In the News
The Insider: Good Signs for First Amendment in Judge William Pryor’s Rulings on Tax-Financing, Political Sign Cases
By David Keating
Scott v. Roberts presented Republican gubernatorial candidate Rick Scott’s challenge to a tax-financed campaign scheme the state enacted in 1986 and amended in 1991. The program generally operated as a matching funds program… However, once an opponent to a tax-financed candidate spent over $2/registered voter, the subsidized candidate received a dollar-for-dollar match of his opponent’s spending. The subsidized candidate no longer needed to raise any private funds to receive the subsidy. The law also allowed subsidized candidates to exceed expenditure limits. Judge Pryor held the scheme was likely unconstitutional, and the opinion overturned a district court’s denial of a preliminary injunction…
In Beaulieu v. City of Alabaster, Judge Pryor joined an opinion that held a city’s sign-usage ordinance unconstitutional. The ordinance placed different burdens on commercial and political signs…
Applying strict scrutiny, the panel affirmed the district court ruling, which overturned the ordinance. The panel determined that the city’s interests in aesthetics and safety did not overcome the core political speech at issue.
CCP
Ten Amicus Briefs Urge Supreme Court to Hear Full Arguments in Free Speech and Donor Privacy Case
Ten amicus briefs, including briefs from U.S. Senate Majority Leader Mitch McConnell and multiple well-known national groups, urge the U.S. Supreme Court to hear full arguments in a free speech case implicating important issues of donor privacy, Independence Institute v. FEC. Under federal campaign finance laws, the Supreme Court must rule on the constitutionality of the law in question, but may opt to do so by summarily affirming the lower court, and without ordering oral argument. A favorable ruling in the case would safeguard the privacy of donors to nonprofit groups speaking about issues of public importance. The Court has never ruled on this question before.
Notable amici include U.S. Senate Majority Leader Mitch McConnell, ten First Amendment scholars, including Stanford Law School Professor Michael W. McConnell and former ACLU President Nadine Strossen, the Philanthropy Roundtable, U.S. Chamber of Commerce, the State Policy Network and 24 state think tanks, the Institute for Justice and the Cato Institute, among others.
Donors are often aware of instances of political targeting or harassment, as shown by the fact that they have raised the foregoing examples with Amici. In Amici’s experience, any rule that expands the definition of “electioneering communication” so as to require additional disclosure of donor data has the real potential to chill speech in non-electioneering contexts. The intimidating effect of the district court’s ruling is only enhanced by the fact that the rule it approves is so apparently arbitrary and unrelated to any true intention to favor one candidate over another.
Naturally, expanding the definition of “electioneering communication” for disclosure purposes does not affect only donors. It also influences Amici’s issue advocacy. Because the possibility of compelled disclosure, even if remote, affects the willingness of donors to give, Amici must accommodate their donors’ concerns. What this means, as a practical matter, is that Amici must be much more circumspect in mentioning the names of both candidates for public office and elected public officials in their issue advocacy. This circumspection directly affects Amici’s current plans to educate the public on the issues about which Amici are concerned through broadcast and other media.
ICYMI
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.
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.
By David Keating
Scott v. Roberts presented Republican gubernatorial candidate Rick Scott’s challenge to a tax-financed campaign scheme the state enacted in 1986 and amended in 1991. The program generally operated as a matching funds program… However, once an opponent to a tax-financed candidate spent over $2/registered voter, the subsidized candidate received a dollar-for-dollar match of his opponent’s spending. The subsidized candidate no longer needed to raise any private funds to receive the subsidy. The law also allowed subsidized candidates to exceed expenditure limits. Judge Pryor held the scheme was likely unconstitutional, and the opinion overturned a district court’s denial of a preliminary injunction…
In Beaulieu v. City of Alabaster, Judge Pryor joined an opinion that held a city’s sign-usage ordinance unconstitutional. The ordinance placed different burdens on commercial and political signs…
Applying strict scrutiny, the panel affirmed the district court ruling, which overturned the ordinance. The panel determined that the city’s interests in aesthetics and safety did not overcome the core political speech at issue.
Supreme Court
CBS News: A look at the coming Supreme Court battles (Video)
President Donald Trump has the chance to shape the direction of the Supreme Court for decades to come. He’s expected to nominate a justice to the court within two weeks to fill the vacancy left by the death of Antonin Scalia last year. CBS News chief legal correspondent Jan Crawford joins “CBS This Morning: Saturday” to discuss the leading candidates.
Daily Caller: New Front-Runner Emerges In SCOTUS Contest
By Kevin Daley
Judge Neil Gorsuch of the 10th U.S. Circuit Court of Appeals may be the leading candidate for President Donald Trump’s first appointment to the Supreme Court…
With sterling academic credentials and the reputation of an incisive and thoughtful jurist, Gorsuch is seen by many as a safer pick for the appointment than Judge William Pryor, a conservative stalwart on the 10th U.S. Circuit Court of Appeals and favorite of Attorney General-designate Jeff Sessions. Though Gorsuch is also reliably conservative, his scholastic streak may make him a more palatable nominee for wary Senate Democrats, who have pledged all-out resistance to an unacceptable candidate.
The final candidate rounding out the frontrunners is Judge Thomas Hardiman of the 3rd U.S. Circuit Court of Appeals. An announcement is expected early next week.
The Courts
Washington Post: How President Trump will shape the federal courts
By Jonathan H. Adler
As Donald Trump is inaugurated as our nation’s 45th president, there are 114 pending vacancies in the federal courts. This represents just over 12 percent of the federal judiciary and the largest percentage of judicial seats vacant for an incoming president since Bill Clinton was inaugurated in 1992 (when just over 13 percent of judicial seats were vacant).
An additional 14 sitting judges have announced their plans to take senior status or retire in the coming months, creating an additional 14 vacancies. (The Administrative Office of the U.S. Courts keeps track of current vacancies as well as pending vacancies.) We can also expect many more vacancies to materialize over the next four years.
According to a Ballotpedia analysis, a majority of currently sitting judges will become eligible to take senior status at some point in the next four years. Of those, a majority were nominated by Republican presidents…
Here’s a quick rundown of the existing vacancies and their effects on the balance of federal appeals courts…
Independent Groups
USA Today: Democratic donors plot Trump resistance
By Fredreka Schouten
As President-elect Donald Trump prepares to enter the White House, his Democratic foes are racing to rally liberal donors to fund attacks against his incoming administration, plot ways to defeat him in 2020 and rebuild Democrats’ diminished power in states. First up: A three-day donors’ retreat this weekend in Miami, organized by David Brock, one of Hillary Clinton’s fiercest advocates and the leader of a cluster of liberal groups that has been at the forefront of Democratic politics in recent elections. Some 150 contributors, elected leaders and activists are slated to attend the gathering…
At the same time, Priorities USA Action – the main super PAC behind Clinton’s unsuccessful White House bid – is relaunching as a major independent player in liberal politics…
Later this spring, the Democracy Alliance, the financial hub for a group of some 120 liberal donors, is inviting scores of additional contributors who are active in state politics to a March meeting in Washington. The goal is to broaden financial support for state battles and confrontations with Republicans in Washington over the Supreme Court, the repeal of President Obama’s 2010 health care law and other GOP priorities, said Gara LaMarche, the Democracy Alliance’s president.
FEC
Sacramento Bee: Feds must focus on foreign campaign money
By Editorial Board
Commissioner Ellen L. Weintraub, a Democrat, recently urged the commission to consider updating the rules, and raised important questions, not the least of which is “What constitutes a foreign corporation?”
The U.S. Supreme Court’s 2010 decision, Citizens United v. FEC, legalized contributions from corporations, which it describes as “associations of citizens.” Among her questions, Weintraub asks whether those associations should be made up of U.S. citizens or citizens of Mexico, China or some other country…
Then there’s the matter of nonprofit corporations that air ads that seek to influence an election’s outcome, without specifically saying to vote for or against a candidate. Since nonprofits do not publicly disclose their donors, no one other than the donors, the recipients and the Internal Revenue Service knows their identities.
We believe donors ought to be publicly identified. But short of that, the feds should require that the treasurers of such corporations sign statements swearing that they’ve accepted no foreign money. So far, the commission has not touched the issue, unfortunately.
Donors
Washington Post: Wealthy donors, once Trump’s punching bags, get VIP treatment at inauguration
By Matea Gold
The Trump operation’s warm embrace of the party’s biggest donors and fundraisers stands in sharp contrast to the candidate’s rhetoric when he first launched his long-shot presidential bid. At the time, Trump eschewed the support of rich backers. He was funding his own campaign, the New York developer announced proudly – and he warned that his rivals were corrupted by the money they were taking.
“I’m not getting millions of dollars from all of these special interests and lobbyists and donors,” Trump said in February 2016.
Campaign finance watchdogs said the access that top contributors have been granted to the incoming president and other senior administration officials this week makes his pledge to “drain the swamp” appear hollow.
“The inaugural fundraising looks shockingly like pay-to-play,” said Nick Penniman, executive director of Issue One, a bipartisan group working to reduce the influence of wealthy interests on politics. “It’s the very stuff that he condemned on the campaign trail. This is not what the American people expected when they voted for Donald Trump.”
Wall Street Journal: Companies Pony Up for Donald Trump’s Inauguration
By Rebecca Ballhaus
At least four corporations that declined to support or reduced their donations to the July convention have given to Mr. Trump’s inaugural committee, which raised a record $90 million, according to an official on the committee. That haul far surpassed the $44 million President Barack Obama’s committee raised in 2013 and the $53 million it raised in 2009.
United Parcel Service Inc., Wal-Mart Stores Inc. and Coca-Cola Co. are among companies supporting Mr. Trump’s inauguration, after opting not to give or to reduce their donations to the convention last year. All three companies had given to previous conventions of both parties…
Beyond the hope of avoiding Mr. Trump’s Twitter wrath, there are plenty of reasons for corporations to sponsor an inauguration. Many companies say they see it as a civic responsibility. Major donors also win prime placement of their names or those of their corporations on “select printed materials,” according to a list of benefits viewed by The Wall Street Journal.
Trump Administration
Washington Post: Liberal watchdog group to sue Trump, alleging he violated constitutional ban
By David A. Fahrenthold and Jonathan O’Connell
A liberal watchdog group says it plans to file a lawsuit against President Trump in federal court on Monday alleging that he is in violation of a little-known constitutional provision that bars him from taking gifts or payments from foreign governments.
The group, Citizens for Responsibility and Ethics in Washington, said that because Trump-owned buildings take in rent, room rentals and other payments from foreign governments, the president has breached the Emoluments Clause. That clause in the Constitution says that “no Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” It was written out of fear that the young republic’s leaders or ambassadors could be bought off by a richer European power.
The meaning of those words has never truly been tested in court. The watchdog group says the text should be interpreted to mean that Trump’s businesses should cease all business dealings with foreign states.
New York Times: As Trump Takes Office, Many Conflicts of Interest Still Face His Presidency
By Karen Yourish, Troy Griggs, and Larry Buchanan
Although President Trump has announced that his adult sons will run his business, he remains vulnerable to conflict of interest accusations because he will continue to own the Trump Organization.
“Its profits will be Trump’s profits and its problems will be his problems as the owner,” said Fred Wertheimer, the founder and president of Democracy 21, an ethics in government group.
Here are examples of potential conflicts that remain…
National Law Journal: Ethics Guru Richard Painter’s Phone Is Ringing Often, Thanks to Trump
By Marcia Coyle
In the last several weeks, Painter seems to be everywhere, often with former Obama administration chief ethics lawyer Norm Eisen and sometimes with Harvard Law School’s Laurence Tribe, all in a move to dissect, and propose solutions to, the ethics problems of the new administration.
Conflicts of interest were not on Painter’s radar at the start of 2016. His focus then was on campaign finance reform.
“Campaign finance was screwing everything up,” he said. He had published a book on why political conservatives should support campaign finance reform. But then “Donald Trump started becoming a problem,” Painter said.
Campaign finance receded and Painter moved to the fore in the political and media maelstrom.
The calls from the press and others, Painter said, have been “nonstop since the election because people didn’t expect Trump to win.”…
Painter said he is most concerned about Trump’s foreign business entanglements, which are the reason he claims the new president will violate the Constitution from the start of his presidency.
The States
Washington Examiner: Seattle gives residents $100 to donate to local politicians
By Anna Giaritelli
Seattle is offering voters $100 in “democracy vouchers” to donate to political candidates in an effort to limit big money in politics and boost civic involvement in elections.
Earlier this month, the first of the vouchers were mailed out for its inaugural run in citywide races in the fall…
Former election commission chairman Robert Mahon said the program will “deliver little or no public benefit” despite its “relatively small” cost.
“In a time of increasing budget pressure, I don’t think our property taxes are best spent subsidizing political contributions and building a bureaucracy to manage it,” Mahon said. In his opinion, the city’s five mayors in the past two decades are evidence the city has healthy turnover. Still, the partner with tax law firm Perkins Coie LLP in Seattle said his greatest concern is cost.
Vermont Business Magazine: Donovan, Condos to explore campaign finance solutions
Vermont Attorney General TJ Donovan and Secretary of State Jim Condos on Sunday announced the launch of a cooperative effort to create a joint Committee on Campaign Finance Education, Compliance and Reform. Condos and Donovan touted the effort as an important step forward in encouraging compliance with current law and facilitating the development of solutions to address potential shortcomings in Vermont’s campaign finance regime.
“One thing I know every elected official in this state can agree on is that Vermonters are deeply troubled by the growing amount of money that is being spent to influence our political processes,” General Donovan said. “After the Citizens United decision the rules of the game changed dramatically and there is a strong consensus that we want to prevent Vermont’s campaign finance apparatus from being abused or ignored.” Donovan continued, “We need to ensure that our system is as robust as it can be in meeting the real-world challenges of the current political environment.”
NJ Advance Media: N.J. political party fundraising plummets amid rise of ‘dark money’
By Susan K. Livio
New Jersey’s political parties continued to lose their juice as a fundraising force in 2016, according to the New Jersey Election Law Enforcement Commission, with coffers coming up short by one-third compared to a similar election cycle eight years ago.
Blame the rise of political action committees – the so-called “dark money” groups which do not have to disclose the names of their donors or abide by contribution limits, Jeff Brindle, the commission’s executive director said.
These independent groups spent $28 million…
“Once again, these figures underscore the need for political parties to be strengthened,” Brindle said Thursday. “They and candidates alike are losing ground to independent, often anonymous groups that are ever increasing their influence over the electoral process in New Jersey.”
