In the News
Washington Post: Thoughts on the Gorsuch pick
By Ilya Somin
Judge Neil Gorsuch is a well-respected jurist and a better Supreme Court nominee than I expected from Donald Trump. In retrospect, I underestimated Trump’s incentive to appease more conventional Republicans by selecting a Supreme Court justice they liked…
Despite my reservations on some issues, Judge Gorsuch might well turn out to be an excellent Supreme Court justice. I am somewhat reassured by co-blogger Sasha Volokh’s discussion of his record on civil liberties, and by this analysis of his limited record on free speech. At the very least, he cannot be dismissed as a mere crony of Trump’s.
NPR: South Dakotans Voted For Tougher Ethics Laws, But Lawmakers Object
By Peter Overby
South Dakota’s citizen-led experiment to “drain the swamp” of political corruption appears to have lasted less than three months.
Lawmakers in the state Senate voted 27-8 Wednesday to repeal the voter-approved initiative and send the measure to the governor. The legislation was given emergency status so it would take effect immediately when the governor applies his signature – which he said he expects to do.
The state’s voters supported Donald Trump in a landslide last November. They also gave a 51 percent majority to a ballot initiative called the South Dakota Accountability and Anti-Corruption Act…
Some critics say the initiative is a bait-and-switch, promising to drain the swamp but then suppressing free speech.
“The bait is anti-corruption, right?” said Scott Blackburn, a research fellow at the anti-regulatory Center for Competitive Politics in Alexandria, Va. “The switch is then to target a broad array of charitable organizations, and anyone who falls even close to the purview of talking about something kind of campaign related.”
Bill of Rights Defense Committee & Defending Dissent Foundation: What Does Neil Gorsuch Mean for Civil Liberties?
By Sue Udry
On a few issues, Trump’s nominee for the Supreme Court, Neil Gorsuch, is not abominable. But overall, he is cut from the same cloth as Antonin Scalia, and is likely not a man we can count on to cast the deciding vote for liberty from the bench…
Free Speech:
Gorsuch doesn’t have a long record here, but a few cases unearthed by David at the Center for Competitive Politics support media freedoms against claims of defamation or invasion of privacy. Gorsuch also ruled against a Colorado law limiting campaign contributions, because they were applied unequally to third parties. His opinion argued that “a state cannot adopt contribution limits that so clearly discriminate against minority voices in the political process without some “compelling” or “closely drawn” purpose – and Colorado has articulated none.”
Jacobin Magazine: The Gorsuch Files
By Branko Marcetic
Finally, some of Gorsuch’s writings suggest that, on one of the fundamental issues of the day – the colossal amounts of money being poured into elections by large corporations – he stands quite apart from most of the country. Striking down an inequitable Colorado campaign finance law, Gorsuch suggested that political contributions are a “fundamental right,” restrictions on which demand “strict scrutiny” from the courts. The Center for Competitive Politics, an anti-campaign-finance-regulation organization, liked the wording.
Gorsuch’s stance puts him at odds with not just campaign-era Trump – who built much of his campaign around anger at wealthy donors – but also the public, including Trump’s voters. For nearly two decades, a majority of Americans have supported limiting money’s influence on politics.
Supreme Court
New York Times: Why Liberals Should Back Neil Gorsuch
By Neal K. Katyal
There is a very difficult question about whether there should be a vote on President Trump’s nominee at all, given the Republican Senate’s history-breaking record of obstruction on Judge Merrick B. Garland – perhaps the most qualified nominee ever for the high court. But if the Senate is to confirm anyone, Judge Gorsuch, who sits on the United States Court of Appeals for the 10th Circuit in Denver, should be at the top of the list.
I believe this, even though we come from different sides of the political spectrum. I was an acting solicitor general for President Barack Obama; Judge Gorsuch has strong conservative bona fides and was appointed to the 10th Circuit by President George W. Bush. But I have seen him up close and in action, both in court and on the Federal Appellate Rules Committee (where both of us serve); he brings a sense of fairness and decency to the job, and a temperament that suits the nation’s highest court…
I have no doubt that if confirmed, Judge Gorsuch would help to restore confidence in the rule of law. His years on the bench reveal a commitment to judicial independence – a record that should give the American people confidence that he will not compromise principle to favor the president who appointed him.
Conservative Review: From campaign finance to regulations: Why Gorsuch was the perfect pick for Trump
By Hans von Spakovsky
Most importantly, Gorsuch has demonstrated that same approach in numerous opinions upholding basic rights in the Bill of Rights. In Riddle v. Hickenlooper, for example, he concurred in an opinion that tossed out a law setting different campaign contribution limits for major and minor party candidates. As he said, no one can dispute:
that the act of contributing to political campaigns implicates a ‘basic constitutional freedom,’ one lying ‘at the foundation of a free society’ and enjoying a significant relationship to the right to speak and associate – both expressly protected First Amendment activities.
This is very important because the Supreme Court has had a series of cases in recent years involving restrictions on campaign financing and speech that the liberal justices on the Court have refused to recognize as violating the First Amendment right to freely associate and engage in political activity. Justice Scalia was the needed fifth vote in these cases, such as Citizens United v. FEC, so it is vital that the new justice be someone like Gorsuch who has shown a firm commitment to upholding the First Amendment in the area of political speech and political activity.
Citizens United
The Hill: New court, second look: ‘Citizens United’ built on crumbling base
By Lawrence Norden
Since Justice Scalia’s death, many have asked what a new ninth justice might mean for campaign finance law. The shorthand for this was often “Citizens United.” Could it be overturned?
During his confirmation hearings, Senators may try to get a sense of where Judge Neil M. Gorsuch, who was nominated to replace Justice Scalia by President Trump Tuesday, will come down on this question. There is little chance he will answer directly. Recent nominees have avoided saying much about controversial legal issues, arguing that doing so could compromise the independence of the judiciary…
There is nothing in Judge Gorsuch’s record to suggest that he is hostile to recent Supreme Court money in politics decisions. If anything, there is some evidence that he thinks the court could go further in rolling back campaign finance restrictions.
Regardless of his pre-existing views, or those of other members of the court, at some point it should be necessary to compare the evidence of what has happened to what the court assumed and predicted when issuing these opinions.
The Courts
Daily Caller: Disclosure Push Threatens Non-Profit Donors’ First Amendment Protections
By Kathryn Watson
California elected officials are leading a courtroom charge to bulldoze the 1958 NAACP v. Alabama Supreme Court decision that guarantees anonymity for non-profit donors who might otherwise be subjected to death threats and other forms of intimidation.
The California attorney general’s (CAG) requirement that nonprofit groups disclose donor identities in order to solicit donations in the state threatens more than First Amendment rights. Nonprofit groups filed 10 amicus briefs Friday before the U.S. Court of Appeals for the Ninth Circuit in Americans for Prosperity Foundation (AFPF) v. California Attorney General Xavier Becerra.
“The California attorney general is callously neglectful of an atmosphere that is now crazed and even violent towards people who dissent from progressive doctrines, who speak out against radical terrorism, and others who may simply be in the wrong place at the wrong time,” the amicus brief from American Target Advertising reads. “The times are dangerous for dissent and association by conservatives.”
IVN News: Federal Judge Rules Against Presidential Debate Commission
By Alex Gauthier
In a surprising decision, Judge Tanya S. Chutkan of the U.S. District Court in Washington D.C. ruled against the Federal Election Commission in the case of Level the Playing Field et al v. Federal Election Commission holding that the rules governing participation in the presidential debates were decided unfairly and arbitrarily…
During oral arguments Lead Attorney for LPF, Alexandra Shapiro, argued the Commission on Presidential Debates (CPD) should lose its nonprofit status due to the unfair criteria used to determine eligibility in the presidential debates. The CPD, which is regulated by the Federal Election Commission, excluded non-major party candidates from participating in the debates in light of its 15 percent rule…
Judge Chutkan’s ruling in favor of LPF grants their motion for summary judgement and ordered the FEC to reconsider the allegations against the CPD within 30 days.
The Media
Reason: Meet the MSNBC Legal Eagle Who Proposes Destroying the Free Press
By Scott Shackford
It’s the early days of a presidency that has openly declared itself to be hostile to the media (and to be fair-the reverse is also true), and Ari Melber, MSNBC’s legal correspondent and a lawyer, has what he thinks to be a brilliant idea-let’s have the federal government get more involved in evaluating the legitimacy of news…
You don’t have to go very far to determine what could happen when a politicized apparatus (and every government agency is partly political) can have control over what can be defined as “fraud” when it comes to information. You don’t even have to leave this site! Several attorneys general for states across the country have teamed up to go after ExxonMobil for its participation in the larger debate over climate change. They have decided to attempt to prove that ExxonMobil knew more about what was going on with the burning of fossil fuels and the environment and deliberately attempted to mislead investors and customers. They are attempting to reclassify the debate (free speech) as deliberate consumer fraud (not free speech).
To do so, they’ve attempted to subpoena decades of communications between ExxonMobil and various policy groups in order to fish for information they hope will make that case.
FCC
By Nick Gillespie
Pai’s selection as FCC chair is interesting for any number of reasons. First and foremost, it means that a person who is both dedicated to a truly free, open, and competitive Internet and who understands markets will be running the FCC for a change. Second, it means the Internet is likely to remain a fortress of freedom during a Trump administration that may well attempt to beat down the press both from the bully pulpit and in courts. Recall that during the election season, Trump vowed to “open up” the country’s libel laws to make it easier to sue publications such as The New York Times. He also called out by name Amazon’s Jeff Bezos, who also owns the Washington Post…
In less than two weeks, Trump has shown a willingness to follow through on what he promised on the campaign trail. So he may well try to screw down freedom of the press, and of expression.
That’s disturbing in the extreme and it needs to be beaten back. The good news? Trump’s pick for the FCC is certainly the type of person who will refuse to play along with the president. If he stays true to his word, Ajit Pai will protect the Internet from censorship-by refusing to treat it as a public utility the government has a right to control.
Candidates and Campaigns
Politico: Trump’s campaign paid his businesses millions over course of campaign
By Kenneth P. Vogel
The final bill is in: Donald Trump’s campaign paid his companies $12.8 million from the time he launched his improbable presidential bid in the lobby of his company’s flagship Trump Tower property through the end of last year, according to a Politico analysis of Federal Election Commission data…
Before Trump, super-rich candidates had mostly shied away from relying heavily on their own companies for campaign services, either because their businesses were structured in a manner that wouldn’t allow them to do so, or because they were leery of pocket-padding charges that inevitably arise from using their campaigns to pay their businesses or families. Additionally, rich candidates have mostly sought to avoid calling attention to their wealth.
Trump, on the other hand, proudly touted both his wealth and his businesses. He boasted that his self-funding made him independent from deep-pocketed donors and special interests, and he incorporated his businesses into his campaign – not only as service providers but also as props to demonstrate his business acumen.
The States
ABC News: South Dakota Senate Sends Ethics Law Repeal to Governor
By James Nord
New ethics regulations that South Dakota voters imposed in November are all but stripped from law after the state Senate voted Wednesday to send a bill repealing them to Gov. Dennis Daugaard.
The chamber voted 27-8 to pass the repeal bill, which the Republican governor has said he supports. It would dismantle a ballot initiative that instituted a public campaign finance system, created an ethics commission and tightened campaign finance and lobbying laws…
Represent.Us, a Massachusetts-based organization that pumped funding into the South Dakota ballot measure campaign, has spent more than $39,000 in January trying to save the law. The group has targeted Republican lawmakers with newspaper, radio and online advertisements, mail pieces and telephone calls.
