Trump’s SCOTUS List of 21      

Make the First Amendment Great Again? Trump’s Potential Supreme Court Nominees’ Views on Free Speech

By CCP Staff

President-elect Trump will weigh much information as his staff reviews potential nominees. Our role is to learn more and publish information about each possible nominee’s views on the four First Amendment speech rights – speech, press, assembly, and petition. This review will study hundreds of court rulings by the judges on the list.

Given that President-elect Trump plans to announce his nominee soon after his inauguration, we plan to publish any new information on our blog as we discover it.

We hope this information will prove useful for educating the public and the media on each potential nominee’s record on core First Amendment issues.

Judge Steven Colloton would grant lawmakers “extreme deference” to limit free speech

By David Keating

Using our initial screen to find cases, Judge Colloton wrote or joined an opinion in three notable First Amendment cases while on the Eighth Circuit:

Minnesota Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864 (8th Cir. 2012) (en banc) (Colloton, J., concurring in part and dissenting in part).

Wersal v. Sexton, 674 F.3d 1010 (8th Cir. 2012) (Colloton, J., dissenting in part).

Phelps-Roper v. Troutman, 662 F.3d 485 (8th Cir. 2011) (Colloton, J., concurring).

The most significant of the three decisions, by far, is Minnesota Citizens. In that case, Judge Colloton would have limited First Amendment speech rights of corporate speakers making “independent expenditures” – spending that directly supports or opposes political candidates – and upheld disclosure requirements for that activity. Fortunately, the majority in that case ruled in favor of First Amendment rights. The dissent, joined by Colloton, would have granted lawmakers “extreme deference” to limit free speech and invade donor privacy.

In Wersal, Judge Colloton defended the First Amendment right of Minnesota state judges to endorse candidates and solicit funds for their judicial campaigns. In Phelps-Roper, Colloton concurred in the judgment, and again sought to limit First Amendment rights.

In the News      

Cato: Campaign-Finance Rules Chill Speech Unrelated to Election Campaigns

By Ilya Shapiro and Thomas Berry

We make two broad points. First BCRA’s disclosure provision is undeniably content-based, which should subject it to strict scrutiny under the First Amendment (meaning the government needs to provide a compelling justification). The law applies only if a speaker chooses to make reference to a candidate for office, so the law expressly draws distinctions based on the expressive content of speech.

Second, mandatory-disclosure laws chill speech by forcing people to surrender their “privacy interest in keeping personal facts away from the public eye,” as the Supreme Court put it in U.S. Department of Justice v. Reporters Committee for Freedom of Press (1989). In the context of reviewing disclosures made under the Freedom of Information Act, the Court has recognized that “embarrassment in … social and community relationships” is among the consequences of disclosure that “must be given great weight.” U.S. Department of State v. Ray (1991)…

Because enforcement of the rule raises a substantial question under the First Amendment, the Court should take up Independence Institute v. FEC and ultimately overturn the district court.

Congress     

More Soft Money Hard Law: The Law-or-Ethics Question for Congressional Ethics

By Bob Bauer

There may be an understandable fear that elected officials cannot be trusted with looking after their own ethics. So it may be believed that to have any ethics at all, the rules should be tightened and developed in detail, and the more it all looks and is enforced like law, the better. To be counted against this view is the danger that more law does not necessarily mean better, clearer ethics. If the law governing public corruption loosens, does this suggest that the ethical standards and rules aimed at the same sort of misconduct should be loosened as well? The Supreme Court has held in McDonnell v. United States, that in and of itself, the sale of “access” to government officials is not criminal.  The Court in McCutcheon v. Federal Election Commission defended the practice by which politicians may pay special attention to their campaign contributors’ interests-and it did so by appealing to a core conception of representative government. Yes, the Congress may impose stricter standards on its Members, but it is that much harder to do if it has difficulty distinguishing what is illegal from what is unethical. And it is harder still when the Court is framing the protections for these behaviors in the language of constitutional rights.

Dangers of Disclosure     

Boston.com: LL Bean on defensive after Linda Bean’s political donation

By Associated Press

L.L. Bean likes to stay out of politics, but a donation by a member of the Bean family is putting the retailer on the defensive.

The Maine-based company issued a statement late Sunday after being targeted for boycott for alleged ties to Republican President-elect Donald Trump.

The founders of the hashtag #GrabYourWallet included Bean on the list after The Associated Press reported that L.L. Bean’s granddaughter, Linda Bean, contributed $60,000 to a political action committee supporting Trump. The donation exceeded the PAC’s contribution limit.

Bean Chairman Shawn Gorman said he’s ”deeply troubled by the portrayal of L.L. Bean as a supporter of any political agenda.” He said there are nine other board members and 50 family owners and that Linda Bean’s donation shouldn’t speak for all of them.

Independent Groups      

Politico: Conservatives plan $10 million high court ad campaign

By Burgess Everett

Conservative groups are planning to spend millions on an unprecedented campaign to pressure Senate Democrats to confirm Donald Trump’s Supreme Court nominee, according to sources familiar with the effort.

Fresh off spending more than $7 million to keep the seat vacant under President Barack Obama, the deep-pocketed Judicial Crisis Network will plow at least $10 million into advertisements urging a number of moderate Senate Democrats to support Trump’s choice. The group is concentrating on Democrats up for reelection in states that Trump won last year.

Senate Minority Leader Chuck Schumer (D-N.Y.) vowed this month that his caucus will oppose high-court nominees that are not “mainstream” – adding that he would “absolutely” try and keep the seat vacant…

JCN is just one player in a larger, multi-faceted effort outside the halls of the Capitol to confirm a new conservative justice, sources planning the strategy said. The push will also include paid advertising, earned media, research and grassroots outreach from JCN and several other prominent conservative groups.   

Lobbying     

Vox: DNC chair candidate Jaime Harrison: lobbyists can be good Democrats

By Jeff Stein

From 2008 until 2016, Jaime Harrison was a lobbyist for a powerful lobbying firm called the Podesta Group. The former whip for the House Democratic Caucus, Harrison relied on his Capitol Hill contacts to help clients like Lockheed Martin and Walmart press their cases to the federal government.

Now Harrison is running for chair of the Democratic National Committee in a bid to lead the party through the Trump era. He believes the party needs to embrace corporate lobbyists rather than vilifying them, as many Democratic politicians do.

“I’m no longer a lobbyist, but a lot of good Democrats are. … I won’t participate in this blanket assassination of various folks because some members of our party don’t agree with what their jobs are,” he told me in an interview on Wednesday.

Trump Administration

Politico: 10 ways Trump could address his trouble with conflicts of interest

By Isaac Arnsdord and Darren Samuelsohn

Donald Trump insists there’s an easy solution to ward off any conflicts of interest between his presidency and his business empire. This week he’ll be asked to prove it.
Trump will hold his first press conference since July on Wednesday, and top advisor Kellyanne Conway said it was where he’d likely lay out his administration’s ethics plan – an announcement originally slated for mid-December.

Despite Trump’s claims, a host of lawyers and ethics experts say there’s nothing simple about disentangling a business worth billions from a government whose annual budget is measured in trillions – especially as initial signs from his transition team’s deliberations suggest Trump is not willing to permanently sever all ties with the company he built over decades.

Here’s the range of options, from strongest to weakest, that Trump’s team could pursue…

Politico: Selling his empire would cost Trump money. A lot of it.

By Katy O’Donnell and Lorraine Woellert

Donald Trump’s critics say the only way for him to keep his business interests separate from the public’s interest is to simply get out of business entirely, selling his companies and putting the proceeds into anonymous assets that someone else can manage.

But there’s nothing simple about it: unloading a real estate empire as large as Trump’s is a lengthy, complicated process fraught with ethical pitfalls, one that could end up costing a fortune…

Trump, who’s expected to lay out a plan to address conflicts of interest at a press conference Wednesday, heads a particularly difficult estate to unwind. Forbes has pegged his net worth at $3.7 billion in September, attributing most of that to real property holdings tangled in debt, partnership agreements, management contracts, branding deals and tax deferrals.

Ethics watchdogs say Trump’s cleanest break would be to sell his company to the public, but an initial public offering – especially one that folds in most or all of Trump’s scattered businesses – would be complicated, costly and time-consuming.

The Guardian: We were ethics lawyers for Bush and Obama. Trump’s cabinet hearings must be delayed

By Norman L. Eisen and Richard W. Painter

As the former White House ethics counsels for Presidents Bush and Obama, we were involved in the submission of many presidential nominations to the US Senate for confirmation. We and others worked hard to make sure those nominees’ financial disclosure reports and ethics agreements were finalized and certified by the Office of Government Ethics (OGE) before their hearings, so that the Senate and thus the public could explore any conflicts of interest and how they were addressed.

This week’s hearings for the president-elect’s cabinet are flouting that practice, and for that reason, should be postponed.

This point was made clear by Senator Mitch McConnell in a 12 February 2009, letter to the then majority leader Harry Reid, insisting that the “The Office of Government Ethics letter [be] complete and submitted to the committee in time for review and prior to a committee hearing”.

McConnell’s point was important. Short-changing the ethics review process in Congress jeopardizes nominees’ ability to do their jobs if confirmed.  

The States

Alaska Dispatch News: Group appeals lawsuit challenging Alaska campaign finance laws

By Alex DeMarban

A group of Republicans trying to loosen campaign contribution limits in Alaska – following key decisions by the U.S. Supreme Court in recent years – is appealing a ruling by a federal judge in November that upheld the state’s strict limits.

Kevin Clarkson, attorney for the plaintiffs, said on Monday that the ruling by U.S. District Judge Timothy Burgess, an appointee of George W. Bush, came as no surprise. Burgess is bound to follow case law established by the 9th U.S. Circuit Court of Appeals that represents nine Western states, including Alaska, Clarkson said.

But Clarkson asserted that the appeals court has erred by ignoring Supreme Court decisions affecting campaign finance laws, such as the Citizens United decision in 2010 that struck down most limits on contributions to groups that operate independently of campaigns, though not to candidates themselves. Instead, the appeals court is incorrectly relying on earlier case law that may no longer be valid, Clarkson said.

Argus Leader: Group starts ad blitz to discourage ethics law repeal

By Dana Ferguson

A Massachusetts group that helped approve a South Dakota campaign finance and ethics law is taking the legislative fight about the proposal’s future to the court of public opinion.

Represent Us, which spent hundreds of thousands of dollars to bankroll advertisements for Initiated Measure 22, over the weekend launched another campaign. This time, the group is aiming to generate a public outrage about Republican lawmakers’ efforts to repeal and replace the ethics law.

Members of the nonprofit’s local affiliate purchased a full-page advertisement in the Argus Leader, mailed post cards and posted a video advertisement on Facebook calling on South Dakota Senate Majority Leader Blake Curd, R-Sioux Falls, to publish emails detailing how the state and Sioux Falls Specialty Hospital, which Curd owns, settled contracts while he was in state office…
He and Peters said that they vowed to protect the South Dakota Constitution and in doing so, couldn’t support maintaining the law that violates the document in multiple ways. 

Pierre Capital Journal: Krebs offers package to replace ethics initiative under fire

By James Nord

Secretary of State Shantel Krebs is proposing a rewrite of South Dakota’s campaign finance laws that she said could replace a voter-approved government ethics overhaul Republican lawmakers are expected to repeal during the legislative session that starts Tuesday.

The state’s chief election officer outlined to The Associated Press the wide-ranging changes, which include creating a campaign finance ethics commission, adding financial disclosure requirements and allowing organizations to contribute directly to candidates, among other provisions.

“I don’t feel that the Legislature can get a solid working product put together in two months,” said Krebs, citing her office’s level of experience and the months dedicated to crafting the proposed changes. “I just want to have a product ready to go for them.”

Krebs, a Republican, convened a bipartisan task force to review of the state’s campaign finance laws during the summer, before voters approved the Initiated Measure 22 ethics package. 

Albuquerque Journal: Legislator again seeks campaign finance reform

By Deborah Baker

New Mexico’s campaign finance law is cluttered with provisions that are outdated and unconstitutional, and it has gaping holes in the area of independent spending.

While previous attempts to clean it up and fill the gaps have fallen short, supporters of updating it are hopeful this is the year the bill will pass.

Sen. Peter Wirth, D-Santa Fe – the Senate’s new majority leader – has been pushing the legislation since the U.S. Supreme Court’s Citizens United decision in 2010 cleared the way for unlimited spending by some political action committees…

New Mexico’s campaign finance law is outdated because a series of court rulings has invalidated key portions.

“As a result … we have a campaign finance code sitting there that is full of unconstitutional provisions, and it’s incumbent on us to clean this up and do the additional step of requiring this disclosure,” Wirth told the Journal…

Opponents have included some nonprofits that worry their occasional advocacy for or against candidates could subject them to having to disclose their donors, he said.