CCP
Senator Klobuchar on Campaign Finance: An Admission Against Interest?
By Brad Smith
Judge Gorsuch’s one opinion dealing with campaign finance is a concurring opinion in a case called Riddle v. Hickenlooper. (CCP’s analysis of Gorsuch’s concurrence and the case itself is here.)…
Gorsuch’s Democratic inquisitors have been attacking this opinion, suggesting it shows that maybe he believes that strict scrutiny should apply to campaign finance limits challenged under the First Amendment. And on this point, Senator Amy Kobluchar (D. Minn.) attempted to pounce:
“If the Supreme Court adopts [strict scrutiny], the few remaining campaign finance limitations that we have in place and left on the books could fall. So do you believe that strict scrutiny is the appropriate standard for reviewing campaign finance regulations?”
Notice the implicit admission against interest in Klobuchar’s question – she believes that limits on contributions infringe on First Amendment rights, and if strict scrutiny is applied, as is normally the case, laws limiting this form of political participation would likely be found unconstitutional.
In essence, then, she is asking that the Court ignore general rules of First Amendment jurisprudence to get to the result she wants.
Hasen on Gorsuch on Citizens United
By Brad Smith
One can certainly read Professor Hasen’s comments in a way to suggest that he has stated the holding of Buckley correctly. He doesn’t specifically say that Buckley found valid the type of disclosure he goes on to discuss. Perhaps we should interpret his remarks charitably. But – and this is congruent with Professor Muller’s point – you can do that with Judge Gorsuch’s comments, too. We all speak in shorthand, and particularly in spontaneous oral conversation, points sometimes run together without all the nuance we might ideally want. I don’t think Professor Hasen is trying to mislead, and he’s not a nominee for the Supreme Court. But it’s still ironic to see Professor Hasen do what he criticizes Judge Gorsuch for doing.
Perhaps a bit more charity and reflection would be in order. But this is, after all, a partisan fight, so perhaps not.
Supreme Court
USA Today: Neil Gorsuch sails through Supreme Court confirmation hearing
By Richard Wolf
What had been a contentious Senate Judiciary Committee hearing a day earlier morphed into a sort of civics lesson on legal and legislative problems in which the senators and the nominee chatted about potential solutions.
Thus it was that Sen. Dianne Feinstein, D-Calif., implored the 49-year-old Gorsuch not to stick rigidly to the words of a Constitution written more than two centuries ago. “For the life of me, I really don’t know — when you’re there — what you’re going to do with it,” she said, already imagining Gorsuch on the high court…
Sen. Sheldon Whitehouse, D-R.I., urged Gorsuch to consider overruling the high court’s 2010 Citizens United decision that opened the floodgates to unlimited corporate spending on elections.
“Judge Gorsuch, this is probably the last time you’ll pay attention to me,” Whitehouse said — because he no longer argues cases before the Supreme Court…
Republicans also pointed out several times that the changes Democrats were seeking on campaign financing, workers’ rights and other issues were in the province of Congress and state legislatures, not federal judges.
New York Times: Gorsuch Completes His 20-Hour Test. So How Did He Do?
By Matt Flegenheimer, Adam Liptak, Charlie Savage, and Carl Hulse
Maybe he’ll clear the 60 votes needed to break a filibuster, attracting sufficient support from Democrats – particularly those from states that President Trump won. Or maybe skeptics will hold the line and force Republicans to change longstanding Senate rules to elevate Judge Gorsuch on a simple majority vote.
But this much is clear: Nothing that’s happened this week has made much of a difference. Three days of hearings marked by attacks and deflections have left the Senate Judiciary Committee more or less where it started…
Despite the stakes inherent in any Supreme Court confirmation hearing, the Gorsuch proceedings often felt like an afterthought. Part of the burden falls on Democrats, who have failed to draw much blood in their questioning or generate meaningful momentum for opposition outside the hearing room, at least so far…
In finely calibrated testimony, Judge Gorsuch declared that he would go where the law took him, even if that required a ruling against Mr. Trump, who nominated him. He made emphatic but vague statements – “No man is above the law,” he repeatedly said, for instance – but avoided saying anything more specific.
Daily Caller: Media And Legal Observers Heap Praise On Gorsuch
By Kerry Picket
“He has actual charisma he’s able to give off. His intelligence shone through – his good humor at moments but also he knew when to say he is independent from President Trump,” The New York Times’ Patrick Healy told CNN.
The Washington Post said Gorsuch was the “picture of a cool, calm, self-assured justice.”…
CNN legal analyst Jeffrey Toobin said on a panel Tuesday night, “He’s doing well. He knows more constitutional law than anyone who is asking these questions. There are 52 Republican senators, is there anything that would cost him the support of any of those Republican senators? Not even close. There have been some interesting exchanges. Obviously, he’s got some charm, a lot of intelligence and he’s doing fine.”
Georgetown Law professor Randy Barnett thought that “Gorsuch made effective response to Dem cherry-picking his record with lots of other cases that went other way.”
MSNBC’s Chris Jansing said that Gorsuch gave an “impressively disciplined performance,” while CNBC’s John Harwood stated on Twitter that “There is no chance under the sun that Democrats defeat Gorsuch nomination. he makes extremely strong case for himself.”
USA Today: Gorsuch is the intellectual the court needs: Jonathan Turley
By Jonathan Turley
We need someone who is comfortable in his own intellectual skin. The priority should be not to replace a conservative with a conservative but an intellectual with an intellectual. Gorsuch is precisely that type of nominee.
I have long been critical of the preference shown nominees who lack any substantive writings or opinions on the major legal issues of our time. This has led to what I have referred to as the era of “blind date nominees,” candidates with essentially empty portfolios when it comes to any provocative or even interesting thoughts. Such individuals make for good nominees but not great justices.
Gorsuch is a refreshing departure from that trend. He has eagerly and substantively participated in the national debate over some of our most sensitive issues…
Gorsuch is the gold standard for a nominee. He is widely respected for his writings on legal theory and history, which include refreshingly provocative ideas on the structure of government, morality in the law and interpretive theory. This is, in other words, a full portfolio of work at the very highest level of analysis.
Free Speech
Daily Caller: NY AG’s Private Email History Raises Questions About Anti-Exxon Campaign
By Chris White
A senior staff member for New York Attorney General Eric Schneiderman used a private email account five years ago to set up meetings on climate change with prominent environmental groups.
Legal discoveries show that Lem Srolovic, the assistant attorney general at the New York Attorney General’s Office, used his personal email account in 2012 to prepare for a meeting with various environmental organizations. His email raises questions about how often Schneiderman’s office uses personal emails for professional meetings, which would be a violation of New York law if done while gathering information for the AG’s Exxon probe…
Schneiderman, meanwhile, continues to stonewall attempts to obtain emails between his office and wealthy donors such as Rockefeller Brothers Fund, RFF, and Steyer. He uses a Freedom of Information Law (FOIL) “law enforcement” exemption to justify blocking the requests, and claims his communication with the donors is part of the Exxon investigation.
His unwillingness to fork over emails has roiled at least one of his predecessors and raised suspicions Schneiderman’s goal is politically-motivated.
FEC
Washington Post: FEC commissioner sends letter to President Trump: Where is your proof of voter fraud?
By Matea Gold
A Democratic member of the Federal Election Commission sent a letter to President Trump on Wednesday reiterating her request that he provide evidence for his claim that thousands of people were bused to New Hampshire to vote illegally in the 2016 elections.
FEC Commissioner Ellen Weintraub told Trump in a letter emailed to the White House that the president’s unsubstantiated charge challenges the legitimacy of the election…
“Our democracy depends on the American people’s faith in our elections,” Weintraub wrote. “Your voter-fraud allegations run the risk of undermining that faith.”…
Weintraub’s first challenge to Trump drew a rebuke from the nonprofit group Cause of Action Institute, which said that allegations of voter fraud fall outside the campaign finance jurisdiction of the FEC…
Valvo said the group is not trying to “silence” Weintraub. “We simply want the FEC and its employees to follow the law and act within the proper framework of their authorizing statute,” he said. “She is, of course, free to say whatever she likes on her own time and in her own capacity.”
Independent Groups
Racine Journal Times: Russ Feingold launches new group aimed at ending Electoral College
By Mark Sommerhauser
Former U.S. Sen. Russ Feingold edged back into the political sphere Wednesday, announcing he is launching a group that will advocate abolishing the Electoral College.
The group, LegitAction, also will focus on voting rights, campaign finance reform and “protecting the independence and credibility of” the U.S. Supreme Court, according to a statement.
Feingold, a Middleton Democrat, said in an interview that the group’s formation comes in response to voters and activists who, due to last year’s election results, began questioning if U.S. democracy is still working…
Feingold said the group will be a 501(c)(4) “social welfare” nonprofit, a type of group that has become more influential as campaign finance regulations have been pared back by court rulings. Critics of such groups, which included Feingold during the 2016 campaign, have called them “dark money” groups because they are not required to disclose their contributors, which may give in unlimited amounts.
Irvine said LegitAction will voluntarily disclose its contributors.
The States
Techdirt: California Lawmakers Looking To Make Bad Law Worse By Banning ‘False’ Political Speech
By Tim Cushing
A new bill, pointed out by the EFF’s Dave Maass, seems to be a response of sorts to “fake news” and other political detritus of this highly-partisan system. Ostensibly, the bill is aimed at keeping voters from being misled on issues that affect them. The problem is, this bill would allow the government to determine what is or isn’t misleading and apply to a citizen’s social media posts, blog, etc…
With this law, opinions and misinterpretations of ballot measures/candidates’ political stances are now illegal acts. The law goes further than simply punishing the writer of false statements. It also aims to punish publishers (which could be read as punishing hosts who would normally be protected by Section 230) and anyone who shares the newly-illegal content. If anything in the original post hints of political leaning, it can be construed as “designed to influence the vote,” which would make most heated political discussions a breeding ground for criminal communications…
If California’s government doesn’t like the tone of online posts about ballot measures, it has plenty of opportunities (and numerous platforms) to set the record straight. Worse, it gives the government the power to shut down speech it doesn’t agree with under the pretense preventing voters from being misled.
Sunshine State News: Joe Gruters’ ‘Transparency’ Bill May Make Political Process Anything But, Say Critics
By Allison Nielsen
State Rep. Joe Gruters has made headlines this week for leading the charge on a bill to get rid of “dark money” in politics, but the Sarasota Republican is facing criticism that his newfound crusade against shadowy committees is simply a personal vendetta and, contrary to its goal, may actually limit transparency in the political process.
Gruters’ bill, HB 1057, would effectively prohibit political committees and electioneering communications organizations from transferring money to each other, a common practice in politics…
It all started last fall when the Committee to Protect Florida and Stop Benefits to Illegals Now dropped a nearly a dozen different mailers in HD 73, accusing Gruters of everything from “climbing the ladder of political ambitions” to being a bad accountant…
A greater fear among some in the process is that Gruters’ bill would actually have the opposite of its intended effect, limiting free speech and violating the First Amendment.
“It won’t survive courts,” political consultant Rick Wilson said.
Charleston Gazette-Mail: WV Senate committee votes down ‘dark money’ disclosure amendment
By Jake Zuckerman
The Senate Judiciary Committee struck down an amendment Tuesday that would require the disclosure of donors who fund certain political groups.
After nixing the amendment, the committee sent the bill up to the full chamber floor.
Tuesday marked the second day of reviewing an amendment proposed by Sen. Mike Romano, D-Harrison, to Senate Bill 539, which would force non-profit organizations, like the National Rifle Association and American Federation of Teachers, that fund political advertisements to disclose their donors’ identities, if they reach a certain limit.
With a 3-11 vote, the committee knocked down the “dark money” disclosure amendment…
Offering testimony against the bill, Daniel Hall, the state liaison for the NRA and former Republican state senator from Wyoming County, said the organization opposes campaign disclosures of any measure and said it makes members susceptible to political backlash.
The bill also raises citizens’ donation limits to political campaigns, committees, caucuses and political action groups.
Washington Times: D.C. Council member supermajority backs public financing option for campaigns
By Ryan M. McDermott
A supermajority of D.C. Council members this week signed on to support a measure that would offer public financing to local candidates who forgo corporate or PAC contributions…
Under the proposed Fair Elections Act of 2017, candidates would be eligible to receive matching payments on small campaign donations. In exchange for the public financing, participating candidates would no longer be able to accept direct corporate contributions or traditional political action committee contributions.
The contribution limits would be tiered depending on the office being sought, ranging from a limit of $20 for State Board of Education candidates to $200 for mayoral candidates. Candidates would receive a 2-to-1 match before qualifying for the ballot, then a 5-to-1 match after qualification…
Aquene Freechild of the progressive advocacy group Public Citizen said small-donor public financing has worked in New York City and that the District would benefit from similar legislation.
Though normally a group with a national focus, Public Citizen has taken a particular interest in the city’s campaign finance regulations this year.
Northeast Mississippi Daily Journal: Mississippi campaign finance reform bill heads to governor
By Bobby Harrison
A bill to prevent politicians from using campaign finance funds for personal use is heading to the governor – a little less than one year after being defeated during the 2016 legislative session in what was an embarrassing loss for the House leadership.
The 52-member Senate, with only one dissenting vote, on Wednesday agreed to changes made to the Senate bill by the House. That action means the campaign finance reform bill, which House Speaker Philip Gunn, R-Clinton, labeled as a priority before the session began, is on the way to Gov. Phil Bryant, who is expected to sign it into law…
Politicians can garner opinions from the Ethics Commission if they have questions about the proper use of campaign finance funds. The opinions would be public, though the names of the politicians requesting the opinions would be confidential…
The Ethics Commission also would be responsible for enforcement of campaign finance reporting laws. The misuse of campaign finance funds would be a misdemeanor punishable by up to a $1,000 fine and an amount equal to the misappropriated funds.
Delaware State News: Lawmakers push bills to make government more ‘transparent’
By Matt Bittle
Five bills recently filed by lawmakers would promote transparency in state government and the election process, advocates claim…
Senate Bill 30 would mandate donors to campaigns and political action committees reveal their employers, something recommended by a 2013 report put together by former Delaware Chief Justice Norman Veasey.
Senate Bill 78 would bar from holding or running for office anyone who has not paid all fines associated with late filing of campaign reports.
In 2012, the state changed the fines from $50 a month to $50 a day for late filers.
“Delaware’s campaign finance disclosure policies should not be taken lightly,” main sponsor Rep. Kim Williams, a Newport Democrat, said in a statement.
“Campaign finance reports provide the public with the opportunity to vet candidates and give them a clear picture of who is running for public office.
“Candidates who file financial reports late, or who rack up a multitude of unpaid fines, should be held accountable.”
