In First Issued Opinion, Judge Ho Relies on Constitution and Would Overturn Low Contributions Limit

RNLA member Prof. Brad Smith wrote about the first judicial opinion issued by Judge James Ho, one of President Trump's nominees to the Fifth Circuit:

“The unfortunate trend in modern constitutional law is not only to create rights that appear nowhere in the Constitution, but also to disfavor rights expressly enumerated by our Founders.” . . .

His first opinion, released in April, was a dissent in a case asking whether an Austin, Texas, $350 limit on political contributions was constitutional. . . . He began with a detailed analysis as to why Austin’s $350 limit on campaign contributions should be struck down as unconstitutionally low under Supreme Court precedent. Straightforward enough. Ho went further, questioning the right of government to limit political participation at all. “As citizens,” he wrote, “we enjoy the fundamental right to express our opinions on who does or does not belong in elected office.” 

Prof. Smith describes how Judge Ho applied the anti-corruption standard that is the only constitutionally permissible rationale for contribution limits, according to the Supreme Court, in a common-sense, real-world fashion, instead of the in the theoretical, and therefore far too expansive, manner in which it is usually applied: 

Ho pointed out that contribution limits prohibit the exercise of protected First Amendment rights to support candidates and voice political views even when there is no corruption whatsoever. Adding a badly needed dose of realism, Ho wrote, “Countless Americans contribute for no other reason than to support candidates who share their beliefs and interests … without any inkling of a quid pro quo agreement. Indeed, many Americans contribute without ever even communicating with the candidate. … A donor might simply be inspired by the candidate’s prior record of public service, proposed future action, or a particular speech or debate performance. Such contributions are far from corrupt.” . . . 

What makes Ho’s opinion so refreshing is that it emphasizes actual corruption and the motives of donors, bringing campaign finance law back to the real world. Too often courts have sanctioned vague restrictions on political speech to meet nebulous goals and strained hypotheticals. The First Amendment is not a relic of an era gone by, and it’s rewarding to see a judge who thinks the rights enumerated in the Constitution are still meaningful.

Judge Ho's opinion respects the text of the Constitution, and his reliance on the Constitution protects the enumerated rights of individuals against over-regulation by the government.  This is the kind of text-based legal reasoning starting to be issued around the country by judges nominated by President Trump, who are beginning to restore the rule of law to the judiciary.

State of the Law on Donor Disclosure and Its Dangers

RNLA member Eric Wang published a thorough analysis of the state of the law on donor disclosure requirements and what the law should be under First Amendment free speech principles.  "Staring at the Sun: An Inquiry into Compulsory Campaign Finance Donor Disclosure Laws" was published today as a Policy Analysis paper from the Cato Institute.  Mr. Wang begins by pointing out the tension at the heart of any discussion of disclosure (footnotes omitted):

“Disclosure” is a term with warm and fuzzy connotations. When someone intersperses a “full disclosure” disclaimer in a conversation, we tend to credit the speaker for his or her candor. But privacy also is commonly regarded as a virtue in its own right. The right to privacy is held to be “fundamental” against intrusions by the government . . . . These competing interests of privacy and anonymity versus disclosure in the context of political speech are reflected in the Court’s tortured and tortuous jurisprudence. 

After examining the Supreme Court's unrealistic and limited justifications for donor disclosure requirements, Mr. Wang says that other justifications are not better:

If one goes in search of better justifications for compulsory donor disclosure beyond the Supreme Court’s holdings, the landscape is still rather bleak. The arguments put forward for disclosure often are illogical on their face, contrary to actual experience, inconsistent with other First Amendment precepts, or downright invidious. 

People United for Privacy just released this video about the chilling effects of donor disclosure requirements, including a disturbing moment when Senate Minority Leader Chuck Schumer admitted that the purpose of disclosure requirements was to deter citizens' speech about their government.  Mr. Wang describes this and the constitutional problems with that position:

Every so often, compulsory disclosure supporters reveal their true intention of deterring speech. . . .  This sometimes not-so-subtle effort to use compulsory donor disclosure laws to limit speech runs head-on, however, into what the Court has long held to be our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Not only that, but the deterrence of speech diminishes the public’s “right to hear, to learn, to know”—a right that also has been held to be fundamental.

Mr. Wang concludes by offering recommendations for disclosure laws that serve the legitimate purpose of disclosure while protecting citizens' constitutional rights, while pointing out how current laws often fall short of these principles: 

Disclosure’s purpose should be to “allow[] citizens to keep tabs on their elected officials”— not for “the government to monitor its constituents.” The legitimacy of disclosure laws is at its zenith when they focus on government transparency. Open government is essential to representative government and holding officials accountable and responsive to the public. When disclosure laws’ purpose is to monitor private individuals and groups exercising their First Amendment rights, however, such laws become an authoritarian tool for intimidation, retribution, and the suppression of democratic debate. 

Liberals and Democrats, in their ongoing quest to force more disclosure to deter citizens from speaking out about their government, would do well to pay attention to Mr. Wang's reasoned analysis of the dangers and proper role of donor disclosure.  Free speech often demands the right to speak anonymously, especially in our politically charged era where threats of violence against conservative speakers are becoming commonplace.

Democrat FPPC Commissioner Under Fire for Undisclosed Meeting with Lawyer

A Democrat commissioner on California's analog of the FEC, the Fair Political Practices Commission (FPPC), is under scrutiny for meeting with an outside attorney directly interested in a matter before the FPPC:

A commissioner of California’s political watchdog agency met secretly with a lawyer working for Senate Democrats while advocating for changes to campaign finance law that would help retain the Democrat’s supermajority in the state Senate, The Bee has learned. 

Commissioner Brian Hatch, a Democrat and former lobbyist for the firefighters union, met privately, talked on the phone and exchanged text messages with the lawyer as the Fair Political Practices Commission considered flipping a longstanding legal interpretation of campaign finance law to favor Sen. Josh Newman in the fight to retain his seat. . . .

While FPPC commissioners are prohibited from speaking privately with people involved in enforcement cases, other situations allow more flexibility. Commissioners are allowed to meet or discuss the agency’s legal opinion on state law and rule-making decisions, but such one-on-one meetings are unusual and are supposed to be disclosed. Hatch did not disclose his conversations. . . .  

Thomas Hiltachk, a political lawyer who has appeared before the FPPC for decades, also said such private contacts are unusual. . . . Hiltachk said he’s met with FPPC commissioners over the years after they are appointed to get to know them. He hasn’t tried to lobby them on issues before the commission, he said. 

While Hatch's discussions with the outside lawyer appear to be legal under FPPC rules, they should have been disclosed.  Failure to disclose these interactions has the potential to undermine the legitimacy of the FPPC's decision-making process, just as the partisan activities and statements of the FEC commissioners risk undermining the FEC's work.

Supreme Court Upholds Soft Money Contribution Limits on Donations to Parties; Gorsuch Objects

Today, in Republican Party of Louisiana v. FEC, the Supreme Court summarily affirmed a three-judge court's upholding of the soft money contribution limits on donations to political parties:

The ban stems from the 2002 McCain-Feingold law, which prohibited unlimited and unregulated large contributions to party committees known as soft money. The high court on Monday affirmed without hearing oral arguments a lower court ruling that denied the Louisiana Republican Party’s challenge to soft money bans for state and local parties. 

“I’m disappointed in the decision, but it’s not that big of a surprise,” said Hans A. von Spakovsky, a former Federal Election Commission member who manages the Election Law Reform Initiative at the conservative Heritage Foundation. “It’s now pretty clear that the court is just not going to get into this part of McCain-Feingold and if the parties want these provisions to change, they’re going to have to go to Congress.” 

On Capitol Hill, von Spakovsky’s side will meet intense resistance from Democrats, even as those who favor campaign finance deregulation have a pivotal ally in Senate Majority Leader Mitch McConnell, the Kentucky Republican who led the legal challenge to the McCain-Feingold law. They also have an ally in White House Counsel Donald McGahn, a former Federal Election Commission member.

Newly confirmed Justice Gorsuch, with Justice Thomas, wanted the Court to hear the case and noted his vote in the order, his first major decision since joining the Court.  Prof. Rick Hasen (with whom we frequently disagree but who is probably correct here) said of Gorsuch:

This also tells us something about Justice Gorsuch. He was not shy at all — not only about being willing to wade into this very controversial area, but about announcing publicly his vote to hear the case (something he did not need to do). It could well be that he will be as conservative as Justice Thomas is in these cases. (Justice Thomas believes all campaign finance laws—including disclosure—should be subject to strict scrutiny and are likely unconstitutional.) I expect that unlike most Justices J. Gorsuch may not begin his first few terms cautiously, and then work his way up to his full Supreme Court voice.  

RNLA member James Bopp led this challenge to the soft money party contribution limits, noting that Citizens United left a "grave inequity" between parties, to which contributions are limited, and independent organizations such as super PACs, which may receive unlimited donations.

While today's opinion was very short, it does give us several interesting takeaways: 1. The principles outlined in Citizens United will only apply to outside organizations, at least for now.  2. Justice Gorsuch will likely be an active member of the Court from the beginning.  3. Justice Gorsuch, as his prior opinions indicated, is inclined to view campaign finance restrictions skeptically as infringing on important constitutional rights.  4. The legal challenges to contribution limits post-Citizens United will likely continue, until the right case and facts come before the Supreme Court to cause it to take up the issue once again or until Congress decides to amend the existing restrictions.

More Problems for Hillary Clinton's Friend, Virginia Governor Terry McAuliffe

Yesterday, we discussed some of the recent problems for Governor Terry McAuliffe in Virginia. The staunch “Crooked Hillary” minion McAuliffe has recently come under investigation by the FBI for donations to his gubernatorial campaign. CNN published an article detailing what is known about the investigation up to this point.

McAuliffe is the subject of an ongoing investigation by the FBI and prosecutors from the Justice Department's public integrity unit, U.S. officials briefed on the probe say.

Among the McAuliffe donations that drew the interest of the investigators was $120,000 from a Chinese businessman, Wang Wenliang, through his U.S. businesses. Wang was previously delegate to China's National People's Congress, the country's ceremonial legislature.

Wang also has been a donor to the Clinton foundation, pledging $2 million. He also has been a prolific donor to other causes, including to New York University, Harvard and environmental issues in Florida.

Since the story broke on CNN several other media outlets have picked it up as well including NBC, CBS, and Fox News. The Washington Post released an article today walking through the speculation swirling around the investigation:

In 2013, Wang's Chinese company pledged $2 million to the nonprofit foundation. The donation caught the attention of a CBS News investigation in March 2015 -- not because of any campaign finance laws (this is a foundation after all), but because of Wang's political connections. . . . 

Tying this back to McAuliffe: He also served on the board of the Clinton Foundation around the time of the donation. McAuliffe is a longtime Clinton ally and a prolific fundraiser for them. In 2015, Post reporter Laura Vozzella detailed McAuliffe's connection to Wang to show how Clinton Foundation donors also pumped millions into the governor's campaign accounts. 

Details continue to surface. Keep your eye on the ball. It’s likely given McAuliffe's close ties to the Clinton family that there is a whole lot more to the story. That is until "Crooked Hillary" cleans up the evidence . . . with a cloth.