Friday, August 1, 2014

FEC Chairman Goodman Defends Book Publishers

In a Federal Election Commission (FEC) session last Wednesday, Republican Chairman Lee Goodman warned that the FEC could attempt to regulate book publishers under its authority to make campaign finance rules. Chairman Goodman will be a featured panelist at this year’s RNLA National Election Law Seminar.

The heated session related to a book by Congressman Paul Ryan. The FEC “declined to definitively spare book publishers from the reach of campaign finance rules.” Chairman Goodman wanted the Commission to guarantee the book would be exempt from regulation under the “media exemption.” This is the exemption that empowers newspaper editorials to comment on politicians without regulation. The Chairman believes that book publishers should enjoy the same exemption.

During the session, Chairman Goodman said, “I think that's unfortunate. We have effectively asserted regulatory jurisdiction over a book publisher." 

In an interview with Fox News, Chairman Goodman said, "That is a shame. . . . We have wounded the free-press clause of the First Amendment.” He said the refusal to include book publishers under this exception suggests “an effort to constrict the media exemption within the commission." 

Two other members of the commission joined Chairman Goodman in support and released a six-page statement addressing their contention with the Commission’s vote. The statement points out that “the legislative history of the media exemption indicates that Congress did not intend to ‘limit or burden in any way the First Amendment freedoms of the press and association. . . . The Commission has not limited the press exemption to traditional news outlets, but rather has applied it to ‘news stories, commentaries, and editorials, no matter in what medium they are published.’”

The Commission uses a two-prong test to apply the media exception. “First, the Commission asks whether the entity engaging in the activity is a press or media entity. If so, the media exemption applies as long as the entity (a) is not owned or controlled by a political party, political committee, or candidate, and (b) is acting as a press entity in conducting the activity at issue.”

As Chairman Goodman observed in his statement, “the publisher’s activities satisfy both prongs of the Commission’s test. . . . Instead of subjecting press entities to content-based restrictions and inquiries, the Commission should have granted the Requestors the affirmative protection of an advisory opinion based upon the threshold determination that the publisher is a press entity entitled to the media exemption when it publishes, markets, and disseminates its book.” 

Thursday, July 31, 2014

The Myth of Voter ID Difficulties

Instead of helping people vote, or take advantage of the many benefits that government ID can provide, the left instead wants to use them as examples.  Whether it is Viviette Applewhite  the plaintiff in the anti-ID case in Pennsylvania who obtained an ID during the trial or one of the plaintiffs in the Supreme Court case Crawford v. Marion County who actually had a Florida ID, the left is much more interested in making political points than helping voters.

The latest trumped up charge is rebutted by Don Palmer, a speaker at our National Election Law Seminar next week and Secretary of the Virginia State Board of Elections:

While the experience at the DMV often includes a commitment of time and effort, the experience of Ann Trapani may not have been necessary at all. Elderly voters over the age of 70 who are initially replacing their driver’s license are eligible for a free Commonwealth ID that can be obtained in an online transaction with no additional documentation and mailed to the citizen.

There is another option available for elderly voters who may not need a driver’s license and do not have other acceptable forms of photo ID for voting purposes. The voter may simply request a free voter photo ID from their local general registrar (or satellite office) that are located in each of Virginia’s 133 localities. As with voting or registering to vote, those voters with an inability to read, write or fully complete a form due to a disability or other impairment, may receive assistance from election officials or other person in completing the process. The photo ID application form is also online and accessible to visually disabled voters with text-to-speech enabled internet browsers. . . . General registrars and [sic] ready to assist voters with special needs, just as they do with the voting experience, testing and setting up accessible voting equipment or curbside voting.

The technical capability to produce free photo IDs will have a mobile functionality that will allow election officials to assist in the community upon request and provide registration and other services to voters and organizations. . . . . All that is required to produce the free voter photo ID is a picture of the registered voter, a signature and the voter photo ID is quickly processed and sent by mail to the voter. For those facing rapidly approaching deadlines, a temporary voter photo ID is available to voters.

The Elections Department will continue to produce free photo IDs for voters out of our office in Richmond, and with outreach to retirement facilities, aging or nursing homes and continuing care communities. There is a dedicated accessibility coordinator to facilitate this process for elderly or disabled voters who need a free photo ID and other important voting services. State officials will partner with the 133 general registrar offices to provide photo ID services to the elderly or voters with disabilities in their respective communities.

We only wish other government services were this easy and convenient.  It is unfortunate that those on the left would rather play politics than help people.  Fortunately most election officials, unlike liberals seeking biased news coverage, want to help.  

Wednesday, July 30, 2014

Convenience Voting Yields Poor Turnout

A new report issued by the Center for the Study of the American Electorate (CSAE) last week suggests that the upcoming election season will yield the lowest midterm primary turnout in history. National turnout in 2010 was down 18 percent for states that held statewide primaries for both major parties, reaffirming RNLA’s findings in its PCEA report that early voting has little to no tangible benefits.

The data shows that eleven states in the study had early in-person voting. Eight of these states had lower turnout than in 2010, six of those being record low turnouts. Of the thirteen states that have a no excuse absentee voting policy, eleven had lower turnout than in 2010, all eleven as record low turnouts. Eight states utilize both early voting and no excuse absentee voting. Six of these states had lower turnout than in 2010, all six as low record turnouts.

Similarly, proponents of Election Day registration have also argued that it will increase turnout. Like convenience voting, the statistics do not prove this. On the contrary, the evidence shows Election Day registration states like Colorado, Idaho, Iowa, all had lower turnout in the 2014 election as compared with 2010.

The report concludes that these policies contribute to low voter turnout. “The data in this report shows that the hope of enhancing turnout by making it easier is the wrong way to approach the disengagement problem and, in some cases, is dangerous. Both no-excuse absentee voting and mail voting have been shown in all elections . . . to hurt turnout.”

Furthermore, the report states that low voter turnout is a self-perpetuating challenge that leads to voter apathy. The cohesion formed by political parties is “being lost. High levels of involvement lessen the chances that . . . politics will be dominated by narrow ideology and interest. Low levels make that result probable.”

CSAE provides insight into the solution. The real problems are found in unclear campaign messages, “scurrilous” attack ads, and an uninformed electorate. Durable revitalization of American democracy will not be solved by procedural quick fixes.” Convenience voting is not even a good Band-Aid for these deep seeded issues. 

Tuesday, July 29, 2014

Nuclear Fallout

Anyone who had any doubts of the Democrats real goals on executing the “Nuclear Option” on judges should have no doubts now after the narrow confirmation of Pamela Harris with only 50 votes yesterday.  The Democrats are trying to pack the courts. 

In addition to breaking the rules to change the rules they are also breaking tradition to
pack the Circuit Courts to try and influence decisions:

The Senate typically votes on judges in order. That didn't happen with Harris. Senate Majority Leader Harry Reid, D-Nev., brought up Harris' nomination before that of Jill Pryor, who had been waiting for a vote to sit on the Eleventh Circuit. The Senate voted, 50-43, to confirm Harris.
The Fourth Circuit became a key battleground last week over the Obama administration's domestic agenda when a three-judge panel sided with the government in a dispute over health care subsidies. Sen. Chuck Grassley, R-Iowa, took to the floor ahead of the Harris vote to express his dismay about the timing of the confirmation vote.
"Professor Harris is being fast-tracked to the Fourth Circuit, just in time for another en banc appeal, should one materialize," Grassley said.
In a floor statement on Friday, Ranking Judiciary Committee Member Grassley was more explicit:
So, it seems pretty clear to me that the timing of the vote on this nominee is not coincidental.   We know this because of yesterday’s Obamacare decisions handed down by the D.C. Circuit and the Fourth Circuit.
 Last November, when the Majority changed the cloture rule on judicial nominees, I told my colleagues that the decision was a blatant attempt to stack the D.C. Circuit with judges who would view sympathetically the administration’s arguments in upcoming Obamacare lawsuits.
 The other side dismissed the notion that the rules change was designed to tilt the courts in the President’s direction and salvage Obamacare.
Well, as we all know, a three-judge panel of the D.C. Circuit decided the Halbig case yesterday, against the administration.
 And it only took the administration about an hour to announce that it would seek rehearing by the en banc D.C. Circuit, which now includes four of the president’s nominees.
As we all know, the Majority Leader rushed through three of those four immediately after the rules change.  And yesterday the Majority Leader finally admitted that the upcoming en banc panel on the Halbig ruling vindicated his decision to go nuclear.
 He said: “I think if you look at simple math, it does.”
So, the Majority Leader isn’t even trying to disguise his intent any more.
 And that’s exactly what’s happening here with this nominee, on her way to the Fourth Circuit.  This nomination is being considered ahead of other circuit nominees on the Executive Calendar.
 Why is this Fourth Circuit nomination being fast-tracked?
 Why fast-track one of the most liberal nominees we have considered to date?
 If history is any guide, the answer is simple.
 It’s all about saving Obamacare.
The other side wants to stack the Fourth Circuit just like they did the D.C. Circuit.  Because the Fourth Circuit hears a disproportionate number significant cases involving federal law and regulations, just like the D.C. Circuit.
And there should be no doubt where Harris stands, it is wherever the party and the left want her to:

As you may remember, Harris is the judicial nominee who thinks the Warren Court wasn’t liberal enough, that the Constitution gets its meaning “from what comes after” its enactment, and who thinks that Supreme Court justices should shift their legal views with the tides of public opinion.

Obama may be a failure as a President but thanks to Harry Reid he is becoming the first President to so blatantly pack the courts.  

Monday, July 28, 2014

The Case for Standing: Boehner’s Lawsuit

The primary issue in Speaker Boehner’s lawsuit against President Obama is that of standing. Opponents argue that it will be difficult for the House to prove it has been personally harmed by the President’s inaction as an institution. However, John Malcom and Elizabeth Slattery of The Heritage Foundation argue that the case for standing is rooted in the House demonstrating, “to a court’s satisfaction that as an institution, it has been personally harmed by President Obama’s actions, which have effectively nullified the votes of its members, leaving it little recourse to rectify this injustice without court intervention.

The Heritage Foundation legal memo begins by analyzing political question doctrine; the Court’s unwillingness to interfere in disputes between the other branches. It states, “If the House chooses to file a lawsuit against President Obama, it will face what may prove to be an insurmountable hurdle in establishing standing.

But as Speaker Bohner argued in his own memo, “When there is a failure on the part of the president to faithfully execute the law, the House has the authority to challenge this failure in the Judicial Branch by filing suit in Federal Court in situations in which:
  • There is no one else who can challenge the president’s failure, and harm is being done to the general welfare and trust in faithful execution of our laws;
  • There is no legislative remedy; and
  • There is explicit House authorization for the lawsuit, through a vote authorizing the litigation against the president’s failure.”

The Heritage Foundation memo observes that the problem is, “Obama has pushed the limits of this duty, acting unilaterally to change or ignore the law. From refusing to abide by statutory deadlines, waiving requirements written into laws that he does not like, . . . President Obama has not been shy about circumventing Congress and essentially rewriting laws.

House Republicans are receiving support from Republican Senators on this issue. Senator Ted Cruz said of the lawsuit, “It is terrific that the House of Representatives is trying to hold President Obama accountable for his lawlessness. One of the most disturbing patterns of the Obama administration has been the president’s consistent disregard for the law.”

Speaker Bohner concludes his memo saying, “I believe the House must act as an institution to defend the constitutional principles at stake and to protect our system of government and our economy from continued executive abuse. The president has an obligation to faithfully execute the laws of our country.”

Friday, July 25, 2014

The 2014 Republican Lawyer of the Year Reception Honoring Mark Braden

Mark Braden with the Lawyer of the Year certificate presented by Speaker John Boehner.
On Tuesday night, the RNLA Board of Governors honored E. Mark Braden as the 2014 Republican Lawyer of the Year event.  Mark’s long and successful career was saluted by a number of current and former Republican leaders from Speaker John Boehner to former longtime RNC Chair Frank Fahrenkopf. 

Speaker Boehner talked about the importance of Mark’s long service as the lawyer to the House Administration Committee and effectively all House Republican members.  Boehner also joked that he had never been more comfortable in a room full of that many lawyers.  (There were 150 attendees.) 

Frank Fahrenkopf and Bill Greener discussed Mark’s service as an innovative Chief Counsel to the RNC back in the 1980s.  Among Mark’s many accomplishments that Frank discussed was helping found the Republican National Lawyers Association in 1985.  Frank also mentioned how Mark was a master of recounts. 
From Left to Right: Former Lawyers for Bush-Cheney, McCain, and Romney Chair Dick Wiley, Mark Braden, former RNC Chief Counsel Tom Josefiak, and current RNC Chief Counsel John Phillippe.  

Other current and former RNC Chief Counsels, such as the Honorable Donald Ivers, Tom Josefiak and John Phillippe, were also in attendance.  Phillippe said of Mark: “Mark has been a true friend to the RNC and to those of us who have followed him in the RNC counsel’s office.  This is a very well-deserved honor for someone who has meant so much to not only the Republican legal community but to the Republican Party.”

Mark’s leadership extends beyond the beltway.  Mark’s home state of Ohio was well represented with Congressman Pat Tiberi and former House Financial Services Chairman Mike Oxley also in attendance.  Chairman Oxley served as the master of ceremonies for the event. 

Mark Braden's family with Speaker Boehner and former Congressman Mike Oxley.  
More pictures on the reception are here.  A press release is here.  Congratulations to Mark Braden for being named the 2014 Republican Lawyer of the Year.       

Thursday, July 24, 2014

Harris’ Rushed Nomination Heads to Floor Vote

The Senate will vote today to end debate on the nomination of Pamela Harris to the U.S. Fourth Circuit Court of Appeals. This comes after the Senate Judiciary Committee rushed through the confirmation process and voted on July 17 to send Harris’ nomination to the full senate. As discussed in a previous post, Harris’ nomination raises serious concerns.

When the vote occurs today, 78 days will have passed since the Senate received Harris’ nomination and referred it to the Committee on the Judiciary. According to, President George W. Bush’s first-term circuit court nominees faced an average of 277 days from nomination to confirmation. Senate Democrats are rushing through a nominee who still has not given proper account for her previous statements.

Senator Chuck Grassley, ranking member of the Senate Judiciary Committee, expressed this concern in his opening statements at Harris’ hearing, “This committee continues to process nominees very quickly. For example, today’s nominee to the Fourth Circuit has been pending for only 47 days. . . . In fact, quite a few of President Bush’s circuit court nominees never received a hearing.”

Senator Grassley went on to tell the story of Bush nominee Maryland U.S. Attorney Rod Rosenstein. Rosenstein was nominated to fill the very circuit court seat to which Harris is now nominated. However, Rosenstein’s nomination did not move forward. Especially given Harris’ statements on originalism, Senator Grassley said, “I will say that I have some concern with aspects of Professor Harris’ record.”

Also at Harris’ hearing, Texas Senator Ted Cruz stated his concern regarding her statements on judicial activism. Senator Cruz said,

“I’m troubled by some of the public comments you’ve made. In 2009, at an American Constitution Society panel, you described yourself as a ‘profoundly liberal person’ who sees the Constitution as a ‘profoundly progressive document.’ You went on to say, ‘I always feel unapologetically, you know, left to my own devices, my own best reading of the Constitution, it’s pretty close to where I am.’ . . . Those public comments raise some concern.”

The rushed confirmation process and lingering questions pose serious concerns about Harris’ nomination to the Fourth Circuit. By rushing Harris’ nomination, Senate Democrats have limited the information the Senate can use to make an informed decision.