Featuring Luke Wachob and Caleb O. Brown
Massive protests greeted Donald Trump upon his inauguration, but speaking out against the president will require a robust First Amendment. Will the American Left support it? Luke Wachob of the Center for Competitive Politics believes so.
Featuring Luke Wachob and Caleb O. Brown
By Eric Wang
Senate Bill 255 appears to require an “independent expenditure committee” to file ongoing campaign finance reports as a political “committee” – commonly known as “PAC.” The bill’s extreme ambiguity on this point is, in and of itself, a fatal flaw. What is clear is that the bill intends to publicly out the donors to such groups – even if their donations were completely unrelated to any political purpose. Names, addresses and employer information would have to be reported not only for donors, but also for a group’s employees and vendors.
“Not surprisingly,” the Post and Courier editorial noted approvingly, the state officials pushing this bill are ones whose legislative initiatives advocacy groups have opposed. We fail to see the virtue here. Yes, it is “not surprising” that certain public officials would lash out at citizen groups that do not fall in line with those officials’ agendas. But far from promoting ethics, a bill to intimidate those groups into silence is a recipe for more corruption.
Citizens who want to know donors’ identities are free to discount messages from groups that do not provide that information. Forcing disclosure, however, deprives citizens of the chance to hear from groups that would be silenced by bills like SB 255.
By Dave Levinthal
In its latest “Principles of Corporate Governance” report, the Business Roundtable encourages corporate members to decide for themselves whether to publicly disclose political activities, such as contributing cash to so-called “dark money” nonprofit groups…
But David Keating, president of the nonprofit Center for Competitive Politics, which advocates for political speech rights, disagrees, calling the Business Roundtable’s latest statement on political disclosure “unremarkable.”
Keating – whose legal efforts led to the creation of super PACs – noted that the Business Roundtable’s Principles of Corporate Governance document scolds corporate shareholders who attempt “to use the public companies in which they invest as platforms for the advancement of their personal agendas or for the promotion of general political or social causes.”…
In sum, the Business Roundtable “does not appear to have softened its stance on voluntary disclosure,” Keating said. “Disclosing one’s affiliations with trade associations and nonprofits creates a roadmap for activists to pressure corporations in an attempt to starve [politically active nonprofit] groups of support and silence their voices.”
By Luke Wachob
For eight years, left-leaning groups like Common Cause, Public Citizen, and the Brennan Center for Justice pressured President Obama to do something, anything about “money in politics.” Despite their pleas, he never took direct action.
They told him to stack the Federal Election Commission (FEC) with pro-regulation commissioners. Instead, he had just two confirmed nominations to the six-member FEC, and one was a Republican. They told him to issue an executive order forcing government contractors to report their donations to advocacy groups and nonprofits. He never did. They told him to prioritize legislation regulating speech by nonprofits, but when the bill died in the Senate, he did not fight to resurrect it.
Both the right and the left expected President Obama to do more to regulate the political process. Instead what emerged was a significant divide between the “reform” community and the Obama administration. That divide illustrates a reality the pro-regulation lobby would rather obscure-that even critics of the current campaign finance system cannot agree on a better alternative.
Concurring Opinions: FAN 141 (First Amendment News) Judge Neil Gorsuch – the Scholarly First Amendment Jurist (In the News)
By Ronald K.L. Collins
“Judge Gorsuch is a serious, accomplished jurist who will defend a robust First Amendment.” There is truth there, in David Keating’s assessment of the First Amendment opinions of Judge Neil Gorsuch…
If one scans what we now know of the arc of Judge Gorsuch’s views on the First Amendment and free expression, it is readily apparent than he has long and informed commitment to the First Amendment. Should that continue, and it seems likely to, he could well become the First Amendment point-person on the Court.
David Keating: “Judge Gorsuch’s record suggests he will be a strong defender of free speech rights if confirmed to the Supreme Court. He wrote or joined opinions on a wide variety of topics related to free speech, including campaign finance, petition clause and defamation cases. Each time, he ruled for free speech. He applies real scrutiny in constitutional challenges and is a terrific writer. Not only are his opinions a joy to read, they are clear.”
“It’s ironic that President Trump nominated a judge who wrote or joined four opinions in cases brought against the media. Each time Gorsuch ruled for the media defendants.”
Washington Examiner: Gorsuch’s record shows strong support for the First Amendment view of campaign finance laws (In the News)
By David Keating
In his time on the United States Court of Appeals for the 10th Circuit, Gorsuch consistently wrote or joined pro-free speech rulings. The Center for Competitive Politics found four cases Gorsuch has ruled on concerning press freedom, one case concerning petition rights, and one case on contribution limits. In each instance, he came down on the side of the First Amendment…
Critics of campaign finance laws will be particularly heartened by Gorsuch’s concurring opinion in the contribution limit case Riddle v. Hickenlooper. Riddle was a challenge to Colorado’s contribution limit laws, which allowed Democratic and Republican candidates to raise twice as much money as minor party and independent candidates. The majority struck down the law as a violation of the equal protection clause.
More interesting than that is Gorsuch’s concurring opinion in the case. He expressed “some uncertainty about the level of scrutiny the Supreme Court wishes us to apply” to contribution limit cases, and signaled that he might support the application of strict scrutiny, the most stringent standard of judicial review.
By Eric Wang
For both policy and administrative reasons, most laws must set thresholds below which they do not apply. If every time someone acting below a regulated threshold prompts someone else to advocate lowering the threshold, the law’s scope will constantly expand until everything is regulated. This is both socially undesirable and practically untenable.
Indeed, we see this ill-advised trend in proposals to expand the federal and state lobbying laws, and many of which states have implemented. Last year the New York State Joint Commission on Public Ethics decided to regulate certain public relations consultants as lobbyists. After a wave of protest and litigation, brought in part by the Center for Competitive Politics on behalf of PR firms, the state legislature acted to reign in JCOPE’s overreach…
Many state and municipal lobbying laws and regulatory agencies also purport to impose no minimum threshold for lobbyist registration. In Missouri, the Center for Competitive Politics is representing Ronald Calzone, a concerned citizen who merely shared his views on proposed legislation with state legislators, against the Missouri Ethics Commission’s charges that he failed to register as a lobbyist.
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 […]
Bill of Rights Defense Committee & Defending Dissent Foundation: What Does Neil Gorsuch Mean for Civil Liberties? (In the News)
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…
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.”
By Luke Wachob
Under the Obama administration, many Democrats were confident that regulating politics would serve their interests and promote fairness at the same time. Already suspicious that conservative groups played fast and loose with the rules, they imagined that the brunt of new rules would fall on groups like Americans for Prosperity or the National Rifle Association. They also had faith that public disclosure of support for advocacy groups would allow allies to expose and shame donors whose pocketbooks stood in the way of their vision of the common good.
After Election Day, the landscape looks vastly different. Allegations of racism, misogyny, and xenophobia failed to stop Trump’s rise, and failed to intimidate his supporters. Now, the laws that invade privacy to root out “dark money” could be used to make government lists of supporters of increased immigration, LGBT rights, abortion rights or criminal justice reform. And instead of going after groups like AFP or the NRA, liberals may worry about Trump targeting groups like Planned Parenthood or the Sierra Club.
As Republicans ascend to the White House, here’s hoping liberals return to their roots. If they were to join with conservatives, it’s possible they could make free speech great again.