Daily Media Links 3/27: Gorsuch’s Free-Speech Lesson, First Amendment Victory Over Ban on Political Contributions from Medical Marijuana Businesses in Illinois, and more…

March 27, 2017   •  By Alex Baiocco   •  
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In the News                                       

Daily Signal: Judge Warns 9th Circuit’s Use of Trump Campaign Pledge ‘Judicial Psychoanalysis’

By Fred Lucas

A federal judge is raising an alarm about “judicial psychoanalysis” resulting from the 9th U.S. Circuit Court of Appeals ruling on President Donald Trump’s executive order…
Applying campaign statements when interpreting law “sows chaos,” said Judge Alex Kozinski, who has been on the 9th Circuit since 1985, in his dissent…

The 9th Circuit majority cited three Supreme Court cases displaying precedent that “evidence of purpose beyond the face of the challenged law” can be applied in interpreting the intent of a measure…

However, those cases pertained to deliberations in making the law rather than campaign promises, noted Bradley Smith, chairman of the Center for Competitive Politics, a group that opposes restrictions on campaign speech.

“It’s definitely unusual for judges to use campaign statements to define whether an action is constitutional,” Smith, a former chairman of the Federal Election Commission, told The Daily Signal. “I doubt it would chill campaign speech, but it is a dangerous path. This could be very selectively enforced for candidates that use shorthand or off-the-cuff remarks. Already political discourse is too scripted. If this becomes a precedent, it will mean no spontaneity and pure teleprompter.”

Supreme Court                                      

Wall Street Journal: Gorsuch’s Free-Speech Lesson

By Editorial Board

Progressives like Mr. Whitehouse want to ban anonymous political spending, the better to harass and intimidate opponents from participating in politics. Recall the IRS attacks on Tea Party groups, or the Wisconsin John Doe raids against conservative activists.

Judge Gorsuch offered the Senator a tutorial on free speech. “The First Amendment, which I’m sworn to uphold as a judge, contains two competing messages,” he explained. On the one hand, Congress has the right to pass legislation requiring more disclosure in political spending. On the other hand, the Supreme Court has an obligation to ensure that such disclosure doesn’t “chill expression.” He cited in particular the 1958 Supreme Court decision, NAACP v. Alabama, that protected donors to the civil-rights group from disclosure in the Jim Crow era…

Mr. Whitehouse complained that Judge Gorsuch wouldn’t recognize his “simple” point that money in politics is corruption. “I don’t think this is simple stuff at all. I think this is hard stuff,” the judge replied.

Denver Post: Michael Bennet should buck Democrats and speak up for Neil Gorsuch

By Editorial Board

Colorado’s senior senator, Democrat Michael Bennet, is blowing an important opportunity to stand up for our state and nation in sitting on the sidelines while his party foolishly seeks to block the path of Denver native Neil Gorsuch to the highest court in the land.

Instead of working all along to stave off his party’s expected effort to block Gorsuch, Bennet kept his silence. Now, despite Gorsuch’s laudable performance throughout his confirmation hearings, the Senate’s top Democrat, Chuck Schumer of New York, is officially calling on his fellow senators to filibuster.

As we’ve noted several times in the run-up to Gorsuch’s confirmation hearings, the 10th Circuit judge possesses the fairness, independence and open-mindedness necessary to make him a marvelous addition to the Supreme Court. Missing the chance to rally behind Gorsuch – who has been roundly praised here by Democrats and Republicans alike – already diminishes Bennet. He cannot remain silent any longer.

Virginian-Pilot: Gorsuch knows judges are law-interpreters, not creators

By Elizabeth Slattery

We don’t hire umpires because we expect them to help a particular team win. We hire them to make the right calls, no matter what. The best ones know the rulebook inside out and backwards – and make a point of being scrupulously impartial.

The same goes for Supreme Court justices. And after two marathon days of questioning by the Senate Judiciary Committee, Tenth Circuit Judge Neil Gorsuch demonstrated why he would make an excellent addition to the high court.

Gorsuch’s mastery of the law was obvious, as were his commitment to being a fair and impartial judge and his record of taking the text of laws and the Constitution seriously. Most importantly, he showed that he understands the limited role judges should play in our government…

Sen. Sheldon Whitehouse, D-R.I., repeatedly asked Gorsuch about so-called dark money in campaigns and requiring the disclosure of donors. Gorsuch said, “(T)hat’s a political question for this body, and there’s ample room for this body to pass disclosure laws for dark money.” He continued, “(W)ith all due respect, the ball’s in your court.”

Washington Free Beacon: Anti-Gorsuch Activist’s ‘Dark Money’ Hypocrisy

By Bill McMorris

The head of a liberal dark money group criticized Supreme Court nominee Judge Neil Gorsuch because of his stance on political disclosures and Citizens United.

Heather McGhee, the president of Demos, told members of the Senate Judiciary Committee that confirming Judge Gorsuch would lead to “big money corrupting our politics completely.”…

“[Gorsuch] was quite evasive-in fact, to my dismay [he] raised the idea that disclosure chills speech,” McGhee said. “Requiring people to stand up in public for their political acts fosters civic courage without which democracy is doomed.”

Demos does not disclose its donors and was cited by the Center for Public Integrity as a dark money group in January…

Demos did not respond to multiple requests for comment about whether it planned on adopting disclosure policies in line with the ideology it was promoting.

The Courts                                           

Reason: First Amendment Victory Over Ban on Political Contributions from Medical Marijuana Businesses in Illinois

By Brian Doherty

The state of Illinois enacted in 2013 a pretty blatantly unconstitutional law forbidding businesses engaged in (legal) medical marijuana sales or growing from contributing to political campaigns, in effect either directly or via a PAC (though only the latter was literally codified). But since candidates were also barred from accepting such contributions, the real legal effect was on direct contributions as well.

Two Libertarian Party candidates, Claire Ball and Scott Schluter, sued over this, with the help of the Pillar of Law Institute and the Liberty Justice Center. I reported on the suit in the case of Ball v. Madigan back in June.

This week, Ball and Schluter won a victory in U.S. District Court for the Northern District of Illinois, eastern division, in a request for summary judgment for them and against Illinois.

Champaign-Urbana News-Gazette: Constitutional prescription

By Editorial Board

For those in the medical marijuana business in Illinois, you’ll soon be free to make political contributions. Until last Friday, that wasn’t the case.

U.S. Judge John Z. Lee in Chicago declared unconstitutional an Illinois law that banned marijuana facilities from making political contributions and candidates from accepting such contributions. As have other legislative attempts to fetter campaign contributions, the law violated the donors’ and the candidates’ First Amendment rights to free speech and association…

As we have stated before, spending money to be heard in a public debate constitutes speech. Lawmakers, who have in the past used campaign finance laws to handcuff competitors and shield themselves from unsavory issues, run afoul of the Constitution whenever the effect of legislation is to broadly limit speech. Rightly so, political speech enjoys the most robust protection…

This is a classic case of viewpoint discrimination, and the federal court has wisely struck down a clearly unconstitutional state law.


Denver Post: Transparency is for government, privacy is for people

By Jon Caldara

For 18 years I have run that beacon of political incorrectness, the free-market-loving Independence Institute. And it is near sinful how much fun we have working to make Colorado a place where we are free to make our own decisions. While I can’t imagine what groups like the NAACP went through, we too never disclose our supporters, even though we’ve been brought to court several times by political foes who think they have a right “get at” our donors.

From public school teachers who fear retribution from the teachers unions to businesspeople who need to survive their dealings with Colorado’s 3,700 governments, we believe our supporters should be guaranteed privacy.

We also feel that groups like ours shouldn’t lose our right to free speech because of it. But sadly, that’s what campaign finance laws do.

In 2014 we wanted to run a radio ad asking both of Colorado’s U.S. senators to support a bill reforming federal sentencing laws. But because it was “too close” to the election and one of those senators, Mark Udall, happened to be on the ballot, campaign finance laws stopped us, even though we weren’t weighing in on the election in the slightest.


Reuters: Senate panel presses SEC nominee Clayton on conflicts

By Sarah N. Lynch and Lisa Lambert

Jay Clayton, the Wall Street attorney tapped by President Donald Trump to lead the U.S. Securities and Exchange Commission, on Thursday defended himself against Democrats’ charges that multiple conflicts of interest would force him to miss too many SEC votes.

Clayton, a partner at elite law firm Sullivan & Cromwell, is expected to win confirmation easily, although some Democrats on the Senate Banking Committee raised concerns about his ties to Wall Street and Goldman Sachs, a bank he represented during the financial crisis and that employs his wife, Gretchen.

His wife plans to resign from the bank if Clayton is confirmed, and he said he will recuse himself from matters involving his or the firm’s clients for two years…

Clayton told the panel his Wall Street legal experience is a “strength,” adding he did not think conflicts of interest would present problems in leading the agency that enforces securities laws and regulates U.S. stock, options and bond markets.

The States

U.S. News & World Report: Nebraska Lawmakers Consider New Limits on Lobbyists

By Julia Shumway, Associated Press

State lawmakers who often refer to the public as the “second house” of their single-chamber Legislature need to be aware of the emergence of a “third house” of special interest groups that has gained power since legislative term limits took effect a decade ago, said Sen. John Kuehn, of Heartwell, who presented four bills targeting lobbyists.

“If you have to have someone standing behind the glass for the entire 90 days of the session to have your voice heard, we have a problem,” Kuehn said.

One bill Kuehn sponsored would require elected state officials – from the governor and legislators to university regents – to wait two years before registering as lobbyists. Any policymaking staff would have to wait one year…

Two other bills would prohibit political subdivisions, such as school districts or cities, from using tax dollars to pay for lobbyists’ services and require full disclosure of lobbying contracts if a lobbyist’s client received money from taxes, fees or grants.

Gotham Gazette: Will Latest Indictment Give New Life to Ethics Reform in Albany? Don’t Bet On It

By Rachel Silberstein

Corruption charges brought against a member of the state Senate Republican majority Wednesday have provided an opportunity for Democrats to jumpstart the seemingly dormant conversation on government ethics as state budget negotiations enter their final week…

The Senate’s mainline Democrats, eager to regain control of the house, quickly jumped on this latest scandal as an opportunity to once again push for ethics reform, something that leaders of the majority conferences and the governor have shown reluctance in addressing this year. Cuomo laid out an ambitious reform agenda in January, but has done nothing to promote it publicly since…

Cuomo, a second-term Democrat, has been mostly silent on ethics since introducing his wide-ranging plan for reform during his State of the State, which touched on campaign finance reform, increased contract oversight, and electoral reform. At a press conference earlier this week, Cuomo, who wields significant leverage over priorities addressed in budget talks, said policy matters, such as voting and ethics reforms, would likely be tackled after the budget was delivered.

Alex Baiocco

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