Tuesday, October 17, 2017

California’s Campaign-Advertisement Disclosure Laws Become Toughest in the Country

Last week, Governor Jerry Brown signed the California DISCLOSE ACT, AB 249, which by some standards makes California’s campaign-advertisement disclosure laws the toughest in the country.

This new law requires the three largest contributors (of $50,000 or more) to be listed on ballot measure ads and independent expenditures.

On video and TV, the disclosures must be displayed against a solid black background in a clear font that is not all-caps, fill the bottom third of the screen and stay up for a full five seconds during a 30 second ad. Each of the three major funders’ names must appear on a separate line. Disclosures on radio ads would need to be made with the same speed as the rest of the ad. Committees must keep track of donations on a daily basis to make this calculation. If the top contributors change, committees have five business days to make a new ad and update it. Top funders would have to be identified in TV, radio, online and print ads about ballot measures on the ad itself.

This law applies to print, online, TV, and radio ads as well as mass mailers and robocalls. It requires radio ads and robocalls to name the two largest funders.

It also requires that if the funds were earmarked, the “true” source of the funds be disclosed. However, California Fair Political Practices Commission chair Jodi Remke raised a red flag about the fine print tucked inside the bill – particularly how, for example, labor union earmarks are disclosed. Granted, the FPPC chair thought the bill might need to require additional disclosure requirements. But the new earmarking rules benefit labor unions – likely to the detriment of Republicans:
Critics of the bill, including Republican Assemblyman Matthew Harper, R-Costa Mesa, who voted against it, complain that it stacks the deck for Democrats by making an exception for membership dues, helping the labor unions that fund Democrats’ campaigns. 
If a member’s dues are used to pay for a campaign, the organization — not the individual dues-payer — would appear as the contributor as long as the total amount is below $500. Mullin and others argue the change eases the paperwork burden for membership organizations while making it easier for the public to follow the money. But Republicans have cast the provision as union-friendly politics as usual. 
“What this does is it creates a massive, dark-money loophole that unions can drive through,” Harper said. “It’s what Democrats do over and over again.”
Although Republicans may be currently outnumbered in the California legislature, that has not stopped the RNLA from working to set-up a robust lawyer organization in the state. On October 21, RNLA’s California Chapter is hosting National Republican Congressional Committee General Counsel Chris Winkelman at a MCLE event during the California Republican Party Convention in Anaheim. Mr. Winkelman will be discussing the lawyer's role protecting the integrity of elections. He will also highlight important Congressional races in 2018 and discuss how lawyers can help next November. We will also be introducing our statewide leadership and new California Regional Chairs. Register for the event here.

California’s RNLA Chapter is growing and recruiting lawyers around the state to help in 2018 races. If you haven’t already joined RNLA, now is the time!

By Audrey Perry Martin, RNLA California State Chapter Chair and Of Counsel to Bell, McAndrews & Hiltachk, LLP.

Monday, October 16, 2017

Rush to Regulate Foreign Speech Risks China-Like Censorship

RNLA member Eric Wang wrote in USA Today how the rush to regulate foreign speech on American political and policy issues will inevitably stifle American speech, pointing first to the example of China:
Recent revelations that Russian interests used social media to interfere with the 2016 American election campaign have sent lawmakers scurrying to respond. China’s “Great Firewall” offers one possible model for securing our democracy. . . . China censors any agitators, foreign or domestic, on social media. Politically sensitive topics like Tibetan self-determination, the Tiananmen Square demonstrations, or resistance against the Communist Party are off-limits. Of course, the Great Firewall also completely blocks access to Facebook, Twitter, and thousands of other websites. . . . Emulating China’s disregard for free speech may seem like mere satire for Americans. . . . But recent calls to regulate online political speech by foreign interests directed at Americans seem to articulate no bounds. There is a real risk that a rush to regulate will threaten basic civil liberties. . . .
As Mr. Wang points out, the frightening example of China shows that control of the internet almost inevitably leads to censorship.  Even if American citizens' right to speak is not curtailed, their right to listen would be:
Any regulation of speech about political issues by foreigners could end up entangling U.S. citizens. . . . Even if we could use technology, such as blocking overseas Internet Protocol (IP) addresses, to prevent only foreign nationals from influencing us, this would still limit Americans’ First Amendment rights. As the Supreme Court has held, the right to speak also involves the right to listen.
Mr. Wang includes some interesting examples of the various ways foreign actors seek to influence opinion in the U.S. and concludes by pointing out that foreign attempts at influence are inevitable and certainly not new:
Except in the most closed societies, speech has always seeped across national borders. In an irony befitting today’s topsy-turvy politics, Democrats now decry Russia’s attempts to aid Trump last year. But last year, Republicans condemned foreign leaders who urged Americans to reject Trump. Look at history as well. The book “Democracy in America” is one of the most influential tracts on our political system, and remains required reading in American university political science courses today. It was written, of course, by Alexis de Tocqueville, a Frenchman. By regulating Americans’ access to foreign speech about our politics, we risk becoming a “hermit kingdom.” 
All this is not to diminish the threat of foreign interference in our democracy. But First Amendment rights, once curtailed, are not easily restored. Therefore, we must carefully consider how we handle this issue. Rushing to restrict Americans’ political freedoms in the name of curbing foreigners’ political speech would play right into Russia’s hands.
As we have been discussing frequently in the past few weeks, while we may resent foreign attempts to influence our political process, regulating and restricting more than is already done in the law risks stifling speech by American citizens on important political and policy issues and isolating the U.S. internationally in a way that is unthinkable in a modern free society.

Friday, October 13, 2017

After Non-Citizen Voter Registration Scandal, PA SOS Resigns Abruptly

In a surprise move, Pennsylvania Secretary of State Pedro Cortes resigned late Wednesday.  The reasons for his resignation are mysterious, but many speculate that the registration of non-citizens through the "motor voter" system is to blame:
Cortes’ departure was announced in a 349-word “personnel update” emailed from Gov. Wolf’s office that offered no reason and focused almost entirely on his replacement, interim Secretary of State Robert Torres. . . . J.J. Abbott, a spokesman for Wolf, said he could not offer an explanation for Cortes’ departure. 
As secretary of state, Cortes served as the state’s top election official. His departure comes a week after State Rep. Daryl Metcalfe, chairman of the House State Government Committee, and 15 of his colleagues sent Cortes a letter “to express our dire concerns” about the disclosure three weeks ago that legal resident noncitizens in Pennsylvania had been offered the chance to register to vote while applying for or renewing drivers’ licenses at PennDot service centers. . . .
Unfortunately, it is not uncommon for non-citizens to be placed on the voter registration rolls through the "motor voter" program, an NVRA requirement that requires the DMV (or similar agency) to offer the opportunity to register to vote.  What is striking in Pennsylvania is that the problem derived from the structure of the DMV process, and large numbers of the registered non-citizens had voted:
The Department of State then said it had records of 1,160 canceled voter registrations listing ineligibility as a reason and said the issue was under review. . . . [Philadelphia City Commissioner Al] Schmidt said his staff traced the problem for 168 of the 220 documented cases to PennDot centers, where they produced immigration documents  to show they were in this country legally and eligible for a driver’s license. 
Later in the process, the applicants were asked to check a box on an electronic kiosk if they also wanted to register to vote. . . . The Department of State last month said it started changing the order of questions on the PennDot kiosks in August 2016 to address the problem.
While it is commendable that Pennsylvania has finally taken steps to resolve what Gov. Wolf's office calls a "glitch," it is remarkable that a system that allowed people to register to vote after they had proven their ineligibility lasted for so many years. 

This may just be the tip of the iceberg.  The cases that have been reported and investigated are from people who requested to be removed from the voter rolls due to ineligibility.  There may be many more non-citizens who were registered through the "motor voter" process who remain on the rolls and are still voting.

And two days later, the mystery surrounding Secretary Cortes' resignation remains, leaving us to wonder what more will come out about non-citizen registration and voting in Pennsylvania in the coming weeks.

Thursday, October 12, 2017

Weintraub Uses Russian Meddling As Excuse To Restrict Internet Speech

RNLA Vice President for Election Education David Warrington wrote today in the Daily Caller about how Democratic FEC Commissioner Ellen Weintraub, like other Democrats and liberals, is using the alleged interference of Russia in last year's election as an excuse to regulate political speech.  Mr. Warrington explained how Commissioner Weintraub's statements in a recent FEC meeting showed her political savvy and intent to regulate internet speech:
Weintraub’s most recent choice of words is akin to the proverbial camel’s nose under the tent.  Rather than lead with what she actually wants – full regulation of speech on the Internet – she was careful to open her conversation without a specific proposal.  She knows the public backlash her fellow traveler former FEC Commissioner Ann Ravel encountered after she voted to regulate YouTube videos disseminated for free accompanied by a clarion call for the FEC to change its restrained approach to political speech on the Internet. 
That was a big mistake, substantively and politically. . . . Weintraub is more slippery than Ravel.  Where Ravel would walk off a political plank, Weintraub knows how to be politically expedient above all else.  For example, pining for support of Senator Schumer’s law firm to keep her post (she’s 16 years into a six-year term and wants to stay), she recently broke with reformers in voting to greenlight a Democrat group’s online fundraising application.  That vote earned her rebukes from reformers, but might have won her quid pro quo political support to stay on the FEC a little while longer. . . . But Weintraub’s regulatory plans for the Internet have been just as clear as Ravel’s in a series of votes in FEC regulatory actions. . . .
Unfortunately, while foreign influence is the excuse for the calls for increased regulation, the speech that will actually be regulated is political speech by American citizens
Weintraub said she will start her attack on online free speech small by tweaking FEC disclaimer requirements for online paid ads.  Republican Commissioner Lee Goodman, an Internet freedom advocate, said (at minute 13:30) he was suspicious of Weintraub’s objectives, because demanding disclaimers on foreign ads would be illogical.  Foreign paid ads already are prohibited by law.  Adding a disclaimer requirement for ads that already are illegal would not be effective.  Furthermore, he questioned whether the United States could effectively police disclaimers on ads posted by foreigners, on foreign computers, through foreign servers, on foreign soil—it is, after all, the World Wide Web. 
Given these obvious limitations, Weintraub’s true aim, just like Ravel’s, must be greater burdens on all political communications by American citizens online.  YouTube videos, Facebook posts, and webcasts streamed over the websites of American citizens will be fully regulated—starting small with disclaimers and soon moving to expenditure reports and even censorship of links, re-tweets and free online interviews under broad theories of “coordination” and prohibited corporate in-kind contributions.
Mr. Warrington concluded by pointing out that if the result of any foreign advertisements is a restriction of free speech, the Russians would be pleased.  If we truly want to prevent foreign powers and actors from improper influence in our elections, we need to zealously protect free speech.

Tuesday, October 10, 2017

Senate Democrats' Obstruction Is Damaging the Senate

As Senate Democrats oppose President Trump’s judicial nominees for bad reasons and no reasons, they are damaging the Senate as institution long-term.  A quick example of each.  

The Democrats are using procedural motions to delay the confirmation of NON-CONTROVERSIAL nominees:
The Senate has confirmed just seven judges this year, including Supreme Court Justice Neil Gorsuch. There are 149 judicial vacancies right now, compared to the 108 Trump started the year with. Trump has so far sent nominees for 50 of the current vacancies. . . .
The majority leader has primarily blamed Democrats for dragging out the pace on confirming Trump's nominees.
“Up until now, our friends across the aisle have thrown up one unnecessary procedural hurdle after the next on even the most uncontroversial of nominees,” McConnell said as the Senate confirmed Ralph Erickson to the Eighth Circuit late last month. “In many cases, our Democratic colleagues actually do support the nominees. Just as they do now. This has got to stop. It’s time to end these games.”
Democrats cannot outright block nominees, given the GOP’s 52-senator majority. But they can require procedural votes and drag out the time after each procedural vote for 30 hours.
While it is damaging to the institution of the Senate to delay a worthy nominee just because that nomination was made by a President of an opposing party, what is worse is bigoted attacks on nominees.  A prime example of this is the attacks on the religious beliefs of 7th Circuit nominee Professor Amy Barrett.  As Chairman Grassley said when discussing the obstructions tactics before a Senate Judiciary Committee hearing last week:
Professor Amy Barrett is nominated to serve on the 7th Circuit. She is an eminently qualified and exceptionally bright nominee who has received praise and support across the legal profession. But I was surprised and disheartened by the line of questioning that took place during her hearing.
During her hearing, my friends in the minority raised concerns over and asked questions about her personal religious beliefs. Specifically, her Catholic beliefs. And their questions strongly implied that she’s too Catholic for their taste, whatever it means to be “too Catholic.”
I mention this because I fear the Committee is heading down a dangerous road if we continue to ask nominees questions like this. The Constitution specifically provides that “no religious test shall ever be required as a qualification to any office under the United States.” It’s one of the most important founding principles. . . .
We received many letters on this topic including one from Princeton University’s President who is a former law clerk to Justice Stevens and a constitutional scholar. He writes that the questions posed to Professor Barrett about her faith were “not consistent with the principle set forth in the Constitution’s ‘no religious test’ clause” and that the views expressed in her law review article on Catholic judges are “fully consistent with a judge’s obligation to uphold the law and the Constitution.”
Senate Democrats may feel they are just doing their part in a political game to resist President Trump.  Reality is they are permanently damaging the Senate by their obstructionist and possibly bigoted tactics that have no place in the Senate.

Friday, October 6, 2017

AG Sessions Upholds Rule of Law by Enforcing Religious Liberty Laws

Pursuant to President Trump's religious liberties Executive Order in May, Attorney General Jeff Sessions today issued interpretive guidance on federal religious liberty laws to federal agencies.  Not only does this protect Americans' important First Amendment rights but it also promotes the rule of law by creating standards for consistent application of existing law across the Executive Branch.  

Attorney General Sessions described twenty religious liberty principles that would be used in Executive Branch actions and summarized in detail the legal basis for these principles (citations omitted):
The people, acting through their Constitution, have singled out religious liberty as deserving of unique protection.  In the original version of the Constitution, the people agreed that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." . . .  
The Free Exercise Clause recognizes and guarantees Americans the "right to believe and profess whatever religious doctrine [they] desire[ ]."  Government may not attempt to regulate religious beliefs, compel religious beliefs, or punish religious beliefs. . . . The Establishment Clause, too, protects religious liberty.  It prohibits government from establishing a religion and coercing Americans to follow it. . . . 
Finally, the Religious Test Clause, though rarely invoked, provides a critical guarantee to religious adherents that they may serve in American public life.  The Clause reflects the judgment of the Framers that a diversity of religious viewpoints in government would enhance the liberty of all Americans.
In addition to the constitutional protections for religious liberty, Sessions summarized federal statutory protections, including the Religious Freedom Restoration Act (RFRA), the Religious Land Use and Institutionalized Persons Act (RLUIPA), Title VII of the Civil Rights Act, and the American Indian Religious Freedom Act.  Taken together with the cases, regulations, and Executive orders interpreting them, these form the basis for protection of religious liberty and the federal government has now been given clear guidance for applying these constitutional and statutory provisions.  Sessions specifically directed the Department of Justice to take actions to implement the guidance, including review by the Office of Legal Policy of any rulemaking or agency action for conformity with the guidance and principles.

President Trump, through the expert assistance of Attorney General Sessions, is fulfilling his promise to "lead by example on religious liberty."  Clarifying and enforcing existing laws is vital to preserving the rule of law, and the Trump-Sessions Department of Justice should be applauded for advancing the rule of law.

Thursday, October 5, 2017

John Ryder on Whitford: Plaintiffs Ask Courts to Make Political Judgments

RNLA Co-Chair John Ryder wrote a post-oral argument summary of the issues in Gill v. Whitford, the Wisconsin political gerrymandering case, in the Daily Caller today.  He outlined how the Plaintiffs challenging the district boundaries in Wisconsin would like courts to make political judgments far outside a proper judicial role that would completely change how districts and representation are viewed:
Beyond the technical legal arguments lies a couple of policy issues that the court is being asked to address.  First, the consequence of accepting the Plaintiffs’ arguments would be to convert representation from a district-based representational theory to one of proportional representation on a state-wide basis.  No longer would state legislative members represent specific districts so much as they would be assigned to represent the collective interest of “Democrats” or “Republicans” in proportions determined by a court. 
The concern expressed repeatedly by Chief Justice John Roberts is the substitution of the judgment of the courts for the judgment of elected representatives of the people.  Under the Plaintiffs’ theory, any voter, anywhere in any state, could complain that his or her vote was diminished by not being granted the right to be counted proportionally with other like-minded voters in the state to elect a proportional number within the legislature.  No longer is the challenge limited to district-specific claims of vote dilution. 
As Mr. Ryder points out, Chief Justice Roberts questioned the serious danger for the proper role of the courts posed by the Plaintiffs' theories during oral argument:
[I]f the claim is allowed to proceed, there will naturally be a lot of those claims around the country. . . . We will have to decide in every case whether the Democrats win or the Republicans win. . . . And that is going to cause very serious harm to the status and integrity of the decisions of this Court in the eyes of the country. . . . [T]he whole point is you're taking these issues away from democracy and you're throwing them into the courts pursuant to . . . sociological gobbledygook.
 The Chief Justice was not alone in his criticism:
Justice Neil Gorsuch noted that such a theory would result in the litigation of “every district and every case and every election.” . . . Once the process begins, it will then be up to the courts to determine the appropriate standard or formula by which to judge the partisan gerrymander; then, the court must determine what the right balance in that legislature should be.  It turns judges into arbiters of some Platonic ideal of fair representation.  That in turn requires the judges determine what balance is fair today, what the predilections of the voters will be tomorrow, and how to draw districts which reflect the fair balance as applied to those predilections. . . .
We hope that the Supreme Court will not take the bait and drastically expand the role of the courts into making political judgments and predictions that even professional political scientists would struggle to make.  As Mr. Ryder concluded:
In the end, the Plaintiffs are asking the courts to undertake the impossible task of predicting political behavior in an increasingly volatile electorate and at the same time to determine what is the “right” political balance and then to design a system which will achieve that precise balance.