In the News
SCOTUSblog: Petitions to watch | Conference of February 24
By Kate Howard
In its conference of February 24, 2017, the court will consider petitions involving issues such as . . . 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…
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.
Providence Journal: Brad Smith: Whitehouse measure assaults constitutional rights
By Brad Smith
The year is 2019. The government sends in a SWAT team to seize any corporate property it wants without the due process or just compensation required by the Fifth Amendment to the Constitution. The government also has the power to swipe bank assets, raid newspaper offices without warrants or just cause, and even censor any news published by a media corporation.
No, it’s not the plot of a newly-unearthed Orwell novel. These tactics, and more, would be legal under an amendment to the U.S. Constitution cosponsored by Sen. Sheldon Whitehouse, D-R.I.
Whitehouse’s proposal, introduced this year by Montana Democrat Jon Tester, is a constitutional amendment that aims to strip rights from corporate entities…
Oddly enough, in the momentous Citizens United decision, not even the court’s dissenters ever mentioned the issue of “corporate personhood.” Why? Because they all understood that corporate personhood is a longstanding doctrine that is not controversial in law, and was not what the case was about…
Constitutional amendments such as that offered by Whitehouse will not pass in the next few years – but they indicate the general hostility to free speech that many senators have, and their willingness to silence speakers they don’t like.
SCOTUSblog: Relist Watch
By John Elwood
Welcome back from the longest break from Supreme Court news that you’ll get all term! From this point on, there will be a fairly steady stream of conferences until June arrives and the Justices begin their rigorous schedule of summer teaching duties. And that means a steady stream of drivel about relists.
This week, we won’t be able to live up to even our usual low standards, between the short work week and the demands of actual paying work. But we will pause briefly to highlight some of the more interesting relists on the docket this week…
And Independence Institute v. Federal Election Commission, 16-743, presents an issue very similar to one the court denied cert on last term in Center for Competitive Politics v. Harris, 15-152: whether it is constitutional to require organizations engaged in the genuine discussion of policy issues and unconnected to any campaign for office to disclose their donors.
By Ashley Balcerzak
“The data compiled in Commissioner Ravel’s report are misleading and do not accurately reflect the state of enforcement decisions at the FEC,” Republican Commissioner Lee Goodman wrote OpenSecrets Blog in an email. “I assume that Commissioner Ravel has manipulated her statistics purposely in order to advance her philosophical narrative that First Amendment rights should be severely restricted.”…
“Ann has been a determined voice for regulation of First Amendment rights and I wish her well in private life after the commission,” Goodman said. “I expect her to remain engaged in the important debate that has animated our time on the commission together.”…
“What is striking to me is that she tends to lay the blame exclusively on Republican commissioners for the gridlock and they don’t take any responsibility,” said Eric Wang, campaign finance attorney and former FEC Republican staffer. “Ann Ravel’s eagerness to take her grievances against her colleagues to the press has not been helpful to the animosity and alleged dysfunction at the FEC.”
CCP
Resigning FEC Commissioner Ravel Never Stopped Her Partisan Grandstanding
By Joe Albanese
Ravel does not cite any specific “legislative history” that shows gridlock was contrary to the purpose of the FEC – after all, the ability for tied votes to occur was intentionally built into the Commission’s structure. Instead, she argues that her Republican colleagues, by disagreeing with the Democratic bloc of the FEC, are not acting “in good faith.” This implies that when the three Democratic appointees decide to vote a certain way, there is no way for them to be in the wrong. Even though gridlock by definition means equal votes on each side, she insists it is only the Republicans voting as a bloc that is unacceptable.
This is, of course, nonsensical. But it has been the crux of Ravel’s qualms with the FEC since she was first appointed. She concludes her piece by proposing solutions that would reduce or eliminate any intellectual diversity on the FEC – namely that President Trump clean house on the Commission to appoint several Ann Ravel clones, and that the courts begin intervening in complaints when the FEC deadlocks. The latter would be a significant departure from past practice.
With Ravel’s departure, the President has an opportunity to appoint a new member to the Commission. The least we can hope for is that her replacement has a sense of humility and respect for Americans’ political speech rights.
FEC
Mother Jones: Republican Election Commissioners Just Released Key Legal Documents-Nearly a Decade Too Late
By Andy Kroll
A strange thing happened last week at the Federal Election Commission, the nation’s watchdog for campaigns and elections. On Friday evening, the FEC’s three Republican members quietly released a slew of missing legal memos related to cases dating back as far as 10 years. The commissioners gave no reason for why they decided to act now, after a decade of silence on the cases in question…
When Mother Jones asked the three Republican commissioners if our FOIA request had anything to do with their decision to act, two of them, Lee Goodman and Matthew Petersen, confirmed that it had. “Most of these were on the back burner as our reasons were either already clear or changes in the law made the issues moot,” Petersen says. “Your request was a useful reminder to bolster the record with formal statements.”…
Ellen Weintraub, the senior-most Democratic commissioner at FEC, applauded the release of the 11 legal memos. “I am pleased on behalf of the American people that they are finally getting some kind of explanation for the commission’s failure to act in so many cases,” she says.
Donors
Bloomberg BNA: Trump Campaign Sets Record for Small-Donor Money
By Kenneth P. Doyle
Even more remarkable was the proportion of Trump’s small-donor support. Contributors giving less than $200 each provided 58 percent of his total campaign funding of just under $409 million, the new analysis found. In 2012, Obama received only 28 percent of his total campaign money from such small donors, the CFI noted.
Trump was able to cash in on his media attention and grassroots support after he won the Republican nomination last summer and began to get help from the party with online and direct-mail fundraising, CFI spokesman Brendan Glavin speculated.
The Trump Make America Great Again Committee, a joint fundraising entity set up by the Trump campaign and the Republican National Committee (RNC) last May, raised $236.7 million by the end of 2016, according to FEC figures. More than 75 percent of the total was in “unitemized contributions” of $200 or less.
“Party support was really key,” to Trump’s ability to transform his appeal to supporters into campaign cash, Glavin told Bloomberg BNA in a phone interview.
Independent Groups
Washington Post: GOP senators targeted by super PAC ads on Russia
By Karoun Demirjian
Russia is making an early debut on the 2018 campaign trail as a Democratic group targets two Senate Republicans up for reelection for their stance on investigating President Trump’s alleged ties to the Kremlin.
American Bridge – a super PAC promoting Democrats – this week will release advertisements targeting GOP Sens. Dean Heller of Nevada and Jeff Flake of Arizona. The ads blast the Republicans for failing to endorse calls for an independent commission to investigate what intelligence officials say are links between Russia and the Trump team…
No money will be spent for the ads to be aired on television, however. The ads are only being circulated this week on social media sites like Facebook and Twitter. Next week, they will be shown on YouTube and via other Web video, with the whole campaign running over the next two weeks.
But they do preview an early line of attack by Democrats against Republicans.
Citizens United
Washington Post: How Citizens United gave Republicans a bonanza of seats in U.S. state legislatures
By Nour Abdul-Razzak, Carlo Prato and Stéphane Wolton
We find that Citizens United increased the GOP’s average seat share in the state legislature by five percentage points. That is a large effect – large enough that, were it applied to the past twelve Congresses, partisan control of the House would have switched eight times. In line with a previous study, we also find that the vote share of Republican candidates increased three to four points, on average.
We also uncovered evidence that these results stem from the influence of corporations and unions. In states where union membership is relatively high and corporations relatively weak, Citizens United did not have a discernible effect on the partisan balance of the state legislature. But in states with weak unions and strong corporations, the decision appeared to increase Republican seat share by as much as 12 points.
Citizens United also changed state legislatures in other ways. First, state legislatures became more conservative after the ruling, and more so in states with relatively weak unions and strong corporations. Second, the ruling appeared to produce a small increase in the ideological extremism of representatives. Surprisingly, this effect is stronger for elected Democrats, who tend to become more liberal, than for elected Republicans.
The Media
Washington Post: Steve Bannon’s not-so-subtle threat to the media
By Chris Cillizza
“It’s going to get worse every day for the media,” Bannon said, insisting that the “corporatist” media would continue to see Trump pursue exactly the sort of economic nationalism that journalism allegedly despises. Then he added this call to arms: “If you think they are giving you your country back without a fight, you are sadly mistaken.”…
As I’ve noted before, presidents (and their staffs) always have an adversarial relationship with the press. The administration insists the press isn’t telling the story of the White House right. The press complains about a lack of access to the key players in the White House. It’s been that way for as long as I can remember.
But what Bannon and, by extension, Trump are up to is something very different than simply an adversarial working relationship with the media. Bannon doesn’t want to change the media. He wants to totally dismantle the media. He wants to break its back and leave it for dead by the side of the road. And he’s not afraid of telling the media to their faces about that plan.
The States
Mitchell Daily Republic: South Dakota considers creating government watchdog board
By Associated Press
A government watchdog board would help investigate statewide officeholders and executive branch employees in South Dakota under a bill endorsed by a legislative panel on Wednesday.
The move comes after Republican lawmakers repealed a voter-imposed government ethics overhaul that included an ethics commission. The proposed State Government Accountability Board, which would be attached to the attorney general’s office, would review and investigate allegations including bribery and theft of public funds.
Democratic Rep. Karen Soli, the bill’s sponsor, said it would help preserve the integrity of South Dakota government. The governor’s office supports the plan, and Attorney General Marty Jackley called it “good government.” The bill heads to the full House after receiving approval Wednesday from the chamber’s State Affairs Committee.
Austin Monitor: New campaign finance rules in the works
By Jo Clifton
Two City Council members, Ellen Troxclair and Jimmy Flannigan, are collecting campaign funds in anticipation of re-election campaigns that seem far in the future…
Both are taking advantage of the fact that Austin currently has no blackout period for candidates seeking election or re-election to Council. Council Member Leslie Pool and several of her colleagues intend to change that.
Last year, then-Council Member Don Zimmerman won part of a lawsuit challenging the city’s campaign finance regulations. Federal Judge Lee Yeakel threw out the part of the law that allowed candidates to raise money only during the six months prior to an election. However, the judge left open the possibility that the city could adopt a longer time period for raising campaign funds.
Zimmerman has filed an appeal with the U.S. 5th Circuit Court of Appeals on other issues on which the city prevailed, including the amount candidates can take from people living outside the city and the $350 limit on individual contributions…
As currently envisioned, the new ordinance would allow collection of campaign funds one year before an election, but only by those running in that election.
New York Post: Feds will question de Blasio about campaign fundraising
By Rich Calder and Danika Fears
Mayor de Blasio will be questioned by federal prosecutors Friday morning as part of the wide-ranging investigation into his campaign fundraising, sources told The Post.
The long-anticipated sit-down with prosecutors from Manhattan US Attorney Preet Bharara’s office will take place at the Midtown offices of the mayor’s lawyer, Barry H. Berke of Kramer Levin Naftalis & Frankel, sources said.
The feds have been probing whether de Blasio and his aids traded favors in exchange for donations to his 2013 campaign or to his shuttered nonprofit, the Campaign for One New York…
Meanwhile, grand juries have been hearing evidence related to separate state and federal inquiries into the de Blasio administrations fundraising practices.
