Daily Media Links 11/30: McGahn, Trump’s Counsel Pick, Fought Regulation as FEC Member, The anti-corruption measure that big money couldn’t pass, and more…

Free Speech

Washington Post: President-elect Trump wants to ban flag-burning. Here’s why the Constitution protects it.

By Eugene Volokh

Contrary to President-elect Donald Trump’s tweet, the Supreme Court held that flag-burning is constitutionally protected symbolic expression (in an opinion joined by Justice Antonin Scalia), and the vote was 5-4 when the matter arose in 1989 and 1990; I suspect it would be much more strongly in favor of protection today. I also don’t think that the conservative justices will be swayed by the argument that “freedom of speech” means just speech, and not symbolism; as I discussed in “Symbolic Expression and the Original Meaning of the First Amendment,” the Framing-era legal system viewed symbolic expression as tantamount to verbal expression – here’s an excerpt from that article:

…The treatment of symbolic expression as equivalent with verbal expression makes historical sense as well as logical sense, because Framing-era English and American political culture was rich with symbolic expression, used interchangeably with words. 

New York Magazine: Why Conservatives Are More Protective of the First Amendment Than They Used to Be

By Ed Kilgore

The First Amendment has become the basis for a variety of high-profile conservative causes based on the belief that free expression is under attack by progressives. One, of course, is the “religious liberty” crusade, based on the idea that antidiscrimination laws violate the First Amendment principle of freedom of religious association. A second is the claim that any sort of campaign-finance regulation – from spending or contribution limits to requirements that donors must be disclosed – is a deadly threat to free speech. Whatever else it was, Citizens United was a First Amendment case…

When Trump does make that SCOTUS appointment, it will be, of course, to the seat held by Scalia, whom the president-elect has repeatedly described as the model for future Justices. Now that he has been made aware of Scalia’s position on flag-burning, perhaps Trump will make that issue one of his many flip-flops, memorable until the next one comes along.


CPI: Judge rules against Center for Public Integrity in cybersecurity lawsuit

By The Center for Public Integrity

A U.S. District Court Judge has denied the Center for Public Integrity’s request for access to a taxpayer-funded study about cybersecurity vulnerabilities at the Federal Election Commission.

The court’s decision comes more than 13 months after the Center for Public Integrity sued the FEC for access to the security study, which the FEC commissioned following a Center investigation revealing how Chinese hackers infiltrated the FEC’s computer systems.

The 44-page document – known within the FEC as the “NIST study” – in part provides recommendations on how to fix the FEC’s problems and bring its computer systems in line with specific National Institute of Standards and Technology computer security protocols. The study cost $199,500 to produce.

Supreme Court

USA Today: Trump unlikely to sway Supreme Court on flag burning

By Richard Wolf

Donald Trump will need to replace far more than one justice on the Supreme Court if he’s serious about making flag burning a criminal offense.

While Congress has been amenable to the idea — with the Senate falling a single vote short of starting the constitutional amendment process a decade ago — the high court has been a bulwark in defense of the First Amendment.

Trump tweeted Tuesday morning that “Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!” As he did, the court’s eight justices were preparing to issue the 2016 term’s first decision.

The late Justice Antonin Scalia, who Trump will get to replace next year, sided with liberal justices in 1989 and 1990 in holding that the Constitution protects flag burning. The first case dealt with a Texas protester; the second struck down a law passed by Congress. Both cases were approved 5-4. 

Wisconsin John Doe

People United for Privacy: True Story: Wisconsin John Doe Victims (Video)

Cindy Archer and Eric O’Keefe were targeted by the government for supporting a cause they believed in. Their homes were raided by the police, but they were never even charged with a crime. Watch their true story, then join our cause to protect individual privacy at unitedforprivacy.com.


The Hill: Incoming Dem lawmakers urge rejection of campaign finance ‘riders’

By Naomi Jagoda

A group of incoming Democratic lawmakers is urging Congress to reject provisions that would “prevent critical political spending transparency.”

In a letter sent Tuesday to current House and Senate members, nine representative-elects said they did not want two riders that were part of last year’s spending package to be included in appropriations legislation for fiscal 2017.

One of the provisions the incoming lawmakers want rejected would prevent the Securities and Exchange Commission from finalizing rules that would require publicly traded companies to make disclosures about their political spending. The other would prevent the IRS from issuing guidance on the scope of permitted political activities for 501(c)(4) “social welfare” organizations.   

The Media

Rolling Stone: The ‘Washington Post’ ‘Blacklist’ Story Is Shameful and Disgusting

By Matt Taibbi

The thrust of Timberg’s astonishingly lazy report is that a Russian intelligence operation of some kind was behind the publication of a “hurricane” of false news reports during the election season, in particular stories harmful to Hillary Clinton. The piece referenced those 200 websites as “routine peddlers of Russian propaganda.”…

The meat of the story relied on a report by unnamed analysts from a single mysterious “organization” called PropOrNot – we don’t know if it’s one person or, as it claims, over 30 – a “group” that seems to have been in existence for just a few months…

The power of the press comes from its independence from politicians. Jump into bed with them and you not only won’t ever be able to get out, but you’ll win nothing but a loss of real influence and the undying loathing of audiences.

Helping Beltway politicos mass-label a huge portion of dissenting media as “useful idiots” for foreign enemies in this sense is an extraordinarily self-destructive act. Maybe the Post doesn’t care and thinks it’s doing the right thing. In that case, at least do the damn work.

Trump Administration

New York Times: Congress May Hold Key to Handling Trump’s Conflicts of Interest

By Peter J. Henning

Divestment or a blind trust are not the only ways to deal with the issue. Conflicts of interest are not necessarily wrong. They are a regular feature of many corporate transactions that proceed despite the potential for a decision to personally enrich a director…

The key to dealing with conflicts – whether actual or potential – is transparency about any decision that could have an effect on Mr. Trump’s business interests if he decides not to divest his holdings or create a truly blind trust. Unlike the approach of many teenagers, who believe that it is easier to beg forgiveness than permission, in business the advance notice of a potential issue can lessen its impact…

If Congress approves actions that would affect part of Mr. Trump’s company after full disclosure of the potential benefit, that would go a long way toward removing any taint, in much the same way that corporate directors can acquiesce to a conflicted transaction. 

U.S. News & World Report: Trump says he’s leaving businesses to focus on presidency

By Julie Pace and Laurie Kellman

President-elect Donald Trump said Wednesday that he’s leaving his business empire to focus on being the nation’s 45th president, bowing to pressure to avoid potential conflicts of interest between governing and profiting in the private sector.

“I will be leaving my great business in total in order to fully focus on running the country in order to make America great again,” he tweeted in a series of missives sent before dawn. “While I am not mandated to do this under the law, I feel it is visually important, as president, to in no way have a conflict of interest with my various businesses.”

He said legal documents are “being crafted which take me completely out of business operations,” he added, saying the presidency is “a far more important task!”

Wall Street Journal: Donald Trump and Wall Street Make Up Quickly

By Brody Mullins, Emily Glazer, and Anupreeta Das

Bank executives and lobbyists are helping raise the millions Mr. Trump needs to finance his transition and inaugural festivities. The Independent Community Bankers of America, a major trade group, is booking events at the Trump International Hotel here.

Several other financial-services trade groups, such as the American Bankers Association, are responding to Trump aides’ calls to suggest individuals who could serve in top financial regulatory posts in his administration. And the Financial Services Roundtable is helping raise money for an event-that Mr. Trump will headline-in New York next week that aims to raise $4 million for the transition effort…

The good news for Wall Street comes after it invested heavily in the presidential campaign of Democrat Hillary Clinton. The securities and investment industry donated more than $78 million to her campaign and allied super PAC-more than 100 times as much as it gave to support Mr. Trump’s effort, according to the nonpartisan Center for Responsive Politics. 

Bloomberg BNA: McGahn, Trump’s Counsel Pick, Fought Regulation as FEC Member

By Kenneth P. Doyle

President-elect Donald Trump, battling criticism about potential conflicts of interest even before he takes office, is set to be represented in the White House by a tough Washington lawyer whose fight against strict regulation of politics was a hallmark of his five-year tenure on the Federal Election Commission.

Donald McGahn, who was named Nov. 25 as Trump’s White House counsel, built his reputation as a Republican appointee on the FEC in repeated clashes with Democratic commissioners and FEC staff members. He battled to limit the extent of the agency’s authority to investigate and take enforcement action against candidates and others accused of violating campaign finance laws.

These clashes may have helped prepare McGahn for battles Trump could face as critics call on him to separate his business interests from his new job as president.

Wall Street Journal: For $5,000, Wealthy Supporters Can Have Breakfast With President-Elect Trump

By Rebecca Ballhaus

Donald Trump’s transition team is offering supporters a rare opportunity: breakfast in New York with the next president for $5,000 – pocket change for many of the team’s wealthy fundraisers.

Wall Street investors and lobbyists top the list of fundraisers for next week’s event, which is expected to raise $4 million, according to a person familiar with the planning…

The event is being held to supplement about $6 million in government funding for the president-elect’s transition team, which is crafting policy, selecting and vetting appointments, and managing the logistics involving the transfer of power after eight years of Democratic control. The breakfast is expected to be the team’s only fundraiser.

Mr. Trump’s transition team, Trump for America Inc., is organized as a 501(c)(4) nonprofit, as isn’t required to disclose its donors. In 2008, Mr. Obama voluntarily disclosed the names of donors who gave to his transition team.

The States

KUOW Seattle: The anti-corruption measure that big money couldn’t pass

By John Ryan

Initiative 1464 would have made sweeping changes to the role of money in politics, including limiting contributions from lobbyists and government contractors. It would have given each Washington resident $150 to distribute to candidates of their choice…

Voters almost everywhere turned I-1464 down: Only King County and the San Juan Islands said yes.

I-1464 had little opposition – and $4 million, mostly from out-of-state donors, including Jonathan Soros of New York and J.J. Abrams (yes, that J. J. Abrams) of Hollywood, behind it. Their aim, paradoxically, was to reduce the role of big money in Washington politics…

“Maybe what we needed was a good scandal to push this over the top,” University of Washington political scientist Mark Smith said.

The Center for Competitive Politics is now the Institute for Free Speech.