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.
The Insider: Judge Neil Gorsuch’s First Amendment Decisions Show Respect for Free Speech (In the News)
By David Keating
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?”
The Insider: Good Signs for First Amendment in Judge William Pryor’s Rulings on Tax-Financing, Political Sign Cases (In the News)
By David Keating
Scott v. Roberts presented Republican gubernatorial candidate Rick Scott’s challenge to a tax-financed campaign scheme the state enacted in 1986 and amended in 1991. The program generally operated as a matching funds program… However, once an opponent to a tax-financed candidate spent over $2/registered voter, the subsidized candidate received a dollar-for-dollar match of his opponent’s spending. The subsidized candidate no longer needed to raise any private funds to receive the subsidy. The law also allowed subsidized candidates to exceed expenditure limits. Judge Pryor held the scheme was likely unconstitutional, and the opinion overturned a district court’s denial of a preliminary injunction…
In Beaulieu v. City of Alabaster, Judge Pryor joined an opinion that held a city’s sign-usage ordinance unconstitutional. The ordinance placed different burdens on commercial and political signs…
Applying strict scrutiny, the panel affirmed the district court ruling, which overturned the ordinance. The panel determined that the city’s interests in aesthetics and safety did not overcome the core political speech at issue.
By Alex Roarty
Sen. Ted Cruz of Texas and Rep. Mark Meadows of North Carolina said last month that they will introduce legislation next year that would let a single donor contribute as much as he or she wanted to the candidate of their choice…
“A lot of people who may like the idea of contribution limits are saying, ‘What the heck is the point?'” said David Keating, president of the Center for Competitive Politics, a group that opposes most restrictions on how candidates and parties raise and spend money. “A lot of people don’t see much difference between making a contribution to a super PAC backing one candidate and making a contribution to a candidate directly.”…
Keating said he doubts the Meadows-Cruz legislation will get past a Democratic-led filibuster in the Senate. But he is hopeful that smaller changes – such as raising the contribution limits, pegging them to inflation, or increasing the amount of “coordinated money” that parties and candidates can spend together – could make it through.
The system itself needs an overhaul, he argued.
“There’s years’ worth of crap that needs to be removed,” he said. “Because it’s just a lot of nonsense that’s in the law.”
By Ashley Balcerzak
Should we restrict political contributions? How have weakened political parties impacted this election? Can public financing work? President-elect Donald Trump pledged to “drain the swamp,” yet has not proposed changes to the campaign finance system. So experts in the field with various viewpoints ran through scenarios at a forum organized by New York University and law firm Sidley Austin on Thursday.
Vice President Joe Biden headlined the event, breezing by the subject except to call “the role of big money” in our system “corrupting,” and saying, “If you want to change overnight the way of the electoral process in America, have public financing.”
Experts argued about what form that corruption – if it exists – takes, with some disputing Biden’s suggested cure. David Keating, president of the conservative Center for Competitive Politics, maintained there is no evidence stricter contribution limits affect the amount of corruption in politics.
The flag is a symbol of our nation, the best in the world, and our freedoms. But burning it is also free speech…
While the First Amendment is always under assault, two key members of the incoming Trump administration are good friends of free speech.
Vice President-elect Mike Pence is one. He proved this in 2006 when he was one of just 18 Republicans to vote against a GOP-backed bill aimed at shutting down Democratic-leaning advocacy groups. Not only did Pence vote against the bill, he tried to get his colleagues to join him in opposing the measure.
Over Thanksgiving weekend, Trump named Don McGahn as his White House counsel. McGahn did a fantastic job when he was on the Federal Election Commission. He successfully implemented many meaningful reforms there to protect due process rights and free speech. You won’t find a stronger advocate for First Amendment free-speech rights than McGahn.
Trump’s tweet is disturbing. But knowing that he’ll get advice on free speech from Mike Pence and Don McGahn makes me feel a lot better.
By Caleb Brown
The incoming Trump administration raises fears of further regulation of political speech. David Keating of the Center for Competitive Politics discusses the risks and opportunities.
By Dana Ferguson
The sprawling reform package, known in South Dakota as Initiated Measure 22, was designed to limit the influence of outside money in state government. The 34-page law, narrowly passed by voters Nov. 8, creates strict new rules on lobbying and fundraising and establishes an independent ethics commission…
Free-speech groups have said they plan to challenge the law for limiting political free speech, a potential civil rights violation. David Keating, president of the Virginia-based Center for Competitive Politics, said he’d heard from at least one person interested in bringing a lawsuit following the law’s enactment.
“I think a court challenge is inevitable,” he said. “It’s just a question of when.”
Other attorneys said the law’s language approving an appropriation from the state’s general fund without consent of the state Legislature violates the South Dakota Constitution and could also be grounds for legal action.
Attorney General Marty Jackley, who will have the constitutional obligation to defend the law now that it is on the books, said he alerted voters to the possible constitutional problems with the law in his explanation of IM 22.
By Tan Siok Choo
Although full spending reports haven’t been submitted, assuming both candidates spent all that they raised, as at Oct 28 this year, Clinton’s war chest totalled an astronomical US$687 million (RM3 billion), more than double Trump’s US$307 million.
Despite blanketing six states – Florida, Ohio, North Carolina, Pennsylvania, Nevada and Iowa – with 299,067 ads supporting Clinton compared with 89,995 ads for Trump, the former secretary of state lost all states except Nevada, Ken Kurson of the Observer noted.
“Money can’t buy love, it can’t buy votes. All it can do is help deliver a message. The voters didn’t want what Clinton offered,” David Keating, president of the Center for Competitive Politics, said.