Kavanaugh's Post-9/11 Decisions Prove His Commitment to the Rule of Law

RNLA Executive Director Michael Thielen wrote today in the Daily Caller about how Judge Brett Kavanaugh's personal experiences on and after 9/11 and his subsequent actions demonstrate his independence and his respect for the rule of law:

In response to questions from Senators Lindsay Graham and John Cornyn, Brett Kavanaugh described how he was at the White House that Tuesday morning, in the West Wing, when the second World Trade Center Tower was hit and the world realized that this was not an accident but a deliberate act of terrorism. . . . Kavanaugh recounted how . . . the focus of President George W. Bush on September 12 was that this sort of attack would not happen again, and how he was with Bush every day from 2003 to his confirmation in 2006, seeing firsthand the former president’s commitment to preventing another terrorist attack.

Brett Kavanaugh favored a race-neutral approach to protecting Americans against a future terrorist attack and specifically rejected racial profiling just four months after 9/11:

Security measures that might seem unthinkable to us now, including racial profiling, enjoyed widespread support among people, politicians and government staff alike. Brett Kavanaugh had the integrity and moral courage to stand against the popular fervor to provide security at almost any cost and only support security measures that were correct both legally and morally.

After joining the D.C. Circuit, Judge Kavanaugh overturned the conviction of Osama Bin Laden's bodyguard and driving because the conviction violated the Constitution's prohibition on ex post facto laws (in Hamdan v. US):

When Sen. Cornyn wondered how Judge Kavanaugh could possibly do that, he responded, “The rule of law applies to all who come before the courts of the United States.” He said even enemy combatants and non-citizens are entitled to “equal justice under law.”

Mr. Thielen concluded:

As we pause this week to remember the horrific terrorist attacks of 9/11, the lives lost and the heroic sacrifices of many Americans on that morning seventeen years ago and in the years since, let us not forget that respect for the rule of law is what sets us apart from so many other places where terrorism flourishes and what makes us a target for violent extremists in the first place. . . . America is great because a judge who experienced the effects of and response to terrorism firsthand can follow the Constitution, even when it compels an unpopular result in favor of a terrorist.

On this day and every day, let us remember that the "rule of law and respect for the Constitution creates the freedom that protects us all."  By protecting that freedom, we honor the memory and sacrifice of those who died on September 11, 2001, and all who have given their lives since to protect us from the threat of terrorism.

Democrats Are Using Courts To Take Redistricting Power Away From Legislatures

RNLA Executive Director Michael Thielen wrote today in The Daily Caller about how Democrats are trying - successfully - to seize political control by using the courts to control redistricting:

Democrats and their liberal allies, not satisfied with their results at the ballot box and in the legislatures, have turned to the courts to enact their radical agenda by fiat, without the input of the people as intended in our system of constitutional government.

Courts are increasingly deciding redistricting cases and enacting entirely new maps by judicial fiat:

Commonly called redistricting (when done in a way you like) or gerrymandering (when done in a way you dislike), states have established procedures whereby the state legislature or a special redistricting commission determines the districts for federal congressional and state legislative races after each decennial census. This has an enormous practical impact on elections, as it not only divides voters into constituencies but also decides which candidates may represent which group of voters. 

Redistricting is, at best, a confusing area of law. The guidelines provided in past Supreme Court cases are vague and applied inconsistently by the courts. And the reasons for this are obvious. Unlike traditional “law,” which involves applying static statutes, case law, and regulations to a specific fact pattern, redistricting is an inherently political act. It is difficult for courts to assess the political judgments of a state legislature or commission and provide clear guidelines for adjudicating future political decisions.

The recent, overt seizure of power by the Democrat-controlled Pennsylvania Supreme Court to enact a map drawn by its selected expert provides is the starkest example of the Democrats' and their liberal allies' use of the courts to achieve a result they could not obtain through the ballot box or the people's representatives:

And that brings us back to the beginning. We are in a crisis of democracy over political control. Ultimate political power and accountability ultimately resides with the people, who exercise control through their elected representatives. Yet some courts, when presented with the opportunity from liberal activists’ lawsuits to undo and ignore the will of the people, jump at the chance to turn over political power to unelected, unaccountable experts.

The U.S. Supreme Court has three redistricting cases pending before it this term, which could dramatically change the law on redistricting. We hope that the Court provides some clear guidelines in this important area before the post-2020 redistricting so that the Democrats cannot use litigation to seize control of the district lines.

Commissioner Lee Goodman Defended 1st Amendment and Rule of Law at FEC

Republican Federal Election Commission Commissioner Lee Goodman announced today that he will resign from the FEC on February 16 to join the political law practice at Wiley Rein.  In his four years of service at the FEC, Commissioner Goodman has been a stalwart defender of the First Amendment, due process, and the rule of law, often speaking out strongly against the efforts of his Democratic colleagues to regulate political speech on the Internet and change the rules governing political activity after the fact and without following proper regulatory procedures.

Commissioner Goodman described some of the achievements of the FEC during his tenure in his resignation letter to President Trump:

We issued several advisory opinions recognizing the use of new technologies to galvanize political participation . . . .  Meanwhile, we restrained unlawful efforts to regulate, and in some cases censor, American citizens’ political opinions on YouTube and Twitter, as well as the freedom of press outlets like Fox News and WCVB-TV of Boston to make editorial decisions concerning their political coverage. . . .  

Most importantly, I have faithfully discharged my responsibility to balance the agency's regulatory objectives with the First Amendment rights it regulates.  Since the agency’s inception, the Federal Election Commission’s unique mandate to respect the core constitutional rights of citizens acting, speaking and associating for democratic purposes has provoked criticism from those who disagree with the balance drawn.  Some would even prefer the Commission ignore the First Amendment altogether.  But protecting First Amendment rights is an inherent part of the Commission’s mission. Thus, I have endeavored throughout my service to preserve the Constitutional right of American citizens to speak, hear, and think freely about their democracy. It has been my duty and privilege to defend this fundamental human freedom.

Commissioner Goodman's steadfast efforts to protect Americans' rights of free speech and due process have been recognized by the election law community.  RNLA leaders and members were quick to praise him when his resignation was announced:

RNLA President Elliot Berke: "Lee's tenure on the FEC was marked by grace, dignity, and professionalism. He is a good man and a good friend and I wish him nothing but the best as he returns to the private sector." 

RNLA Chair John Ryder: "Lee Goodman is a fine lawyer.  The FEC and the country were fortunate to have his service over the past several years.  His strong defense of the First Amendment rights of all Americans will be missed on the commission." 

RNLA Vice President for Election Education David Warrington: "As an FEC Commissioner and former Chairman of the agency, Lee was a champion for the First Amendment and the right of all Americans to participate in the political process.  He defended those rights at a critical time when they were under assault by those inside and outside the government that sought to restrict the freedoms of speech, assembly, and the press.  I am sure he will continue fighting for those same principles as he returns to the private practice of law." 

RNLA Member (and Mr. Goodman's future Wiley Rein colleague) Eric Wang: "Lee was a great champion for protecting political speech on the Internet from excessive regulation by the FEC, and for keeping the agency from interfering with the news media.  Lee also fought hard to ease the regulatory burden on the beleaguered national and state party committees.  I look forward to working with Lee as he presses on with these battles on behalf of clients."

RNLA Executive Director Michael Thielen: "All Americans are indebted to Lee Goodman for his work to preserve First Amendment rights and his efforts to prevent the FEC Democrats from politicizing the FEC to achieve their liberal policy goals.  Lee is passionate about the Constitution, the rule of law, and free speech, and he will represent his new clients at Wiley Rein well.

For some examples of the many ways in which Commissioner Goodman has defended the First Amendment and the rule of law at the FEC, read our past blog posts on him here.  Thank you, Commissioner Goodman, for your faithful service to our country!

RNLA Elects New Officers and Board of Governors Members

Today, the RNLA recognized the new officers and members of the Board of Governors elected at its recent annual board meeting:

RNLA President Elliot Berke stated: “I welcome our new and returning board members, as well as our new and returning officers to what I expect to be an historic year for the RNLA. It’s an honor to serve as your President during this important time in our history.” 

RNLA Executive Director Michael Thielen agreed: “I am honored to work for and with these distinguished Republican attorneys. I am especially pleased that, after having our first female chair last year in Kimberly Reed, there are now four women officers leading the RNLA. We look forward to a strong year.” 

Five new officers were elected for 2018. John Ryder of Memphis, Tennessee, was elected Chair. . . . Joanne W. Young of Washington, DC, was elected Co-Chair. . . . Harmeet K. Dhillon of San Francisco, California, was elected Vice President for Communications. . . . Thomas Wheeler of Indianapolis, Indiana was elected Vice President for Programming. . . . Audrey Perry Martin of Sacramento, California was elected Vice President for Membership. . . .   

Three new members of the Board of Governors were elected for 2018, joining the 43 incumbent members of the Board of Governors. 

Marc Ellinger of Jefferson City, Missouri, . . . Linda A. Kerns of Philadelphia, Pennsylvania, . . . [and] Chris Marston of Alexandria, Virginia . . . .

For more information about the new officers and members of the Board of Governors, please read the full press release here.  The RNLA looks forward to an excellent year under these new leaders and the existing leadership they joined.

Conservatives Respond to End of Election Integrity Commission

On Wednesday, President Trump ended the Presidential Advisory Commission on Election Integrity (PACEI), which had been plagued by lawsuits from liberal organizations and even one of the Commission's own Democratic members.  Liberals are touting their victory in "resisting" an initiative started by President Trump, but conservatives have also responded.

RNLA Executive Director Michael Thielen wrote today in The Hill:

Why is this hatred so strong? Besides that it is the liberal election administration community’s way of participating in the Trump “resist” movement, they feared the PACEI because the last two presidential election commissions have recommended corrective measures that go against the liberal agenda. . . . Contrary to the liberal’s narrative, the PACEI disbanding does not prove there is no vote fraud; rather, it proves liberals fear looking into this issue because things such as illegal non-citizen votes favor the Democratic Party in elections. . . . 

In the end, liberals won this battle to prevent any inquiry into fraudulent votes and messy elections, but may lose the war. When the President disbanded the PACEI, he also “asked the Department of Homeland Security to review these issues.” . . . If DHS reviews the issues that the PACEI was tasked with studying, it could use the SAVE database to help states fix their voter registration lists and find non-citizens registered and voting much more efficiently than an advisory commission ever could, as election officials have been clamoring for for years. . . .

So Democrats have “resisted” the bipartisan efforts, in the fine tradition of the last two presidential election commissions, to study and propose solutions to fix our elections. Sadly, the American people are those who lose the most whenever the liberal election world is “successful.” Every illegal vote cancels out the vote of an American citizen, who has lost the right of self-government due to the political agenda of liberal activists. But the left may lose the war, as their victory may hurt their real goals and make it easier to stop non-citizens from registering and voting. 

Former PACEI member Hans von Spakovsky issued the following statement:

While I am disappointed about the dissolution of the Advisory Commission on Election Integrity, I understand President Trump’s action.  The ability of the Commission to research, review, and examine the integrity and security of the American election process was made almost impossible by the unprecedented and unjustified obstruction by many state election officials who defiantly refused to cooperate with the Commission.

The Commission was also hampered by the almost dozen meritless lawsuits that were filed against the Commission by progressive advocacy groups that were solely intended to prevent its work and take up the time of the Commission’s staff with frivolous litigation. 

The American people understand how important it is that we have a secure system in which everyone who is eligible is able to vote and their vote is not diluted or stolen by fraudulent votes or administrative errors and mistakes by election officials.

The obstacles and impediments used to hinder the work of the Commission is evidence that there are many politicians and activists who want to prevent the American people from finding out the truth.

Fellow former PACEI member Christian Adams also issued a statement:

Foes of election integrity lost their seat at the table.  Now the important work of improving the integrity of the election process will be done by people who believe in election integrity, not by those who seek to preserve vulnerabilities in the system. Over the years, demonstrable and empirical data has been developed showing noncitizen voting, double voting, and defects in the election system that no credible observer could deny. Some news outlets and activists have decided to ignore those facts, as if they do not exist.  Unfortunately, there are plenty of well-funded groups, activist academics and individuals who are not credible who sought to undermine and sabotage the Commission’s work.  They may delight today in the dissolution of the Commission, but before long they’ll realize that advocates of election integrity have more stamina, support and perseverance than they realize.

We thank the members of the PACEI for their work and look forward to future efforts to improve the integrity of elections and voters' confidence in election systems and their outcomes. 

RNLA Thanks Senator Orrin Hatch

Today, Senator Orrin Hatch announced his retirement at the end of this term. 

RNLA Executive Director Michael Thielen said: “Orrin Hatch has long has been a great friend of the RNLA since our founding in 1985.  It was Senator Hatch who first said: ‘If you are a lawyer and you are a Republican, you should be a member of the Republican National Lawyers Association.’  Thank you Senator Hatch.” 

RNLA President Elliot Berke stated: “We thank Senator Hatch for his tremendous service to our nation. He's a Senator's senator and a man of great character. We wish him all good wishes for the future.”  

RNLA Board Member Frank Salinger said: "In his 41 years of Senate service, Orrin Hatch championed the rule of law and legal issues ranging from confirming conservative federal judges to intellectual property. He is the longtime friend of RNLA and always made himself available for our events and to meet our members. Having represented Utah companies for many years, I know first hand that—even when he worked on national issues— he never forgot his constituents throughout his home state’s 29 counties. Orrin went to Washington, DC but he never forgot Utah." 

At The Republican Lawyer blog, we frequently cited Senator Hatch. 

“In a recent judicial confirmation hearing, a nominee was asked, explicitly, “do you consider yourself an orthodox Catholic?” That same nominee was told that, upon review of her record, “the conclusion one draws is that the dogma lives loudly within you.” Statements like that can be taken only as the imposition of some kind of religious test for holding office. Nothing could be more repugnant to our values of religious freedom and liberty.”  12/4/2017: Senator Hatch on Religious Liberty

The majority should know the judicial filibuster facts because, after all, they pioneered the use of filibusters to defeat judicial nominees who would otherwise be confirmed. Why are they engaging in filibuster fraud? One possibility is that the majority wants to cover up the fact that President Obama has consistently lagged behind his predecessors in making judicial nominations.  The Senate, after all, cannot confirm nominations that do not exist.  6/19/2013: Hatch Calls Out Senate Democrats for Filibuster Fraud

[On the Scalia Supreme Court vacancy] Democrats have no credibility in lecturing Republicans on how to conduct the current confirmation process. Their recent actions only validate the rationale for waiting. From personal attacks on Republican committee chairmen to coordinated disruptions by professional activists, liberal pressure tactics belie any commitment to keeping politics out of the confirmation process.  Considering a nominee in the midst of a toxic presidential election would be irresponsible. Doing so would only further inject a circus atmosphere into an already politicized confirmation process. Conducting a thoughtful and substantive deliberation after the election is in the best interests of the Senate, the judiciary and the country.  3/28/2016: Sen. Hatch: Let Voter's Decide the Court's Future

Thank you, Senator Hatch.  

Trump Must Continue Undoing Obama’s Massive Federal Power Grabs

RNLA Executive Director Michael Thielen wrote today in The Daily Caller about how leaders in the Trump Administration are starting to undo the regulatory power grabs of the Obama Administration and being attacked for it by liberals:

For the eight years of the Obama Administration, liberals worked through extra-legal means to achieve the policy goals they desired that did not have enough popular support to be passed by the legislature. Sometimes this took the form of convincing judges to ignore the text of statutes and regulations and decide cases on the basis of policy, over-ruling the will of the people expressed through their representatives. Other times, it took the form of agencies ignoring the rule of law, seizing power, and enacting new policies without regard to their statutory limits and without proper procedures such as rulemaking following notice and comment.

He began with the example of FCC Chairman Ajit Pai's proposal to undo the "net neutrality" rules enacted in 2015:

The “telecommunications service” classification was designed for monopoly telephone services and gives the FCC extremely broad authority to regulate. Extending this regulatory authority to Internet service is unquestionably an extension of the FCC’s authority. It was an extension that was authorized not by Congress but by the FCC itself. 

Even worse, this power grab was unclear. . . . Chairman Pai’s proposed plan would return Internet service regulation to the previous regulatory framework—which had been upheld by the Supreme Court—and restore the FCC’s authority to the level granted by Congress. He publicly released it, unlike in 2015 when the details were released only after the FCC had already adopted them.

Mr. Thielen also points to the examples of the Consumer Financial Protection Bureau (CFPB) deputy director's desperate bid to maintain control of the CFPB against President Trump's newly appointed acting director, who has announced a regulatory freeze, and EPA Administrator Scott Pruitt ending the "sue and settle" practices by which activist outside groups controlled the interpretation and implementation of the EPA's statutes and regulations.  Mr. Thielen concludes by noting:

These are just a few examples of the immense amount of work remaining to be done in the Executive Branch to restore the rule of law. This effort is the opposite of a power grab. It is giving power back to the people through their elected representatives and taking power away from unelected activists inside and outside of government.

We thank these courageous leaders and President Trump for fighting to restore the rule of law to the federal government against the attacks of liberals and obstruction of Obama-holdover and career staff members in federal agencies.

From Vote Fraud to Voter Intimidation: Philly Democrats do it All

Our recent blogs have detailed the multitude of problems in Philadelphia in the last year.  RNLA Executive Director Michael Thielen decided to tie them all together in one op-ed in the Daily Caller. 

At best in Philadelphia, it is hard to say where the incompetence ends and the vote fraud begins.  At worse, Democrats in Philadelphia are using Jim-Crow-style intimidation tactics on anyone who tries to vote for the Green or Republican candidates, or anyone but the Democrats’ chosen candidates.

The problems described by Thielen are not limited to the polling booth:

Democrat supporters in Philadelphia have actually preyed on the elderly, who could not or did not want to vote, let alone register to vote.  At the St. Francis Center for Rehabilitation and Health Care, seniors with dementia, who were unwilling to register or vote, or were otherwise not aware registered and voted absentee in a Democrat Primary.

Or to Republicans:

[R]efusing to allow Green Party supporters to vote, aggressively questioning Green Party voters seeking assistance, and more.   [Pennsylvania Attorney General] Shapiro stated: “One should not chalk these actions up to typical partisanship or typical electioneering.  These were crimes.”

Shapiro stepped up and prosecuted Democrat election officials in one precinct.  The problems are not limited to one precinct.  Please check out the article for more details and unfortunately this blog in the futur,e as there are sure to be more posts on problems with Philadelphia elections.  

Judicial Nominations: Democrats Have Nothing But Character Attacks

RNLA Executive Director Michael Thielen wrote today in the Daily Caller about how Senate Democrats are attacking and delaying President Trump's excellent judicial nominees:

Thirty years ago, the Senate rejected Judge Robert Bork for the Supreme Court after a series of unprecedented and often untrue attacks by Democrats on one of the nation’s foremost legal scholars.  Today, the Democrats and their allies are arguably treating judicial nominees worse.  For while the attacks were one-sided, the vote to defeat Judge Bork was at least bipartisan.  Today, Democrats and their allies make no such efforts to actually defeat nominees they do not like; instead, they attempt to obstruct and sully the character of nominees.

But Majority Leader Mitch McConnell and Senate Judiciary Committee Chairman Chuck Grassley have expertly led the Senate and are not allowing the Democrats to prevail:

Fortunately, Senate Judiciary Committee Chairman Chuck Grassley does not have unlimited patience with Democrats’ games and obstruction.  Thanks to the leadership of Chairman Grassley, 18 nominees are now on the floor awaiting a vote.  And the need is great.  There are still over 140 vacancies on the federal bench, with 64 classified as judicial emergencies. 

Majority Leader Mitch McConnell has also tired of Senate Democrats’ partisanship and has made the confirmation of judges a priority, with four Circuit Court nominees to be confirmed by the end of this week.  As of publication, the new Judge Barrett of the Seventh Circuit and Judge Larsen of the Sixth Circuit have just been confirmed. 

Despite the Democrats’ obstruction and delays, Chairman Grassley and Leader McConnell are keeping the process moving, understanding how important these principled nominees are to the American people.  Democrats have forced cloture votes on all confirmed judicial nominees from President Trump, compared to none at this point in the Obama, George W. Bush, Clinton, or Reagan administrations.  Of course, these cloture votes are simply a delaying tactic, since the Democrats abolished the filibuster for judicial nominations lower than Supreme Court in 2013.

Mr. Thielen provides examples from several currently pending and recently confirmed nominees, including Scott Palk, just confirmed for the Western District of Oklahoma; David Stras, nominated for the Eighth Circuit; Ryan Bounds, nominated for the Ninth Circuit; Amy Barrett, just confirmed to the Seventh Circuit; and Steven Grasz, nominated to the Eighth Circuit.  Democrats have baselessly attacked all of them, including Palk who was first nominated to the seat by President Obama, but Leader McConnell and Chairman Grassley are working to ensure that all these superb nominees are confirmed.

Accurate Voter Registration Lists Are Essential To Election Integrity

RNLA Executive Director Michael Thielen wrote today in the Daily Caller about yesterday's House Committee on Administration hearing on state voter registration list maintenance and the importance of accurate voter registration records:

Enabling fraud is not the only problem with messy voter registration rolls.  Inaccurate rolls also create the opportunity for honest mistakes that negatively impact the voting process.  They contribute to long lines and congestion at the polling place. Voters are also frustrated when they show up at the polling place not properly registered in the correct precinct.  Logistically, inaccurate rolls require states and localities to waste money on ballots, poll workers, and other Election Day resources for ghost voters who do not exist or moved years ago.  As Indiana Secretary of State Connie Lawson pointed out in the hearing yesterday, the money that is spent unnecessarily on preparing for non-existent voters is desperately needed elsewhere, such as updating technology and security in voting machines. 

Inaccurate rolls also distort turnout numbers, making it seem like a state or county had lower turnout than it actually did.  Lawson described how Indiana completed a voter registration list clean-up process statewide, removing inaccurate records from the rolls, after the 2016 election.  Because of legal provisions regarding timing of maintenance procedures, the process could not be completed before the presidential election.  If it had been, Indiana would have had 65% voter turnout in 2016, instead of the 55% it actually reported.  That is a massive difference, and it would make a tremendous difference in voter perception of the election and the level of civic engagement as well. 

This is why accurate voter registration lists enjoy bipartisan support.  Every bipartisan presidential election commission in the last 20 years has recommended procedures to help states better maintain their lists.

While there is broad support in theory for voter registration list maintenance, liberals oppose most efforts to clean up the rolls:

While liberals pay lip service to accurate voter lists, when it comes down to the painstaking work of actually maintaining accurate official rolls, liberals and Democrats fight to ban nearly every tool that hardworking election officials have at their disposal. . . . Lawson bemoaned the fact that when a state seeks to clean up its voter rolls, activist organizations always sue the state for its attempt to follow the law.  A prime example — a challenge to Ohio’s voter registration record clean-up program, let by the ACLU and other liberal organizations, is currently pending before the Supreme Court, which will hear oral argument on the important case on November 8.

Mr. Thielen concludes by pointing to recent news stories about messy voter rolls in Rhode Island and Pennsylvania, lamenting that liberals have turned this into a controversial issue, and thanking the Committee on House Administration for looking into state voter registration list maintenance.

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. 

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.

Rush to Regulate Political Ads Threatens Political Speech

RNLA Executive Director Michael Thielen wrote today in the Daily Caller about the potential for suppression of speech in the rush to restrict foreign political ads:

But the First Amendment does not apply to social media, leaving people with unpopular messages silenced by unaccountable decisions made within unresponsive corporate entities. . . . As these companies move forward with their responses to the allegations of Russian influence in the 2016 election through purchasing ads and producing false or misleading content, they need to take care that their efforts do not end up destroying the public forum for discussion they have created. 

For example, Facebook’s announcement certainly has a political tinge to it, as prospective 2020 presidential candidate, noted liberal, and Facebook CEO Mark Zuckerberg is trying to force additional disclosure surrounding political ads that the government has not required.  It is within Facebook’s right as a private entity to do so, but as with many well-meaning but misguided liberals, Zuckerberg may not fully realize the implications of the policies he touts. 

What will Facebook consider political ads?  There are many different legal definitions: express advocacy (vote for/against candidate A), issue advocacy, lobbying, and so on.  There are different speakers: candidates, non-profit organizations, individuals, advertisement agencies, media organizations, for-profit companies, and so on.  What makes an ad political?  What makes an ad sponsored by a foreign person or entity?  Who will be making these decisions at Facebook and how will Facebook ensure that decisions are not politically or ideologically motivated? What recourse exists for silenced parties? What will happen if Zuckerberg officially announces he is running for President? 

There are good reasons to be skeptical.  Last year, Facebook admitted that some conservative news stories were suppressed due to employees’ decisions, not a systemic policy.  Stories abound of conservatives’ posts or profiles being flagged and removed for nothing more than expressing a conservative opinion.  Facebook abandoned plans for a “fake news” removal algorithm that disproportionately removed conservative news stories.  At a large tech company like Facebook, computer algorithms and individual employees often make these nuanced and politically charged decisions that affect individuals’ and organizations’ ability to communicate. . . . How Zuckerberg’s principles are actually implemented will have an enormous impact on the nature of public discourse going forward.  Concerned citizens should watch this process closely.

Mr. Thielen also discusses the new efforts by Democrats and liberals to increase government regulation of speech in response to the allegations of foreign influence in last year's election.  As he notes in conclusion, while foreign efforts to interfere with our elections may be concerning, a rush to regulate and restrict speech without considering the important political speech rights and interests at stake would be a dreadful mistake.

RNLA Congratulates Trey Trainor on Nomination to the FEC

Today, the RNLA officially congratulated Trey Trainor on his nomination to be a Commissioner on the Federal Election Commission (FEC):

Mr. Trainor’s credentials are impeccable.  He is a leading election lawyer and an expert on campaign finance issues.  He has spoken at many RNLA National Election Law Seminar trainings.  He is currently a partner specializing in election law, campaign finance, and ethics at Akerman LLP.  Previously, he has served as Special Assistant to the Secretary of Defense in the Department of Defense’s Office of General Counsel; as General Counsel to the Texas Secretary of State; on the Standards Advisory Board to the U.S. Elections Assistance Commission; as Counsel to the Texas House Committee on Regulated Industries; and in various capacities in the Texas Legislature. 

Leading members of the election law and campaign finance bars who are RNLA members have praised Mr. Trainor’s nomination:

Benjamin Barr, President of the Pillar of Law Institute: "Mr. Trainor is nationally distinguished for his expertise in election law. Beyond this, Mr. Trainor has shown an unwavering dedication to preserving the First Amendment rights of average Americans--a position that has consistently been upheld by the courts. The FEC can only benefit from Mr. Trainor's knowledge and proven ability to help it carry out its mission." 

Kory Langhofer, Managing Attorney, Statecraft PLLC, and Litigation Counsel, Trump for America, Inc.: “I’ve worked with Trey, know him well, and hold him in high regard.  He is an excellent pick, and I am confident he’ll serve the country well on the FEC.” 

Joseph M. Nixon, RNLA Texas Chapter Chair and Partner, Akerman LLP: “Trey is a brilliant lawyer, extraordinarily principled and well-schooled in election law. The President has made a fine choice.”

RNLA Executive Director Michael Thielen agreed: “Trey Trainor has deep knowledge of campaign finance law, a breadth of practical experience, and impressive legal skills.  In addition to his skills as a lawyer, he is a man of character who is well-respected by everyone who knows him.  He will serve with distinction on the FEC with his respect for the rule of law and First Amendment rights that is desperately needed at the agency that regulates political speech.”

Unfortunately, liberals and the media are already baselessly attacking Mr. Trainor for his conservative views and his support for important First Amendment rights, just as they have attacked all recent Republican FEC commissioners--Lee Goodman, Caroline Hunter, Don McGahn, and Matthew Petersen--for their respect for the rule of law and support for the First Amendment.  

The RNLA will be countering these attacks and supporting Mr. Trainor's nomination in the next weeks and months.  Stay tuned here for further information on his character, legal philosophy, and qualifications and how you can help support his swift confirmation to the FEC.

Why Are College Students’ Votes Worth More Than Everyone Else’s?

In the Daily Caller today, Executive Director Michael Thielen discussed the complicated issues around registering out-of-state college students to vote in battleground states. The article highlight how this issue raises gray legal and ethical issues, which are often disregarded in favor of political advantages.

[W]hy aren’t we upset when students do the same thing? Would we really accept the fact that adult commuters who work in New York and Boston and leave for their true homes on the weekends can vote in the city if it is in the strategic interest of a political party? Would we accept adults who are periodically working in a state or city voting there even when they have no real intent to live there? The answer is a resounding no. Worse, why aren’t we troubled that a political party uses students as political pawns on a regular basis?

. . . 

Legal definitions about eligibility to vote in a state vary from state to state, but state residence, domicile, inhabitance, or similar requirements usually contain the intent to live there for the foreseeable, or undetermined, future. A person who enters a state with no intent to remain usually does not meet this standard, and many college students have no intention to remain in the place they go to college. But some students do meet the legal standard, and this is why student voting location is so tricky. There is no set rule or answer for students, but the needs of a political party is not an ethical or acceptable way for a student to figure out where he or she should vote.

Americans would not be pleased if a multimillionaire politician, who owns several homes opted to register to vote in one property which happens to be in a battleground state, over his actual residence in another non-battleground state--solely based on a political factor. However, this is exactly what has happened in the past with students (and we blogged about this in 2014):

In 2008, then-Senator Obama’s campaign started a program nicknamed “float the vote”. This program involved telling students to vote where it was most politically advantageous for the Obama campaign and not where the student felt they “resided” or where they met the legal definition of residency or domicile for purposes of voter registration. This program unfortunately encouraged white lies for short-term political gain by encouraging students to state under oath that their college town was their permanent home and they intended to stay and vote. The program also undermined federal law that authorized and encouraged students who were away to vote by absentee ballot in their hometown. 

. . .

Float the vote demeaned voting from a patriotic right and duty to something strategic that included a bit of lying about where students really lived. There used to be safeguards in some states, such as Virginia, whereby students would be asked a series of simple questions when registering to see if they really resided in Virginia. This matters, in part, because there many more elections than just the Presidential election. However, Democratic Virginia Governors Tim Kaine and Terry McAuliffe appointed Democrats to the Virginia Board of Elections that eliminated these questions. McAuliffe also attempted to effectively eliminate voter registration questions on citizenship and felonies by saying those who did not answer would be automatically registered. The reason why they did so was quite simply the perception, backed up by polls, that felons, non-citizens, and students overwhelmingly vote Democrat.

The article closes on this point:

To be clear, liberals’ rhetoric about student voting has nothing to do with defending “poor students” or whether students have a right to vote and everything to do with obtaining more votes in close races. . . The Democratic Party encourages this tactic because polls show students tend to vote Democrat. It should not be contentious or controversial to say that students should have the same right to vote as everyone else, nothing more and nothing less.

Work needs to be done to reign in this behavior. It is unethical to target these students--from non-battleground states attending college in battleground states--just because their vote would have a greater impact while away at school and irrespective of where they intend to be after college. This should be a undebatable, nonpartisan issue, but sadly is not.

Why Did Former AG Lynch Use an Email Alias at the DOJ?

RNLA Executive Director Michael Thielen wrote today in the Daily Caller about the recent revelations about former Attorney General Loretta Lynch's use of an email alias account at the Department of Justice:

Compare this with former Attorney General Loretta Lynch and her tumultuous tenure. Lynch did not recuse herself from the investigation into Democrat presidential candidate Hillary Clinton’s illegal use of a private email server that handled classified information.  Like her predecessor, Eric Holder, Lynch set up an alias DOJ email account under the name Elizabeth Carlisle to handle official business. 

She secretly met with Bill Clinton at a crucial moment in the investigation.  When a reporter discovered the clandestine meeting, the Lynch DOJ went into crisis mode — strategizing, preparing talking points, and working with the mainstream media to bury the story.  Lynch was involved in the response effort, but under her “Elizabeth Carlisle” alias. 

Why set up an alias email account?  The official version is the alias account avoided people guessing the Attorney General’s email address and flooding her inbox.  It is common practice for CEOs and other high profile leaders to have an email address that does not fit the organization’s customary formula. . . . What is not common practice is to use an entirely different name altogether.  Why would Lynch, and Holder before her, adopt such a strange practice?  One reason might be to avoid Freedom of Information Act (FOIA) requests.  A person would request the Attorney General’s correspondence on a certain topic, but because the Attorney General had used her alias account, none of her emails would show up on a search for emails sent to or from Loretta Lynch.  As the email alias was unknown until last week, the Attorney General’s emails on sensitive subjects were largely kept from public release under FOIA.

This would be entirely in conformity with the Obama Administration’s practice of avoiding transparency whenever possible, despite claiming to be the “most transparent administration in history.”  Last July, the American Center for Law and Justice filed a FOIA request for documents relating to the Lynch-Clinton airplane meeting and the Obama FBI responded that no responsive documents existed.  After a lawsuit, over 400 pages of responsive documents were produced last week.  This is just one example of the Obama DOJ’s lack of transparency.

Mr. Thielen compared Lynch's actions with Attorney General Jeff Sessions' ethical behavior in recusing himself from the investigation into Russian interference with the 2016 election to avoid even an appearance of impropriety.  The Trump Department of Justice has important work to do to restore a culture of ethics, responsibility, and respect for the rule of law in the law firm for the American people.

The Truth About Hacking Election Machines

RNLA's Executive Director Michael Thielen wrote today in the Daily Caller about one of the hot stories of this week, how hackers were able to gain access to voting machines at the DEF CON conference.  While this made for sensational headlines, the truth is a little more nuanced:

The first and most obvious problem is hacking the machines required physical access and proximity.  One of the beauties of partisan poll watchers, let alone election officials, is they would all notice and immediately raise an alarm if someone were taking a screwdriver to a voting machine or standing close to one for a long period of time. . . . But what about physical access before election day?  States have laws and procedures to physically protect voting machines, and machines are always checked before voting begins to ensure their vote tallies are zero.     

Second, the hacks were done on machines purchased on eBay that were scrapped or decommissioned.  In other words, the hackers proved with sufficient physical access to a machine they could go back in time and hack a prior election.  

So what does this mean?  The elite hackers were not able to change votes or gain access to the machines remotely.  Unlike modern light switches, refrigerators, cars, and door locks, voting machines are never connected to the internet. While our current system of voting machines is far from perfect, it would be very difficult for a Russian, a teen techie in his mother’s basement, or a political operative to alter votes for an election. But a possible solution to the problem of hacking could change all this: the federal government’s Department of Homeland Security (DHS) declaring elections “critical infrastructure.”  

Let’s be clear: the word is “could.” The designation of critical infrastructure is very ill-defined, especially as to what DHS has unilaterally asserted jurisdiction over and what it may do about it. At a meeting last month, DHS officials spoke with state officials, but according to Republican Tennessee Secretary of State Tre Hargett, it cleared up nothing and he was “disappointed” by how unprepared the DHS officials were. Democrat California Secretary of State Alex Padilla echoed Hargett in calling the generic quality of the conversation “disappointing,” as it was months after the designation and DHS officials could not provide details.

As Thielen points out, while real threats to the security of our elections exist, the mainstream media's hysteria over election hacking, reignited this week, and the Department of Homeland Security's designation of elections as critical infrastructure do not help election officials do their important job and further erode the American people's confidence in our election system.

Prosecutions are the Wrong Way to Measure Vote Fraud

In his op-ed in The Daily Caller, Michael Thielen explains how Democrats claim vote fraud is rare by gaming the system. 

Repeat ad nauseum that vote fraud is rare because of the lack of convictions.  Make convictions impossible to obtain by inaccurate voter lists.  Attack all efforts to clean up voter lists.  Call all who try to stop this racists, only interested in disenfranchising minorities.

The Palm Beach Post has an editorial building on a specific example of the difficulty of obtaining vote fraud convictions.

“The criminal activity generally surrounded the absentee ballot request forms. There was not enough evidence to name a suspect and sustain a lawful arrest and criminal prosecution.”

That was the conclusion of an 10-month investigation by the Palm Beach County State Attorney’s Office into alleged voter fraud involving absentee ballots during last year’s August primary. 

In other words, the police were saying vote fraud happened, but they can’t prosecute because of insufficient evidence to prove individual suspects guilty beyond a reasonable doubt.  We agree with the Post’s conclusion:

The candidates deserve better than the taint of “we know something was wrong, we just don’t know who did it.” And voters deserve a conclusion that doesn’t further undermine confidence in the electoral system.

Hopefully, the unsatisfying finish of this investigation will spur efforts to draw up clearer rules for a absurdly lax laws governing absentee ballots.

As Thielen concludes:

Call all who try to stop this [vote fraud] racists, only interested in disenfranchising minorities. 

All this ignores that no one is disenfranchised by accurate voting lists but all, including African Americans, are disenfranchised by vote fraud.  Just ask African-American Democrat politician Priscilla Taylor who won on election day only to lose after fraudulent absentee ballots were counted: “We all felt that there was fraud going on.”  Taylor was the victim of the fraudulent absentee ballots cast and ballot requests in Palm Beach County.  Yet because there is no suspect, the prosecution is being dropped despite evidence of fraud and Taylor—and all citizens who honestly voted for her—is left without a remedy.

Why the Commission on Election Integrity is Necessary

In today's Daily Caller, RNLA Executive Director Michael Thielen explains why the Presidential Advisory on Election Integrity is necessary. President Trump addressed the first meeting yesterday and stressed the importance of the Commission creating a substantive report to help protect the American electoral process. At one point, he asked about those states refusing to share publicly available voter registration information: 

If any state does not want to share this information, one has to wonder what they’re worried about.  And I asked the Vice President, I asked the Commission:  What are they worried about?  There’s something.  There always is. 

President Trump went on to note the integrity of American electoral systems is not a partisan issue or a conservative-liberal issue: 

This is not a Democrat or a Republican issue, it’s an American issue.  It’s about the concern of so many Americans that improper voting has taken place and canceling out the votes of lawful American citizens. 

 Mr. Thielen further states:

What was striking during the meeting is all the commissioners, with their range of experiences and philosophical views, agreed on one thing: reform is needed in our electoral system to increase voter confidence and participation in the system.  They all had different suggestions for where the most work is needed, but unlike the anti-integrity left, they recognized this Commission has an excellent opportunity to study America’s election system and make recommendations for the states to help protect the integrity of their elections.  We thank them for their service to the American people and for weathering the attacks of the left.

Other nations look up to America as the champion of democracy with open, fair and honest elections. Despite the harsh attack by the left including the media, this Commission is absolutely critical to help restore the American electoral process.