Monday, October 23, 2017

ICYMI: Administrator Pruitt Takes Another Step to Restore Rule of Law at EPA

Last Monday, Environmental Protection Agency (EPA) Administrator Scott Pruitt ended the "sue and settle" practices by which environmental activist organizations controlled a portion of the regulatory process at the EPA during the Obama Administration:
“The days of regulation through litigation are over,” said EPA Administrator Scott Pruitt.  “We will no longer go behind closed doors and use consent decrees and settlement agreements to resolve lawsuits filed against the Agency by special interest groups where doing so would circumvent the regulatory process set forth by Congress. Additionally, gone are the days of routinely paying tens of thousands of dollars in attorney’s fees to these groups with which we swiftly settle.”
The EPA explained how these "sue and settle" practices worked:
Over the years, outside the regulatory process, special interest groups have used lawsuits that seek to force federal agencies – especially EPA – to issue regulations that advance their interests and priorities, on their specified timeframe.  EPA gets sued by an outside party that is asking the court to compel the Agency to take certain steps, either through change in a statutory duty or enforcing timelines set by the law, and then EPA will acquiesce through a consent decree or settlement agreement, affecting the Agency’s obligations under the statute.  
These practices bypassed the required processes for regulatory changes, resulting in regulatory overreach without the required input from the public and regulated community that is required by law: 
More specifically, EPA either commits to taking an action that is not a mandatory requirement under its governing statutes or agrees to a specific, unreasonable timeline to act.  Oftentimes, these agreements are reached with little to no public input or transparency. That is regulation through litigation, and it is inconsistent with the authority that Congress has granted and the responsibility to operate in an open and fair manner. 
“Sue and settle” cases establish Agency obligations without participation by states and/or the regulated community; foreclose meaningful public participation in rulemaking; effectively force the Agency to reach certain regulatory outcomes; and, cost the American taxpayer millions of dollars.
Administrator Pruitt laid out eight specific practices that will now be used by the EPA to "increase transparency, improve public engagement, and provide accountability to the American public when considering a settlement agreement or consent decree."  As legal scholars Hans von Spakovsky and Rob Gordon point out, these are the types of changes are needed across the Executive Branch to undo the regulatory overreach that was pervasive under President Obama:
Congress could, and should, make such improvements permanent. These types of changes are needed not just at the EPA, but at every federal agency — including the Fish and Wildlife Service — to prevent the abuse of power perfected by the Obama administration.
We thank Administrator Pruitt for taking this vital step towards restoring the rule of law and reversing eight years of regulatory overreach.

Friday, October 20, 2017

Larry Levy Honored as 2017 Republican Lawyer of the Year

Next Wednesday evening at the City Club of Washington, DC, the RNLA will host a reception honoring Larry Levy, who was selected by the RNLA Board of Governors as the 2017 Republican Lawyer of the Year.  RNLA's leadership praised Mr. Levy as very deserving of this honor:
RNLA President Elliot Berke praised the selection: “Larry is a true lawyer’s lawyer, and a consummate professional. I had the honor of nominating him to the RNLA board many years ago, and I couldn’t be happier to see him receive our Lawyer of the Year award. I thank him for all he’s done for the cause and his friendship.”

RNLA Chair Kimberly Reed highlighted Mr. Levy's core strengths: “In the decade I have known and worked with Larry Levy, I can attest to the values that Mayor Rudy Giuliani sees in him. Most importantly, he is dedicated to the United States Constitution and rule of law. On a personal note, Larry's steadfast dedication to the children who lost a parent or sibling on September 11th speaks volumes about his character. On behalf of the RNLA Board of Governors, I thank Larry for his service to RNLA and our mission.”

RNLA Co-Chair and former RNC General Counsel John Ryder added: “Larry has been a strong leader for the integrity of the ballot, for RNLA and for the country. He is truly deserving of Republican Lawyer of the Year.”

RNLA Executive Director Michael Thielen agreed: “Larry is one of the most influential lawyers I know; his influence is very broad. His efforts, both personally and professionally, in the 2016 election were essential to ensuring that it was an open, fair, and honest election that led to historic victories for Republicans at every level of the ticket. Yet he is very humble and would not ‘toot his own horn.’ Working with Larry for years has been one of my great pleasures, and I can think of no lawyer more deserving of being Republican Lawyer of the Year this year.” 
Former Mayor Rudy Giuliani will attend the reception, and several very special guests, whose names we are not able to release, have also confirmed.  There is still time to purchase a ticket ahead of next Wednesday's celebration. 

Thursday, October 19, 2017

Respect For Free Speech Dwindles Under The Left’s Assault

Last week's op-ed by RNLA Vice President for Election Education David Warrington on efforts by Democrats on the FEC to regulate political speech on the Internet provoked an odd, though perhaps predictable, response on Twitter, ending with former FEC Commissioner Ann Ravel tweeting that the "point of the article" was to generate death threats against her.  This week in the Daily Caller, RNLA Executive Director Michael Thielen responded:
No, former Commissioner Ravel, it is not. The purpose of the editorial was to oppose Commissioner Weintraub’s veiled attempt to retrench the free speech rights of American citizens on the Internet, regulations such as your proposal to establish a national database of the names of all Americans who post political opinions on the Internet and to regulate even free posts, and your calls—even as late as this morning—to “rethink all the exemptions for the internet.”
Mr. Thielen then described how former Commissioner Ravel's response was a classic avoidance technique used by the left to avoid engaging in a policy debate on the issues that they will lose:
But liberals like Ravel apparently prefer not to defend the substance of past votes or the effects of current proposals but instead dismiss our opinion as just another extremist threat.  It’s certainly a more convenient tact. It is much easier to dismiss a contrary opinion than to debate it on the merits.  But resorting to that old liberal meme that conservative speech can be so easily dismissed as extremism or invitation to violence does a disservice to the American people whose free speech rights are at stake.
After repudiating the use of violence, shouting down speakers, threats, and other inappropriate responses to speech that a person disagrees with, Mr. Thielen pointed out how liberals' favorite tactics to intimidate and regulate threaten free speech rights of all Americans:
Ravel and her allies on the left are trying to promote their worldview by limiting speech through intimidation (dismissing all criticism as a threat) and regulation.  Regulation—the favorite tool of liberals for every issue—suppresses speech in subtle and not so subtle ways. 
Regulations, especially vague ones, make speech cost more.  Consider the complex web of campaign finance laws that organizations wishing to speak on political issues and candidates have to navigate simply to express their views: disclaimer requirements, registration and reporting requirements, disclosure rules, and so on.  Consider how Democrats are constantly trying to raise the price of speaking through even more regulation, such as through the DISCLOSE Act reintroduced in Congress every year.  Consider how campus groups such as the Berkeley College Republicans have had to retain counsel and file lawsuits simply to invite conservative speakers to campus on the same basis as liberal speakers, due to campus speech regulations.  Fortunately, there are many civic-minded attorneys, such as RNLA Board of Governors member Harmeet Dhillon, to represent these individuals and organizations at greatly discounted or pro bono rates.
Mr. Thielen also discusses how there is a very important policy debate -- the regulation of political speech on the Internet -- underlying this, and liberals' tactics only distract from the debate and the threat to citizens' free speech rights.

Wednesday, October 18, 2017

Various Factors Affect Schedule for Judicial Nominees in Senate

President Trump's White House continues sending excellent judicial nominees to the Senate for consideration.  While everyone wants his or her favorite nominee to be the first considered, Roll Call laid out the practical factors that will affect the schedule in the Senate.  

First, the sheer number of vacancies and pending nominations.  Second, the Republican response to Democrats' abuse of the blue slip process:
“My view is that a blue slip on a circuit judge is simply a notification of how you’re going to vote. To conclude otherwise would’ve left us in the following position at the beginning of this Senate: 48 Democratic senators would’ve been able to blackball 62 percent of the circuit judge nominees. That’s simply not a tenable place to land in a Senate that now deals with judges on the — with a simple majority,” [Senate Majority Leader Mitch McConnell] said. . . . In May, [Senate Judiciary Committee Chairman Chuck] Grassley indicated he could give more deference to Democrats on district court judges than circuit court nominees. 
Third, Democrats' efforts to delay President Trump's nominees whenever possible:
Despite the nuclear changes, Republicans fume that their Democratic colleagues are obstructing Trump’s agenda by slow-walking confirmations. . . . Earlier this month, frustrated with requirements to file cloture motions to cut off debate on many Trump nominations, McConnell said he shouldn’t have to do so on picks that seem to have wide support. . . . 
The procedural change hasn’t allowed the party in charge to move as fast as its conference would like. It can still take multiple days to confirm each nominee under the cloture procedure to limit debate, even with the lower threshold — typically 51 when all 100 senators participate. 
And Democrats continue to use those rules to consider most nominees one at a time. They have not allowed any of Trump’s judicial picks to bypass procedural hurdles in committee or on the floor.
The Democrats' strategy since day one of the Trump Administration has been to attack, delay, and obstruct.  We are grateful for the leadership of Don McGahn in the White House Counsel's office, Leader McConnell in the Senate, and Chairman Grassley on the Senate Judiciary Committee in ensuring that excellent attorneys are nominated for and confirmed to the federal bench.

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.