In the News
SCOTUSblog: Petition of the day
By Kate Howard
Independence Institute v. Federal Election Commission
16-743
Issue: Whether Congress may require organizations engaged in the genuine discussion of policy issues, unconnected to any campaign for office, to report to the Federal Election Commission, and publicly disclose their donors, pursuant to the Bipartisan Campaign Reform Act of 2002.
Free Speech
Wall Street Journal: Norman Rockwell’s Ode to Civil Discourse
By Bob Greene
Beneath the gray roof of an unassuming white building on Route 183 in Stockbridge, Mass., resides a certain painting. Its artist created it 75 years ago. Yet amid the strident shouts, random rudeness and ceaseless cacophony of our current-day United States, that painting, in the quiet within those walls, offers a lesson that can seem as urgent as a breaking-news bulletin.
The name of the painting is “Freedom of Speech.”…
That man standing up in “Freedom of Speech”-what would be his fate today, in a world where the town meeting is not limited to any single town, where the meeting never stops, never sleeps, where the attendees are routinely invisible and full of casual rage? Would the man be granted a courteous hearing? Or, depending on the point he was hoping to make, would he be hooted down, hounded and laughed at by an audience he couldn’t see? Would he be silenced by strangers?
In the painting there is reverence in all those eyes. Not because of what the man is saying, but because of the sanctity of the act of saying it. It is reverence for an ideal that feels endangered today when, too often, the only eyes people see during their public debates are the ones reflecting off their computer screens as they type: their own two eyes, staring back.
Supreme Court
McClatchy DC: Supreme Court nominee has defended free speech, religion
By Jeff Donn and Geoff Mulvihill
Supreme Court nominee Neil Gorsuch has been a defender of free speech and a skeptic of libel claims, an Associated Press review of his rulings shows. His record puts him at odds with President Donald Trump’s disdain for journalists and tendency to lash out at critics…
In a 2007 opinion involving free speech, Gorsuch ruled for a Kansas citizen who said he was bullied by Douglas County officials into dropping his tax complaints. “When public officials feel free to wield the powers of their office as weapons against those who question their decisions, they do damage not merely to the citizen in their sights but also to the First Amendment liberties,” Gorsuch wrote…
In 2014, Gorsuch wrote a concurring court opinion that emphasized First Amendment rights in a campaign finance dispute that also hinged on the constitutional guarantee of equal treatment under the law. Gorsuch agreed with the court majority that Colorado’s campaign finance law treated write-in candidates unfairly because it set lower contribution limits for them. He said there’s a free-speech guarantee in picking a preferred candidate, and that the Colorado law sprang from “a bald desire to help major party candidates at the expense of minor party candidates.”
Citizens United
San Francisco East Bay Times: Fight over campaign money was decided 40 years ago
By William K.S. Wang
Citizens United gives First Amendment protection to corporate (and labor unions’) political spending independent of the candidate’s campaign. Many Americans think that Citizens United should be overturned.
In fact, the Supreme Court’s far more important campaign finance decision came down 40 years ago. In Buckley v. Valeo, the court ruled that the First Amendment forbids restrictions on independent campaign spending by an individual or group. Only one justice dissented from this view. Another justice did not participate and the remaining seven, liberal and conservative alike, endorsed this holding…
At least until relatively recently, the constitutionality of campaign finance restrictions was not an issue of liberal against conservative. The question was one of freedom of expression and association versus decreasing the danger of corruption in politics. Forty years ago, the Supreme Court weighed these two competing values. Because of concern about unintended consequences, seven justices, both liberal and conservative, voided restrictions on genuinely independent campaign spending by individuals or groups.
Congress
Orlando Sentinel: DeSantis: Trump wants to drain the swamp – here’s how I’ll do it
By Rep. Ron DeSantis
Indeed, there are strong incentives in place that all but ensure that the revolving door will continue to spin faster and faster.
“Draining the swamp” requires altering these incentives.
During the presidential campaign, then-candidate Trump proposed a series of sweeping ethics reforms that would do just that. I was pleased to see the president recognize this problem, and I have introduced the Drain the Swamp Act to answer his call for major reform in Washington.
The Drain the Swamp Act would enact the Trump-endorsed reforms: It would prohibit all currently covered executive and legislative branch officials and employees from lobbying for five years; it would broaden the scope of the federal definition of lobbying to eliminate loopholes through which former officials circumvent current lobbying restrictions, including those who operate under the titles of consultants or advisers; and it would impose a lifetime ban on senior executive officials on lobbying the federal government on behalf of a foreign entity.
Independent Groups
Washington Post: A gift and a challenge for Democrats: A restive, active and aggressive base
By David Weigel and Karen Tumulty
A super PAC formed to reelect Barack Obama in 2012 is driving activists to congressional town halls. Veterans of Bill Clinton’s administration are joining marches and plotting bigger ones for the spring. Democratic senators who had befriended Jeff Sessions in the Senate voted – 47 to 1 – against his nomination for attorney general.
Three weeks into President Trump’s term, the Democratic Party and progressive establishment have almost entirely adopted the demands of a restive, active and aggressive base…
And without a president in the White House – or anything like a presidential front-runner – progressive groups are focusing more on broad resistance than on a single target. Guy Cecil, who took over the super PAC Priorities USA when it transitioned from a pro-Obama group to a group dedicated to electing Hillary Clinton, said that it had since evolved “from a candidate-centered super PAC to a progressive advocacy organization.”
“There’s not going to be one leader of the Democratic Party for a while,” Cecil said. “There’s not going to be one group that leads the progressive movement. That’s a very good thing. We’re going to keep finding that this resistance is springing up in places we haven’t been looking.”
New York Post: Businesses desperately seek PR strategies for the Age of Trump
By Salena Zito
All major consumer brands in America are reassessing their government relations and communications strategies in this new world of spontaneous rage, according to Bruce Haynes, founding partner of Purple Strategies, a Washington-based consulting firm.
“Before Trump, most companies mostly worried about the threat of regulatory and policy issues creating friction on the business,” he explained.
There’s another element to all this: Trump’s Twitter feed. The president has used policy debates on trade to single out companies like Carrier and General Motors, and used his Twitter feed to praise companies like L.L. Bean and Ford. And this week, he took the opposite tack: After word spread that Nordstrom was dropping daughter Ivanka Trump’s fashion line due to flagging sales, Trump reprimanded the company on Twitter.
The Media
Washington Post: Shutting down fake news could move us closer to a modern-day ‘1984’
By Flemming Rose and Jacob Mchangama
Amid a debate about the rising influence of fake news and the danger it poses to the political and social order in the West, democratic politicians in Europe have proposed sanctions – and even prison terms – for those found responsible for distributing false information…
But using legal measures to counter disinformation is likely to be a cure worse than the disease. One does not need to go back to the Cold War to worry about what happens when governments become the arbiters of truth…
And while the First Amendment prevents the U.S. government from overtly limiting press freedom, it’s clear that President Trump’s definition of fake news is vastly different from what his opponents or the media have in mind.
Above all, rather than strengthening established media institutions, banning fake news might very well undermine them in the eyes of the public. If alternative outlets are prosecuted or shut down, mainstream media risk being seen as unofficial propaganda tools of the powers that be.
Disclosure
Red State: Donor Disclosure Or Donor Intimidation? Same Game, Different Century
By Shelby Emmett
Today, proponents of donor disclosure argue this violation of privacy is necessary to ensure transparency. But these advocates conveniently ignore an important distinction between government transparency and private donor transparency.
Transparency is for the government; privacy is for the citizen. Government transparency is crucial because it enables the people to hold the government accountable. Government officials set public policy and therefore must be transparent with the American people about their activities and influences. Free speech is one of the means by which the people hold these officials accountable for their actions.
While non-profits can educate people on policy issues, they do not have the authority or the ability to actually make or change policy. Simply put, they cannot use the weight of the government to compel conduct.
Do not be fooled. Donor disclosure is really about chilling speech and association by silencing the voices of citizens through intimidation.
Johnson Amendment
U.S. News & World Report: Keep Dark Money Out of Charity
By Roger Colinvaux
Before Citizens United, organized electoral activity occurred through the political parties, political committees or independent PACs. PACs are subject to an array of disclosure and reporting rules that do not apply to other nonprofits. Citizens United removed campaign finance restrictions and allowed nonprofits (other than charities) to engage directly in political speech. Citizens United thus opened what could be termed a dark-money loophole in the system, allowing partisan organizations to form under a nonprofit label and so avoid public disclosure of donors. Perhaps the best-known example was Karl Rove’s Crossroads GPS, which relied on vague tax law standards to argue successfully to the IRS that it was a 501(c)(4) social welfare organization, not a political organization, and so not subject to disclosure rules.
Just as with Crossroads GPS (or pick your super PAC), if charities are allowed to get involved in politics, enormous sums of dark money will flow into charitable organizations. This is because donors would be able to remain anonymous, which is the attraction of a 501(c)(4), and even better, the donations would be tax deductible – a benefit under the 501(c)(3) label that does not exist for donations to other groups.
The States
Jackson Free Press: Senate Jumps on Campaign Finance Reform Train
By Arielle Dreher
The Senate unanimously passed campaign-finance reform Wednesday that would prohibit the personal use of campaign-finance funds…
Sen. Sally Doty, R-Brookhaven, who chairs the Senate Elections Committee, said Senate Bill 2689 differs slightly from the House version that was rammed through earlier this session.
“Any ordinary and necessary expense related to campaigning or holding office is allowed,” Doty explained on the floor on Wednesday. “It adds that you can have a $50 per day over the per diem (for lawmakers) while we’re in session or $190 per day if not.”
Doty said the intent was not to punish any of the long-time lawmakers, and one of the main differences between the Senate’s version and the House’s version of campaign-finance reform is who gets to issue advisory opinions. The House version of the bill puts the Mississippi Ethics Commission in charge of issuing advisory opinions under their bill, while the Senate version puts the secretary of state’s elections division in charge of issuing advisory opinions about the requirements in the bill.
San Antonio Express-News: Ethics reform should include dark money
By Editorial Board
While there are some good provisions in a proposal to overhaul Texas ethics laws, any effort has to include addressing the plague of dark money in politics.
Ignoring dark money in a Texas ethics discussion is a bit like serving up tasty sides at a barbecue but dispensing with the brisket. Where’s the beef, y’all?
It’s certainly not in state Sen. Van Taylor’s ethics legislation. There is no requirement to disclose large contributions to political nonprofit groups, which then use those funds to influence elections. This is the ethical elephant in Austin these days. Think of the nonprofit Empower Texans, which regularly attacks Republican lawmakers it deems not conservative enough during elections.
Donors to Empower Texans are secret. How is that good for voters? They deserve to know who is trying to sway their votes.
Supporters of dark money cloak their desire for secrecy as free speech. It’s a bogus argument. This is not a First Amendment issue. Disclosure does not limit one’s speech. People are still allowed to donate to these political nonprofits. They would just have to put their names to it. If a person really believes in a cause, policy or elected official, they should put their name to it.
