Friday, July 1, 2016

Obama's Lawyer Doesn't Believe the 1st Amendment Applies to Fox News!

As we described yesterday, Fox News was targeted by FEC Democrats for hosting a Republican presidential primary debate.  

President Obama's lawyer Bob Bauer, on his blog, defends Commissioner Weintraub, criticizes Commissioner Goodman, and brushes off as inconsequential Fox News' profound free press rights.  He acknowledges that Commissioner Weintraub voted to find Fox News violated the law for engaging in legitimate, wholly constructive press activity.  But he defends Commissioner Weintraub on the theory that outlawing -- even technically -- press activity is more important in this case than disrupting the prestige and decorum at the FEC. What a profoundly disturbing suggestion by one generally regarded as a civil libertarian who represents the First Amendment rights of oppressed political actors before the government.  

More troubling, Mr. Bauer completely ignores the fact that two Commissioners voted to actually PUNISH (Mr. Bauer places this word in quotation marks as if to question the accuracy of the suggestion) Fox News in this case.  What?  No discussion of that remarkable action by two Commissioners?  Ignoring the votes won't diminish the dramatic chilling impact on free press rights, Mr. Bauer.

Why such a blithe treatment of press rights by First Amendment lawyer Bob Bauer?  Could it be this case is about Fox News?  Mr. Bauer, former White House Counsel, is married to Anita Dunn, instigator of the White House's war against Fox News several years ago.  That might explain why in this case decorum at the FEC matters more than free press rights.  

Thursday, June 30, 2016

Fox News Targeted by FEC Democrats for Allowing Candidates a Forum to Speak on Issues

Democrats in federal agencies continue the assault on the rights of U.S. citizens by forcing partisan policy through executive actions and regulatory overreach in place of actual legislation or the rule of law. The separation of powers has never been more crucial in our history than it is right now because of the recent regulation trends. As a citizen, regardless of your party affiliation, you should be paying extremely close attention to the Obama administration's continued attempts to circumnavigate and regulate the greatest of all of our freedoms: the freedom of speech.

A complaint was filed on August 3, 2015, and since that time there appears to be a little problem between the FEC Democrats and Fox News.

Finally making good on long-harbored anger at conservative media, Democrats on the Federal Election Commission voted in secret to punish Fox News' sponsorship of a Republican presidential debate, using an obscure law to charge the network with helping those on stage.

It is the first time in history that members of the FEC voted to punish a media outlet's debate sponsorship, and it follows several years of Democratic threats against conservative media and websites like the Drudge Report . . .

Thankfully the Republicans disagreed and caused a 3-3 tie, resulting in no fines being levied. Still, it gives reason for pause. Why is encouraging more speech and sharing more information about our candidates a bad thing, on either side? Who truly believes that the government should control press room decisions when there are specifically express exceptions for the press? Most are left scratching their heads attempting to understand what it is the Democrats were hoping to accomplish other than silencing conservative speech, and that is the main point. Republican FEC Commissioner Lee Goodman spoke specifically to that fact in a statement.

Astonishingly, three FEC commissioners (Weintraub, Ravel, Walther) concluded that Fox News violated the Federal Election Campaign Act by making a prohibited corporate contribution to the 7 candidates invited to the debate. That is, by expanding the debate format to a broader group of candidates, Fox News violated the law . . .

Three FEC commissioners (Lee Goodman, Matthew Petersen, Caroline Hunter) blocked this regulatory overreach into newsroom editorial judgments. Commissioners Petersen and Hunter and I voted to free Fox News' editorial judgments from the FEC's regulatory jurisdiction under the Free Press Clause of the Constitution and the Press Exemption in the Federal Election Campaign Act. Congress included in the Act an explicit exemption for the press and we respect Congress' decision.

The Commissioners who blocked the left-leaning fine released a fairly straightforward statement of reasons.

The attempts by the left to silence speech are well documented and continue to proliferate agency by agency. At some point, if all remains constant, the dam will break either through legislation or regulatory overreach. Our rights are being eroded and history shows us that it starts with political speech and ends with complete censorship. Before you know it, the government will be telling us what we can and cannot say about our leaders, levying fines for posting YouTube® videos expressing our thoughts/opinions or sharing our religious beliefs with others on Facebook®. The solution is simple. If you do not agree with a point of view, turn it off, or better yet, simply do not watch it. Political correctness is slowly crippling what is best about our country: the right to disagree and debate varying points of view. Without that right, we cease to be truly free. 

Wednesday, June 29, 2016

Donald Trump's Judicial Nominees - A Blog Series - Part 1

On May 18, 2016, Donald Trump released a list of eleven names that he would consider as Supreme Court nominees. The list has been heralded as a who’s who of some of the best conservative judges in the country. We are going to be spending some time on this blog looking at the candidates.

The list includes: Steven Colloton of Iowa, Allison Eid of Colorado, Raymond Gruender of Missouri, Thomas Hardiman of Pennsylvania, Raymond Kethledge of Michigan, Joan Larsen of Michigan, Thomas Lee of Utah, William Pryor of Alabama, David Stras of Minnesota, Diane Sykes of Wisconsin and Don Willett of Texas.

This blog will specifically discuss two candidates: Steven Colloton of Iowa and Allison Eid of Colorado. There are many articles out there overviewing the potential SCOTUS candidate’s records but the bulk of them note that this list should make the right very happy. 

Colloton is an exceptionally qualified candidate.

A federal judge on the 8th Circuit U.S. Court of Appeals, Colloton clerked for former Supreme Court Chief Justice William Rehnquist. Collotn [sic] also worked for Independent Counsel Kenneth Starr and in the George W., Bush Justice Department’s Office of Legal Counsel. Friends have described Colloton as a “virtual walking encyclopedia of the law.” But several rulings he has written or supported, including one that allowed religious institutions to avoid providing contraception coverage under Obamacare, have angered progressives. In one case, Colloton voted to uphold a South Dakota law that advised women having abortions that they were at increased risk of suicide. Colloton wrote a separate opinion to underscore that he was not persuaded by the evidence, an American Psychological Association task force. He also has dissented from a string of 8th Circuit rulings that have protected the rights of employees, consumers and other groups. In one dissent, he argued that a city’s policy of using police dogs to bite and hold suspects without warning did not violate the Constitution.

Like many others on the list, Allison Eid is a conservative juggernaut in her own right.

Eid sits on Colorado’s Supreme Court, and is a former clerk to Supreme Court Justice Clarence Thomas, as well as a former Colorado solicitor general. As a state Supreme Court Justice, Eid was backed by “tort reform” supporters and other business interests. Before she took a seat on the court, the Associated Press reported that Eid was ”expected to follow her predecessor’s footsteps in some issues important to conservatives: strictly interpreting the law and working to rein in liability lawsuits seeking huge damages.” 

In addition, Eid was appointed to assist with recording the history of the Supreme Court of the United States.

In 2002, President George W. Bush appointed her to serve on a committee to write the history of the Supreme Court. Colorado’s Republican governor at the time, Bill Owens, then appointed her to serve on the state Supreme Court. She won reelection to the job in 2008, with 75 percent of the vote.

Allison Eid and Steven Colloton have strong conservative track records and an excellent judicial pedigree making them both solid potential candidates to fill the enormous shoes left in the wake of the death of a conservative icon. 

Tuesday, June 28, 2016

Justice Thomas Defends the Rule of Law

In his dissent to the Whole Woman's Health v. Hellerstedt opinion yesterday, Justice Thomas delivered a strong defense of the rule of law (citations omitted):
The majority’s furtive reconfiguration of the standard of scrutiny applicable to abortion restrictions also points to a deeper problem. The undue-burden standard is just one variant of the Court’s tiers-of-scrutiny approach to constitutional adjudication. And the label the Court affixes to its level of scrutiny in assessing whether the government can restrict a given right—be it “rational basis,” intermediate, strict, or something else—is increasingly a meaningless formalism. As the Court applies whatever standard it likes to any given case, nothing but empty words separates our constitutional decisions from judicial fiat. . . . 
But the problem now goes beyond that. If our recent cases illustrate anything, it is how easily the Court tinkers with levels of scrutiny to achieve its desired result. This Term, it is easier for a State to survive strict scrutiny despite discriminating on the basis of race in college admissions than it is for the same State to regulate how abortion doctors and clinics operate under the putatively less stringent undue-burden test. . . . Likewise, it is now easier for the government to restrict judicial candidates’ campaign speech than for the Government to define marriage—even though the former is subject to strict scrutiny and the latter was supposedly subject to some form of rational-basis review. . . . 
These labels now mean little. Whatever the Court claims to be doing, in practice it is treating its “doctrine referring to tiers of scrutiny as guidelines informing our approach to the case at hand, not tests to be mechanically applied.”  The Court should abandon the pretense that anything other than policy preferences underlies its balancing of constitutional rights and interests in any given case. . . . 
The Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution. But our Constitution renounces the notion that some constitutional rights are more equal than others. A plaintiff either possesses the constitutional right he is asserting, or not—and if not, the judiciary has no business creating ad hoc exceptions so that others can assert rights that seem especially important to vindicate. A law either infringes a constitutional right, or not; there is no room for the judiciary to invent tolerable degrees of encroachment. Unless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear. . . . The majority’s embrace of a jurisprudence of rights-specific exceptions and balancing tests is “a regrettable concession of defeat—an acknowledgement that we have passed the point where ‘law,’ properly speaking, has any further application.” 
Justice Thomas' criticism of the Supreme Court's tendency to twist the law or apply indeterminate tests to reach the policy outcome it desires demonstrates, yet again, the importance of fighting for a new justice -- one who respects the rule of law -- to replace Justice Scalia.

Monday, June 27, 2016

Unanimous Supreme Court Rejects "Unrestrained Power for Prosecutors"

This is yet another case in a series of recent cases that we have discussed on this blog indicating a dangerous trend of politicizing justice. It has continued to be a favorite tactic utilized by the left while attempting to silence those with differing opinions. We discussed it when groups attempted to enforce the law of the land , again when the left went after Rick Perry,  then when a leftist AG harassed non-profits involved in scientific research, once again with the current DOJ attorney’s ethics violations in U.S. v. Texas and finally in the Planned Parenthood allegations against David Daleiden.

This has also become a preferred path for those who seek to silence free speech. As a country, we should not support throwing tantrums.  In an unanimous decision, SCOTUS reversed former Virginia Governor Bob McDonnell’s 11 corruption convictions today. Chief Justice Roberts wrote the opinion of the court. The Richmond Times-Dispatch put out an article earlier today discussing some of the finer points of the case (emphasis added).

“The government openly advocates a legal rule that would make a felon of every official at every level of government — from a Cabinet secretary to a janitor — who accepts travel in exchange for public appearances, who has lunch with a lobbyist when both know the lobbyist will pick up the check, who trades campaign contributions for a few minutes of time, or who cleans one classroom with special care because its teacher brings him gift cards,” McDonnell’s lawyers wrote in one of his appeal briefs.

Before McDonnell's case was argued before the Supreme Court, some analysts thought his case suffered a blow with the February death of Justice Antonin Scalia. That left the high court with four justices nominated by Republican presidents and four nominated by Democratic presidents.

[. . .] On April 27, when the Supreme Court heard McDonnell's appeal of his 11 corruption convictions, the justices questioned lawyers about what constitutes “official action” by public officials and expressed concern about giving unbridled power to prosecutors who are probing corruption.

That day, a sometimes frustrated Justice Stephen G. Breyer, who was nominated by President Bill Clinton, looked for a definition that would catch wrongdoers but not give unrestrained power to prosecutors who might bring “ridiculous” cases.

FreedomWorks, Curt Levey, applauded the decision earlier today noting that:

"The job of prosecutors, like other officers in the executive branch, is to objectively enforce the law, not to rewrite or expand the laws to reflect their moral or ideological preferences. The Court's ruling is an important step towards preventing overly zealous or politically motivated prosecutors from criminalizing routine, helpful actions performed for constituents. It is the voters who should decide whether elected officials are conscientious public servants.

James Bopp, Jr., counsel for the Madison Center, is pleased with the decision: 

“The Court rightly recognized the First Amendment chill that would be cast over both constituent and campaign participation if the government can selectively enforce so broad a corruption definition against public officials and candidates associating with voters.  Limiting quid pro quo corruption to exchanges of money or other gifts for official acts ensures the government does not exceed its authority and unconstitutionally silence the speech of its citizens.”

McDonnell was also quick to praise the decision.

Today, a unanimous United States Supreme Court vacated my convictions, and it is a day in which my family and I rejoice and give thanks.

From the outset, I strongly asserted my innocence before God and under the law. I have not, and would not, betray the sacred trust the people of Virginia bestowed upon me during 22 years in elected office.

[. . . ] I am exceptionally grateful to my faithful legal team who zealousy advocated my cause at every step, as well as the authors and signers of the 13 excellent amicus briefs that argued for reversal. 


More and more innocent leaders and organizations are being targeted for expressing their opinions and these attackers relish in the fact that they are working to silence an entire segment of society. The last eight years have seen entire federal organizations turned into partisan attack dogs seeking out any who oppose a certain point of view.  These cases are not about corruption but silencing speech and attacking those who disagree with the political views of the Democrat and DOJ prosecutors. 

Thursday, June 23, 2016

Want to Address Your Legislature? Bring a Checkbook

Given the state’s lengthy history of disdain for federal overreach and several attempted secessions, Texas is the last place in America where you would envision freedom of speech being limited. Yet, that is exactly what has been happening since 1993 according to an article recently published by RNLA Member Joe Nixon on texaslawyer.com.

If you believe the First Amendment to the U.S. Constitution gives you the right to free speech, think again.  In Texas, of all places, political speech comes with a cost: registration and/or paying a fee to the state for the privilege of speaking.

In 1993, the Texas Legislature passed an “ethics” bill designed to eliminate “undue influence” in elections and to require the disclosure of those who paid to play on the political field. To show its serious intent, the Legislature also passed a lobby registration bill because it deemed it important to know who was getting paid to influence legislation and who was paying to influence legislation. Both laws had broad, sweeping definitions so as to leave no loopholes. . . . To secure the most serious intent of this legislation, voters created the Texas Ethics Commission (TEC). . . .

Candidates campaigned in traditional ways.

And then came the Internet.

And with it social media. . . .

Regulating with forms and fines is not just an imposition on speech; it is also the time and cost to defend against a state agency that has openly admitted it is not required to read or follow the U.S. Supreme Court's rulings in favor of free speech.  Under the guise of "disclosure," the TEC seeks to require political speakers pay the toll of registration and regulation.  Speech is just not free in Texas right now.

The article continues to discuss the implications of such a system on a world of ever changing media outlets. The TEC has been exceptionally aggressive in its investigations as well as the process of levying fines against new media outlets such as blogs, similar to this one, that express political opinions or engage in political speech aimed toward influencing legislators. While the courts have certainly made their stance on freedom of speech issues abundantly clear, this is of little consequence to the TEC who consistently seeks to silence those who refuse or simply cannot afford to “literally pay the price to speak.”

Wednesday, June 22, 2016

Fourth Circuit Hears Oral Arguments on North Carolina Voter ID Law and Other Election Integrity Reforms

Yesterday, the Fourth Circuit heard arguments on North Carolina's voter ID law and other election integrity reforms:
The hearing was the latest legal step in a long saga over House Bill 589, passed nearly three years ago by state lawmakers. It was in June 2013 when the North Carolina General Assembly passed a measure that mandated photo identification, reduced early voting, and eliminated same day registration, among other provisions. . . . 
The defense maintains plaintiffs have failed to use statistical evidence to prove discrimination. A ruling from the panel could uphold or undo the controversial law.  
"We had the benefit of the 2014 election and the plaintiffs have said well you can’t just rely on one election – well it’s the only election we have to rely upon," defense attorney Tom Farr said. . . . 
The general election is 20 weeks from these proceedings, and the expectation is that the three judge panel will rule relatively quickly, so that the state Board of Elections will have enough time to prepare.
The District Court had upheld the voter ID law and the other reforms in a strong, carefully considered opinion in April.  According to some reports, the Fourth Circuit panel unfortunately was skeptical of the purpose of the reforms:
Members of a three-judge federal appeals court panel are expressing skepticism that North Carolina's Republican-led legislature's changes to voting laws do not discriminate against minorities.
A recording of the oral argument in NAACP v. McCrory is available here [auto-play recording].