In the News

Concurring Opinions: FAN 155 (First Amendment News) “The Past, Present and Future of Free Speech” – Journal of Law and Policy posts First Amendment Symposium     

By Ronald K.L. Collins

When it comes to First Amendment symposia, Brooklyn Law School seems to be the go-to-venue, at least judging from the latest issue of the Law School’s Jounral of Law and Policy. The symposium was done under the watchful eye of Professor Joel Gora, who authored the Introduction – The Past, Present and Future of Free Speech. In that introuction Gora writes:

This may be a historic moment for the First Amendment. In 2016, a landmark Supreme Court ruling turned forty, the Supreme Court turned a corner, and First Amendment rights may turn out to be strengthened. January 30, 2016 marked the fortieth anniversary of the U.S. Supreme Court’s landmark decision in Buckley v. Valeo, dealing with the clash between First Amendment rights and campaign finance limits. And February 12, 2016, the day Supreme Court Justice Antonin Scalia died, marked the end of a ten-year period when the “Roberts Court” became perhaps the most First Amendment friendly and speech-protective Court in the Nation’s history. And the surprise outcome of this past presidential election may, unexpectedly, enhance the future of free speech, because Judge Neil Gorsuch, Donald Trump’s nominee to succeed Justice Scalia, seems to be a strong supporter of the First Amendment.

Ed. Note: The Academy, Campaign Finance, and Free Speech Under Fire by Bradley A. Smith is included in this symposium.

CCP

Bernie Sanders and Rick Hasen Are Two Sides of the Same Defective Coin on Free Speech

By Joe Albanese

The most concerning segment of the conversation, however, was the discussion of alternative legal theories for First Amendment jurisprudence. It began with Hasen correcting Sanders that the right of individuals to spend unlimited amounts independently supporting or opposing candidates was first recognized by the Supreme Court prior to Citizens United, in 1976’s Buckley v. Valeo decision. (Sanders, despite promoting increased campaign finance regulation as a paramount issue, found himself being corrected by Hasen on multiple occasions.) Hasen then said that the Court needs to “rethink” the Buckley decision, as it only permits the regulation of political speech in order prevent corruption, rather than to prevent “inequality.” To this point, Hasen argued that wealthy people, by having the ability to spend more money, have an increased ability to influence elections. The ability for individuals, corporations, unions, and advocacy groups to spend money on elections must therefore be restricted to “level the playing field.”

If such a rationale were upheld by the Court, government would be forced to put its fingers on the scales in every political debate. This goes against everything the Supreme Court has said about political speech for decades.

Free Speech

Washington Post: Is @RealDonaldTrump violating the First Amendment by blocking some Twitter users?

By Eugene Volokh

The Knight First Amendment Institute has sent a letter to President Trump, arguing that his blocking of some Twitter users (if done based on their viewpoints) from @RealDonaldTrump violates the First Amendment. I think that’s not quite so, though the matter is not open and shut…

My sense is that the @RealDonaldTrump account – though run by Trump on government time and from government property – is the work of Trump-the-man (albeit a man to whom people pay attention because he is president), just as it was before November, and not Trump-the-president. His decisions about that account are therefore not constrained by the First Amendment…

The most constitutionally significant effect would be that blocked users apparently can’t post to Twitter comment threads, at least without some complicated workarounds (see footnote 5 of the Knight letter). If @RealDonaldTrump is seen as a governmental project and thus a limited public forum, then viewpoint-based exclusion from posting to such threads likely would be unconstitutional, just as viewpoint-based exclusion from commenting on a government-run Facebook page would be.  

Donors

Knowledge@Wharton: Billionaire Philanthropists Are Shaping a New Gilded Age

The number of billionaires has increased sharply in recent years – and they are using their charitable giving to influence the direction of a host of issues, such as education, the environment, science, among others, according to a new book, The Givers: Wealth, Power, and Philanthropy in a New Gilded Age. Author David Callahan, founder and editor of the website Inside Philanthropy, leads a team whose goal is to shed light on the intentions of foundations and donors…

Callahan: It’s starting to look a little like a benign plutocracy with a lot of these really well-meaning, wealthy people having growing influence. It’s hard to say how that will play out, but it’s important to have the conversation now to bring attention to this. I think most Americans don’t pay much attention to philanthropy. When they think about philanthropy or charity, they think about donations to universities, to hospitals, to museums. They don’t think about people using their money to push a public policy agenda, to have a lot of say in what government does…

At the very least, we need to know where this money is coming from and where it’s going. We’ve heard a lot about dark money in politics. There’s also a lot of dark money in philanthropy, and much of that money is going to the same things.

Candidates and Campaigns

American Prospect: The Simple Case Against Trump

By Eliza Newlin Carney

The case that Trump and his team broke the rules that ban foreign involvement in American elections is “more or less hiding in plain sight,” argues Democratic election lawyer Bob Bauer in a recent analysis. For all the speculation swirling around whether Trump team members met with foreign officials, notes Bauer, Trump’s own public statements may already put him on precarious legal territory…

“A foreign government is clearly active, the U.S. government has identified this openly, and he is encouraging them, signaling that this is useful to him,” said Bauer in an interview.

It’s not often that campaign finance rules actually seem to matter much. After all, the Supreme Court has thrown out all but a few core restrictions, the Federal Election Commission has essentially stopped enforcing the laws, and most political players appear to ignore the rules in any case. But foreign money, it turns out, stands in a class by itself, posing special and widely recognized threats to American self-governance and national security.

The States

Baltimore Sun: Howard County Council passes small donor finance system to begin in 2022 election cycle

By Andrew Michaels

In a 4-1 vote on Monday, the Howard County Council passed a bill to create a public finance system for candidates who turn down large donations.

Council Chairman Jon Weinstein and Councilwoman Jen Terrasa sponsored the bill.

Andy Barth, a spokesman for the county, said Howard County Executive Allan Kittleman plans to veto the bill, which will then go back to the County Council for another vote. However, a second 4-1 council vote will override Kittleman’s veto…

Kittleman and District 5 Councilman Greg Fox, both Republicans, previously said they’re against the system, arguing that campaign funds should be given only through voluntary contributions.

As Montgomery County prepares to implement a similar system beginning in 2018, Fox said the costs outweigh the benefits.

“It still has significant taxpayer dollars in it,” Fox said. “We’re seeing right now what’s happening in Montgomery County with the $11 million price tag that’s been put on there. Even if you say we’ll be half of that, that’s still $5 million or whatever the number ends up being at the end of the day. I hate to see the taxpayer dollars be utilized this way.”

Kaiser Health News: Daylight On Diabetes Drugs: Nevada Bill Would Track Insulin Makers’ Profits

By Emily Kopp

Many of the dozens of U.S. diabetes advocacy organizations, large and small, garner significant portions of their funding from insulin manufacturers. The Nevada bill also requires such organizations operating in-state to disclose all contributions they receive from the pharmaceutical industry to discourage that sort of conflict.

In 2016, two of the “big three” insulin producers – Eli Lilly and Sanofi – contributed at least $4.7 million to such national patient advocacy groups as the American Diabetes Association, Diabetes Patient Advocacy Coalition (DPAC), JDRF International and the Diabetes Hands Foundation, according to company disclosures. The third major insulin manufacturer, Novo Nordisk, does not disclose its charitable contributions…

Gov. Brian Sandoval said Monday night that he intends to sign the bill, according to a Nevada Independent reporter. If the governor takes no action, the transparency rules become law. The bill, SB539, incorporates provisions of an earlier bill approved by the legislature but vetoed by Sandoval.

Johnson City Press: ‘Dark money’ makes its way into state races

By Editorial Board

The National Institute on Money in State Politics and the Center for Public Integrity released a joint report in 2014 that gave a failing grade to Tennessee’s campaign finance laws. That’s because Tennessee is one of 36 states with campaign finance disclosure laws so weak that dark money from outside groups, such as nonprofit issues-oriented groups and big-spending political action committees, often go unreported in state elections.

It’s also troubling to learn that the two boards responsible for enforcing Tennessee’s anemic finance and campaign ethics laws have few oversight powers…

The deficiencies in Tennessee’s laws come as a result of the U.S. Supreme Court’s “Citizens United” decision. That ruling has led to practically unlimited spending by individuals, corporations and labor unions in federal races. What has gone unnoticed by some, however, is how the Supreme Court’s decision impacts states.

As a result of weak local regulations, shadowy groups are now able to go virtually undetected as they spend big money in state and local races.

Dallas Morning News: Ethics reform falls short as lawmakers mostly protect big-money interests, perks

By Editorial Board

By the time the session ended last week, however, the governor could claim victory on just half of his ethics proposals, and other well-intended attempts to hold lawmakers and other elected officials to a higher standard died in the House or Senate.

Instead, lawmakers chose to crack down on the most obvious low-hanging fruit while brushing aside reforms that would actually hold lawmakers more accountable. For example, lawmakers agreed to force colleagues convicted of a felony to resign and to strip them of their government pensions. But lawmakers did nothing to control dark money, a serious campaign financing loophole that allows big dollars to flow unchecked to lawmakers.

Nor did they tighten wining-and-dining spending by lobbyists or shutter the revolving door that allows lawmakers and statewide officials to capitalize on their time in office as lobbyists soon after they leave office.