In the News

On Balance with Leland Vittert (Video): Judge Forces School Board to Allow Criticism

Ed. note: Institute for Free Speech Vice President of Litigation Alan Gura joins Leland to discuss the lawsuit against the Pennsbury School Board. Interview begins at 28:14. Learn more about the case here.

Congress

Law360: Dems Unveil Bill To Disclose Amicus Brief Funders

By Khorri Atkinson

A group of Democratic congressional members introduced legislation Tuesday that would require the identities of amicus curiae funders to be disclosed amid concerns that anonymous dark money special interests have captured the federal judiciary, including the U. S. Supreme Court. The co-sponsors of the so-called AMICUS Act, which include Sen. Sheldon Whitehouse, D-R. I. , and Rep. Hank Johnson, D-Ga. , said that their proposal would also block amicus filers from making gifts or providing travel to Supreme Court or federal appellate judges in order to bring more transparency concerning the lobbying of federal judges by special interests.

The proposal specifically requires amicus filers in the high court or federal appellate courts to reveal the identities of all funders that contributed either 3% of the entity’s gross annual revenue or over $100,000. It also bars amicus brief filers from making gifts or providing travel to Supreme Court justices and appellate judges.

Politico: Sinema pops Democrats’ filibuster trial balloon on voting rights

By Burgess Everett

Kyrsten Sinema supports the elections reform bill that Democrats are considering a year-end push to pass. She doesn’t support a shortcut around the filibuster to get it done.

The Arizona moderate is making clear that she intends to keep protecting the Senate’s 60-vote requirement on most legislation and she isn’t ready to entertain changing rules to pass sweeping elections or voting legislation with a simple majority. Her Democratic colleagues have been discussing those revisions as they weigh dropping their focus on President Joe Biden’s $1.7 trillion climate and social spending bill and pivoting to voting rights, though it’s not clear that avenue will be any more successful…

Manchin and Sinema both attended a Wednesday afternoon meeting with Sens. Jon Tester (D-Mont.), Tim Kaine (D-Va.) and Angus King (I-Maine), centrists who are advocating for a workaround to the filibuster to pass voting rights legislation. Democrats also discussed how to pass elections reform bills during a party lunch on Tuesday, and Senate Majority Leader Chuck Schumer met with Manchin, King, Kaine and Tester on Wednesday morning.

Importantly, Democrats are no longer trying to scrap the filibuster altogether given Manchin’s and Sinema’s opposition to that step. Instead, they’re pivoting to an attempt to sway the duo to support a rules change that could enable legislation curbing gerrymandering and restoring the Voting Rights Act to evade the 60-vote requirement.

Politico: Biden plans forceful push for voting rights. Aides are bearish on success.

By Jonathan Lemire and Laura Barrón-López

The White House wants to mark the new year with a forceful push for voting rights, portraying the protection of the ballot as a battle for democracy itself. But despite a renewed emphasis from an increasingly impatient and frustrated base, prospects for legislative success still look grim…

The White House has been considering connecting the voting rights drive with the upcoming first anniversary of the Jan. 6 riot at the U.S. Capitol, making the case that the most sacred tenant of America’s democracy remains under siege one year after the insurrection fueled by the election fraud lies told by former President Donald Trump.

To strongly make that case, the president and his team had been hoping to clear the legislative deck by the Jan. 6 anniversary. But the president’s social spending bill, known as the Build Back Better Act, appears stalled for the foreseeable future in the Senate, with Manchin’s refusal to commit to the $1.75 trillion legislation seemingly certain to push the measure into early 2022.

Biden signaled on Wednesday that he’d be fine with prioritizing election reform for the time being, saying: “If we can get the congressional voting rights done, we should do it. … There’s nothing domestically more important than voting rights.” But, previously, White House aides had consistently signaled that they wanted the social spending bill first and voting rights second.

That sequencing has irked some of the president’s most fervent supporters, who fear he may get neither.

Internet Speech Regulation

The Verge (Decoder): Can we regulate social media without breaking the First Amendment?

By Nilay Patel

One of the hardest problems at the intersection of tech and policy right now is the question of how to regulate social media platforms. Everyone seems to think we should do it — Democrats, Republicans — even Facebook is running ads saying it welcomes regulation. It’s weird. But while everyone might agree on the idea, no one agrees on the execution. Everyone agrees the platforms should be more transparent but not about what — should the algorithms be public? Should researchers have access to data about users? What about data privacy? That seems good, but those bills have been stalled out forever.

And then there’s the biggest obstacle of all: the First Amendment. Like everyone else, social media companies have a First Amendment right to free speech, and a lot of the proposals to regulate these companies kind of look like government speech regulations and run right into the First Amendment…

Jameel Jaffer, executive director of the Knight First Amendment Institute, just co-authored a piece in The New York Times opinion section arguing that while these laws should be struck down, the arguments being made by the platform companies against them go too far — they stretch the First Amendment into preventing any regulation at all, including things like privacy and transparency.

I thought that was a fascinating line of argument coming from an organization dedicated to the First Amendment, so I asked Jameel on to Decoder to talk it out.

PACs

The Hill: GOP election objectors rake in corporate cash

By Karl Everts-Hillstrom

Less than a year after the Jan. 6 attack, PACs affiliated with Fortune 500 companies and their trade groups have contributed $6.8 million to the 147 Republicans who objected, according to a new analysis of campaign finance records from liberal watchdog group Accountable.US…

“For a few weeks there, just after Jan. 6, there was this moment of clarity and a recognition that this is really dangerous both in the short and long term,” said Ciara Torres-Spelliscy, a professor at Stetson University who specializes in campaign finance law. “But I feel that a lot of the corporate PAC leaders just slid back to business as usual.” …

Many corporate PAC managers are no longer deciding whether to donate to a lawmaker solely based on their vote to object to the election results, according to Tori Ellington, manager of PAC and grassroots at the Public Affairs Council.

“A lot of PACs added in a contribution criteria clause about a commitment to democratic values and a democratic process, so they might be reevaluating a member not just on their Jan. 6 vote, but on broader actions and statements they have taken or made,” Ellington said.

That shift is driven by the reality that nearly two-thirds of House Republicans objected to the election results. Corporate PACs regularly make donations to incumbents in both parties, and some even have bylaws mandating that they contribute a nearly even split to Democrats and Republicans, making it difficult for them to freeze donations to all GOP objectors.

“It definitely presented a challenge for PAC managers,” Ellington said. “PACs strive to be bipartisan and they want their giving to be balanced, so they are deciding on a case-by-case basis.”