Trump’s SCOTUS List of 21
By David Keating
In Christian Legal Society (CLS) v. Walker, Judge Sykes protected a campus Christian group’s First Amendment right to restrict membership to adherents of its faith…
From the [Backpage.com v. Dart] opinion:
The difference between government expression and in intimidation – the first permitted by the First Amendment, the latter forbidden by it is… “the fact that a public-official defendant lacks direct regulatory or decisionmaking authority over a plaintiff, or a third party that is publishing or otherwise disseminating the plaintiff’s message, is not necessarily dispositive…. What matters is the distinction between attempts to convince and attempts to coerce. A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff’s First Amendment rights….”
From the [Ovdal v. City of Madison] opinion Judge Sykes joined:
While it is true that the surrounding circumstances must be considered, it is also true that the city cannot threaten to prosecute protesters under this statute if the threats are nothing more than a pretext for stopping unpopular, yet protected, speech.
By David Keating
The State of Indiana onerously restricts advocacy groups wishing to engage in political speech through robocalls. Patriotic Veterans argued their calls’ political messages should be exempt from the State’s restrictions…
The Center for Competitive Politics represented the plaintiff in [Patriotic Veterans v. Zoeller] by retaining and paying for counsel. In 2011, the district court issued an injunction against the law, finding federal law preempted it. The circuit court reversed and remanded to the district court to consider the First Amendment arguments. The district court did not find any constitutional violation…The City of Springfield banned certain panhandler overtures in their historic area…
Panhandling statutes had vexed the circuits as well as the Supreme Court in prior cases. In Norton v. City of Springfield, Judge Sykes joined a split panel that held Springfield’s ordinance survived constitutional attack because it was not content-based and allowed less intrusive solicitation.
The city’s respite was short lived. The Supreme Court quickly took a different panhandling case that defined “content-based” restrictions expansively, resulting in this opinion’s reversal.
By David Keating
We found six cases where Judge Kethledge wrote or joined an opinion related to First Amendment free speech rights. I have ranked them according to my view of the relative importance of each opinion. The first three cases are important, and roughly equal in importance. Bible Believers v. Wayne County, Mich., an en banc opinion, is just slightly less important. Kethledge joins this thorough opinion about the First Amendment’s application to the “heckler’s veto.” The last two cases appear fairly routine, but Big Dipper Entertainment, LLC v. City of Warren, a case about topless bar limits, drew a dissent.
Lavin v. Husted is one of the best I’ve read in preparing these reports. Kethledge’s careful scrutiny of a contribution ban is outstanding. In re US harshly rebuked IRS tactics in a case filed after the IRS Tea Party targeting scandal. In contrast to Lavin, Bailey v. Callaghan is disappointing because it fails to apply careful scrutiny to a law that targeted one union for disparate treatment due to its policy views.
Free Speech
Wall Street Journal: Censorship Is Free Speech? It Must Be the Class of 1984
By Jillian Kay Melchior
Higher education’s suppression of speech is well-publicized. But in an odder and less well-known twist, campuses are increasingly co-opting the language of free speech and using it to justify censorship. One example: The designated “free speech zones” that exist on roughly 1 in 10 U.S. college campuses, according to a report released last month by the Foundation for Individual Rights in Education.
The very existence of a “free speech zone” suggests that students’ expression is limited elsewhere on campus. And even in the “free” zones, administrators often restrict who can speak, when and for how long.
Dozens of universities have also used the language of free speech to justify trendy “Language Matters” or “Inclusive Language” campaigns. The point of these programs is to condition students to wince away from words and phrases deemed offensive, instead using politically correct substitutes…
In “Politics and the English Language,” George Orwell describes how the misuse of language can lead to messy thinking-and how, even worse, intentionally imprecise language can soften or obscure abhorrent ideas. He anticipated a world in which administrators, professors and students demand the right to act as censors even as they claim to venerate the right to unrestricted expression.
FEC
Bloomberg BNA: Pence State Committee Can Use Funds on Campaign Wrap-up: FEC
By Brandon Ross
Vice President Mike Pence’s Indiana campaign committee is permitted to spend non-federal funds raised for his abandoned gubernatorial re-election race to store campaign materials and pay legal or accounting fees related to winding down activities, the Federal Election Commission ruled.
The FEC voted 6-0 at its Jan. 25 monthly open meeting to approve an advisory opinion (AO 2016-25) sought by the Mike Pence for Indiana campaign committee on how to handle more than $1.4 million in leftover campaign funds…
FEC guidance was sought on how the unspent funds could be used because of unclear rules on the use of campaign funds as set forth in the Federal Election Campaign Act (FECA) and in a 2007 FEC opinion, the request said. The $1.4 million was raised according to Indiana law, but not in accordance with FECA, which created a gray area for usage of the funds, the request said.
Congress
Wall Street Journal: A GOP Regulatory Game Changer
By Kimberley A. Strassel
These days Mr. Gaziano is a senior fellow in constitutional law at the Pacific Legal Foundation. But in 1996 he was counsel to then-Republican Rep.David McIntosh.He was intimately involved in drafting and passing a bill Mr. McIntosh sponsored: the Congressional Review Act. No one knows the law better.
Everyone right now is talking about the CRA, which gives Congress the ability, with simple majorities, to overrule regulations from the executive branch. Republicans are eager to use the law, and House Majority Leader Kevin McCarthy this week unveiled the first five Obama rules that his chamber intends to nix…
The best part? Once Congress overrides a rule, agencies cannot reissue it in “substantially the same form” unless specifically authorized by future legislation. The CRA can keep bad regs and guidance off the books even in future Democratic administrations-a far safer approach than if the Mr. Trump simply rescinded them.
Independent Groups
The Hill: Anti-Devos calls jam Senate phone lines
By Lydia Wheeler and Mallory Shelbourne
Liberal groups have sought to jam Republican phones lines with protests of President Trump’s nomination of Betsy DeVos as Education secretary…
Political advocacy group Every Voice teamed up with End Citizens United for a campaign heavily focused on DeVos. In a digital ad targeting senators who have received donations from the nominee, Every Voice urges constituents to call on their senators to recuse themselves from DeVos’s confirmation hearing.
While no senators have done so, communications director Adam Smith said the group’s effort helped highlight the role DeVos’s money has played in politics.
“Nobody has recused themselves, obviously, but the focus the role her money played in her nomination – by Democratic senators at the hearing and in the public discussion – has been important in piercing Trump’s claim that he’ll fight big donors and will stand up to their influence,” Smith said.
Lobbying
Marketplace: Why President Trump will keep lobbyists especially busy
By Nancy Marshall-Genzer
Lee Drutman, a senior fellow at New America who studies lobbying, pointed out the offices of prominent K Street lobby shops and told what’s happening behind the glittering windows lining the street…
One reason lobbyists are especially busy though? Drutman said the Donald Trump administration has given lobbyists a new mission.
“If you never know when President Trump is going to send out a grumpy tweet that puts your company in the spotlight, you want to make sure you have lobbyists who are building relationships with his administration so that he doesn’t take any serious action to harm your company,” Drutman said…
But Trump wants to rein them in. He said anyone who serves in his administration can’t lobby for five years after leaving…
Over on Capitol Hill, Craig Holman is a lobbyist who lobbies against lobbying for the left-leaning watchdog group Public Citizen. He wants stronger laws on conflicts of interest in Congress and in the Trump administration. He’d like a ban on working lobbyists taking jobs in government agencies.
Donors
The Atlantic: What Does the Billionaire Family Backing Donald Trump Really Want?
By Rosie Gray
Hedge-fund billionaire Robert Mercer and his daughter Rebekah were among the earliest and strongest backers of Donald Trump while other elite donors still disdained him. It turned out to be a good investment. But now, with their favored candidate freshly installed as president of the United States, it remains unclear what they believe, or what they hope their investment will yield…
No one seems to know what motivates the Mercers or what policies they want to see enacted, even people who have worked closely with them or for projects funded by them. While they’ve poured money into conservative causes, they’ve also invested in projects explicitly aimed at overturning the modern conservative movement, like Breitbart News, in which they reportedly invested $10 million, and Trump himself. And the mystery of their ideological motivations is made all the more striking by their success in helping Trump reach the White House. A recent Wall Street Journal story on the Mercers concluded: “It isn’t clear what specific policies or positions, if any, the Mercers are seeking for their support of Mr. Trump.”
Trump Administration
Washington Post: Trump is getting payments from foreign governments. We have no idea what they are.
By Zephyr Teachout
After the election, Trump had several months to move toward liquidation and putting his assets in a truly blind trust. He has chosen, instead, to keep his ownership interests in his businesses, turning over operating decisions to his children but remaining an owner. His decision threatens the integrity of American democracy and national security, and it should ring alarm bells for all citizens, regardless of political party.
Trump’s choice violates one of the most overlooked but important sections of the U.S. Constitution, the foreign emoluments clause, which was framed to avoid problems of split loyalty…I never expected the clause to be litigated: Presidents and federal officials have gone out of their way to avoid violating it. Until now. But Trump’s blatant violation of the clause is a violation of our fundamental document and our fundamental principles.
That’s why the nonpartisan watchdog group Citizens for Responsibility and Ethics in Washington filed suit in federal court this week to seek a declaratory judgment and injunction. I am one of the lawyers on the case.
BillMoyers.com: Can We Have a Word, Mr. Trump?
By Daniel Weeks
It’s been seven years since the legendary reformer, Doris “Granny D” Haddock, passed away, but at such a time as this the centenarian crusader would surely have something to say…
She would tell President Trump that his pledge to “drain the swamp” of Washington insiders was a masterful bit of rhetoric, and well worth the effort besides. So was his trademark phrase, “Can’t be bought.”…
Conveniently, she would tell the president, a bipartisan bill was recently reintroduced to do just that. The “Government By The People Act” would end the endless corruption of billionaire-backed campaigns by establishing citizen-funded elections instead. Unlike most other bills, it actually lived up to its name! What better time than now, she would suggest, when “America thirsts for true reform?” If Trump was willing to lead, she would willingly follow.
The States
Pierre Capital Journal: Gov. Daugaard says he would sign repeal of ethics law
By Associated Press
South Dakota Gov. Dennis Daugaard said Thursday that he plans to sign a Republican bill that would dismantle a voter-approved government ethics overhaul if it reaches his desk.
The state Senate was to vote on the bill, but legislators supported a procedural move to postpone more debate until next week. It has already passed through the House.
The measure would repeal the ballot initiative that created an ethics commission, public campaign funding and strict limitations on lobbyist gifts to lawmakers…
The embattled law – called Initiated Measure 22 – isn’t in effect while a legal challenge from GOP legislators and others moves forward. Republicans have said the initiative is likely unconstitutional…
Represent.Us, a Massachusetts-based organization that pumped funding into the South Dakota ballot measure campaign, has targeted Republican lawmakers with newspaper, radio and online advertisements, mail pieces and telephone calls. The group has spent over $23,000 so far in January.
