Daily Media Links 3/31: Texas Judge Puts New York AG On Defensive Over Exxon Probe, Lawsuit Challenging Dark Money Donor Secrecy Advances, and more…

Free Speech                                      

New York Post: Partisan prosecutions: How state attorneys general dove into politics

By Walter Olson

Many Democratic AGs, for their part, have been using their powers of office to target thinkers, activists and donors on the opposite side.

Now-Sen. Kamala Harris, when she was California AG, pushed hard to force nonprofits active in the state to disclose the identity of their donors. The expected sequel: public shaming and boycott campaigns against those who give to right-of-center groups…

Meanwhile, environmental advocates finagled a group of AGs, including Schneiderman and Massachusetts’ Maura Healey, into aiming a subpoena dragnet at advocacy groups, scientists and activists engaged in climate change “denial” and other opinion sins. Officially couched as a fraud investigation of the Exxon Corp., it has featured subpoenas demanding the correspondence and documents of the Competitive Enterprise Institute, a well-known right-of-center player in Washington.

Maryland AG Brian Frosh, another member of the group, has signaled plans to go after the American Legislative Exchange Council, a right-leaning group of state legislators that has been widely demonized on the left.

Daily Caller: Texas Judge Puts New York AG On Defensive Over Exxon Probe

By Chris White

A Texas judge delivered a withering blow Wednesday against the attorneys general spearheading a years-long investigation into ExxonMobil’s climate research.

Judge Ed Kinkeade peppered lawyers for New York Attorney General Eric Schneiderman and Massachusetts counterpart, Maura Healey, with questions implying their lengthy crusade is a politically motivated move to garner media attention. He eventually remanded the AG’s case to New York, where the bulk of probes emanated…

“Are the two attorneys general trying to further their political agendas by using the vast power of the government to silence the voices of all those who disagree with them?” Kinkeade asked, referring to the AG’s environmental leanings, as well as their connections to wealthy environmentalists…

“The Court is uncertain if it is common practice for attorneys general to begin to investigate a company after reading an article that accuses a company of possibly committing a wrongdoing decades ago,” he said, adding that Exxon’s decision in 2006 to acknowledge the effect rising greenhouse gasses have on the climate does not bode well for the AG’s argument.

Supreme Court                                      

CNN: Democrats would be wrong to block a vote on Gorsuch

By John Cornyn

Judge Gorsuch is no extremist or judicial radical. Senate Democrats agreed with that assessment back in 2006, when the chamber unanimously confirmed him to his current post. Since his nomination in January, lawyers and legal scholars on both sides of the aisle have urged his confirmation and commended his fair treatment of the law and his impartial, methodical reasoning.

The American Bar Association, which the Democrats have called “the gold standard” for judicial nominations, gives him its highest rating…

The reality is that no intellectually honest argument against Judge Gorsuch exists. His qualifications are impeccable — and exactly what you would expect to see for a Supreme Court nominee. His character is sterling. And his devotion to the rule of law and the text of the Constitution make him the right man to fill the seat left vacant by Justice Antonin Scalia.

If Democrats refuse to allow an up-or-down vote on Judge Gorsuch, as Minority Leader Chuck Schumer has threatened, then there’s no Republican nominee they won’t filibuster. Judge Gorsuch will be confirmed as the next Supreme Court justice. The question is whether Democrats will give him the up-or-down vote he deserves.

Los Angeles Times: Sens. Manchin and Heitkamp become first Democrats to announce support for Gorsuch

By David Savage

Sens. Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota became the first Democrats to say they will vote for Judge Neil Gorsuch and not support the effort to filibuster his confirmation to the Supreme Court…

“After considering his record, watching his testimony in front of the Judiciary Committee and meeting with him twice, I will vote to confirm him to be the ninth justice on the Supreme Court,” Manchin said. “I have found him to be an honest and thoughtful man…. I have not found any reasons why this jurist should not be a Supreme Court justice.”

Heitkamp said she was impressed with Gorsuch’s record as a judge. “This vote does not diminish how disturbed I am by what the Republicans did to Judge [Merrick] Garland,” referring to the GOP-led Senate’s refusal last year to consider President Obama’s choice to fill the seat of the late Justice Antonin Scalia. “But I was taught that two wrongs don’t make a right,” she said…

On Monday, the Senate Judiciary Committee is expected to approve Gorsuch on a party line vote and send the nomination to the Senate floor. A final vote is expected April 7. 

Kansas City Star: McCaskill warns Democratic donors of pitfalls of blocking Trump nominee for high court

By Bryan Lowry

Sen. Claire McCaskill of Missouri warned Democratic donors that blocking President Donald Trump’s Supreme Court nominee could have dire consequences, according to audio obtained by The Star…

“The Gorsuch situation is really hard. There are going to be people in this room that are going to say, ‘No, no, no. You cannot vote for Gorsuch,’ ” McCaskill said in the recording. “Let’s assume for the purposes of this discussion that we turn down Gorsuch, that there are not eight Democrats that vote to confirm him and therefore there’s not enough to put him on the Supreme Court. What then?”

She pointed to the list of potential nominees that Trump released before the election to galvanize conservative support. “By the way, Gorsuch was one of the better ones,” McCaskill quipped.

Washington Post: ‘Change libel laws?’ Trump doesn’t seem serious.

By Callum Borchers

Proclamations like these are red meat for Trump’s media-hating base, but it is increasingly clear that the president is not serious. How do we know? Two words: Neil Gorsuch…

Absent a change to the First Amendment, the way that Trump could weaken libel protections for journalists would be to nominate and successfully install federal judges – Supreme Court justices being most important, obviously – who would undo the precedents set by Times v. Sullivan…

If Trump were serious about changing libel standards, he probably would not have spent his first Supreme Court nomination on Gorsuch, who appears to have no appetite for reversing Times v. Sullivan. During confirmation hearings last week, Sen. Amy Klobuchar (D-Minn.) asked Gorsuch whether he believes “that the First Amendment would permit public officials to sue the media under any standard less demanding than actual malice?”

“That’s been the law of the land for, gosh, 50, 60 years,” Gorsuch replied. “I could point you to a case in which I’ve applied it and I think might give you what you’re looking for, senator, in terms of comfort about how I apply it: Bustos v. A&E Network.”

New York Times: Can Trump Change Libel Laws?

By Adam Liptak

Changing New York Times v. Sullivan would require either the Supreme Court to overrule it or a constitutional amendment. Neither is remotely likely, though Mr. Trump could try to appoint Supreme Court justices who would vote to overturn the precedent…

Last week, at his Supreme Court confirmation hearings, Judge Gorsuch was asked about New York Times v. Sullivan by Senator Amy Klobuchar…

“New York Times v. Sullivan was, as you say, a landmark decision and it changed pretty dramatically the law of defamation and libel in this country,” he said. “Rather than the common law of defamation and libel, applicable normally for a long time, the Supreme Court said the First Amendment has special meaning and protection when we’re talking about the media, the press in covering public officials, public actions and indicated that a higher standard of proof was required in any defamation or libel claim. Proof of actual malice is required to state a claim.”

The Courts                                              

Nonprofit Quarterly: Lawsuit Challenging Dark Money Donor Secrecy Advances

By Martin Levine

Those who want to require 501(c)(4) nonprofit organizations to make public who is paying for their election-related activities got some good news last week. A federal district court judge in Washington, D.C. ruled that a suit challenging a Federal Election Commission rule permitting donor secrecy could proceed to an actual trial…

The suit now moving forward does not challenge the IRS’s regulations. Rather, it seeks to bring politically active 501(c)(4)s into compliance with Federal Election Commission regulations that require political organizations to identify their donors.

Citizens for Responsibility and Ethics in Washington (CREW) filed the original FEC complaint against Crossroads GPS for its campaign-related activities in the 2012 election cycle.

Independent Groups                                             

CNN: White House staff shake-up comes in wake of health care debacle

By Jim Acosta, Gloria Borger and Jeremy Diamond

Katie Walsh, the White House’s deputy chief of staff, will join a nonprofit group supporting the President’s agenda, the President’s top aides said Thursday…

Priebus stressed that the decision for Walsh to leave the White House for the outside political group came after it became “abundantly clear we didn’t have air cover” during the health care debate.

“Nobody can fix this problem better than Katie Walsh,” Priebus said…
America First Policies, once envisioned as the marquee outside group to bolster Trump’s political objectives. It has sputtered in the opening months of its presidency, having done no television advertising on behalf of Trump’s Supreme Court nomination, and only began spending to prevent the White House’s embarrassing defeat over Obamacare on the final day of the weeks-long debate.

Just this week, the family expected to be its principal funders, the Mercer family of New York, defected to a rival nonprofit, Making America Great. They brought with them one of the operatives initially slated to work at America First — Dave Bossie, a Mercer hand who had served as deputy campaign manager.

The States

Michigan Live: ‘Shadowy’ 527 political groups would have to report finances under new bill

By Emily Lawler

Political groups known as 527s would have to publicly disclose donors and expenditures under a bill from Sen. Steve Bieda, D-Warren…

His Senate Bill 281 would loop them into the definition of a committee under the Michigan Campaign Finance Act. Any candidate who “controls or directs” a 527 would need to report it. A candidate would be considered to control or direct it if any officer of the group “is employed by or serves as an agent to the candidate,” the bill says…

Beida said while donations to an officeholder’s candidate committee are publicly disclosed, the 527s “are often shadowy groups, you don’t know who’s funding them.”

The funding can be used for things like office expenses, attending conferences and issue advertisements. By looping them into the state reporting system, as Senate Bill 281 proposes, “It provides an avenue for people to look at who’s paying for these ads, who’s the dark money behind elected officials or different causes,” Bieda said.

New York Times: Rival Campaigns for N.J. Governor’s Race Volley Accusations

By Nick Corasaniti

A rival Democratic campaign filed a formal complaint Thursday to New Jersey’s Election Law Enforcement Commission, alleging campaign finance violations against Philip D. Murphy, the highest-polling Democrat for governor.

At the heart of the complaint, filed by the campaign of Jim Johnson, is an argument that Mr. Murphy’s two organizations, New Start New Jersey and New Way New Jersey, were nonprofits in name only. Instead, the complaint says, they essentially act as a political campaign without the scrutiny and regulations that come with being a candidate…

For those who followed the 2016 presidential election, the role of “super PACs” and other dark-money groups in prefacing an official candidate announcement drew scrutiny, but never an official ruling or violation from the Federal Election Commission, though many experts said the “super PAC” that supported Jeb Bush, Right to Rise, facilitated Mr. Bush’s pushing the limits of the legal definition of a candidate.

But in New Jersey, the law is slightly more direct, as the compliance manual states, “Individuals who engage in ‘pre-candidacy’ activity, commonly known as ‘testing the waters,’ are defined by law as candidates.”