CCP
Judge Neil Gorsuch Tackles Thorny Jurisdictional Questions in Important First Amendment Case
By David Keating
This post reviews a case in which Judge Neil Gorsuch wrote the opinion concerning jurisdictional issues with strong First Amendment implications.[1] The opinion shows how he carefully interprets the law, free of any bias on this controversial issue…
From Gorsuch’s opinion:…
According to ORC, Oklahoma imposes a so-called “unconstitutional condition” insofar as the State allegedly provides no way for ORC to receive such funding to support its adoption counseling services and still exercise its First Amendment right to speak out about abortion, even using entirely private funds in entirely distinct programs. To participate in the State’s Choose Life Assistance Program, ORC contends it effectively must give up its constitutionally protected right to advocate for abortion even on its own proverbial time and using its own (non-governmental) funds.
[W]e are unable to conclude, as defendants would have us, that the relief ORC seeks represents an impermissible form of relief under our received Eleventh Amendment jurisprudence. Of course, at this stage we are confronted only with a motion to dismiss and thus have taken plaintiff’s pleadings as true for purposes of our analysis, drawing all inferences in ORC’s favor.
Cato Panel Discusses Free Speech, Media, and Trump
By Joe Albanese
On Friday, the Cato Institute hosted a panel event entitled, “Will President Trump Threaten Free Speech?” The panel consisted of Francis Buckley, a professor at George Mason University’s Scalia School of Law and New York Post columnist; Robert Corn-Revere, a partner at Davis Wright Tremaine LLP, who specializes in First Amendment law; and Flemming Rose, a Danish journalist best known as the editor principally responsible for the September 2005 publication of cartoons featuring the Islamic prophet Muhammad. John Samples, a Vice President and Publisher at Cato, moderated the discussion…
While campaign finance issues were not the main topic of discussion on the panel, there were occasional references and parallels. Samples lamented that Americans were willing to regulate campaign speech by their political opponents because they deem their opinions to be “lies.” All panelists agreed that having government as a final arbiter of the truth could be dangerous. In particular, Buckley condemned the idea of having an Orwellian “Ministry of Truth,” while Rose pointed to Europe, where there are efforts to criminalize “fake news” and place it on the level of hate crimes.
Supreme Court
More Soft Money Hard Law: The Supreme Court Confirmation Argument, and Limits
By Bob Bauer
Now with the Gorsuch nomination there is another round of largely fruitless argument about the standards that Senators should use in advising and consenting on Supreme Court nominations – – or whether they should simply refuse to consent at all. It goes like this: each party has an obligation to put up for a vote or even consent to the confirmation of a nominee whose views are “mainstream.” The only exception is an election year, or so now say the Republicans to defend their refusal to take up the Garland nomination. This alleged election-year proviso has turned into volleys of “you did it, too”/ “no I did not,” with the Republicans implausibly insisting that they only refused to consider Judge Garland because they were exquisitely sensitive to an election-year precedent they claim that Joe Biden established.
Other than in an election year, and when the qualifications of the nominee are unchallenged, the disagreement is then mostly redirected into one about what constitutes “mainstream.” Given the choice facing them, Senators are virtually compelled to split on this question. Because the true problem here, discussed only obliquely, is the extraordinary power and ambitions of the Court whose members may, and typically now do, serve for many decades.
Huffington Post: Democrats Should Focus SCOTUS Fight On Gorsuch’s Backing Of Big Donors
By Steve Pierce and Kate Pazoles
President Donald Trump’s decision to nominate 10th Circuit Court of Appeals Judge Neil Gorsuch to the Supreme Court on Tuesday won praise from Republican elites hoping for the second coming of the late Justice Antonin Scalia. But the nomination also put the administration on the wrong side of one of the top issues on the minds of a supermajority of voters: the influence of big money in politics. Judge Gorsuch’s willingness to let the wealthy flood elections with unchecked amounts of cash is a gaping vulnerability that Senate Democrats can and should exploit in the coming nomination fight…
His track record on money in politics comes down decisively on the side of billionaire donors and big corporations. Unlike the large majority of Americans, Judge Gorsuch does not believe that protecting our democracy from the influence of big money in politics is necessary or desirable. In his concurring opinion in Riddle v. Hickenlooper, he suggested that making a political contribution is a “fundamental” right, and that action to regulate it should be subject to strict scrutiny review – the highest level of protection afforded under the Constitution.
ABC News: Democratic Senator: ‘Everything Depends’ on How Trump’s Supreme Court Pick ‘Answers the Questions’
By Ali Dukakis
“Everything depends on how he answers the questions when we look at his record,” the Minnesota senator said of President Trump’s nominee in an interview with ABC News Chief Anchor George Stephanopoulos that aired Sunday.
Stephanopoulos pressed the senator on the fact that some Democrats, such as President Obama’s acting solicitor general, Neil Katyal, have come out in support of Gorsuch. Katyal wrote that Gorsuch is “an extraordinary judge and man” who should be at the top of the Senate’s list for the Supreme Court.
Klobuchar said, “We have a solemn obligation here, George, to look at this judge’s record, how his decisions have differed from precedent in the past.”
“I care a lot about campaign finance, and he made a decision, or he concurred in a decision, put out his own opinion, that went even farther than the other judges in terms of what it could do to campaign finance laws,” the Minnesota senator said, adding that as a member of the Senate Judiciary Committee, “I think it is very important that we hear [Gorsuch] out, that we listen to his views.”
The Hill: Sanders: Gorsuch needs 60 votes to pass the Senate
By Alexander Bolton
“This is a major, major nomination. It should require 60 votes and a very serious debate,” Sanders said on CNN’s “State of the Union,” echoing the statements of Senate Democratic Leader Charles Schumer (D-N.Y.) and other Democratic colleagues.
“Obama’s nominations required 60 votes. So should Trump’s,” Sanders added.
“What this Supreme Court decision is about is whether or not we continue Citizens United and allow billionaires to buy elections. It’s whether or not we continue Roe v. Wade and allow a woman to control her own body,” he argued…
CNN host Jake Tapper asked Sanders whether he would support Democratic colleague Jeff Merkley (Ore.), who wrote in a New York Times op-ed that Gorsuch needs 60 votes.
“Absolutely,” Sanders replied.
Schumer has also called for a 60-vote threshold for Gorsuch.
The Courts
ABC News: Citizens United Lawyer Targets Texas Campaign Finance Laws
By David Saleh Rauf
Political “dark money” and the founder of an organization tied to President Donald Trump’s accusations of voter fraud will be at the center of a Texas Supreme Court case Tuesday that could reshape campaign finance laws in the country’s second-largest state.
Chief questions facing the nine Republican justices on Texas’ highest civil court include the legality of the state’s ban on corporate contributions and disclosure requirements for political action committees. Some believe the case ultimately could wind up before the U.S. Supreme Court and potentially reshape campaign finance regulations nationwide.
Houston tea party group King Street Patriots, started by Catherine Engelbrecht, has been the focus of a longstanding lawsuit by the Texas Democratic Party accusing the organization of violating state campaign finance laws by engaging in political behavior when it dispatched poll watchers on behalf of the Texas Republican Party during the 2010 election. Democrats have used the case to press for disclosure of the group’s donors.
Independent Groups
NJ.com: Trump vowed to ‘drain the swamp.’ Now, he could benefit by secret special-interest cash
By Jonathan D. Salant
President Donald Trump, who pledged to “drain the swamp in Washington,” is providing big donors and corporations an unprecedented ability to influence his policies without the public knowing about it.
Former campaign aides and advisers have set up two committees to push his agenda, setting them up as nonprofits so they do not have to disclose their contributors.
“This is just all the criticism of the Clinton Foundation on steroids,” said University of Minnesota law professor Richard Painter, formerly President George W. Bush’s chief ethics lawyer. “It’s extremely corrupting. It’s a back door around campaign finance.”…
Leaders of the America First Policies include David Bossie, Trump’s deputy campaign manager; Nick Ayres, a GOP political operative who was a campaign adviser and campaign spokeswoman Katrina Pierson.
The second committee, Great American Alliance, is an outgrowth of a pro-Trump super political action committee that did disclose its donors.
Trump Administration
MSNBC: Questions surrounding Trump’s conflicts of interest intensify
By Steve Benen
A week before taking office, Donald Trump held a press conference intended to resolve long-standing questions about his many conflicts of interest. The event was something of a disaster: instead of divesting, creating a blind trust, and/or separating his ownership stake in his private-sector ventures, the Republican and his team announced a plan in which Trump would remain the owner of his business enterprise…
This is of particular interest as it relates to the Old Post Office, near the White House on Pennsylvania Avenue, which Trump converted into a hotel. Legally, according to the building’s lease, the hotel cannot benefit any elected official, including the president. And yet, as of now, Trump is still profiting from the building he helped build at the site…
And then, of course, there’s Trump’s hotel chain, which is moving forward with plans to triple its domestic locations.
Remember Team Trump’s assurances that he’d terminated “all pending deals” and would impose “severe new restrictions” on any new business ventures? There was apparently far more flexibility to that vow than we’d been led to believe.
Huffington Post: A Dark Money Loophole Of Biblical Proportions
By Ian Vandewalker
Dark money-spending on elections by groups that hide the identities of their donors-dramatically increased after the Supreme Court loosened limits on political spending by nonprofits in 2007. Secret spending was virtually nonexistent before then, but the last five federal elections have seen more than $800 million. Yet so far, dark money only accounts for a minority of election spending.
If churches could spend on politics, the amount of political money that’s untraceable to an actual person or special interest would surely skyrocket. Churches would be the ideal vehicle for wealthy interests who want to influence elections from the shadows. That’s because they have to disclose even less financial information than the nonprofits currently being used for secret spending. And most importantly, donations to churches are tax deductible, meaning the taxpayers subsidize their activities.
So if Trump gets his way, every political hack in America could start a church-which is surprisingly easy-and raise huge checks to spend on elections, promising donors that the public will never know and the more they give, the lower their tax bill will be.
The States
Sioux Falls Argus Leader: S.D. lawmakers aim to out dark money groups
By Dana Ferguson
South Dakota lawmakers plan to fire back at a Massachusetts group that made them targets in a national effort to pressure the Legislature to maintain a voter-approved ethics law.
And in the process, they’ll aim to eliminate the influence of dark money in ballot measure campaigns by requiring high-dollar donor groups to disclose their top 100 contributors for the five years prior.
The proposal, if approved, would be one of the most extreme campaign finance disclosure requirements in the country. House Bill 1200 would require any group that donated more than $50,000 to a ballot question committee within a two-year period to disclose the names, addresses, occupations and employers of the group’s top 100 donors for the five years leading up to the gift.
And if any of those top donors was a group, it would also have to disclose its top 100 donors…
Opponents of the proposal said it could have a detrimental effect on individual’s willingness to contribute to political advocacy groups, which could violate their right to free speech.
Washington Times: Regulations on lobbyists, officials advance at state Capitol
By James Nord
A pair of bills meant to impose stricter regulations on lobbyists and public officials easily passed their first legislative tests Monday as state lawmakers weigh measures that would replace provisions of a recently repealed government ethics overhaul.
A Senate bill would bar many officials from private lobbying for two years after leaving state government, while a House proposal would put in place a $100 annual limit for gifts that legislators and other public officials could accept from lobbyists.
They were unanimously advanced to their full chambers, and Gov. Dennis Daugaard’s office indicated support for both bills. Top Republicans have given assurances that voters would see laws passed this session to replace provisions of the voter-approved ethics package that lawmakers dismantled last week.
Sioux Falls Argus Leader: Fight continues for ethics reform
By Rep. Dan Ahlers
IM-22 was officially repealed last week. Although the measure is repealed, the fight for ethics reform continues…
On Thursday, Governor Daugaard signed HB 1069 and officially repealed IM-22. The governor said during his press conference that the process is not important, only the end result. I disagree. In order to have government work for the people, we must respect the rules and process. When we think we are above the process and rules don’t apply, that is when we have corruption…
There is still an opportunity to get the reform voters wanted with IM-22. HB 1076 will create a government accountability board. This board will monitor all of state government. HB 1073 will limit gifts from lobbyists. Secretary of State Shantel Krebs has introduced SB 53 & 54 to reform campaign finance. If we can pass all four bills, we could end up with reform that’s better than what IM-22 offered. As voters, it is important that you read these bills, contact legislators and ask for their support.
KTOO News Alaska: After Alaska lawmaker’s fundraising controversy, Senate considers tighter rules
By Caroline Halter
The issue of money in politics got a lot of media attention this summer when Republican Rep. Gabrielle LeDoux formed Gabby’s Tuesday PAC. It’s the first political action committee in Alaska controlled by an individual legislator.
Former Alaska Senate President Kevin Meyer is going after PACs such as LeDoux’s in what he says is an effort to improve public trust. Others see it as partisan politics.
Sen. Meyer hopes to change Alaska’s campaign finance law to address PACs controlled by individual lawmakers and candidates.
“Senate Bill 5 will close the loophole that allows lobbyists to contribute to political action groups that are controlled by a legislator or a candidate for the Legislature and places a restriction on when these groups can engage in political fundraising,” he said at a Jan. 31 public hearing.
Under Alaska’s 1996 campaign finance law, candidates and elected officials are not allowed to receive contributions from lobbyists outside their home district, and they are not allowed to fund raise during the legislative session. SB 5 would extend these same rules to PACs controlled by individual legislators.
New York Post: De Blasio’s dubious plan for paying his lawyers
By Editorial Board
It’s come to this: Mayor de Blasio says he’ll do fund-raising down the line to pay the lawyers representing him in all those corruption probes into… his fund-raising, and possible favor-selling.
He’s spending $11.7 million in public funds on outside lawyers for several top aides also caught up in the investigations. But for the cash for his own attorneys, the mayor now says he’ll handle things through a legal defense fund or a future fund-raising event…
Political intrigue aside, de Blasio’s Campaign For One New York was set up to operate outside of city campaign-finance rules. That meant it could – and did – accept money from people doing business with the city, who didn’t exactly suffer from having written big checks.
Which raises the next big question: Will such people be banned from donating to a legal-defense fund? That could get tricky – since it sure looks like the mayor is going to need a lot of deep-pocketed “supporters.”
