By David Keating & Luke Wachob
Democrats and progressives are losing their minds over President Trump’s Supreme Court nominee, Neil Gorsuch. One left-wing advocacy group released a video titled “3 Reasons to Fear Judge Gorsuch.” Number one? According to them, if Gorsuch is on the Supreme Court, “our elections could be completely handed over to the powerful and the wealthy.”
That ludicrous statement refers to Gorsuch’s concurring opinion in Riddle v. Hickenlooper, a campaign finance case. Riddle challenged Colorado’s contribution limit law as discriminatory.
Was it ever! It allowed major party candidates to raise twice as much money as minor party candidates and independents. Progressives love to say “money isn’t speech,” but Riddle wasn’t about that. It was about equality…
Should progressives worry that Gorsuch may rule against them on campaign finance cases? Probably, given the type of restrictions they support on your free speech.
The silly Colorado law struck down by the court – they wrote it! Common Cause and like-minded groups seeking speech limits put it on the ballot. The goal? Getting money out of politics, of course.
By David Keating & Luke Wachob
By David Keating
Despite some hysterical reactions, the truth is that, as it stands, the Johnson Amendment is horribly written. It chills vital speech in violation of the First Amendment. Congress should repeal it, and pass a clear and sensible provision in its place.
The amendment was inserted into the law by a powerful senator – Lyndon Baines Johnson, who later became president. Johnson’s amendment aimed to silence groups he didn’t like. Today, the potential IRS penalty for even a minor violation of the amendment is a death sentence for any group – a complete loss of its tax exemption. That’s absurd…
No one wants churches or charities to become super PACs blessed with tax-deductible donations. That’s not what’s going to happen, and I very much doubt President Trump wants that outcome. Evangelical groups that sparked Trump’s concerns have no interest in this state of affairs either.
But do we want a law that places the IRS in a position to investigate what a preacher said from the pulpit the Sunday before Election Day?
By Sean Moran
David Keating, president of the Center for Competitive Politics, told Breitbart News, “Commissioner Ravel came from California which has a different setup than the FEC. California’s electoral board is run by the governor, entirely partisan. The FEC was enacted after Watergate, and set up as a bipartisan commission to avoid partisan control over electoral law.”…
Keating explained that with Commissioner Ravel’s resignation there is much opportunity for change at the FEC. He said, “Since all of the remaining FEC Commissioners have expired terms President Trump has an enormous opportunity to reshape campaign finance. Since there cannot be more than three commissioners of any party on the board, President Trump can have the discretion to nominate future Commissioners that are more receptive to free speech.”…
President Trump ran on “draining the swamp,” and David Keating said that Trump could easily “clear the morass of regulations surrounding electoral law.” He added, “One way to drain the swamp would be to make the rules behind political speech clear and straightforward. Clear and simple rules could ensure that freedom of expression on the Internet remains unregulated.”
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.”
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.
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.”
The Insider: Judge Neil Gorsuch’s First Amendment Decisions Show Respect for Free Speech (In the News)
By David Keating
The minor party contributors who bring this equal protection challenge suggest (at least in places) that we should consider applying strict scrutiny to this particular aspect of Colorado’s statutory scheme. They say that contributing in elections implicates a fundamental liberty interest, that Colorado’s scheme favors the exercise of that fundamental liberty interest by some at the expense of others, and for this reason warrants the most searching level of judicial scrutiny. For my part, I don’t doubt this line of argument has much to recommend it. The trouble is, we have no controlling guidance on the question from the Supreme Court. And in what guidance we do have lie some conflicting cues.
No one before us disputes 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. Even so, the Court has yet to apply strict scrutiny to contribution limit challenges – employing instead something pretty close but not quite the same thing.
By David Keating
We found four cases relevant to First Amendment speech freedoms where Judge Hardiman either wrote or joined an opinion. Additionally, he voted against a petition for en banc review of Delaware Strong Families v. Denn, where CCP represented the plaintiff in one of the most important campaign finance cases of 2016…
The question presented in this lawsuit was simple. Should the state have the power to regulate groups that publish nonpartisan voter guides in essentially the same way that it regulates candidate committees, political parties, and PACs?
Judge Hardiman did not sit on the panel that heard this important case. However, he and the other Third Circuit judges received a petition asking the full en banc court to review the decision. A short brief accompanied the petition, which was denied. Judges Kent A. Jordan and Thomas I. Vanaskie voted to grant the petition, but Judge Hardiman did not…
After en banc review by the Third Circuit was denied, a certiorari petition was filed, unsuccessfully, with the U.S. Supreme Court. Justice Clarence Thomas wrote a highly unusual six-page dissent denouncing the Court’s refusal to hear the case. Such dissents are rare. Justice Samuel Alito also announced that he would have granted review.
New York Times: South Dakota Legislators Seek Hasty Repeal of Ethics Law Voters Passed (In the News)
By Monica Davey and Nicholas Confessore
Stung by scandal and rebelling against a state government known for its resistance to public scrutiny, South Dakota voters narrowly approved a ballot measure in November to impose ethics oversight and campaign finance restrictions aimed at cleaning up the capitol in Pierre…
Some organizations that oppose restrictions on political spending in the name of free speech said that the South Dakota initiative was poorly drafted and overly broad. David Keating, the president of the Center for Competitive Politics, said the measure as written was likely to be mired in state and federal litigation for years.
“It was one of the most poorly written proposals we’ve seen,” Mr. Keating said. “I think there’s a legitimate worry that the legislature has and the governor has, which is that this could be in the courts for a long time, and it could cost a lot of money to litigate it. So why not start with a clean sheet?”