Democrat FPPC Commissioner Under Fire for Undisclosed Meeting with Lawyer

A Democrat commissioner on California's analog of the FEC, the Fair Political Practices Commission (FPPC), is under scrutiny for meeting with an outside attorney directly interested in a matter before the FPPC:

A commissioner of California’s political watchdog agency met secretly with a lawyer working for Senate Democrats while advocating for changes to campaign finance law that would help retain the Democrat’s supermajority in the state Senate, The Bee has learned. 

Commissioner Brian Hatch, a Democrat and former lobbyist for the firefighters union, met privately, talked on the phone and exchanged text messages with the lawyer as the Fair Political Practices Commission considered flipping a longstanding legal interpretation of campaign finance law to favor Sen. Josh Newman in the fight to retain his seat. . . .

While FPPC commissioners are prohibited from speaking privately with people involved in enforcement cases, other situations allow more flexibility. Commissioners are allowed to meet or discuss the agency’s legal opinion on state law and rule-making decisions, but such one-on-one meetings are unusual and are supposed to be disclosed. Hatch did not disclose his conversations. . . .  

Thomas Hiltachk, a political lawyer who has appeared before the FPPC for decades, also said such private contacts are unusual. . . . Hiltachk said he’s met with FPPC commissioners over the years after they are appointed to get to know them. He hasn’t tried to lobby them on issues before the commission, he said. 

While Hatch's discussions with the outside lawyer appear to be legal under FPPC rules, they should have been disclosed.  Failure to disclose these interactions has the potential to undermine the legitimacy of the FPPC's decision-making process, just as the partisan activities and statements of the FEC commissioners risk undermining the FEC's work.

Are Liberal and Democrat Attacks on Gorsuch Starting to Backfire?

Two separate lines of attack on Judge Gorsuch by liberals may be backfiring.  The first may be today’s attack on Gorsuch in The New York Times:

The New York Times published a front-page story Wednesday on President Donald Trump's Supreme Court nominee Neil Gorsuch and his ties to a "secretive billionaire," despite never devoting equal coverage on a Democratic senator who had even more direct ties to the same tycoon.

The Times reports that Gorsuch represented Anschutz in several federal court cases while working for a private law firm in Washington, D.C. starting in 2004. In 2006, Anschutz sent a letter to the Bush administration recommending Gorsuch–who was then in the Justice Department–for an open federal judgeship. Gorsuch also co-owns a log cabin retreat with two Anschutz executives.

But Gorsuch was never a direct employee of Anschutz or a key executive in his empire, unlike Democratic Colorado Sen. Michael Bennet. From 1997 to 2003, Bennet served as managing director of Anschutz Investment Co.

The Times may be concerned over Gorsuch's "web of ties" to Anschutz, but The Denver Post noted that "executives and family members associated with Anschutz Co., Anschutz Group or Anschutz Investments donated more to Bennet… than to any other federal candidate."

If Anshutz is a bad person to have contacts with, then Senator Bennet of Colorado is the one in trouble, not Judge Gorsuch.  Further Gorsuch, unlike Bennet, has recused himself from matters involving Anschutz.  As David French writes:

Gorsuch, by the way, disclosed his ties to Anschutz and recused himself from cases involving his former clients, as ethical judges do.

Americans should take comfort from the fact that Gorsuch is so squeaky clean that this is a news story. Here’s a news flash: when lawyers do their jobs well, their clients tend to become their friends. I make no claim to be an attorney of Gorsuch’s caliber, but I have my own “web” of valued friendships and ties to former clients. This is completely normal in the practice of law, and lawyers without former clients as friends should worry about their own competence.

Senator Bennet may have something to worry about over Anschutz, but any way you look at it, it is a positive for Gorsuch. 

In a separate attack, a liberal group is going after Gorsuch on campaign finance matter.  Once again, the attack has the opposite of the intended effect.  As David Keating writes:

Democrats and progressives are losing their minds over President Trump's Supreme Court nominee, Neil Gorsuch. One left-wing advocacy group released a video titled "3 Reasons to Fear Judge Gorsuch." Number one? According to them, if Gorsuch is on the Supreme Court, "our elections could be completely handed over to the powerful and the wealthy."

That ludicrous statement refers to Gorsuch's concurring opinion in Riddle v. Hickenlooper, a campaign finance case. Riddle challenged Colorado's contribution limit law as discriminatory.

Was it ever! It allowed major party candidates to raise twice as much money as minor party candidates and independents. Progressives love to say "money isn't speech," but Riddle wasn't about that. It was about equality.

The Tenth Circuit unanimously struck down the contribution limit scheme as a violation of the Fourteenth Amendment's equal protection clause. A Republican candidate doesn't get to raise more money from individual supporters than a Green Party candidate. The law must treat everyone the same.

So in other words, Judge Gorsuch ruled for the far-left, small parties such as the Green Party over the establishment parties such as Republicans and Democrats.  Gorsuch ruled for the little guy and against the powerful establishment parties. 

Democrats attacks on Judge Gorsuch are backfiring and helping to make the case for his confirmation, even among liberals.

Different Ethical Standards for Republican and Democratic Lawyers?

Is there a different standard under the ethical rules governing lawyers for Republicans and Democrats?  According to some recent actions by liberal attorneys, they think there is.

Fifteen liberal law professors filed an ethics complaint with the DC bar, alleging that Kellyanne Conway violated Rule 8.4(c) of the D.C. Rules of Professional Responsibility by engaging in “dishonesty, fraud, deceit, or misrepresentation.”  As RNLA member Maya Noronha explained on the Fed Soc Blog, this presents a serious misuse of the ethics rules and implicates the First Amendment:

Many legal ethics professors, such as Jack Marshall, Jonathan Turley and Steven Lubet, have said these complaints against Conway are meritless. Exaggerations, misstatements, or gaffes occur on political talk shows.  But do they constitute professional misconduct comparable to such actions like embezzlement, blackmail, fraud, and bribery, acts that undoubtedly violate the rule?  Bar disciplinary rules are in place to ensure clients are not injured by misconduct, to deter future misconduct, and to promote a good reputation for the legal profession. It’s not quite clear how Conway, who has not practiced law since 1995 and does not even have an active license in D.C., is causing “shame” to the legal profession, as the bar complaint alleges. 

Bar disciplinary committees have the authority to institute such sanctions as reprimand, probation, suspension, and disbarment, but bar complaints can have other implications, even if disciplinary committees never reviews the complaints.  Bar complaints can be used as a tactic to tarnish the reputation and even silence individual lawyers. Meanwhile, the people lodging the complaint can get interviews and free press. 

But the First Amendment concerns are even more serious. Bar complaints inviting disciplinary committees to take a position on political commentary invites politically motivated bar discipline and discourages lawyers from speaking about controversial political issues. Several decades ago, Justice Black warned that “the rights of a lawyer…to practice cannot be left to the mercies of his prospective or present competitors.”

When even a liberal Democrat law professor writes a scathing article in Slate explaining that the complaint is "dangerously misguided," it is clear that there is no merit to this politically motivated complaint.

This is just one example of a disturbing trend of applying different ethical standards to conservative and liberal lawyers and using the bar disciplinary system as a political tool.  With the ABA trying to extend the reach of bar discipline into lawyers' social activities, this trend is even more disturbing.