivities this week, lobbyists have been collecting checks on Trump’s behalf, according to four lobbyists interviewed by POLITICO who are directly helping raise the funds.
The loopholes in Trump’s restrictions are so widespread that many lobbyists said they’ve concluded Trump’s ethics rules aren’t really meant to change how business is done in Washington.
“I’ve known Donald Trump for 30 years. I think he’s serious for wanting to keep what he calls ‘special interests’ out of the process as much as possible,” said Charlie Black, chairman of the lobbying firm Prime Policy Group. “But that said, he kind of knows how these things work.”
Washington Post: Trump could cause ‘the death of think tanks as we know them’
By Josh Rogin
Trump’s appointments have so far have been heavy on business executives and former military leaders. Transition sources tell me the next series of nominations – deputy-level officials at top agencies – will also largely come from business rather than the think tank or policy communities…
The president-elect favors people who have been successful in the private sector and amassed personal wealth over those who have achieved prominence in academic or policy fields. Those close to him, including chief strategist Stephen K. Bannon and senior adviser Jared Kushner, see think tanks as part of a Washington culture that has failed to implement good governance, while becoming beholden to donors.
“This is the death of think tanks as we know them in D.C.,” one transition official told me. “The people around Trump view think tanks as for sale for the highest bidder. They have empowered whole other centers of gravity for staffing this administration.”
The States
South Carolina State: Senator wants influential ‘dark money’ donors revealed
By Cassie Cope
Senate President Pro Tempore Hugh Leatherman wants so-called “dark money” political groups to reveal their donors…
Leatherman, R-Florence, introduced a bill Tuesday that would require political groups to disclose information on their donors, including names, addresses and employers of donors who contribute a total of $1,000 or more. The bill would not limit the amount of money someone could donate.
The proposal also would require dark money groups to disclose what expenses the groups spend money on in pushing an issue or trying to defeat candidate.
“I’m fighting to bring dark money out of the shadows in South Carolina. If a group is trying to influence the outcome of an election, then they need to be disclosing who they are,” Leatherman said in a statement.
The bill is modeled after a Montana law that survived a legal challenge in Federal District Court.
Hartford Courant: Speaker’s Bill Could Challenge Citizens United Ruling
By Dan Haar
Connecticut is stricter than almost any other state when it comes to allowing dark money, but House Speaker Joe Aresimowicz wants to take it further. He’s rolling out a bill that would, he says, shed much more light on political contributions.
The bill doesn’t have specifics, but Aresimowicz, a Berlin Democrat, promises a public hearing and hints that the bill could challenge the infamous 2010 Citizens United decision by the U.S. Supreme Court, which allows unlimited political spending by corporations and private groups, or other court rulings that let contributors hide behind murky names.
“Having the disclosure and letting the voters in the state of Connecticut know who is saying what, and having them stand by their word, is more important than keeping the donors to individual funds clouded in secrecy,” Aresimowicz said.
New York Times: City Site Helps Upstart Candidates Reach Out for Small Donations
By William Neuman
Over the last month, hundreds of thousands of dollars in campaign contributions have flowed through a website, created by the city’s Campaign Finance Board, to make it easier for grass-roots candidates to gain access to the kind of small-donor-fueled online fund-raising platforms that propelled major campaigns like those of President Obama or Senator Bernie Sanders.
The site, NYCVotes.org, is free for all candidates to use and allows donors to make credit card contributions online…
Candidates have raised more than $950,000 through the site since it was created last February, according to the board. More than half of that total came during the final month of the reporting period.
Much of that money may be eligible for the city’s matching funds program, which provides a six-to-one match for the first $175 in contributions to a candidate from any city resident. In that way, a voter who makes a $175 contribution to a candidate makes it possible for the candidate to receive an additional $1,050.
