All Citizens Are Entitled to an Impartial FEC

(This is the fourth in a series of five posts on the demonstrated bias of Democratic FEC Commissioner Ellen Weintraub.  The first installment is here, the second here, the third here, and the last installment will be posted in the next few days.)

Former FEC Chairman Brad Smith was the first to warn the American public, detailing the legal problems presented by Commissioner Weintraub's actions in a June 2017 blog post at the Institute for Free Speech.  According to Chairman Smith, "Federal Election Commissioner Ellen Weintraub's actions in recent months cast serious doubt on whether she can continue to credibly carry on her duties as a Commissioner.  She should recognize this predicament and do the honorable thing, which is to resign."  Chairman Smith outlined federal law that requires government officials to act without bias and documented Weintraub's violations of that legal duty.  
  
Chairman Smith also explained the corrosive effects of the anonymous AltFEC Twitter feed in 2017, before it was widely known that the AltFEC twitter feed is sponsored by Weintraub's staff.  

Liberal defenders like Professor Rick Hasen rallied to Weintraub's defense.  Hasen called Chairman Smith "mean spirited" for his analysis of Weintraub's bias.  No doubt Professor Hasen has exhibited some mean spiritedness on his own blog.  More important than his one-sided view of campaign finance discourse, however, apparently liberals like Hasen thinks it's okay for Democratic law enforcement officials like Loretta Lynch and Ellen Weintraub to enforce the law with prejudice.  They are not in the least bit concerned for "good government" when it comes to law enforcement bias, which is its own form of corruption.  

But Chairman Smith was right and it shouldn't take a national controversy like Lois Lerner or Peter Strozk to restore the appearance of fairness and impartiality.  Weintraub's demonstrations of bias are worse than the Peter Strozk controversy.  Her public political jabs at the President go well beyond private texts and emails.  And her votes to punish Trump demonstrate that she will use her public office to get the President.  Yet, there has been little outcry about it.   

The FEC is a law enforcement agency.  Commissioner Weintraub is a law enforcement official.  Nobody looking at this evidence could reasonably conclude that Commissioner Weintraub is unbiased, fair and neutral in her approach to President Trump.  Nor is she known throughout Washington, DC as a dispassionate, objective regulator.  Rather, she has a reputation as a flamboyant, outspoken ideologue, given to partisan infighting and polarization on the Commission.  The strong opinions she and her confidential counsel have expressed about President Trump (and other Republicans) taint everything the FEC does.  

President Trump is entitled to not only actual neutrality but the absolute appearance of neutrality in the enforcement of campaign finance laws by the FEC.  That neutrality does not exist so long as Commissioner Weintraub and her office participate on Trump cases.  Like the FBI fired Peter Strozk, Commissioner Weintraub should do the right thing and remove herself from all cases related to Donald Trump.      

Destroying a Political Attack on Justice Scalia and Originalism

Ed Whelan, President of the Ethics and Public Policy Center, is the latest legal scholar to destroy the Democrat Party’s unofficial election law professor Rick Hasen. (See Professor Brad Smith's recent rebuke here.) The problem for Hasen is that he seems to have given up on efforts at scholarship and is focusing on advancing Democrat Party agenda and liberal political ideology. Hasen’s latest attack is on conservative icon, the deceased Justice Antonin Scalia.

Whelan obliterates Hasen’s arguments in three posts.  First, Whelan describes the absurdity in Hasen’s overall argument against the philosophy of originalism:

Scalia “wrote that his ideas could increase the legitimacy of judicial decision making, yet his attacks on his opponent may have undermined it.” On page 7, Hasen similarly asserts: “For someone who cared so much about the legitimacy of the Court, much of what he said about the work of other justices seemed aimed at delegitimizing them as judges.” 

There is no contradiction at all here. Scalia believed that the Court earns its legitimacy by soundly exercising reasoned judgment — and that it undermines its legitimacy by acting in an unprincipled manner. So it’s entirely consistent for him to discredit, or delegitimize, bad judging.

This should be obvious.  If it were true a Court has legitimacy simply because it makes decisions, then a Kangaroo Court of a third world dictator would have as much currency as the U.S. Supreme Court. 

Hasen also attacks Scalia for trying to trying to undermine American jurisprudence:

Hasen contends that Justice Scalia was “seeking to undermine common approaches to American jurisprudence with new and revamped theories of interpretation.” (P. x.) But unless we are to imagine that “American jurisprudence” began with the Warren Court, Hasen has things entirely backwards: Scalia was seeking to restore traditional methods of interpretation.   

Indeed, Hasen himself ends up obliquely confirming my point. On statutory interpretation, he initially acknowledges that Scalia’s textualism “hearkens back to ‘formalist’ judicial philosophy of eighteenth-century legal thinkers such as William Blackstone.” He then makes the odd claims that “[t]extualism is different” from Blackstone’s formalism and that “Scalian formalism [which Hasen equates with textualism] puts its faith not in an immutable law of nature but in linguistic analysis.” (Pp. 26-27.) So the reader is supposed to take from this passage that Blackstone wasn’t a textualist but instead somehow derived the meaning of texts from the “immutable law of nature.” Yet ten pages later, Hasen refers to “Blackstone’s notion of a statutory truth that can be ‘found’ by sufficiently careful textual analysis.” (P. 37 (emphasis added).) (I will not maintain that Blackstone’s textualism is in all respects identical to Scalia’s, but, as Hasen appears to concede, the two are much closer than Blackstone’s is to purposivism or pragmatism or Hasen’s other “more eclectic theories of interpretation.”)

Hasen not only defeats his own arguments in his book but also doesn't even properly read the specific cases for which he is attacking Justice Scalia. Whelan’s analysis exposes how in the second “Obamacare” dissent, Scalia answered in great detail Hasen’s alleged contradiction, which Hasen completely omitted.

Hasen’s primary claim is that Scalia’s dissent in the second Obamacare case, King v. Burwell (2015) — in which Scalia opined that the statutory phrase “Exchange established by the State” does not mean “Exchange established by the State or the Federal Government” — “was not mandated by his own methods of interpretation.” In support of his claim, Hasen spends some ten pages setting up Scalia’s brief separate opinion in Green v. Bock Laundry Machine Co. (1989). The question in that case was whether the term “defendant” in the then-existing version of Rule 609(a)(1) of the Federal Rules of Evidence applied to civil defendants as well as criminal defendants. In his separate opinion, Scalia observed that the text of Rule 609(a)(1), “if interpreted literally, produces an absurd, and perhaps unconstitutional, result,” and he concluded that, of the two alternatives available, interpreting “defendant” to mean “criminal defendant” would do “least violence to the text.”

Why, then, asks Hasen in a flurry of rhetorical questions, does Scalia adopt a “relentlessly literal reading” of “Exchange established by the State” in King v. Burwell? How is his position in King compatible with his position in Green? “[I]s it any less absurd to read a single clause [sic] in a twenty-seven-hundred-page law … to contain the seeds of [the law’s] own destruction?”   

Amazingly, Hasen nowhere informs his trusting readers that Scalia actually supplies an answer. In his dissent in King v. Burwell, Scalia writes (citations omitted; emphasis added):

Only when it is patently obvious to a reasonable reader that a drafting mistake has occurred may a court correct the mistake. The occurrence of a misprint may be apparent from the face of the law, as it is where the Affordable Care Act “creates three separate Section 1563s.” … The occurrence of a misprint may also be apparent because a provision decrees an absurd result — a consequence “so monstrous, that all mankind would, without hesitation, unite in rejecting the application.” But §36B does not come remotely close to satisfying that demanding standard. It is entirely plausible that tax credits were restricted to state Exchanges deliberately — for example, in order to encourage States to establish their own Exchanges. We therefore have no authority to dismiss the terms of the law as a drafting fumble.  

Let us not forget that the term “Exchange established by the State” appears twice in §36B and five more times in other parts of the Act that mention tax credits. What are the odds, do you think, that the same slip of the pen occurred in seven separate places? No provision of the Act — none at all — contradicts the limitation of tax credits to state Exchanges. And as I have already explained, uses of the term “Exchange established by the State” beyond the context of tax credits look anything but accidental. If there was a mistake here, context suggests it was a substantive mistake in designing this part of the law, not a technical mistake in transcribing it.

Hasen no doubt has earned his seat at a good table at liberal and Democrat Party dinners. However, Hasen’s book shows the very important difference between the political and politicians on one side and the rule of law and judges on the other. One is better off reading Whelan’s Scalia Speaks rather than Hasen’s Justice of Contradictions. 

Left's Fear of Opposing Speech

RNLA Executive Director Michael Thielen wrote today citing examples of how the liberal establishment fears and tries to stifle speech by its opponents:

In 2017, in an effort led by Hillary’s former lawyer Marc Elias, establishment Democrats are now attacking Democrats on the Presidential Advisory Commission on Election Integrity for having the temerity to try to bring bipartisan balance to the investigation of the electoral system.  Elias implied that long-serving Democrat Secretary of State, Bill Gardner of New Hampshire, is not a real Democrat because he accepted an appointment to serve on the commission. 

Next, Elias’ ally Rick Hasen wrote an op-ed calling on another Democrat, Maine Secretary of State Matthew Dunlap, to resign from the commission because Hasen, like other liberals, has pre-determined that what the commission will do and say will be offensive and wrong before the commission has even begun its work.  Instead of wanting Democrats to have a seat at the table on President Trump’s commission — to hopefully represent the Democrats’ perspective and engage in an intellectual discussion for the benefit of the country as a whole — Hasen declares that Dunlap’s speech and participation would serve no purpose.  The speech of the commission must be opposed before it even occurs, because of its association with President Trump. These lions of the law, known for their skills of argument, are apparently fearful they will be unable to counter the findings if they allow the commission to do its work. . . .  

In New York, for example, liberals have declared war on 501(c)(3) nonprofit charities, requiring them to disclose their donors if the organization gives donations or in-kind support to 501(c)(4) groups that are lobbying in New York.  Disclosure of the 501(c)(3) organization’s donors is required even if its grant was to be used specifically for non-lobbying purposes.

Partisan Democrats like Marc Elias are naturally opposed to anything involving Republicans, but it is disappointing that Prof. Hasen has pre-judged the report of a commission that has not even begun its work, when he has been willing to point out the shortcomings of a flawed report that supports his policy preferences.  There is likely to be something in the Election Integrity Commission's report and findings that even liberals can agree with, but they are not willing to wait for the commission to do its work and see what it finds.  The commission is going to examine improper voter registrations, which is something even liberals and Democrats agree is a problem.

Instead of welcoming robust debate so that the best ideas are honed and prevail, a concept that is at the very core of our American system of government, modern liberals want to silence speakers who don't share their views.  This is a frightening impulse that should disturb both liberals and conservatives, especially when backed with the power of government as in New York.

Supreme Court Upholds Soft Money Contribution Limits on Donations to Parties; Gorsuch Objects

Today, in Republican Party of Louisiana v. FEC, the Supreme Court summarily affirmed a three-judge court's upholding of the soft money contribution limits on donations to political parties:

The ban stems from the 2002 McCain-Feingold law, which prohibited unlimited and unregulated large contributions to party committees known as soft money. The high court on Monday affirmed without hearing oral arguments a lower court ruling that denied the Louisiana Republican Party’s challenge to soft money bans for state and local parties. 

“I’m disappointed in the decision, but it’s not that big of a surprise,” said Hans A. von Spakovsky, a former Federal Election Commission member who manages the Election Law Reform Initiative at the conservative Heritage Foundation. “It’s now pretty clear that the court is just not going to get into this part of McCain-Feingold and if the parties want these provisions to change, they’re going to have to go to Congress.” 

On Capitol Hill, von Spakovsky’s side will meet intense resistance from Democrats, even as those who favor campaign finance deregulation have a pivotal ally in Senate Majority Leader Mitch McConnell, the Kentucky Republican who led the legal challenge to the McCain-Feingold law. They also have an ally in White House Counsel Donald McGahn, a former Federal Election Commission member.

Newly confirmed Justice Gorsuch, with Justice Thomas, wanted the Court to hear the case and noted his vote in the order, his first major decision since joining the Court.  Prof. Rick Hasen (with whom we frequently disagree but who is probably correct here) said of Gorsuch:

This also tells us something about Justice Gorsuch. He was not shy at all — not only about being willing to wade into this very controversial area, but about announcing publicly his vote to hear the case (something he did not need to do). It could well be that he will be as conservative as Justice Thomas is in these cases. (Justice Thomas believes all campaign finance laws—including disclosure—should be subject to strict scrutiny and are likely unconstitutional.) I expect that unlike most Justices J. Gorsuch may not begin his first few terms cautiously, and then work his way up to his full Supreme Court voice.  

RNLA member James Bopp led this challenge to the soft money party contribution limits, noting that Citizens United left a "grave inequity" between parties, to which contributions are limited, and independent organizations such as super PACs, which may receive unlimited donations.

While today's opinion was very short, it does give us several interesting takeaways: 1. The principles outlined in Citizens United will only apply to outside organizations, at least for now.  2. Justice Gorsuch will likely be an active member of the Court from the beginning.  3. Justice Gorsuch, as his prior opinions indicated, is inclined to view campaign finance restrictions skeptically as infringing on important constitutional rights.  4. The legal challenges to contribution limits post-Citizens United will likely continue, until the right case and facts come before the Supreme Court to cause it to take up the issue once again or until Congress decides to amend the existing restrictions.

Establishment Democrats Have Different First Amendment with More Speech Rights

RNLA Executive Director Michael Thielen wrote today about how establishment Democrats have different standards for free speech for Democrats and liberals and for others (including Democrats who stray from the party line):

Representative Val Demings may be the first Democrat to admit to how the left views the First Amendment. The Florida Congresswoman replied to a critical comment by saying, “My First Amendment Right is different from yours.” Any honest political observer has to admit that this is a salvo in the war the left and Democrats are currently waging on free speech. They try their best to silence any speech that does not fit their dogma, and Demings, intentionally or not, just revealed the game plan. 

Whether it comes in the form of campuses silencing speakers who “offend” their student snowflakes or via government officials regulating elections, efforts to stop or limit opposing viewpoints should be deeply troubling to all.  Most troubling are the movements being led by Democrat lawyers and liberal law professors, the very people who traditionally have been defenders of the First Amendment. . . . The left continues to double down and stop opposing speech even among its own members.  Consider the liberal outcry against the Presidential Advisory Commission on Election Integrity.  Yes, Democrats oppose integrity in the electoral system, apparently. 

Marc Elias, Hillary’s lawyer and now the lawyer of choice in Democrat fights against free speech, leveled a warning to any Democrat who serves on a commission to study vote fraud and how to make elections better. He said: “No Democrat should serve on Trump’s new voter suppression commission. Period.” Similarly, Bob Bauer, President Obama’s lawyer and Elias’ current colleague, said: “[E]lection administration experts should keep their distance” from the commission. Professor Rick Hasen, promoter of liberal talking points, wrote on his Election Law Blog “Not sure what Democrat or election professional would be on a commission” with Secretary of State Kris Kobach or former Secretary of State Ken Blackwell.  Hasen’s probably correct: it’s safe to assume few Democrats are courageous enough to cross Elias. . . . 

One wonders if the establishment left fears free speech in our electoral process so much because in a free debate, they will lose. And let’s not forget that Democrats, including Elias, are privately very concerned about ineligible voters, but only when their favored candidates’ victories are at stake. . . . Of course, that sort of intellectual discussion and competition is what establishment Democrats fear most.  Dissent is not allowed among today’s establishment Democrats, which may be why they rigged the primary to defeat Sanders and continue to fight every effort to protect the right to speak freely regardless of political party or ideology.

Liberal lawyers like Floyd Abrams and Alan Dershowitz have historically been some of the staunchest defenders of free speech, but there's a disturbing trend among Democrats and liberals to suppress free discussion and expression under the banners of (ironically) "democracy" and "tolerance."  It's even more disturbing that this anti-speech crusade extends to political speech and elections, where free speech rights are--and should be--most protected. You can read the whole article, published today, by clicking here. 

Even a Liberal Democrat "Expert" Agrees - Virginia's Latest Effort at Vote Fraud Goes Too Far

What won’t Virginia Democrats do to promote vote fraud in Virginia?  Unconstitutional orders to enfranchise felons, including those in half way houses or prisons in other states; encouraging election officials to not ask for citizenship or felon status; refusing to clean up the voting rolls; and now allowing “selfies” (a self-portrait photograph, typically taken with a digital camera or camera phone held in the hand) of ballots, via a last-minute Advisory Opinion from the Attorney General.

  

Why is this another tool for vote fraud?  It could lead to vote buying and coercion.  Let’s quote an “election law expert” regarding an election selfie case in New Hampshire:

Similarly, the effectiveness of the selfie ban and the continued occasional prosecutions for vote buying, especially for absentee ballots, show that where there can be verification of how someone voted, this is a real — not theoretical — problem.  [A] picture of a valid voted ballot, unlike a simple expression of how someone voted, is unique in being able to prove how someone voted.  

Indeed, it is hard to imagine a more narrowly tailored law to prevent vote buying. Tell the world you voted for Trump! Use skywriting. Scream it to the heavens. We just won’t give you the tools to sell your vote or get forced to vote one way or another.  

The social-media age gives people plenty of tools for political self-expression. New Hampshire’s law is a modest way to make sure that this patriotic expression does not give anyone the tools to corrupt the voting process.

The expert quoted - Hans von Spakovsky of Heritage?  Ex-DOJ Official Christian Adams?  Another conservative?  Nope, it is noted Democrat party supporter/advocate and Election Law Professor Rick Hasen of Election Law blog.  Of course, since the article was written in 2015 and the current issue is in a target state during an election, Hasen has merely posted links on his blog and remained relatively silent.  Hopefully, Hasen will stand up strongly and decry the Virginia Attorney General's Advisory Opinion and the potential for fraud it creates:

The change certainly opens the door to “vote-buying fraud” and it impacts the privacy of other voters and election workers just who happen to be around the camera.  More importantly, election officials have long warned that allowing voters to take a selfie of their ballot during the voting process will cause long lines of voters waiting to vote, all waiting until the “utter foolishness” plays itself out.

It would be nice if Democrats interested in election administration would just once practice what they preach.  

Fourth Circuit Turned Voting Rights into Political Weapon

In its decision on North Carolina's voter ID law last month, the Fourth Circuit acted like a trial court in determining new findings of fact, according to election law expert Christian Adams:

Legal analysts have given the opinion by the 4th U.S. Circuit Court of Appeals overturning North Carolina’s election reform law, including its voter ID requirement, mixed reviews. 

Both J. Christian Adams, president of the Public Interest Legal Foundation in Washington, and Rick Hasen, chancellor’s professor of law and political science at the University of California, Irvine School of Law, noted that it was highly unusual for the three-judge appeals panel to overturn a district court judge’s factual findings. 

While Hasen saw merit in the decision, Adams didn’t. 

“The 4th Circuit did what very few federal appeals courts do; they pretended they were a trial court,” Adams said. “One of the things they teach you in law school is trial courts deal with the facts and appeals courts deal with the law.” Hasen acknowledged that trial courts generally grant deference to the facts stated by a trial court.

Adams concluded that the Fourth Circuit found that the voter ID law and other election reforms were enacted with racially discriminatory intent because it was seeking any way to overturn the law for political reasons:

State elections officials and Republican leaders, however, have noted that in the 2014 election — the first federal election after the new voting provisions were enacted — turnout among black voters was higher than it was in 2010, the last nonpresidential election before the law passed. (The voter ID requirement was delayed until the 2016 primary and general elections.) 

Adams said the court “apparently wanted to set the law aside no matter what,” adding that the appeals court’s ruling turns voting rights into a political weapon. 

“Anything that the legislature ever passes and might affect blacks or Democrats ever so slightly more than whites or Republicans, these judges say it’s a voting rights violation,” Adams said. “That’s bad for the Voting Rights Act and for politics.”

On Monday, North Carolina filed a petition for emergency relief from the Supreme Court that would allow the voter ID law and other election reforms overturned by the Fourth Circuit to remain in effect for the November election.  We hope that the Supreme Court will stay the Fourth Circuit's decision until a less politically motivated court can evaluate the law.

North Carolina and the Myth of Voter Suppression

Judicial Watch’s Robert Popper has an excellent piece in today’s Wall Street Journal about the ongoing federal litigation challenging several changes to North Carolina’s election laws and how statistics from November’s election dispel the myth the changes suppressed the vote there. As we have seen in other states that have adopted voter integrity measures such as photo ID laws, North Carolina’s changes are proving to have zero impact on minority turnout, despite the hysterical claims made by the NAACP and Eric Holder’s Department of Justice (DOJ). In fact, African-American voter registration and turnout increased for the 2014 election.

Popper explains the various legislative changes at issue. For example, North Carolina moved to eliminate same day voter registration, a contentious policy that increases a state’s risk of Election Day fraud. North Carolina also tweaked its state law to require voters to vote in the precinct in which they are registered, hardly a novel or extreme measure. Another change challenged in the lawsuit is the reduction of days available for early voting from 17 to 10, although counties were required to offer the same number of early voting hours as they did before the changes kicked in. North Carolina also adopted a photo voter ID law in the legislative package although it does not take effect until 2016.

North Carolina was sued in two separate suits in August, 2013 by the NAACP, Common Cause, League of Women Voters and others. Later, a third suit was brought by Holder’s DOJ. (Click here for the pleadings and for other information on the case.) Among the extraordinary claims by DOJ as chronicled by Popper:

One expert in the Justice Department lawsuit claimed that more than 200,000 black voters, along with 700,000 white voters, would be “burdened” in an off-year election. Another expert concluded that particular provisions “will lower turnout overall” and “will have a disparate impact on African-American voters.”

Reality?

Those predictions were not borne out. The 2014 elections were the first test of the impact of North Carolina’s new laws, including a “soft rollout” of its voter-ID requirement—under which poll workers asked voters if they had ID and if not, to acknowledge the new requirement in writing. Board of Elections data showed that the percentage of age-eligible, non-Hispanic black residents who turned out to vote in North Carolina rose to 41.1% in November 2014 from 38.5% in November 2010.

The percentage of black registrants voting increased to 42.2% from 40.3% in the same period, and the black share of votes cast increased to 21.4% from 20.1%. The absolute number of black voters increased 16%, to 628,004 from 539,646.

As Popper notes, this is just “the latest example of allegedly “suppressive” laws that failed to suppress votes.” Plaintiffs and left-wing groups like the Brennan Center continue to cry wolf over these laws but the results are clear: common-sense voter integrity measures simply do not suppress the vote. As the Brennan Center and others continue to lose credibility based on their outrageous claims, they are only getting more desperate and it is showing. While some activist and sympathetic judges may continue to (at least temporarily) stop these laws from being implemented, the truth is finally emerging. Even Rick Hasen and other liberals have begun to question the Chicken Little “Sky is Falling” narrative being spun by plaintiffs in these suits and groups like the Brennan Center.