Daily Media Links 3/13: Mainstream Jurisprudence and Some First Amendment Problems, FEC earning congressional attention – for the wrong reasons, and more…

March 13, 2017   •  By Alex Baiocco   •  
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Supreme Court                                      

Stanford Law Review: Mainstream Jurisprudence and Some First Amendment Problems

By Brian C. Baran and Nathaniel Rubin

In the same vein as Justice Scalia’s frequent votes with more liberal Justices-often as part of large majorities-in free expression cases, Judge Gorsuch’s free expression opinions have been either unanimous opinions for three-judge panels or separate concurrences with unanimous judgments. Usually, these opinions have solidified protections for expression…

Judge Gorsuch addressed the First Amendment’s Petition Clause in Van Deelen v. Johnson, where a taxpayer claimed that county officials tried to intimidate him into dropping tax assessment challenges…

Judge Gorsuch also addressed freedom of expression in his concurrence in Riddle v. Hickenlooper… Plaintiffs challenged a Colorado campaign finance law that functionally allowed major-party candidates to raise twice as much money from an individual donor in a given campaign as third-party, independent, and write-in candidates. The panel applied a campaign finance-specific form of heightened scrutiny to strike down the statute. Judge Gorsuch concurred, agreeing the law was unconstitutional but noting uncertainty about the correct level of scrutiny to apply based on the Supreme Court’s campaign finance jurisprudence.

New York Times: Democrats’ Line of Attack on Gorsuch: No Friend of the Little Guy

By Matt Flegenheimer

One week before Judge Neil M. Gorsuch is to sit for his Supreme Court confirmation hearing, Democrats have zeroed in on their most prominent planned line of attack: Judge Gorsuch’s rulings have favored the powerful and well connected. And he has done little, they will say, to demonstrate his independence from a president whose combative relationship with the judiciary has already clouded the nominating process.

The strategy includes two events this week aimed at emphasizing Judge Gorsuch’s record on workers’ rights and big money in politics – an attempt to break through the din in President Trump’s Washington, where the nomination fight so far has been largely overshadowed by administration infighting, Russia-tinged scandals and legislation to overhaul the nation’s health care system.

The Democrats’ approach also appears to be in keeping with the preference of some lawmakers to make the nomination as much a referendum on Mr. Trump as Judge Gorsuch…

On Tuesday, Democrats on Capitol Hill are convening an event focused on Judge Gorsuch’s record on campaign finance laws, suggesting that he would continue the rightward movement of the court in this area.

FEC                                    

CPI: FEC earning congressional attention – for the wrong reasons

By Dave Levinthal

The Federal Election Commission – an agency of clashing commissioners, seething staffers and key vacancies – may soon face congressmen who wonder: Why’s the agency a basket case?

Such a trip under Congress’ microscope could come in the form of a Committee on House Administration oversight hearing, something the FEC hasn’t endured since 2011, when super PACs were still novel and the now-seminal Citizens United v. FEC decision wasn’t yet two years old. A planned oversight hearing in 2014 never materialized…

The Senate Committee on Rules and Administration also appears to have increased appetite for reviewing FEC affairs. Although this committee has this decade conducted FEC commissioner confirmation hearings and hearings about campaign money, it has not specifically conducted an FEC oversight hearing since 2004, according to committee records…

At a congressional oversight hearing, the prospect of “political theater” is high, said former FEC Acting General Counsel Daniel Petalas, added that “there would be a lot of work needed by the FEC to get up to speed on all the talking points required.”

IRS                                      

The Hill: Time to clean house and end corruption at the IRS

By Tom Fitton

The IRS scandal blew wide open in early May 2013, when IRS official Lois Lerner acknowledged that the tax agency had inappropriately targeted conservative political groups for additional scrutiny during the 2012 election cycle. Lerner’s “limited-hang-out”-and carefully calculated-admission was made shortly in advance of an explosive report by the Treasury Inspector General for Tax Administration, blowing the whistle on IRS malfeasance…

Under Lerner’s direction, the IRS provided detailed, confidential information to the FEC concerning the tax-exempt application status and returns of conservative groups including: annual tax returns (Form 990), request for exempt recognition forms (Form 1024), Articles of Organization and other corporate documents and correspondence between the nonprofit organizations and the IRS. Under Section 6103 of the Internal Revenue Code, it is a felony for an IRS official to disclose either “return information” or “taxpayer return information,” even to another government agency…

If President Trump truly is interested in cleaning up Washington, he would be well advised to start with the agency that has become synonymous with blatant corruption and the overt oppression of its enemies.

Independent Groups                                    

Politico: Trump’s political group plagued by power struggle

By Shane Goldmacher

A political group launched by some of President Donald Trump’s top campaign advisers to boost the White House in its biggest policy fights has been conspicuously absent as Trump begins to sell his agenda, hobbled by staffing delays, internal jockeying for control and a struggle to win the favor of big donors.

Trump counselor Kellyanne Conway once promised the organization, now known as America First Policies, would provide a “surround-sound super structure” to boost the president’s goals…

Now some are setting out to create a second competing nonprofit group, with the notable backing of the wealthy Mercer family, who are perhaps the most prominent donors in Trump’s orbit and who have long sought strict authority over their political spending. A third group could even be in the works…

The emergence of two or more pro-Trump nonprofit groups with the same stated purpose – to promote Trump’s agenda – repeats a headache that plagued the Trump campaign in 2016 when multiple pro-Trump super PACs sprung up, leading to inefficiencies and donor confusion.

Political Parties                                    

The Hill: Senate GOP campaign arm raises $5.1M in February

By Lisa Hagen

The Senate GOP’s campaign arm raised $5.1 million last month, the committee’s best off-year February fundraising in the past 16 years.

The National Republican Senatorial Committee (NRSC) reported Monday that it has raised about $9.3 million so far this year and has nearly $10.3 million cash on hand, according to figures provided by the NRSC.

The group’s Democratic counterpart has yet to release its February figures. But the Democratic Senatorial Campaign Committee (DSCC) fell short to the NRSC in January fundraising, according to Federal Election Commission (FEC) reports.

The DSCC raised nearly $3.7 million in January, but was outpaced slightly by the NRSC, which raised $4.2 million that same month. And the Democratic committee had almost $5.3 million cash on hand at the end of January, while the NRSC had $9.8 million in its campaign account at that time.

At the end of January, the NRSC had $18 million in outstanding debt, while the DSCC was $19.3 million in debt.

Trump Administration                                    

The Intercept: As Trump Neuters Regulatory Commissions, Chuck Schumer Needs to Decide If He Will Fight or Give In

By David Dayen

A spate of vacancies will soon turn the federal regulatory commissions that police financial trades, telecommunications, energy, and consumer protection into key political battlegrounds, with Donald Trump on one side and Senate Minority Leader Chuck Schumer on the other…

The Federal Election Commission’s six members are supposed to be evenly split. This is supposed to give some weight to diverse viewpoints.

As the Trump era begins, active members at the commissions have dwindled. Ann Ravel, a Democrat, just quit the FEC, leaving that agency one member short…

Remarking on rumors that Trump would not grant Schumer the power to choose minority-party commission slots, a spokesman told The Huffington Post, “We intend to assert our prerogative on nominees as has always been done.”

The position of a minority party commissioner can be lonely but critical. Progressive fighters like Ravel at the FEC, Julie Brill at the FTC and Kara Stein at the SEC, worked to hold violators of the law accountable regardless of their wealth or privilege.

New York Times: Sue While the Conflicts Are Hot

By Editorial Board

Last week, several public interest groups, including Democracy 21 and Citizens for Responsibility and Ethics in Washington, called on Preet Bharara, the United States attorney for the Southern District of New York and an aggressive prosecutor of corruption, to investigate the Trump Organization, the New York-based business through which Mr. Trump owns and controls his hotels, golf courses and other holdings. But that effort might not go far because the Department of Justice on Friday asked Mr. Bharara and 45 other United States attorneys appointed by former President Barack Obama to resign.

Some of those groups have also sued Mr. Trump in United States District Court in New York, asserting that he is violating the emoluments clause of the Constitution, which prohibits government officials from accepting profits, gifts and other things of value from foreign governments without approval from Congress…

It is clear what Mr. Trump needs to do: sell his businesses and put the proceeds in a blind trust overseen by independent managers. But he has refused and says he has addressed the problem by handing control of his companies to his sons. That arrangement is a sham. He still owns his businesses and his family is hardly independent of him.

The States

Argus Leader: After promising to replace, did lawmakers deliver on IM22?

By Dana Ferguson

Citing flaws and objections to parts of the voter-backed Initiated Measure 22, lawmakers before session vowed to repeal and replace the law with bills to address the concerns of the majority of voters who supported the expansive ballot measure.

The Legislature followed through, passing eight bills aimed at creating lobbyist restrictions, allowing for investigation of wrongdoing in state government and requiring more disclosure in campaign finance.

But it didn’t approve a public campaign finance program, set lower campaign finance limits or rule out certain gifts from lobbyists.

And the bills aimed at filling the void left by IM22 received mixed reviews in Pierre as lawmakers ended the main stay of the legislative session on Friday…
Here is a look at what voters approved in Initiated Measure 22 and what bills, if any, were approved to take their place:…    

Pierre Capital Journal: State Officials Of All Stripes Upholding IM 22 Promise

By Gov. Dennis Daugaard

Leaving Initiated Measure 22 in place was not a viable option, due to its constitutional issues and other problems. It could not be enforced as written. Another option was to repeal Initiated Measure 22, and return to the old laws. That was also not a good option, because it would have ignored the will of the voters.

I joined legislators in following a middle path. Together we repealed the unworkable law and made a promise to honor the voters’ intent.

Legislators brought forward proposals aimed at the citizens’ expectation of honest government, an open and transparent campaign finance system, and a legislative process which allows lobbyist influence only through their arguments. As I write this, four of these proposals are on their way to my desk…

State officials of all stripes undertook the difficult work of replacing Initiated Measure 22 with constitutional, workable legislation that meets the goals advanced by IM 22. Public servants from West River and East River, on the right and the left, and in the legislative and executive branches came together on these bills. As session comes to a close, I’m pleased with these accomplishments.

Alex Baiocco

Alex Baiocco