Friday, December 15, 2017

Matthew Petersen Qualified to Serve on D.C. District Court

RNLA President Elliot Berke sent a letter today to the Senate Judiciary Committee in support of current FEC Commissioner Matthew Petersen, who has been nominated to the U.S. District Court for the District of Columbia:
I have known Commissioner Petersen both personally and professionally for many years and practiced before him at the Federal Election Commission, and there are few attorneys who possess the ability to read, understand, and analyze statutes and regulations as well as Commissioner Petersen.  He is a consummate professional who has carefully considered the facts and the law for each matter before him at the FEC, without regard to policy considerations that were outside his purview.  His knowledge of and experience with administrative law are exceptional, and as you are aware, administrative law forms a substantial portion of the District Court for the District of Columbia’s docket. 
Commissioner Petersen has recently been subject to politically motivated attacks about his trial knowledge and experience.  Those who oppose his steadfast defense of American citizens’ First Amendment rights of political speech at the FEC do not wish him to join the federal bench. 
The reality is that the Federal Rules of Civil Procedure and other doctrines governing trial procedure are of course important aspects of the position, but the ability to parse complicated regulations and correctly apply them to factual situations must be honed over years of practice.  Commissioner Petersen has done precisely that in his distinguished career of public service and private practice.  The American Bar Association Standing Committee on the Federal Judiciary unanimously rated him as qualified.
The RNLA urges the Senate Judiciary Committee to swiftly and favorably report his nomination to the entire Senate and the Senate to confirm him.  Those who oppose Commissioner Petersen because of his support for the First Amendment and the rule of law at the FEC should not be allowed to prevail.

Thursday, December 14, 2017

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.

Wednesday, December 13, 2017

Liberals Want to Use Russian Ads as an Excuse for Broad Internet Speech Regulation

David Keating, President of the Institute for Free Speech, and RNLA member Paul Jossey wrote in The Hill about how liberals and Democrats are using Facebook advertisements purchased by Russian agents as an excuse to regulate the online political speech of Americans.  First, they pointed out the narrow scope of the Russian ad problem:
As a practical matter, the Russian ads appear to have as much substance as spitting in the ocean. Estimates indicate the ads cost $150,000, and over half was spent after the election. By comparison, the money spent in the 2016 election in support of Donald Trump and Hillary Clinton was over 16,000 times more than the money Russians spent on ads. At most, only four percent of the nation’s voting age population saw one of the Facebook ads at issue. . . . [M]any of the ads occurred in 2015. Importantly, few even mentioned federal candidates. . . . 
Yet, despite their narrow audience and scope and no evidence of the ads having any impact on Americans' voting decisions, liberals are rushing to use them as an excuse to regulate speech:
Various interests have seized on Russian chicanery to push “reforms” lacking priority in less neurotic times. Sens. Amy Klobuchar (D-Minn.) and Mark Warner (D-Va.) sent a “Dear Colleague” letter seeking new rules for online ads. The resulting bill would burden internet speech with suffocating rules, even possibly banning some forms of online speech. Instead of hitting the Russians, the bill instead targets American speech, press and assembly rights guaranteed by the First Amendment. In short, despite the dearth of candidate references in the Russian ads, there is already a rush to chill the world’s most dynamic speech forum. 
After pointing out the sheer impracticality of any rule against foreign "influence" in our world with instant global communications, Mr. Keating and Mr. Jossey describe the real danger here -- government pressure to suppress certain speech:
The Washington Post reported that President Obama confabbed with Zuckerberg to ensure people on Facebook saw only legitimate news sources. The head of the federal government asking a media company to censor unwanted speech is frightening. Facebook says, “We share the values of free speech, that when the right to speech is censored or restricted for any of us, it diminishes the rights to speech for all of us.” 
But when government officials pressure it and other online outlets to police political speech, censorship risks skyrocket. The government should focus on ensuring that our voting machinery is safe from foreign hackers. Protection is also needed to prevent foreign agents from stealing internal candidate campaign communications. But when the issue is speech, we must exercise great caution lest zeal to curb foreign influence instead damages our own free speech rights. 
Lawmakers should exercise caution when considering any rule that limits speech or creates new regulations of speech, and any response to the limited (and quite frankly, incompetent) attempts by Russian agents to influence public opinion last year should be very narrow, targeted specifically to foreign speech, and specifically exempt speech by American citizens.  Any other internet speech regulation would be unconstitutional, in addition to being a bad idea.  Fortunately, Republicans in Congress and at the FEC understand this well.  As Mr. Keating and Mr. Jossey quite correctly point out, American citizens are the ones whose rights are taken away when speech is regulated.  

Tuesday, December 12, 2017

Here Is How The Defeat Of Hillary Clinton Led To The Sexual Harassment Revolution

RNLA Vice President for Communications Harmeet K. Dhillon wrote today in The Daily Caller about the sexual harassment revolution that is happening now:
We live in a unique historical moment when brave women are coming forward with stories of sexual harassment they have experienced. Their courage emboldens other women to share their stories, and public sentiment is rapidly turning against the men who have harassed these women, in many cases for decades, without repercussions. This is an epochal – and overdue – cultural correction and change in thinking. It is tragic that, in a nation built on the idea that all people are created equal and endowed with inalienable rights, women were and are exploited with no recourse.
While liberals and the mainstream media attribute the timing to President Trump's election, Ms. Dhillon instead points to the disfavor of the Clintons:
Why is this seismic shift in our culture happening now, in late 2017? According to TIME, the election of President Trump made women feel powerless, leading to the Women’s March, then to the individuals sharing their stories, culminating in the #MeToo social media movement. It turns out women were not so powerless after all. Indeed, the voices that were suppressed throughout the Clinton and Obama eras — and even while a woman, Hillary Clinton, ran a much-trumpeted historic campaign for President — now feel free, in 2017, to speak their minds, and to tell their stories. And the nation is listening, across the political spectrum. . .  
In this crossroads of sociological, political, and economic theories, one explanation rises above the rest: the growing disfavor of and backlash against the Clintons. . . . By protecting Bill Clinton, and his chief defender Hillary (a self-proclaimed champion of women), for the past 20 years, the Democrats and liberal elite have perpetuated the sexual harassment culture that kept victims silent for fear of repercussions. Consider how Hillary Clinton protected friend, supporter, and donor Harvey Weinstein despite direct warnings about his misconduct toward women, as reported last week by The New York Times. . . . 
It is only now that the Clintons are out of favor and inconvenient and are being shoved offstage by their ruthless cronies in the Democratic Party, that the left can actually take sexual harassment seriously. That is a good thing. But in their rush to champion the harassed women who have been silenced by the mainstream media and liberal elites for years, the left is yet again exploiting women for political gain – just as it exploited them for decades by ignoring their claims of harassment against those favored by liberal elites.
Ms. Dhillon concludes by pointing out that, in a system such as ours with the rule of law, it is anathema for a person's rights to be determined by who is in power, but that is precisely what happened for the past 20 years while the Clintons were tied to the Democratic Party and liberal elites.  

Monday, December 11, 2017

Supreme Court Grants Cert in Maryland Redistricting Case

To the surprise of Supreme Court observers and election lawyers, on Friday the Supreme Court agreed to hear a second political gerrymandering case this term, this time out of Maryland:
In October, the justices heard oral argument in a challenge to the redistricting plan passed by Wisconsin’s Republican-controlled legislature in 2011 [Gill v. Whitford]. Today they agreed to weigh in on Benisek v. Lamone, a challenge to another redistricting plan enacted in 2011, in which the plaintiffs allege that Democratic election officials in Maryland gerrymandered the state’s 6th congressional district in retaliation for the plaintiffs’ support for Republican candidates – specifically, Roscoe Bartlett, who represented them in Congress for two decades.
Most Court observers assumed that the justices would not hear Benisek, or any other political gerrymandering cases, until they had decided the currently pending case, Gill v. Whitford.  While the plaintiffs in Whitford challenged the map for the entire state, the Benisek plaintiffs are challenging just one district:
The plaintiffs told the justices that “the mapdrawers reshuffled fully half of the district’s 720,000 residents—far more than necessary to correct the mere 10,000-person imbalance in the district’s population following the 2010 census.” As a result, they explained, “registered Republicans’ share of the electorate fell from 47% to 33%,” and Bartlett lost his seat to a Democrat, John Delaney.
The claim is slightly different in Benisek as well, as it is based in the First Amendment.  A dispute over what must be proven under such a claim and whether the Court has the authority to hear the case are before the Court:
The issues before the court center on what plaintiffs in a First Amendment retaliation challenge to partisan gerrymandering must show for their case to go forward. According to the plaintiffs in this case, the district court would have required them to show that “each and every outcome is (and will continue to be) singularly attributable to gerrymandering.” But all they should have to show, the plaintiffs maintain, is that they have suffered some injury.
The decision to grant cert in this case, in addition to Whitford, may indicate that the justices will issue a broad, joint opinion laying out the rules for political gerrymandering claims.  Or, the Court may decide the cases separately and on very narrow grounds (perhaps on a jurisdictional issue, instead of reaching the claims on the merits).  While this Supreme Court term previously had the potential to change the legal landscape for redistricting, that is even more true now that another partisan gerrymandering case is before the Court.  Oral argument in Benisek has not yet been scheduled.

Friday, December 8, 2017

ICYMI: DOJ Finally Enters Litigation Against Guam's Racially Discriminatory Voting Law

A week ago Tuesday, the Department of Justice finally decided to fight against a blatantly racially discriminatory voting law in Guam, as Hans von Spakovsky described:
I have written numerous updates about the voting-rights lawsuit that Davis, a retired Air Force officer, filed back in 2011 against the territory of Guam . . . . Guam refused to allow Davis, a long-time resident of Guam, to register to vote for a plebiscite on the future of the territory because he is white and not Chamorro, the racial designation given to the natives who originally inhabited Guam.
The personnel changes made by President Trump, including Jeff Sessions as Attorney General and John Gore as Deputy Assistant Attorney General for the Civil Rights Division, were necessary for the Department of Justice to uphold the law and the rule of law:
After Guam lost in March, it appealed the decision to the Ninth Circuit Court of Appeals. On November 28, after eight years of studied indifference, the U.S. Justice Department under Attorney General Jeff Sessions finally did the right thing: It filed an amicus brief in the Ninth Circuit supporting Arnold Davis.  
DOJ’s brief, which was filed by John Gore, the acting assistant attorney general of the Civil Rights Division, argues that “Guam’s plebiscite law intentionally discriminates based on race.” It directly violates Supreme Court precedent set in Rice v. Cayetano, a 2000 decision in which the Court threw out a similar Hawaii law. DOJ points out that the Fourteenth and Fifteenth Amendments both apply to Guam; the fact that it is a territory does not deprive its residents of those constitutional protections. The brief asks the Ninth Circuit to uphold the district court’s decision. . . .
The discriminatory law had been ignored for 8 years by the Obama DOJ because the voters the law discriminated against were the wrong color
The Obama administration refused to enforce federal law barring racial discrimination in voting, housing, employment, and education on a race-neutral basis. The Holder/Lynch Justice Department didn’t care if you were being discriminated against unless you were a member of one of its favored groups, a distinction that does not exist in our anti-discrimination laws. The Equal Protection Clause of the 14th Amendment, as well as federal statutes such as the Voting Rights Act and the Fair Housing Act, protect all Americans from racial discrimination.
Because DOJ had abdicated its duty to enforce the laws, this long case to vindicate Mr. Davis' voting rights has been fought by a courageous attorney - RNLA member Christian Adams.  We are grateful that the Sessions Justice Department respects the rule of law and has chosen to support Adams' litigation against this discriminatory law - at last.

Thursday, December 7, 2017

WI DOJ Report on Leak and Mishandling of Documents in "John Doe" Investigations

The Wisconsin Department of Justice completed an investigation and report on the 2016 leak of 1500 pages of documents from the so-called "John Doe" investigations, expansive and intrusive investigations into alleged coordination and prohibited political activity by Republicans in Wisconsin.  The Wisconsin Supreme Court eventually held that the activity under investigation was constitutionally protected First Amendment speech and halted the politically motivated investigations that had terrorized conservative citizens of Wisconsin.

The report was released on Tuesday and unsealed by the court yesterday contains details about the gross mishandling of evidence and people's confidential information:
Moreover, DOJ is deeply concerned by what appears to have been the weaponization of GAB [Government Accountability Board] by partisans in furtherance of political goals, which permitted the vast collection of highly personal information from dozens of Wisconsin Republicans without even taking modest steps to secure this information. 
In the following pages, this report will explain how the former GAB never fully divested itself of evidence from the John Doe investigations and how former GAB employees and current employees of the Wisconsin Ethics Commission (Ethics) left sensitive evidence unsecured in the former GAB office space and on former GAB computer systems. This report also describes how DOJ investigators, in searching for the leaked documents, discovered what this report calls “John Doe III,” a previously unknown and secret investigation into a broad range of Wisconsin Republicans. John Doe III reached far beyond John Doe II’s original (and unsubstantiated) allegation centering on unlawful “coordination” during Governor Walker’s 2010 election and 2012 recall election. As explained more thoroughly below, this secret investigation collected hundreds of thousands of private emails from dozens of Wisconsin Republicans (and at least two national conservative leaders, Ed Gillespie and Leonard Leo). In searching for the leaked documents and the leaker, DOJ investigators found over 500,000 of these John Doe III emails in the basement of the former GAB in two unsecured boxes labeled “Shane Falk.” Moreover, for reasons that perhaps may never be fully explained, GAB obtained and then held thousands of private emails from Wisconsin Republicans in several folders on their servers marked “Opposition Research.”
The 88-page report details the misdeeds of the Government Accountability Board (GAB), now reorganized as the Wisconsin Ethics Commission, employees and investigators, some of whom are attorneys.  Because the documents and sensitive personal information were unsecured, Attorney General Brad Schimel concludes that no criminal charges can be filed for the leak as it is nearly impossible to identify the leaker.  But he did make the following disturbing findings:
  • The Leak Was A Crime 
  • The Motivation Of The Leaker Was To Influence The U.S. Supreme Court 
  • The Leak Did Not Come From The Wisconsin Courts 
  • The Leak Did Not Originate From Any District Attorney’s Office Or Francis Schmitz
  • The Leak Originated From The Former GAB
  • The Partisan Atmosphere At GAB Contributed To The Leak 
  • GAB’s Mishandling Of Evidence Created The Opportunity For The Leak Of Records 
  • Members Of The Prosecution Team Still May Not Have Fully Divested Themselves Of All Records Relating The John Doe Investigation 
Attorney General Schimel also recommends disciplinary proceedings and contempt proceedings against nine persons for repeated violations of court orders.

While this is some level of vindication for the Wisconsin citizens whose free speech rights were violated and a step in the right direction, it is also a chilling reminder of how liberals are willing to use the power of government to suppress the speech of their political opponents and are shockingly careless about the people whose lives they are disturbing and ruining.