Free Speech    

New York Post: DC Court of Appeals’ global warming decision threatens First Amendment

By Editorial Board

As Americans were preparing to trade Christmas presents last week, the DC Court of Appeals was moving to take a gift away: Americans’ right to free speech.

The court ruled that Penn State climatologist Michael Mann’s defamation suit against National Review and the Competitive Enterprise Institute can go to trial. That should send shivers down the spines of anyone who cares about open debate and challenges to scientific findings.

Mann’s suit claims bloggers Mark Steyn, on NR’s site, and Rand Simberg, on CEI’s, defamed him when they slammed his global warming research, particularly his famous hockey stick graph – an illustration of how temperatures have recently surged…

In the court’s opinion, Senior Judge Vanessa Ruiz writes that Mann “supplied sufficient evidence” for a jury to find the bloggers’ statements “false.” But that’s based on the opinions of “experts,” including Penn State. What makes her think they got it right – or, more important, that they can’t be challenged?  

National Review: The D.C. Court of Appeals Undermines the First Amendment

By The Editors

In refusing to dismiss these claims, the opinion is badly mistaken. Worse, it represents an unprecedented threat to the freedom of speech in our nation’s capital. There’s a reason that a broad coalition of groups including the ACLU, the Washington Post, the Cato Institute, and the Reporters Committee for Freedom of the Press filed briefs in support of NR in the case.

Properly understood, the First Amendment provides broad protection for free expression on matters of political and scientific controversy. It protects vigorous debate not only over the merits but also over the ethics of politically controversial scientific enterprises. In particular, it protects the right of all Americans – scientists, journalists, and even bloggers – to express caustic criticism of scientific theories that purport to resolve hot-button political controversies on matters as sweepingly consequential as the extent and cause of global warming. 

Washington Post: Making Defamation Law Great Again: Michael Mann’s suit may continue

By Jonathan H. Adler

However intemperate the original blog posts at issue, this decision is tremendously unfortunate, as it threatens to make it too easy for public figures to file lawsuits against their critics and, as a consequence, threatens to chill robust political debate…

Given that Mann is a public figure for the purposes of this litigation, under D.C.’s anti-SLAPP law, he could only prevail if the court could conclude there was a reasonable likelihood that a reasonable jury could find, by “clear and convincing evidence” that Steyn and Simberg acted with “actual malice” or a “reckless disregard” of the truth or falsity of the claims at issue…

While a direct accusation of scientific fraud may be actionable – particularly when made against a non-public figure – challenges to scientific conclusions and interpretations of scientific studies are clearly protected by the First Amendment. So are erroneous interpretations of scientific conclusions and – particularly relevant here – criticisms of the conclusions of investigatory bodies.

Supreme Court    

Huffington Post: On January 3, We Can Still Claim The Supreme Court We Earned!

By Roger Wolfson

Citizens United? To overturn it, we don’t need a constitutional amendment (which would take two-thirds of all our states to ratify). We just need a clean-elections majority on the Supreme Court. We already have four justices in place, we just need Garland to join them. And immediately – Citizens United, and its horrific, unprecedented dumping of money into increasingly corrupted elections – would be gone…

The truth is, the three Justices over the age of 80 would overturn Citizens United. The pro-Citizens United Justices are all in their 60s.

Opponents of clean elections saw this ahead of time, and acted. That’s why they refused to hold hearings on Garland. They saw their chance to dominate the Court for decades. We can be angry, but we can’t fault a winning strategy… 

With Trump in office, filling up vacancies throughout the federal judiciary; with “unlimited spending” politicians controlling the majority of Congress, of the governorships, of statehouses; the Supreme Court could be the last remaining balance, keeping money out of politics.  

Wisconsin John Doe   

Wisconsin Radio Network: Assembly lawmakers approve probe of John Doe leak

By Andrew Beckett

An Assembly committee has voted to allow the Department of Justice to proceed with an investigation into who leaked documents from a John Doe investigation to a newspaper.

The documents released by the Guardian U.S. newspaper this fall detailed the investigation into possibly illegal coordination by Governor Scott Walker’s campaign and conservative groups. The records offered a detailed look at how Walker’s campaign worked with issue advocacy groups, while the governor was facing a recall election in 2012.

Attorney General Brad Schimel has argued the leak violated a secrecy order in the John Doe investigation, and he may convene a grand jury to investigate.

Wisconsin Watchdog: John Doe probe will never be over for furious Democrats

By M.D. Kittle

Multiple courts have ordered the probe shut down, and in October the U.S. Supreme Court made quick work of rejecting a petition for review by Milwaukee County District Attorney John Chisholm, the Democrat who launched the politically motivated probe in August 2012.

But the John Doe case is never over in the minds of liberals like Assembly Minority Leader Peter Barca, D-Kenosha…

The Wisconsin Supreme Court’s 4-2 ruling found that like-minded groups and politicians have every right under the First Amendment to communicate with each other, as left-leaning groups certainly did during Wisconsin’s bitterly partisan political recall season.

Still, as WisPolitics reports, Assembly Dems continue to call for “an investigation into whether Walker violated laws banning corporate contributions to candidates and their committees. Walker’s campaign has called the request “frivolous.”

Barca told the publication that it’s “hard to understand why Republicans would focus solely on the leak and not the potential crimes.”

Madison Capital Times: Wisconsin AG Schimel ‘puzzled’ by criticism of choice to pursue Guardian U.S. leak investigation, ignore Wall Street Journal leak

By Jessie Opoien

Wisconsin Attorney General Brad Schimel is pushing back against criticism of his decision not to investigate a leak to the Wall Street Journal of materials related to a secret John Doe investigation into Gov. Scott Walker’s campaign and his conservative allies.

Schimel told the Wisconsin State Journal last week he will likely convene a grand jury to investigate a leak to the Guardian U.S. of evidence collected in the John Doe probe.

Since then, Democrats including state Rep. Chris Taylor, D-Madison, have criticized his decision not to also investigate a previous leak to the Wall Street Journal’s editorial page by Eric O’Keefe, the director of the Wisconsin Club for Growth and a target in the Doe probe.

“I’ve got to tell you, I’m really puzzled by the criticism that I wouldn’t go after the leak to the Wall Street Journal,” Schimel said Monday in an interview with the Cap Times. “There’s a very significant difference between the people we’re looking at (in the Guardian U.S. leak) and the individual who leaked to the Wall Street Journal, because that’s a private citizen. The courts have no authority to order a private citizen to have a gag order on them.”

Congress

NBC News: House Republicans Reverse Course on Ethics Changes

By Alexandra Jaffe

Facing fierce criticism from members of both parties – including President-Elect Donald Trump – House Republicans backed down Tuesday from an initial attempt to gut an independent ethics office that investigates House lawmakers and staff accused of misconduct.

The decision to scrap changes to the ethics office came during an emergency GOP conference meeting Tuesday morning, just hours after Trump fired off a pair of tweets criticizing the Monday-night vote by House Republicans to place the Office of Congressional Ethics, known as OCE, under the jurisdiction of the House Ethics Committee…

Members of both parties have privately criticized the OCE as overly aggressive and at times unfair, subjecting them to public complaints (and eventually expensive legal bills) that often came to nothing. That was the case made by a number of Republican lawmakers at Monday night’s Republican caucus meeting, where a majority of members in attendance voted to adopt the amendment. 

Providence Journal: Sen. Whitehouse: ‘Plenty of opportunity for us to have fights with the president’

By Katherine Gregg

In a wide-ranging interview with The Journal on Thursday, U.S. Sen. Sheldon Whitehouse, D-R.I., reaffirmed his intent to run for reelection in 2018.

He also went on the offensive against critics who equated his suggestion that the Department of Justice sue the fossil-fuel industry for “lies” about climate-change to an assault on the First Amendment.

“I want to make one thing very, very clear,” he said. “I am not hostile to the First Amendment. I would consider myself to be a great advocate of it.”…

Whitehouse said he felt compelled to defend his stance on the First Amendment after critics falsely suggested that “I want to prosecute people who disagree with me. Now, I’ve never said that.”

The criticism was sparked by a commentary he wrote. It suggested legal action against the fossil fuel industry, akin to the civil suit the Justice Department filed against major tobacco in 1999, alleging a “massive scheme to deceive the public about the health dangers of smoking.”…

“I don’t think it is out of line or a violation of the First Amendment to suggest that what worked with tobacco might be tried with fossil fuels.” 

Disclosure

Courthouse News Service: NYC Donor-Disclosure Rules Upset Nonprofit

By Josh Russell

A civil liberties group has joined in the call for a federal judge to strike down new donor-disclosure provisions in New York…

The legislation became Chapter 286 when Gov. Andrew Cuomo signed it into law on Aug. 24, 2016, touting it as the “nation’s strongest protections to combat Citizens United” – a landmark Supreme Court decision that tossed out the ban on campaign-spending limits for corporations.

While other parts of Chapter 286 attempt to target quid-pro-quo corruption, campaign spending and coordination in elections, Citizens Union notes that “Parts F and G do not.”

“Instead, they regulate substantial speech on matters of public concern,” the complaint states…

The American Civil Liberties Union Foundation brought a similar challenge on Dec. 21.

Both worry that the tighter disclosure rules will chill donors, forcing them to choose between protected speech and subjecting themselves to “invasive” and “burdensome” disclosures.   

Obama Administration

The Hill: Obama’s one last chance to do something – anything – to stop Big Money in politics

By Daniel G. Newman

The Democratic party establishment, including President Barack Obama, gave lip service to the idea of reducing the influence of money in politics.But when faced with opportunities to demonstrate they weren’t beholden to big donors, they wasted every one of them…

In a sense, things started going downhill even before Obama won the White House. In 2008, he became the first major party candidate to refuse public matching funds for the general election. Obama said public financing, established in the wake of the Watergate scandal, was:

“broken, and we face opponents who’ve become masters at gaming this broken system.”

A reasonable excuse, but once elected, instead of fixing the broken system, Obama became another master of the game…
The Obama administration still has a few weeks to issue an executive order requiring government contractors to disclose “dark money” expenditures. That’s enough time to make a start at redemption.  

Trump Administration

Washington Post: Donald Trump plans to shut down his charitable foundation, which has been under scrutiny for months

By Mark Berman and David A. Fahrenthold

President-elect Donald Trump said he plans to shut down his charitable foundation, a decision that comes after repeated controversies over how it collected and disbursed funds.

In a statement Saturday, Trump offered no timeline for when his foundation would close down but said he had directed his attorney to take the steps needed to close it. It was not immediately clear when the foundation would be able to dissolve, given an ongoing investigation in New York…

“The announcement that the Foundation will be shut down is a necessary first step for the incoming administration to avoid massive ethics problems, but it does not come close to ending the story,” said Noah Bookbinder, executive director of Citizens for Responsibility and Ethics in Washington, a watchdog group aligned with allies of Hillary Clinton.

Candidates and Campaigns

Rare: Trump’s victory disproves these two big political myths

By Casey Given

Progressives have been peddling the myth that money buys elections for decades. However, this myth has gone into hyperdrive after the 2010 Citizens United Supreme Court decision that protected corporations’ political speech rights.

It’s historically ironic that the left would be so upset about millionaires and billionaires supporting political causes. After all, the wealthy aren’t all right-wingers. In 1968, a small group of wealthy anti-war liberals funded the campaign of Sen. Eugene McCarthy, the only vocal opponent of the Vietnam War in the race at the time. Had the progressive dream of strict campaign finance restrictions been in place at the time, McCarthy’s candidacy and the Vietnam issue would have been wiped from the election.

Nonetheless, the 2016 presidential election will hopefully be the nail in the coffin for this popular myth. Hillary Clinton outspent Donald Trump nearly two-to-one. Team Clinton spent a whopping $1.2 billion compared to Team Trump’s $600 million.

The States

Seattle Times: Seattle’s ‘democracy vouchers’ are a recipe for campaign mischief

By Editorial Board

In early January, Seattle will start its first-in-the-nation “democracy vouchers” campaign-financing experiment, sending out about $50 million worth of vouchers to city voters.

The idea behind the vouchers might sound good: Give voters $100 worth of campaign contribution scrip each (four $25 vouchers), and they’ll engage in elections in an entirely new way.

But the wrongheaded experiment, approved by voters in the August 2015 election, is extraordinarily complicated and raises a troubling potential for mischief, which is why The Seattle Times editorial board recommended voting no…

Washington state voters in November rejected launching a similar program statewide, for good reason. The Seattle experiment should be carefully watched to see if this superficially appealing idea simply creates new campaign-finance loopholes.