Monday, August 21, 2017

Democrats Change the Election Laws for Partisan Advantage...Again

One of the fundamental differences between Democrats and Republicans is their views on election laws.  Republicans see elections laws as tool for a level playing field where the voters decide.  Democrats see elections laws as a tool for partisan advantage to set up an unbalanced playing field.  

We see the worst of this in blue states where Republicans have little power.  For example, in 2014 we saw the Democrats pass a special one-off same day registration law in Illinois to try to stop now-Governor Rauner from winning.   

Now in very blue California, they are trying again.  As AP is reporting:
California's political watchdog moved forward Thursday with a controversial change to a campaign finance rule that will help a Democratic state senator facing a recall.
Newman barely won last year in a district, mostly in Orange County, that has traditionally been represented by Republicans. His victory gave Democrats a supermajority, allowing them to raise taxes without GOP votes. The California Republican Party, anti-tax groups and talk radio hosts collected signatures to force a recall, citing Newman's support for a gas tax increase.
Democrats have fought hard to boost Newman's chances of surviving a potential recall. In addition to requesting the change in campaign finance rules, they slipped into the state budget a major change in the process for certifying signatures on recall petitions. The change was put on hold by a state appeals court.
Next time you read of Democrat support of new election laws, check their motivation.  It is likely less to do with voter suppression, dark money, or any other officially stated reasons.  It is most likely about tilting the playing field to their advantage and to take power away from the voters.

Friday, August 18, 2017

ATL Publishes Vulgar Attack on Former Gorsuch Clerk

Today, Above the Law (ATL) published a hit piece on Michael Davis, a Colorado attorney and RNLA member who left his law practice to clerk for Justice Gorsuch when he was confirmed.  In the second sentence, ATL calls him two curse words we won’t repeat here, claiming that it is “the only conclusion one can draw” about him.

The basis for these outrageous claims is some comments Mr. Davis made to National Law Journal’s Supreme Court Brief about shutting down his law practice in Denver to move to DC and clerk for Gorsuch.  

Of course, it is easy to attack an honorable public servant and call him or her names from the safety of a news blog.  Liberals may even rejoice to see a Gorsuch clerk's name dragged through the mud.  Is this where we want our public discourse to lie, especially among the legal profession where we have high ethical standards of conduct?  Those of us who actually know Mr. Davis know that he is both a talented attorney and a warm, genuine person.

Putting aside the venomous statements about Mr. Davis, here are other troubling things that ATL apparently believes:
  • Anyone with a small or solo practice cannot enter public service, because doing so requires shutting down their practice;
  • Partial-term Supreme Court law clerks "play act as a SCOTUS clerk for a couple of months" (of course, we can assume that this only applies to clerks for conservative justices);
  • Supreme Court clerks for conservative justices are a "footnote in forging the anarchic hellscape that Fed Soc kids have wet dreams about";
  • Then-Judge Gorsuch ruled that "employees should die rather than betray their employer" (one of liberals' favorite talking points, completely ignoring the facts, controlling statutes, and legal analysis in the case);
  • "[C]onstitutionalist, textualist, originalist" are "just buzzwords dumb people use to… well, prove that they’re dumb people to anyone with more than a third grade education"; and
  • It is "unmitigated gall" for an attorney to note the reduced salary when moving from private practice to government service.
ATL is looked to by lawyers for insider news on the legal profession, with a side of humor and sarcastic commentary.  Snarky gossip, yes; vulgar politically motivated attacks on conscientious public servants more appropriate for a comment on DailyKos, no.  ATL's purpose is to take "a behind-the-scenes look at the world of law. The site provides news and insights about the profession’s most colorful personalities and powerful institutions, as well as original commentary on breaking legal developments."  ATL's readers are largely lawyers and law students, so even articles criticizing individual attorneys usually have some basis in law or fact, as expected by its discerning readership.

Perhaps the most telling point in the whole piece is that constitutionalist, textualist, and originalist are just buzzwords used by dumb people, not fully formed, mainstream theories of constitutional and statutory interpretation even adopted by Justice Elena Kagan.  While the crude personal attacks on Mr. Davis are reprehensible, this point shows that what he is really being attacked for is being a conservative who respects the Constitution.  

We thank Mr. Davis for his service to our country, even in the face of such vulgar, inappropriate criticism.

Thursday, August 17, 2017

The Latest Liberal Attempt to Obliterate the First Amendment

RNLA Co-Chair John Ryder has a new article in the Daily Caller that points out the truth and consequences of the left’s description of Citizens United.  Citizens United, when you get down to it, is about whether you can make a movie critical of a Presidential candidate.  (Does anyone really think that the left would make as big a deal over Citizen United if it was a movie critical of Donald Trump instead of Hillary Clinton?) 

More importantly, the article goes into how the left uses their mischaracterization of Citizen United to attack free speech and regulate politics on the local level.
In 2016, Multnomah County, Oregon, passed, and voters approved, a measure which created contribution limits, expenditure limits, registration requirements, and disclosure requirements for spending related to county races.  The expenditure limits provide that individuals and entities may only spend money if the money was collected subject to the contribution limits.. . .
The primary problem with this misguided effort restricting constitutional rights of political speech is that it ignores not only Citizens United but also 40 years of settled campaign finance case law.
The Oregon case is interesting because it is also clearly unconstitutional under Oregon law.  As Ryder notes:
Putting aside federal constitutional law, Oregon Supreme Court decisions prohibit both expenditure and contribution limitations under the Constitution of Oregon because “political contributions constitute expression.”  Because of these decisions, Oregon is one of the few states that does not impose contribution limits on either individuals or entities.
From campus to political speech restrictions, the left's continued efforts to limit the First Amendment are troubling and need to be fought.  Political speech is not something new discovered in Citizens United but rather a bedrock of our founding in the Constitution.  

Wednesday, August 16, 2017

Trump's Biggest Impact So Far: The Federal Courts

Legal experts on the right and left agree on one thing: President Trump has already had an enormous impact on the federal courts and is poised to restore and bolster respect for the rule of law in the federal judiciary for many years to come:
With five judges confirmed, another 30 pending and 123 seats left to fill, according to one group tracking the numbers, Trump has the opportunity to revamp the judiciary branch and carve out a legacy for himself that could stand the test of time. 
“It can’t be overstated the impact the individuals he’s appointing will have on millions of people across the country and their children for a generation or two,” said Dan Goldberg, legal director at the liberal Alliance for Justice (AFJ). . . . While another appointment to the high court in Trump’s presidency is possible or even likely, given the ages of several justices, it’s appointments to the lower district and circuit courts where the president is likely to have a bigger impact. . . . 
Conservatives, meanwhile, are accusing Democrats of “slow walking” the judicial nominations. Under the “blue slip” process, senators sign off on judicial nominees from their home state; they object to a nominee by failing to return the paper to the Judiciary Committee. . . . 
“Elections have consequences. It can’t be understated that judicial nominations, being lifetime appointments, are huge,” [Ilya Shapiro, a member of the conservative Federalist Society and senior fellow in constitutional studies at the Cato Institute,] said. 
The Senate Judiciary Committee is still waiting for these blue slips to be returned before it schedules hearings: Colorado Senator Michael Bennet for Justice Allison Eid, nominated to the 10th Circuit, and Minnesota Senators Amy Klobuchar and Al Franken for Justice David Stras, nominated to the 8th Circuit.  We are grateful for the leadership of Senate Majority Leader Mitch McConnell and Senate Judiciary Committee Chair Chuck Grassley in supporting the nominations of President Trump's qualified judicial nominees. The RNLA will continue to advocate for the swift confirmation of qualified federal judges, too. To sign up to help us with this effort, please click here.

Tuesday, August 15, 2017

Latest FEC Reform Proposal Would Threaten Free Speech

RNLA Advisory Council member Dan Backer wrote about the serious problems with the latest proposal to "reform" the FEC:
The legislation would overhaul the Federal Election Commission (FEC) by lowering the number of FEC commissioners from six to five, supposedly putting an end to “gridlock.” The bill would also “reduce partisanship” by limiting commissioners to serving one term and granting the president power to nominate an FEC “chair” to serve for 10 years. This chair would have the authority to act independently of other commissioners, centralizing power in a single unelected political appointee.  
“Reducing partisanship” is the wrong priority. As a nation, we don’t agree on many issues and we shouldn’t gloss over—or worse, use government to suppress—our disagreements. What’s wrong with different people who lead different lives in different parts of the country having different ideas? Only by airing these debates and disagreements can we reach consensus or compromise—or not, and that’s fine too. 
Donnelly’s legislation will openly weaponize the FEC, as it allows one side of the aisle to impose its will when there is legitimate disagreement over complex legal matters. . . . For decades, the independent, six-member FEC has remained bipartisan by design, precisely because it has the power to restrict speech about politics—the very heart of our freedoms of speech and association.  
Under the proposed Donnelly-Renacci legislation, Democrats and Republicans would receive two commissioners each, allowing the president to pick the tiebreaker for the next decade. Consolidating partisan control for 10 years at a time does not sound like an improvement.
While the current structure of the FEC is not perfect, it does provide some protection for political speech by requiring a minimum bipartisan consensus to take any action.  Given the sensitive and important political speech rights regulated by the FEC, any efforts to "reform" it by placing more power in the hands of one party or a few commissioners could seriously endanger First Amendment rights.

Monday, August 14, 2017

Efficiency Gap Methodology in WI Redistricting Case Deeply Flawed

NRCC General Counsel and RNLA member Chris Winkelman and Holtzman Vogel Josefiak Torchinsky PLLC attorney Phil Gordon wrote about the serious problems with the efficiency gap analysis used by the lower court in Gill v. Whitford, which the Supreme Court will hear next term (internal headings omitted):
Just when plaintiffs, distraught that their failures at the ballot box cannot be saved by wins in the courtroom, had given up hope of ever finding a standard that would meet with the approval of five justices, come the plaintiffs in this case with a “scientific” method of determining impermissible partisan gerrymandering: the so-called “efficiency gap.” . . . The efficiency gap counts any vote as wasted if that vote was for a losing candidate or was more than what the prevailing candidate needed to win a given election (i.e., 50 percent of the vote plus one in a two-party election). These supposedly wasted votes are then divided by the total number of votes in an election, and the resulting number is the misleadingly named efficiency gap. However, even a cursory inspection of this so-called methodology reveals analytical flaws and partisan skullduggery too blatant to pass constitutional muster or stand up to common sense. 
A fundamental problem with the efficiency gap is that it treats voters as monolithic blocs who vote party above all else. This assumption is contrary to reality. The efficiency gap, much like most statistical election models, attempts to predict the future. The efficiency gap is particularly bad at predicting the future because it relies on the results of a single statewide election for its calculation, aggregating a series of district-by-district elections. As recent elections have laid bare, the assertions that voters 1) will never change their mind, and 2) vote for the party only and not the candidate, are not supported by actual election outcomes. The efficiency gap does not account for vote switchers or split-ballot voting. In fact, the authors of the efficiency gap state that a gap of eight percent ought to be sufficient to render a legislative reapportionment a justiciable partisan gerrymander. . . . 
The efficiency gap is mired in a plethora of problems, both methodological and quantitative. There is not nearly enough time or space to fully document them all here. The biggest single problem with the efficiency gap is that it assumes that political populations are relatively evenly dispersed geographically. Scientific literature and common-sense experience do not support that assumption. Currently, Democrats in the United States are mostly clustered in urban areas, while Republicans tend to inhabit more suburban and rural areas. . . . This asymmetrical grouping of voters has real-world consequences on attempts to form legislative districts using traditional districting criteria (compactness, contiguity, equal population etc.). Traditional districting criteria exist, at least in part, to give courts and map makers some guidelines for evaluating maps to ensure compliance with the equal protection clause of the Constitution. Given the focus that the Supreme Court has placed on the shapes of districts, the lower court could be forgiven for rejecting the challenged maps in Wisconsin’s Act 43 if the shapes of the district boundaries were particularly egregious. They were not. The plaintiffs in this case even conceded that the challenged districts were relatively compact and contiguous and that they met the requirements of “one-person one-vote.” . . . However, the two-judge district court majority, in a novel approach, eschewed traditional districting criteria in favor of the efficiency-gap test in order to rule that Republicans had given themselves an overwhelming unconstitutional electoral advantage over the life of Act 43. 
The district court ignored the actual impact that its decision will have. Compactness, as Kennedy said in Vieth, helps Republicans because of the effect of political geography. In order to comply with this new efficiency-gap standard, the Wisconsin General Assembly would have to create maps that are less compact and contiguous. The Supreme Court has long lamented the snakes, “sacred Mayan bird[s],” “Rorschach ink-blot test[s]” and “uncouth twenty-eight-sided figure[s]” that creative cartographers have made into legislative districts. Yet, in this case, the challengers are asking the court to force state legislatures across the country to fix the Democrats’ political geography problem by ignoring years of precedent to make less compact and contiguous maps. The court should roundly reject this invitation.
The NRCC's amicus brief in Gill v. Whitford fully analyzes the practical problems with the efficiency gap analysis and outlines how the plaintiff's methodology, adopted by the district court, violates established Supreme Court case law on redistricting.  We will follow interesting developments in Gill v. Whitford as it goes to argument next term.

Friday, August 11, 2017

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.