Daily Media Links 1/17: Crisis Averted but Future Is Still Unclear for House Watchdog, AG will hold off on enforcing parts of lobbying disclosure law, and more…

January 17, 2017   •  By Alex Baiocco   •  
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Amicus Curiae Brief of the Chamber of Commerce of the United States in Support of Independence Institute

This Court should note probable jurisdiction for two reasons. First, the Institute’s as-applied challenge to the constitutionality of BCRA is compelling. In rejecting it, the district court failed to credit the important distinction between restrictions on election-related speech (exacting scrutiny) and restrictions on policy advocacy (strict scrutiny). Even under exacting scrutiny, the district court erred by upholding BCRA’s disclosure requirement even though none of its purported goals is meaningfully furthered when applied to policy advocacy. Second, the district court’s decision gives a constitutional pass to every disclosure requirement that has even a remote connection to an election or candidate. The ruling sets a dangerous precedent that will substantially chill core political speech at a time when states are passing ever-more-restrictive disclosure requirements.

Supreme Court      

Above the Law: Supreme Court Update: Trump Has Started Interviewing SCOTUS Candidates

By David Lat

On Saturday afternoon, here in cold and snowy New York, President-elect Donald Trump interviewed Judge William Pryor of the Eleventh Circuit for the open seat on the U.S. Supreme Court…

The news of a Trump/Pryor meeting, while notable, is not surprising. At last week’s press conference, Trump said that SCOTUS meetings are underway and we should expect a nominee within two weeks of inauguration day. And Judge Pryor, beloved by conservatives, sits at the top of the Trump SCOTUS list.

What are Judge Pryor’s chances of getting nominated? Here’s a big plus for Pryor’s prospects: the ease with which Jeff Sessions sailed through his hearings, making his confirmation as attorney general a near certainty.

…Sessions is a major Pryor proponent – and now that Sessions is definitely going to be AG, having killed it at his hearings, his Trumpworld stock is way up and his views enjoy greater sway within the administration.


Roll Call: Crisis Averted but Future Is Still Unclear for House Watchdog

By Stephanie Akin

House Republicans might have ditched a plan to gut the Office of Congressional Ethics. But the future of Congress’ only outside ethics review board is far from guaranteed.

The Office of Congressional Ethics, or OCE, has been under fire from both parties since it was created eight years ago. Now the House GOP majority is promising to revisit a potential overhaul before the end of this session, possibly as early as August.

Members have said little publicly about what such a review would entail beyond House Ethics Chairwoman Susan W. Brooks’s statement that she wanted a “bipartisan agreement on a path forward.” The Indiana Republican declined to comment for this story…

Watchdog groups say that they hope the attention will force an open discussion of how well investigators are doing their jobs and what tools would make them work better. But many fear that the OCE’s death sentence has simply been postponed until public attention shifts.


Albany Times Union: AG will hold off on enforcing parts of lobbying disclosure law

By Chris Bragg

While a federal lawsuit unfolds, Attorney General Eric Schneiderman has agreed not to enforce certain provisions of a new state ethics law passed requiring charitable organizations giving money to lobbying campaigns to disclose far more of their donors, according to a stipulation agreement reached between the parties.

The American Civil Liberties Union and New York Civil Liberties Union announced Thursday afternoon that Scheiderman had agreed to “hold off” on enforcing certain provisions of the ethics law as the NYCLU seeks an injunction against it…

The civil rights groups are also expressing concern about a provision that mandates that 501(c)(4) nonprofit groups that spend more than $10,000 a year on any public policy communications report the name and address of donors who give $1,000 or more. The disclosure will be required even if the communications do not constitute lobbying and do not involve campaign speech, according to the plaintiffs.

Trump Administration     

More Soft Money Hard Law: The Trump Conflict-Of-Interest Plan, On its Own Terms

By Bob Bauer

Donald Trump’s plan for mitigating, not eliminating, the potential for conflicts between his business and his presidency has not satisfied the most senior executive branch ethics regulators or a number of the commentators well-versed in ethics standards. He will retain his interest in his businesses known as the Trump Organization, but not management control, which will pass to his sons. His counsel has detailed various steps to accomplish his “complete” severance or isolation from business operations. To the extent that the business surrenders any advantage from the presidency, it is a cost to the foreign operations: no new foreign deals, and all foreign government payments to his hotel will be donated to the Treasury. Mr. Trump maintains that he is not required to go farther and, in the words of his counsel, he “should not be expected to destroy the company be built.”

It is possible that under pressure, the Trump team will reverse course and yield to the demand for divestment and a blind trust, but after all the time the Trump team and counsel have devoted to considering his course of action, this seems unlikely. 

Politico: How Cruz and Trump learned to like each other

By Eliana Johnson

Ted Cruz met with Donald Trump exactly one week after Election Day…

After his talk with Trump, the Texas senator and his chief of staff, David Polyansky, then sat down with his chief strategist, Steve Bannon, who sounded him out about his interest in filling the Supreme Court vacancy created by the late Antonin Scalia. Cruz – widely considered one of the best Supreme Court litigators of his generation – swatted down the idea, according to four people to whom he has relayed the conversation…

During his visit to Trump Tower in November, Cruz discussed two pieces of legislation with Trump’s team, and they agreed to push forward on them together. The first is a constitutional amendment Cruz introduced earlier this month, along with Florida Congressman Ron DeSantis, that would limit senators to two terms and congressmen to three. The second, the Super PAC Elimination Act, would allow donors, whose contributions are capped at $2,700 per campaign, to give unlimited sums to federal political candidates.

Wall Street Journal: A Senator Fights DeVos With FIRE

By Harvey Silverglate

Sen. Bob Casey has a loaded question for Education Secretary-designate Betsy DeVos. “Ms. DeVos must fully explain whether she supports the radical view that it should be more difficult for campus sexual-assault victims to receive justice,” said the Pennsylvania Democrat, who sits on the committee that begins confirmation hearings for Mrs. DeVos Tuesday.

Mr. Casey was apparently acting under pressure from groups, including the American Association of University Women, that support the Obama administration’s illegal reading of Title IX…

According to a top AAUW policy adviser, Mrs. DeVos’s lack of experience as an “education professional” means she can be judged on her charitable contributions-including to the Foundation for Individual Rights in Education, a nonprofit I co-founded and on whose board I serve. FIRE vigorously defends the free-speech and due-process rights of college students and faculty.
Philadelphia-based FIRE is nonpartisan and has defended students and faculty members on the left and right.

The States

Jackson Clarion-Ledger: Campaign finance bill a solid first step

By Editorial Board

The bill includes three major reforms. First, it provides teeth to campaign finance laws. Under this bill, violating campaign finance laws will constitute a misdemeanor punishable by a fine of up to $1,000. The Ethics Commission will be given oversight authority, and its opinions on campaign finance law essentially will be binding unless overturned by a court. Furthermore, the Ethics Commission will be able to fine any political committee or group up to $5,000 for violating reporting procedures, which is not an entirely uncommon occurrence.

The second major reform is the requirement to itemize all expenditures, even those paid with a credit card. The use of credit cards to pay campaign expenses has been a favorite way for candidates to avoid itemizing to whom, in what amounts and for what purposes payments are made. That practice would end.

The third largest reform is banning the ability of candidates or elected officials from cashing out their campaign funds when they close their accounts. Under current state law, any money left in a campaign account upon its closure goes to the owner of the account, with the expectation that appropriate taxes are paid as it becomes personal income. Under HB 479, that is no longer allowed.

New Hampshire Union Leader: The doughnut hole in NH campaign finance laws

By Kathy Sullivan

The Legislature has an opportunity this year to start reviewing and repairing New Hampshire’s campaign finance laws. One bill, introduced by Sen. Dan Feltes, D-Concord, would close the limited liability company loophole.

This loophole allows candidates to circumvent the state’s contribution limits by accepting donations from multiple limited liability companies owned by the same individuals. Typically these multiple LLCs are owned by real estate developers or other owners of multiple pieces of commercial real estate. It is an advantage not available to the average voter, or even the not-so-average person of wealth whose assets may be of a kind not suited to multiple companies…

The proposed law also would require LLCs to provide candidates with names of their owners, and the amount of the donation attributed to each owner. That information then would be included in the candidates’ finance contribution reports, ensuring donor transparency.
There are other areas in the finance laws that need to be cleaned up, but closing this loophole should be a priority.  

Washington Times: D.C. lawmakers look to strengthen campaign finance laws

By Ryan M. McDermott

Several bills, including one introduced at the behest of D.C. Attorney General Karl Racine, target campaign contributions from businesses that contract with the District.

D.C. Council member Elissa Silverman, with four other co-sponsors, introduced the “Clean Elections Amendment Act of 2017,” which she says would ensure that political action committees are independent and not coordinating their efforts with those of the candidates they support…

The Government Contractor Pay-to-Play Prevention Amendment Act of 2017, introduced by D.C. Council Chairman Phil Mendelson and co-sponsored six other lawmakers, would tighten regulations that bar certain contractors from donating to candidates…

Mr. Racine has offered the most stringent measure. The Campaign Finance Transparency and Accountability Amendment Act would close a loophole that currently allows unlimited donations to political action committees in nonelection years, and would prevent anyone who donates to a campaign or PAC from doing any major business with the city for two years.

Texas Tribune: Top House Republican says dark money debate won’t kill ethics reform

By Jay Root

Ethics reform went down the tubes in Texas a couple of years ago when Republican leaders deadlocked over a proposal to end the “dark money” loophole…

Rep. Charlie Geren, the powerful Fort Worth Republican pushing ethics reform in the Texas House this year, is determined not to let that happen again…

“We’re going to have some single-shot bills that address individual issues, and you’re not going to be able to decorate them like a Christmas tree with other subjects.”

Geren said he is coordinating his efforts closely with state Sen. Van Taylor, R-Plano, who will author reforms in the Senate…

While dark money may not be part of the agreed-upon reform effort by Taylor and Geren, others are likely to push for greater transparency. It will be an uphill battle; Lt. Gov. Dan Patrick and Abbott have both opposed efforts to require disclosure of it in the past.

New Mexico In Depth: Leadership shift sparks hope for supporters of campaign finance reform

By Sandra Fish

Secretary of State Maggie Toulouse Oliver, incoming House Speaker Brian Egolf and incoming Senate Majority Leader Peter Wirth all have advocated for strengthened laws in the past and are expected to do so again…

What is clear is that Toulouse Oliver, Common Cause New Mexico and others will ask lawmakers during the 60-day session to increase disclosure and improve enforcement of campaign laws.

“The brunt of my focus this (legislative) year will be on ethics and campaign finance enforcement related issues,” Toulouse Oliver said after her December swearing-in.

While reform advocates hold out hope in 2017 for their proposals, some lawmakers may muddy the debate by calling for elimination of contribution limits for candidates that took effect in the 2012 election cycle. They say the limits create an uneven playing field when super PACs that don’t coordinate with candidates or campaigns may raise and spend unlimited amounts of money that can dominate a race they choose to target.  

Rochester Democrat & Chronicle: Cuomo tries ethics reform again

By Joseph Spector

The 10-point proposal is largely the same ideas he put forth last month: limiting lawmakers’ outside income; imposing term limits; and eliminating a loophole that lets companies open LLCs to skirt campaign-contribution limits.

He also again proposed a system of public financing for elections and bolstering the state’s Freedom of Information Law by requiring the Legislature to comply.

For the executive branch, he would install greater oversight of the state’s contracting process, including at the state’s public colleges…

State GOP Chairman Ed Cox, who has offered a rebuttal to Cuomo’s speeches at most stops, criticized the Democratic governor’s ethics proposal.

“All you have to know about the governor and ethics is he appointed a Moreland Commission, saying ‘You can examine anything you want,”‘ Cox said about the troubled ethics commission in 2014.

“Well, when they started examining him and his supporters, what did he do? He terminated it.”

Maryland Reporter: Bills would boost public financing of campaigns for governor, legislature

By Dan Menefee

Public financing of Maryland gubernatorial elections could get help from the general fund in years the Fair Campaign Financing Fund falls short, said Del. Eric Luedtke, D-Montgomery.

Prince George’s Del. Jimmy Tarlau plans to introduce legislation creating public financing for legislative races.

Luedtke is sponsoring a bill, HB72, that would require the State Board of Elections to assess the sufficiency of the fund the year before an election – to make sure it can fully finance bids for two candidates in the primaries and one in the general election.

If passed the law would allow the campaign fund to borrow from the general fund in the event of a shortfall and pay it back through the normal revenue stream of fines, tax form check offs, penalties and online contributions…

Del. Jimmy Tarlau, D-Prince George, said he also plans to introduce a bill to establish public financing for legislative races because “We have to do something about the role of big money in elections.” 

Alex Baiocco

Alex Baiocco