Friday, April 20, 2018

FCC Chairman Ajit Pai to Address National Policy Conference on April 27

The RNLA is pleased to announce that Federal Communications Commission Chairman Ajit Pai will speak at the National Policy Conference next Friday.

Chairman Pai joined the FCC as a Commissioner in 2012 and was designated as Chairman by President Trump in January 2017.  He has been a leader in the effort to restore the rule of law to federal communications regulation.

Last November, Chairman Pai gave remarks explaining the "Restoring Internet Freedom" order, which undid the FCC's unprecedented overreach in 2015 that created the so-called "net neutrality" policy:
First: what will the plan do? When you cut through the legal terms and technical jargon, it’s very simple. The plan to restore Internet freedom will bring back the same legal framework that was governing the Internet three years ago today and that has governed the Internet for most of its existence. . . . Until 2015, the FCC treated high-speed Internet access as a lightly-regulated “information service” under Title I of the Communications Act. A few years ago, the Obama Administration instructed the FCC to change course. And it did, on a party-line vote in 2015; it classified Internet access as a heavily-regulated “telecommunications service” under Title II of the Communications Act. If the plan is adopted on December 14, we’ll simply reverse the FCC’s 2015 decision and go back to the pre-2015 Title I framework. . . . 
Much of the problem stems from the vague Internet conduct standard that the Commission adopted in 2015—a standard that I’m proposing to repeal. Under this standard, the FCC didn’t say specifically what conduct was prohibited. Instead, it gave itself a roving mandate to second-guess new service offerings, new features, and new business models. Understandably, businesses asked for clarity on how this standard would be applied. My predecessor’s answer, and I quote: “We don’t know, we’ll have to see where things go.” That’s the very definition of regulatory uncertainty. . . . 
Many critics don’t seem to understand that we are moving from heavy-handed regulation to lighttouch regulation, not a completely hands-off approach. We aren’t giving anybody a free pass. We are simply shifting from one-size-fits-all pre-emptive regulation to targeted enforcement based on actual market failure or anticompetitive conduct. . . . By turning back time, so to speak, and returning Internet regulation to the pre-2015 era, we will expand broadband networks and bring high-speed Internet access to more Americans, not fewer. . . . 
This reminds me of another point, one that’s been brought home to me the past few days. This debate needs, our culture needs, a more informed discussion about public policy. We need quality information, not hysteria, because hysteria takes us to unpleasant, if not dangerous places. We can disagree on policy. But we shouldn’t demonize, especially when all of us share the same goal of a free and open Internet. . . . So when you get past the wild accusations, fearmongering, and hysteria, here’s the boring bottom line: the plan to restore Internet freedom would return us to the light touch, market-based approach under which the Internet thrived.
We are grateful to Chairman Pai for his leadership, his commitment to the rule of law, and his steadfast support for freedom from regulatory overreach in the face of harsh and violent criticism.  We are honored for to address the RNLA next Friday, and we invite you to join us  

Thursday, April 19, 2018

Judicial Confirmation Expert Carrie Severino to Speak at National Policy Conference

We are pleased to have Carrie Severino speak on one of our breakout panels on "Restoring the Rule of Law to the Judiciary" at RNLA’s National Policy Conference.  Carrie is one of the leading experts on the judicial confirmation process and the qualifications of federal judicial nominees.  Carrie has been in this role for years through both Republican and Democrat control of the White House and Senate.  A few of her recent views.

On Chairman Grassley’s leadership on the “blue slip” process.  

Severino is a former clerk to Justice Clarence Thomas.  Unfortunately, part of her job is defending Justice Thomas from the periodic groundless attacks such as a cover story in New Yorker Magazine a few months ago.   

But Severino's expertise is not just limited to countering groundless Democrats' attacks or obstruction, she also provides insightful commentary on nominees.  A recent sample after President Trump nominated Britt Grant, a justice on the Georgia Supreme Court, and Patrick Wyrick, an associate justice on the Oklahoma Supreme Court.
Severino said the country would benefit from having more state justices serve on the federal bench. State supreme court justices often have the privilege of settling judicial matters whereas federal judges know that the buck does not stop on sensitive or controversial cases until the federal Supreme Court.
The process of nominating and confirming judicial nominees is needlessly complicated by often imagined or misinterpreted Senate procedures such as the blue slip.  Severino does a masterful job of cutting through the chatter and instead focusing on the abilities of the nominees.  

Wednesday, April 18, 2018

When It Comes to Protecting Our Elections from Cybersecurity Threats, States Know What They’re Doing

Tom Spencer has an article at the Daily Signal that makes a great point: “When It Comes to Protecting Our Elections, States Know What They’re Doing:”. While some have been screaming the 2016 election was hacked, the reality is that not a single vote was hacked and the states are doing a great job of protecting the security of elections from hacking. The states running elections is a good thing for cybersecurity as Tom explains:
Our federalist structure, which gives states the primary control and responsibility for election administration, is the best defense against the hacking of an election. Our decentralized system consists of thousands of different jurisdictions, which use different procedures, equipment, servers, vendors, and locations for data at every step of the election process, from voter registration to the final certification of results. Federalizing the administration of elections would remove this vital safeguard.
Not only is the diversity of state systems helping preventing hacking, the states are doing a better job than the Federal Government:
States and localities around the country are experts in election administration and have been thinking about and protecting the security of our election system long before it ever entered the national spotlight. And the federal government is no bastion of cybersecurity, as demonstrated by the fact that the Consumer Financial Protection Bureau was hacked over 200 times.
The sad fact is the real purpose of some promoting the false narrative that states were hacked is not really about cybersecurity but undermining the 2016 election and ironically helping Russia:
In a sense, Russia is winning without “firing a shot,” as the myth of their election hacking has undermined confidence in the 2016 election. Those who wish to sow discord in the U.S., like Russia, have found reliable allies in politicians, pundits, and computer scientists who are eager to create a centralized election administration system that is far easier to hack.
This is far worse than simply casting doubt on our election systems and election results. Rather, it creates the potential for real harm to our election administration systems while ignoring the efforts of hardworking election officials across the country.
Let the states continue to run elections.  They have done a better job at cybersecurity than the Federal Government.

Tuesday, April 17, 2018

Recent Vermont Court Decision Shows Importance of Good Election Administration

RNLA member and 2016 Vermont Republican Attorney General candidate Deborah Bucknam describes the importance of good election administration practices and how poor election administration and poor advice from state election officials disenfranchise voters:
Secretary [of State Jim] Condos’ directives concerning voter eligibility allow non-residents to vote in Vermont elections, thereby suppressing Vermont residents’ voting power. . . . Dilution of the weight of a citizen’s vote . . . can occur when those not eligible to vote are allowed to vote, thereby diluting the weight of eligible voters’ franchise. 
Recent decisions by Essex County Superior Court illustrate this dilution starkly: As a result of a complaint filed by Victory town resident Tracey Martel, Judge Thomas J. Devine ordered seven voters removed from the Town of Victory voter checklist, reversing the Victory Board of Civil Authority’s decisions that those individuals were eligible to vote. Four other nonresident voters were removed from the checklist as a result of Ms. Martel’s complaint, totaling an astonishing 13% of voters removed from the town voter checklist. The reason for their removal: Not one of them was a resident of the Town of Victory. 
Those non-residents’ votes were the deciding factor in the four-time defeat of the local town budget in 2017. How do we know this? Because some of the non-residents voiced their opposition to the town budget, and, more tellingly, a town official allied with the nonresidents, in calculating the results of the last budget vote, actually wrote on the checklist how people voted—and all the non-residents voted against the budget. . . . Town residents’ votes have been diluted—and therefore suppressed—by the voting power of non-residents.
She also describes how, contrary to the direct and website advice of the Democratic Secretary of State, recent court decisions have established objective evidentiary standards for proving residency in Vermont:
That is not what the law provides. Judge Devine stated in his decisions: “…expressed intent must be viewed in light of the other objective evidence”. Thus, the Secretary of State is incorrect when he states that the law “creates a subjective standard.” . . . The court’s decisions directly impact another erroneous directive of the Secretary of State. The Secretary’s website states that any college student from out of state may vote in Vermont “as long as the voter considers Vermont to be his or her primary residence.” Again, the Secretary of State’s interpretation of the law is erroneous, because what the voter “considers” is insufficient. Judge Devine ruled that domicile requires residency “coupled with an intention of remaining there indefinitely,” and, as indicated above, that “intent” also requires objective evidence to support the stated intent.
While election administration procedures and voter eligibility requirements may seem arcane, they are fundamentally important.  Ms. Bucknam's description of recent events in Victory, Vermont, make this abundantly clear, as non-resident voters changed the outcome of local decision making, which directly affects the actual residents of Victory on a daily basis.  And while the examples are most obvious on the local level, the detrimental effect of poor election administration can be multiplied in larger state and national races.

Monday, April 16, 2018

ICYMI: Obama DOJ in “Very Dramatic” Fashion Pressured FBI to End Investigations into Hillary Clinton

The politicization of the FBI is not good for the country and a sad day in the FBI’s proud history. Overlooked amidst the turmoil and allegations surrounding the firing of James Comey and Andrew McCabe, an important new detail has come to light on an old theme: the Obama Justice Department put unprecedented pressure on the FBI to not investigate or end its investigations of Democrat Party Presidential nominee Hillary Clinton (emphasis added):
The [Justice] department’s inspector general exposed just how deep the feuding ran in a new report last week investigating the actions of former Deputy Director Andrew McCabe. The report recounted an August 2016 phone call from a high-level Justice Department official who complained the FBI had taken “overt” actions to investigate the Clinton Foundation, potentially embarrassing then-Democratic presidential nominee Hillary Clinton.
Mr. McCabe said he got the sense the Obama Justice Department was telling him “to shut down” the probe. Later he called the exchange [ ] “very dramatic” and said he’d never had a confrontation like that with the Justice Department.
The reason for the pressure was that the FBI, among other things, had found “suspicious activity” between the Clinton Foundation and a foreign donor:
The inspector general (IG) confirmed in its long-awaited report released Friday that in 2016 the FBI had ongoing field investigations of the Clinton Foundation in New York, Los Angeles, Little Rock, Arkansas and Washington, D.C. The multi-city investigation was launched when agents found “suspicious activity” between a foreign donor and Clinton Foundation activity in the Los Angeles area, as TheDCNF reported in August 2016.
Although both the Obama-appointed Department of Justice Inspector General Michael Horowitz and the non-partisan FBI Office of Professional Responsibility recommended McCabe be fired, in the media liberals’ defend McCabe from politicization accusations for leaking in part because the information “hurt” Hillary Clinton.  According to the IG, McCabe’s leaking was for self-preservation as he seemed worried about the strength of the narrative that the FBI's handling of the investigations into Hillary Clinton was unduly biased in her favor:   
McCabe was worried about an Oct. 23, 2016, Wall Street Journal article, which appeared to have damaged his reputation for impartiality because the journalist, Devlin Barrett, reported McCabe’s wife received a campaign donation of nearly a half million dollars from Clinton friend and political ally Terry McAuliffe for her run for a Virginia state seat.
In an alleged attempt to show he wasn’t impartial to the Clintons, McCabe leaked information to Barrett a week later that claimed he personally fought the Justice Department’s attempt to shut down the FBI’s investigation, according to the Inspector General’s report. Barrett’s article appeared Oct. 30 and was titled, “FBI in Internal Feud Over Hillary Clinton Probe.”  . . . 
McCabe authorized bureau officials to leak the information about the Aug. 12 call, the IG claims. “Specifically, McCabe stated that he authorized Special Counsel and AD/OPA to provide to Barrett the account of his August 12 call with PADAG because McCabe thought it was the ‘best example’ to counter the “incredibly damaging” narrative in Barrett’s intended story,” the report reads.
Comey and McCabe were concerned about the evidence or appearance of evidence that Obama’s Department of Justice and Clinton allies had successfully influenced FBI investigations into Hillary Clinton.  They were concerned that might taint her victory because at the time they thought her election to be certain.  Their actions just showed why they should have been fired.  The larger question is who in the Obama Department of Justice (or even the White House) was trying to pressure the FBI and why are they not facing consequences? 

Another op-ed on the topic is here. 

Friday, April 13, 2018

Former SG Paul Clement to Speak at National Policy Conference on 4/27

The RNLA is pleased to announce that former U.S. Solicitor General Paul Clement will speak at the National Policy Conference on Friday, April 27.  Tickets and more information are available here.  Unlike previous years, walk-up registration will not be available this year.

Mr. Clement has had a distinguished career of public service and private practice, is one of the nation's foremost appellate and Supreme Court advocates, and is widely regarded as an example of a principled and ethical attorney, after he resigned from his law firm instead of abandoning an existing client when it was no longer politically popular.

He spoke to the RNLA at the National Policy Conference in 2016 on "Scalia and His Legacy on the Supreme Court," which was an excellent analysis of Justice Antonin Scalia's jurisprudence and his immense impact on the legal world and the Supreme Court.  Mr. Clement gave a poignant tribute to Justice Scalia's life, wit, and impact on legal interpretation at the Supreme Court Bar's memorial to the late Justice (beginning at 32:25):
The Justice had a transformative effect on the Supreme Court and the way it decides cases.  His impact on statutory construction, which is the bread and butter of what the Court does, was nothing short of Copernican, with the center of attention returned to the text.  He likewise championed a focus on the text and original public meaning of the Constitution, and he strove mightily to ensure that his methodology for interpreting both statutes and the Constitution produced predictable legal results even when they did not comport with his policy preferences.  His votes to vindicate the First Amendment rights of flag burners are famous examples. . . . 
Just as his opinions will continue to shape the way the law is understood, he will continue to shape the way briefs are written and the way advocates prepare for oral argument.  
This year, we will have a panel focusing in part on Justice Scalia's successor on the Court, Justice Neil Gorsuch.  We are honored for Mr. Clement to address the RNLA in two weeks, and we invite you to join us.

Thursday, April 12, 2018

In Senator Hirono's World, Pro-Lifers Cannot Be Judges

Judges rule on the law, not based on their personal beliefs. Chief Justice Roberts famously analogized this to being an “umpire.” As part of the Democrats' attacks on those with strongly held religious or conservative beliefs, judicial nominee Wendy Vitter was attacked for having strong conservative values. Senator Mazie Hirono seemingly believes that judges who have personal views on issues of “life” cannot set aside those views when ruling on the law and cited another former Chief Justice, William Rehnquist, as an example for her beliefs.

Hirono aggressively question Mrs. Vitter on her pro-life views and whether she could be fair.  She said (beginning at 1:53:00):
As Justice Rehnquist said and I can paraphrase him, none of you comes to this process as blank slates.  There are many times, that I am sure you will acknowledge, that all of you would acknowledge, when the facts of a particular case before you do not ah are not four square with a particular precedent that would be applicable.  So would you acknowledge there are times when the your role as a judge would require you to resort to whatever your other life experiences, your views.  Can you sit here and say those will never come into play because you will always find a precedent that is four square with a case that is before you? . . .
Justice Rehnquist was not off base when he said you do not all come here tabula rasa.
The problem, of course, is Senator Hirono completely butchers Chief Justice Rehnquist's statement.  Rehnquist was not talking about a potential judge's personal views but that they would should have an interpretive philosophy.  No one should become a judge if they don’t have a view on how to judge (emphasis mine):
Since most Justices come to this bench no earlier than their middle years, it would be unusual if they had not by that time formulated at least some tentative notions which would influence them in their interpretation of the sweeping clauses of the Constitution and their interaction with one another. It would be not merely unusual, but extraordinary, if they had not at least given opinions as to constitutional issues in their previous legal careers. Proof that a Justice's mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.
Wendy Vitter has indeed been a hero to the pro-life community.  Rehnquist was not saying that excludes her from being a judge.  As she testified:
I won Louisiana Right to Life Award. Chairing Priests for Life.  And wrote several articles about the role faith has played in my life. . . .
But those views I take seriously to set aside. . . . I am going to look at every matter, every case based on the facts brought before me and the law. 
The second paragraph is key.  To be a good judge, her personal philosophy is irrelevant.  She could have won an award from Planned Parenthood and still be a good judge.  That said, for Senator Hirono that is seemingly all that matters.  She wants judges to agree with her personal views in favor of abortion.  That is not a judge, Senator.  That is what you can look for in a politician.  Senator Honoro needs to read what Chief Justices Roberts and Rehnquist say and, hopefully in a few years, the decisions of Judge Vitter, to know what a judge should do.