Daily Media Links 1/31: Trump’s team gets ready for Supreme Court fight, Trump Advisers Start ‘America First Policies’ Nonprofit, and more…

January 31, 2017   •  By Alex Baiocco   •  
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In the News           

Sioux Falls Argus Leader: Upholding Constitution with repeal of IM 22

By Scott Blackburn and Ron Williamson

In the past year, the Center for Competitive Politics has completed law suits in Colorado and Utah against similar unconstitutional laws. In both cases, our clients won. Judges in both states ruled that overly broad rules on small non-political speakers and vague laws are unconstitutional. Courts are not fond of violations of the Constitution – both states have pay out six figure fees for enacting laws that restricted the First Amendment.

Some lawmakers have responded to this the wrong way. They’ve proposed capping donations for future ballot initiatives. But even if we don’t like what supporters of an initiative are saying, the First Amendment stops us from restricting their ability to say it. We can’t fight unconstitutional laws with more unconstitutional laws.

Other legislators are acting responsibly. They are repealing IM 22 before any damage can be done. This is triply valuable to the citizens of South Dakota. $5 Million in revenue that would have gone to politicians can now be put to better use. The Attorney General need not waste time defending an unconstitutional bill that could’ve cost the state hundreds of thousands of dollars. And most importantly, South Dakotans will once again be free to express opinions without retaliation from state bureaucrats.


Comments to FEC Regarding Notice 2016-10: Rulemaking Petition: Implementing the Consolidated and Further Continuing Appropriations Act, 2015

By Allen Dickerson and Owen Yeates

The Center for Competitive Politics (“the Center”)[1] respectfully submits these comments in response to Notice 2016-10.[2] That notice concerns potential rulemaking to implement the Consolidated and Further Continuing Appropriations Act, 2015 (“Appropriations Act”).[3]

The Center generally urges the Commission to enact the Petition’s suggested amendments. In implementing the Appropriations Act, however, the Commission’s regulations should carefully conform to the Act’s language. Because that language is generally clear, and because the Commission acts in an area of unusual constitutional sensitivity,[4] the Commission should decline to impose restrictions beyond those necessary to carry out Congress’s clear intent. Doing otherwise would not only impose unnecessary burdens upon core First Amendment activity, it would also invite legal challenges under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984)…

The Center looks forward to working with the Commission to protect the First Amendment rights of Americans to participate in the political process and navigate the new statute set by Congress.


Comments to FEC Regarding Notice 2016-11: Rulemaking Petition: Political Party Rules

By Allen Dickerson and Owen Yeates

The Center for Competitive Politics (the “Center” or “CCP”),[1] respectfully submits these comments in response to Notice 2016-11.[2] That notice concerns a petition for rulemaking (“the Petition” or “Pet.”),[3] asking the Commission to amend “Title 11 of the Code of Federal Regulations in order to strengthen political parties.”[4]

The Center disagrees with Petitioners’ assertion that citizens pose a threat to the existence “of political parties at the state and local level”[5] when they associate with and donate to non-party organizations. Such groups often give voice to issues that the major political parties do not. Nevertheless, the regulation of political parties implicates the same associational liberties and free speech interests as limitations upon other civil society groups. And, as explained below, the Center believes that state and local parties perform services for which they are uniquely suited. Consequently, CCP supports the Petition to the extent permissible under current law…
The Center looks forward to working with the Commission to ensure the continued viability of state and local parties, consistent with the Constitution and governing statutes.


Amicus Curiae Brief of the Center for Competitive Politics in Support of Alabama Democratic Conference, Et Al.

By Allen Dickerson and Zac Morgan

Seven years ago, this Court declared that “[t]he First Amendment does not permit laws that force speakers to retain a campaign finance attorney…or seek declaratory rulings before discussing the most salient political issues of our day.” Citizens United, 558 U.S. at 324. Unfortunately, as this case and a number of others demonstrate, citizens and small civil society groups must still wade through “[p]rolix” statutes governing their rights to speak and organize. Id. 2 This has become, in many instances, nearly impossible without the advice of attorneys drawn from a small and specialized bar, of which Amicus and its counsel are a part…

Now, what has become nearly impossible for average citizens is becoming increasingly difficult even for experts. This Court’s opinions in this area are lengthy, and the legal standards it has announced complex. But they lay out a structure understood by the practicing bar. The Eleventh Circuit’s opinion undermines that structure, and threatens further confusion. Without this Court’s intervention, the cost, in chilled political activity and foregone speech, is likely to be high.

Supreme Court           

Boston Globe: Who will Trump nominate to the Supreme Court?

By Evan Horowitz

President Trump is preparing to announce his choice for the next US Supreme Court justice, a nomination that could shape the future of abortion rights, campaign finance, civil liberties, and other highly-charged issues in the US…

Trump has reportedly narrowed the field to three well-respected appellate court judges. But don’t rule out the possibility of a Tuesday night surprise. Trump’s cabinet nominees have sometimes seemed to rise from nowhere – think Rex Tillerson for secretary of state after so many meetings with Mitt Romney – so why not his Supreme Court choice as well?…

Trump has a flair for the unpredictable, which could easily upset expectations about his likely nominee – and perhaps turn attention away from his immigration order. 

Daily Signal: Trump Likely to Name 1 of These 2 Judges to Supreme Court

By Fred Lucas

He will reveal at 8 p.m. EST his pick for the Supreme Court, widely reported to be one of two federal appeals court judges-Neil Gorsuch or Thomas Hardiman…

Gorsuch issued a decision against a Colorado campaign finance law, determining that it unconstitutionally permitted major party donors to make two contributions per election cycle, while limiting minor party candidates to receive just one donation per election cycle. There is “something distinct, different, and more problematic afoot,” he wrote, “when the government selectively infringes on a fundamental right.”

Hardiman ruled against a student’s right to wear a bracelet that said “I [heart] boobies” during a breast cancer awareness campaign at his middle school. He described the case as “close,” but said it “would seem to fall into a gray area between speech that is plainly lewd and merely indecorous.”

In the case of NAACP v. City of Philadelphia, Hardiman ruled that Philadelphia’s ban on noncommercial advertisements at the city’s airport violated free speech rights.

Concerning campaign finance, Hardiman wrote the opinion striking down a Philadelphia law that barred police officers from contributing to the police union’s political action committee.

Politico: Trump’s team gets ready for Supreme Court fight

By Shane Goldmacher

With Trump planning to announce his nominee on Tuesday night, his allies are moving quickly to sharpen a battle plan, and the first formal meeting of the de facto war room for the coming confirmation fight took place on Friday at the Capitol Hill headquarters of the National Republican Senatorial Committee.

Inside the room were officials from the White House, Senate GOP leadership and the outside groups that have spent months researching the records of Trump’s potential picks and are now prepared to unload at least $10 million in ads backing the nominee…

McGahn has continued his task of vetting those under consideration. During the presidential transition, Trump had a legal team of five or more people working out of the seventh floor of the official transition offices researching and preparing for the Supreme Court nomination, according to another person familiar with the matter.

America Rising, a GOP research firm that had two representatives at Friday’s meeting, has also combed through the work history of the potential nominees. So has another attendee, the Judicial Crisis Network.

Politico: Senate Dems will filibuster Trump’s Supreme Court nominee

By Burgess Everett

Senate Democrats are going to try to bring down President Donald Trump’s Supreme Court pick no matter who the president chooses to fill the current vacancy.

With Trump prepared to announce his nominee on Tuesday evening, Sen. Jeff Merkley (D-Ore.) said in an interview on Monday morning that he will filibuster any pick that is not Merrick Garland and that the vast majority of his caucus will oppose Trump’s nomination. That means Trump’s nominee will need 60 votes to be confirmed by the Senate.

It’s a move that will prompt a massive partisan battle over Trump’s nominee and could lead to an unraveling of the Senate rules…

“When Democrats were in the majority, Sen. Merkley wanted to end filibusters. But I guess he only meant when Democrats are in the majority and in control of the White House,” said Don Stewart, a spokesman for Senate Majority Leader Mitch McConnell (R-Ky.).

The Democratic stance dashes McConnell’s hopes to return to the tradition of not filibustering Supreme Court nominees.

Free Speech          

Wall Street Journal: How State Lawmakers Can Restore Freedom on Campus

By Peter Berkowitz

At the Heritage Foundation on Tuesday, the Phoenix-based Goldwater Institute, in collaboration with Stanley Kurtz of the Ethics and Public Policy Center, will unveil “model state-level legislation designed to safeguard freedom of speech at America’s public university systems.”

The proposal is aimed at state universities because they are subject to the First Amendment and depend for their mandate and their revenues on state governments. But the key provisions are inspired by three exemplary private university reports that expound the principles of free speech in higher education: the University of Chicago’s Kalven Committee Report on the University’s Role in Political and Social Action (1967), the Report of the Committee on Freedom of Expression at Yale (1974) and the Report of the Committee on Freedom of Expression (2015), also from the University of Chicago.

The model legislation would encourage boards of trustees, which hire and fire, and legislatures, which hold the power of the purse, to exercise oversight more effectively and thereby alter the balance of incentives for administrators.

Independent Groups           

Politico: Progressives ready all-out assault on Trump’s Supreme Court pick

By Seung Min Kim and Edward-Isacc Dovere

Whenever the Supreme Court fight begins in earnest, Democrats won’t be hungry for help from the outside.

The Constitutional Responsibility Project, organized by former Obama aides last year to push for Garland’s confirmation, will be reconstituted at the offices of SKDKnickerbocker, with Sheila O’Connell, most recently Chris Van Hollen’s 2016 Senate campaign manager, coming on board.

The opposition-research group American Bridge is preparing a full-research, rapid-response and video-tracking operation to “expose the nominee as too conservative and out of step with mainstream Americans,” said Kevin McAlister, a spokesman for the group.

And End Citizens United, a political action committee that advocates for campaign finance reform, is readying a national grass-roots campaign that will push its 3 million members to flood senators with calls, emails and petitions, as well as a digital advocacy effort, spokesman Adam Bozzi said.

ABC News: Trump Advisers Start ‘America First Policies’ Nonprofit

By Julie Bykowicz, Associated Press

Six of President Donald Trump’s top campaign aides have banded together to start a nonprofit called “America First Policies” to back the White House agenda.

The group includes Trump’s digital and data director Brad Parscale, onetime deputy campaign manager Rick Gates and two campaign advisers to Vice President Mike Pence, Nick Ayers and Marty Obst…

“Some of the same like-minded individuals who put their energy into getting Mr. Trump elected are now going to be part of a grassroots group to go out there and help with the agenda, help the White House be successful,” Parscale said…

One of its first tasks is likely to be advocacy for Trump’s Supreme Court nominee, whom the president said he would announce Tuesday night. The group doesn’t have yet have a public website, but its founders said to expect digital and television advertising around issues…

Nonprofits do not legally have to disclose their donors, although Obama’s group did so voluntarily on a quarterly basis. There’s no word yet on whether America First Policies will do that.


The Hill: Trump’s lobbying ban was step towards ‘draining the swamp’

By Chris Mackenzie

If Trump wants to take on Washington lobbyists, he’s going to need more than a simple executive order. If we’ve learned anything from President Obama’s half-hearted attempt to crack down on special interest influence, that should be lesson number one.

Let’s look back on Obama’s first full day in office in 2009. The freshly-sworn-in president signed executive orders barring officials from his administration from lobbying their former colleagues, a move hailed by ethics-in-government advocates as “particularly far-reaching.”

The following year, special interest spending on lobbying hit an all-time high. At the same time, the number of registered lobbyists in Washington plunged, as lobbyists began dodging registration to avoid bans put in place by the incoming administration…

Real lobbying reform has to start with new legislation that closes lobbying loopholes. Congress and Trump must work together to amend the Lobbying Disclosure Act to ensure that everyone who lobbies and who is paid to lobby must disclose their work to the public.

Wall Street Journal: Number of Lobbyist Registrations Drops As Lobbyists Find Ways Around Disclosure Rules

By Rebecca Ballhaus

The number of federal lobbyist registrations last year fell to its lowest mark in 18 years, according to an analysis of new public records, as lobbyists increasingly exploit loopholes in disclosure rules.

Some 11,143 total lobbyists filed registrations in 2016, down from 14,153 in 2008, the year before President Barack Obama took office-a decrease of nearly 30%, according to an analysis of lobbying records by the nonpartisan Center for Responsive Politics. Corporations in recent months have scrambled to retool their lobbying efforts to prepare for the new administration…

“The executive order on ethics and lobbying issued by the White House represents a step backward from the previous Administration’s restrictions,” said Karen Hobert Flynn, president of Common Cause, a group that advocates transparency in government. “The [order] continues a disturbing pattern from the Trump White House by significantly reducing transparency and accountability.”

The States

KSFY Sioux Falls: Lawmakers create replacement proposals if IM 22 is repealed

By Bridget Bennett

A bill scrapping Initiated Measure 22 is one step away from the governor’s desk after being delayed during debate last week. But those who want to repeal IM 22 say some ideas may live on in the form of new legislation.

State lawmakers from both parties have proposed legislation that touch on ethics, campaign finance and lobbyists–all key issues found in IM 22. But the original creators of the measure say these replacements do not go far enough.

“They’re watered-down versions of what’s already in IM 22, what the voters have already said they want,” Rick Weiland said…

But lawmakers pushing to repeal IM 22 argue it goes against South Dakota’s constitution.

“We’re doing our job which is to uphold the constitution,” Republican Speaker of the House Mark Mickelson said. “Now, we are listening to the voters, when they say there are some things we need to listen to, ‘we want to see some progress on ethics reform, we want to a legislative gift ban’, absolutely.”

State lawmakers have proposed at least six bills that cover three key components of IM 22.

Alex Baiocco

Alex Baiocco