March 2010 - Posts

Obama to Push Citizens United Legislative Fix?
Mon, Mar 29 2010 3:23 PM

Politico reported today that the President plans to "push Congress to close campaign-finance loopholes opened by the Citizens United case" with his new found post-health care "momentum." It is hard to say where Politico got this since no one else has reported the news. However, after the initial announcement by Sen. Chuck Schumer (D-NY) and Rep. Chris Van Hollen (D-MD) of a legislative framework to fix some of the effects of the Citizens United decision, there hasn't been much said, done, or reported on the introduction of a formal bill. We will keep you posted.

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The Score: First Amendment Two - Book Banners Zero
Mon, Mar 29 2010 2:49 PM

Citizens United v. FEC made clear that political speech cannot be limited simply because the speakers have organized themselves under a corporate form.  It was just one short year ago that the case was argued for the first time before the Supreme Court, and the federal government shockingly asserted that it could ban books.

One year later we have seen the First Amendment vindicated not once, but twice – first in Citizens United and now in v. FEC.  Last week, the United States Court of Appeals for the District of Columbia Circuit protected the rights of individuals to donate to groups wishing to exercise their right to political speech.

In  v. FEC a political organization sought to “promote the First Amendment rights of free speech and freedom to assemble by expressly advocating for federal candidates whom it views as supporting those rights and against those whom it sees as insufficiently committed to those rights.”

The organization planned to solicit funds from individuals and use those funds to run independent expenditures “expressly advocating the election or defeat of a clearly identified candidate.”

Helmed by David Keating, SpeechNow was poised to aggressively raise funds and bring its message to the public. had asked the FEC whether it must register as a political committee.  If so, SpeechNow would have been subject to federally imposed contribution limits.   Though the FEC lacked sufficient Commissioners to issue an opinion, a draft advisory opinion was provided “stating that SpeechNow would be a political committee and contributions to it would be subject to the political committee contribution limits.”

Believing those contribution limits to be unconstitutional SpeechNow filed suit.  It’s the efforts of SpeechNow to defend its rights that brought us to this victory for free speech.  Contribution limits to independent expenditure organizations are unconstitutional.

The DC Circuit, relying on Citizens United, reached an elegantly simple solution:

The Supreme Court has recognized only one interest sufficiently important to outweigh the First Amendment interests implicated by contributions for political speech: preventing corruption or the appearance of corruption.

*             *             *

Citizens United holds that independent expenditures do not corrupt or give the appearance of corruption as a matter of law, then the government can have no anti-corruption interest in limiting contributions to independent expenditure-only organizations.

This is a big win for the right to political speech.

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I'm Back
Fri, Mar 26 2010 2:46 PM

My friends, after three long months I’ve decided to return to the blogosphere.  Alas, I’m neither tanned nor well rested.  The ever evolving campaign finance laws have kept me burning the midnight oil, and the nightmare that is Obamacare has kept me awake many nights.  Out of principle I’ll remain this lovely pallor because I won’t pay a 10% federal tax at the tanning booth - not that this is something I have ever partaken in, two minutes in the sun and I’m a permanent shade of pink or red.


So why am I back?


The current state of the law is changing so rapidly we all need to do a better job staying informed.  Just today decisions were released in v. FEC and RNC v. FEC.  These are the most significant campaign finance decisions since the release of Citizens United v. FEC on January 21st.  At least one of them, RNC v. FEC will be championed to the Supreme Court by Ted Olson, a recipient of the Republican Lawyer of the Year award.  When we look beyond the realm of campaign finance litigation to what’s occurring nationwide as Republican Attorneys General defend their states and citizens against mandates imposed by the recent federal health care legislation, I feel there are important legal issues that need to be highlighted, and I believe this blog provides an excellent venue for that debate.


So where have I been?


In January I accepted a new position with a non-profit organization in Washington DC.  In February I was elected chairman of my local county party.  I’ve been organizing a national youth leadership conference and continuing to work on campaign finance issues. 


While I no longer work for the Republican National Lawyers Association I still believe in the important work that they do.  This forum has provided us an important venue to share election law happenings and discuss the events of the day.  I hope that my commentary will help keep you abreast of the rapid changes in this important area of the law.  As always my comments on this blog are my own and do not necessarily represent the views of the Republican National Lawyers Association or my current employer.


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RNC Loses Attempt to Toss Soft Money Ban
Fri, Mar 26 2010 12:24 PM

A decision has come in RNC v. FEC. From The Washington Post:

The Republican National Committee has lost its bid to raise soft money, the unlimited contributions from corporations and individuals banned by a 2002 campaign finance law.

A three-judge panel of the U.S. District Court in Washington ruled Friday that it lacks the authority to overturn a Supreme Court ruling upholding the ban on soft money fundraising by the RNC and other national party committees.

That ban is a cornerstone of the so-called McCain-Feingold law - and one of the few major parts of the law to survive court challenges.

The RNC had argued that it should be able to raise soft money for state election, congressional redistricting, legal costs and other activities that it said had nothing to do with federal elections.

Please click here for the opinion. This is the second major campaign finance decision of the day. Earlier today, the D.C. Circuit Court ruled in favor of in striking down a ceiling on contributions to independent political groups.

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Big Post-Citizens United Decision
Fri, Mar 26 2010 11:29 AM

In today's decision in, et al., v. FEC, the D.C. Circuit Court issued an opinion striking down a ceiling on contributions to independent political groups. was seeking to overturn the FEC's treatment of their organization, an unincorporated 527 independent expenditure group, as a PAC. This treatment forced to comply with contribution limits (notably the $5,000 per election individual limit on PAC contributions), significant reporting and recordkeeping requirements, and general FEC oversight. (It is relevant to note that does not accept corporate contributions.) Please click here for the opinion and here for more from Scotusblog. This is the first major ruling on campaign finance issues since January's monumental Supreme Court's decision in Citizens United v. FEC.  

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Fed. Soc. on the Felon Voting Bill
Wed, Mar 24 2010 6:59 AM

Roger Clegg writing for the Federalist Society's New Federal Initiatives Project, has done an excellent analysis of H.R. 3335: "The Democracy Restoration Act." The RNLA has previously posted on this piece of legislation that would restore the voting rights for millions of felons around the nation. Just last week, the House Subcommittee on the Constitution, Civil Rights, and Civil Liberties committee held a hearing discussing the merits of restoring voting rights to over four million convicted felons. Clegg analyzes Article I, Section 4 of the Constitution and the Fourteenth and Fifteenth Amendments in discussing whether Congress has authority to pass this legislation. Clegg also asks the question if this bill is good policy. Please click here to read his analysis of the bill.

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Newest Threat from the Left: Reenfranchising Felons
Wed, Mar 17 2010 3:56 PM

Yesterday, the House Subcommittee on the Constitution, Civil Rights, and Civil Liberties held a hearing on H.R. 3335, the "Democracy Restoration Act of 2009." (The Senate companion bill is S.1516.) The bill, in relevant part, states:

The right of an individual who is a citizen of the United States to vote in any election for Federal office shall not be denied or abridged because that individual has been convicted of a criminal offense unless such individual is serving a felony sentence in a correctional institution or facility at the time of the election.

As far as enforcement goes, the bill allows the Attorney General to sue to enforce the law. It also gives felons a private right of action to sue to enforce the law if the state does not. The state is obligated to notify the felon when the felons' voting rights have been restored. Finally, any state not in compliance with the law will lose federal funding for prisons. Please click here for the text of the bill as introduced in 2009.

Heritage Foundation's Hans von Spakovsky and Roger Clegg of the Center for Equal Opportunity were the only witnesses at the hearing arguing against passage of the bill. Please click here for a copy of their testimonies and here for a blog article by von Spakovsky on the legislation. I encourage you to read the testimonies of both von Spakovsky and Clegg . They both lay out the constitutional problems with the legislation and explain why it's bad public policy nicely. 

These efforts in Congress, led by Representatives Jerrold Nadler (D-NY) (who you may remember has been ACORN's Defender in Chief), John Conyers (D-MI) (whose wife incidentally was just sentenced to three years in prison), Jesse Jackson, Jr. (D-IL) and in the Senate by Russ Feingold (D-WI) and Chuck Schumer (D-NY), are transparent attempts by liberals to legislatively expand the Democratic electorate. John Lott, a scholar on crime and punishment, recently wrote, "According to academic studies, from 1972 to 1996, on average 80 percent of felons would have voted Democratic. An overwhelming 93 percent ostensibly would have voted for Bill Clinton in 1996." The Democrats know they will lose seats in both the House and Senate in 2010 and passing this law is a great way to make sure it doesn't happen again in 2012.

In the event Congress isn't able to pass the bill, Democrats have their allies the ACLU and other left-wing groups working on a judicial fix to the problem. As the RNLA reported a few months back, the Ninth Circuit recently overturned Washington State's ban on voting by convicted felons. There was another recent suit involving a challenge to the interpretation of a provision of Mississippi's state constitution that disqualified convicted felons from voting. In this instance, the Fifth Circuit held that a proper reading of the state constitution did not permit these felons to vote. There have also been recent challenges to state restrictions on felons voting in Alabama and South Dakota. There is a strong chance that the Washington case will make it to the Supreme Court since there is a Circuit Court split on the matter.

There is activity at the state legislative level as well. Kentucky's legislature is currently considering a bill that would roll back the state's permanent ban on felons voting. (Felons can actually apply to get their voting rights back in Kentucky but it is very difficult.) However, with the Democracy Restoration Act the Democrats must be thinking a federal fix can solve the problem with one quick stroke of federal overreaching.  

Thanks to former Republican Lawyer blogger Chris Berg who sent over a few documents with talking points on the proposed legislation from the ACLU and the Brennan Center.

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Maryland’s ACORN Chapter Shutdown
Tue, Mar 16 2010 9:15 AM

The Baltimore Sun reports that Maryland's ACORN chapter will no longer operate in the state:

A former leader of Maryland's ACORN chapter said Monday the group will no longer operate in the state, doomed by an embarrassing national scandal six months ago from which the organization never recovered.

Sonja Merchant-Jones, former co-chairwoman of the state chapter of ACORN and a board member since 1999, said there are no plans in Maryland to rebrand under a different name, a move undertaken Monday by several ACORN affiliates across the country.

Maryland ACORN ceased operations late last year, Merchant-Jones said, and all the offices in the state have closed. The group has not held a board meeting in Maryland since November, she added.

ACORN's Baltimore office was the scene of the first bombshell video released by undercover filmmakers James O'Keefe and Hannah Giles.

by Justin Riemer | with no comments
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Working Families Party Threatens Wavering Dems.
Mon, Mar 15 2010 11:22 AM

Politico reports that New York's Working Families Party (WFP) has announced that the party "will deny its endorsement to any member of Congress who votes 'no' on health care legislation."  WFP is ACORN's (now New York Communities for Change) unofficial political arm in New York State. (Among numerous other close ties to ACORN, ACORN CEO Bertha Lewis was the founding Co-Chair of the party.) Recently, City Hall reported that Lewis had quietly stepped down as the state Co-Chair of the party.

Working Families Party is in hot water for potential illegal in-kind contributions that Data and Field Services, a company controlled by the WFP, allegedly made to a Democratic City Council candidate for providing campaign management and services to the candidate's campaign. A recent piece at Human Events notes that the case "has drawn interest from both the Staten Island District Attorney and the U.S. Attorney for New York." Please click here for more on the WFP's recent troubles.

Smith notes that WFP's threat should be taken seriously:

New York is home to several moderate Democrats who are sitting on the fence on health care, and the party has in the past provided the margin of victory to some of those Democrats. Upstate Reps. Scott Murphy, Mike Arcuri, and Bill Owens, and Staten Island Rep. Michael McMahon, are all reportedly undecided or leaning against the bill.

The party's ballot line was the margin of victory for both Owens and Murphy last year, and a protest candidate to the left in a general election this fall would be a serious blow to a number of New York Democrats facing difficult races.

The Service Employees International Union, a Working Families Party constituent, has also threatened to drop its support for McMahon if he votes against health care reform.

This is not an enviable position to be in: Go against your constituents' wishes in moderate to conservative-leaning districts, vote for health care and risk getting voted out of office in November; or you can vote against the bill and have the Working Families Party (not to mention the SEIU) withdraw their support. Both options potentially cost you the election. A similar situation is playing itself out in Arkansas where Senator Blanche Lincoln, a Democrat, is facing a primary challenge from the left. She risks losing the support of the state's Democratic primary voters if she votes against health care and risks losing the General Election if she votes for it.

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ACORN agrees to leave Ohio
Thu, Mar 11 2010 3:05 PM

UPI is reporting that "ACORN has agreed to give up its license to do business in Ohio as part of a settlement of a lawsuit by a conservative group:"

Maurice Thompson, the lawyer representing the 1851 Center for Constitutional Law, said Wednesday most details of the settlement are sealed, The Columbus Dispatch reported Thursday.

"They will surrender their business license by June 1 and cease to operate in Ohio and cease to support or enable other groups to do what they do," Thompson said.

Alphonse Gerhardstein, ACORN's lawyer, said the group is no longer operating in Ohio. He said the settlement includes no financial payments.

The institute filed the suit on behalf of two residents of Warren County in southwest Ohio just before the 2008 election. Since then, ACORN has been hit by a sting by a conservative activist who posed as a pimp to seek advice on tax evasion from several of the group's offices.

No word yet on whether ACORN is reorganizing under a pseudonym as they have done in New England, New York, California and other states.

by Justin Riemer | 1 comment(s)
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WI Vote Fraud Charges Show Dangers of EDR and More of the Same From ACORN
Tue, Mar 9 2010 9:21 AM

Yesterday, Wisconsin Attorney General J.B. Van Hollen "announced . . . that the Milwaukee Election Fraud Task Force has brought additional electoral fraud cases against five Wisconsin residents . . ." for their role in "election fraud arising out of the November 8, 2008, Presidential Election." 

Two of the five charged worked for ACORN as voter registration gatherers:

According to the criminal complaints, Miles and Clancy served as Special Registration Deputies ("SRD") for the City of Milwaukee in advance of the 2008 Presidential Election.  Each worked for the Association of Community Organizations for Reform Now ("ACORN").  Miles and Clancy are each charged with the felony offense of Falsely Procuring Voter Registration as Party to a Crime.  The complaint alleges that Miles and Clancy submitted multiple voter registration applications for the same individuals, and also were part of a scheme in which they and other SRDs registered each other to vote multiple times in order to meet voter registration quotas imposed by ACORN.

The third voted when he wasn't eligible to:

Henderson is charged with one count of Voting by a Disqualified Person and one count of Providing False Information to Election Officials, both felonies. The complaint alleges that Henderson registered to vote at the polls on November 4, 2008, thereby certifying that he was a qualified elector.  It also alleges that he then cast a ballot.  At that time, Henderson was on an active period of probation for felony convictions from Rock County.  A felon on an active period of supervision for a felony offense is prohibited by state law from voting in any election.

Finally, the last two were charged with double voting:

Herbert and Suzanne Gunka are each charged with the felony offense of Double Voting.  The complaint alleges that they each voted in the November 2008 election by casting absentee ballots before the election.  The complaint also alleges that after casting absentee ballots, they each voted in person at their polling place on election day. 

There is nothing surprising or new here about the charges against the ACORN employees. ACORN and its employees have been charged in other states for similar voter registration schemes, including in Pennsylvania and Nevada. What happens is this: ACORN sets up a system where its voter registration gatherers are required to (or are given incentives to) obtain a certain number of new registrations per hour or per day. This is often in contravention of state laws that ban incentivizing voter registration gatherers for the number of new registrations they obtain. In order to meet the requirements or to obtain bonuses for the number of new registrations, ACORN employees make up names, duplicate names, use each others' names multiple times, etc. That's where you hear of Mickey Mouse, Dick Tracy, and the roster of the Dallas Cowboys being registered. Not only are the ACORN workers incentivized for gathering a certain number of new registrations, often times the ACORN employees will be fired for not meeting the quota for new registrations. ACORN was not charged as an organization here and it is not immediately clear if the registration quotas set by ACORN ran afoul of state law like they did in Nevada and Pennsylvania. Hot Air has more on the ACORN employees' indictments.

In my view, the charge of "Voting by a Disqualified Person" for Henderson is most significant. Henderson registered at the polling place on Election Day in 2008 claiming he was eligible to vote. He then voted. Henderson was on an active period of probation for a felony charge and under state law was ineligible to vote.

How was Henderson able to vote? Well, Wisconsin is one of nine states that has some form of Election Day Registration (EDR). This allows unregistered voters to show up the day of the election and register and vote at the same time. It sounds like a good idea in theory, that is until you get convicted felons and others ineligible to vote showing up to cast ballots. Wisconsin does have some safeguards against voter fraud in these instances but they don't go far enough. Hardened criminals looking to vote aren't going to be scared away by having to sign an affidavit swearing they are eligible voters. Without any type of verification procedures beyond what is available at the polling place, folks like Henderson can, and do, slip through the cracks. It's likely Henderson would have never been able to vote if he had been required to register in advance. Verification procedures, one of the main reasons for voter registration deadlines before elections, would have likely identified Henderson as a felon and disqualified him from voting. Instead it took a special investigation after the election to determine he wasn't eligible.

This is not the first time that Election Day Registration in Wisconsin has yielded voter fraud. Just a quick search of the WI DOJ website show that similar charges were brought in March and April of 2009. In fact, the problems associated with EDR have been apparent since the 2004 General Election. Following the election, a Special Investigations Unit of the Milwaukee Police Department issued a 67-page report summarizing the problems with Election Day Registration. Citing concerns for fraud (or the appearance of fraud), the report's ultimate recommendation was to eliminate EDR or to require a valid government issued photo ID in order to register and vote on Election Day. Moreover, the report shows that these are likely far from isolated incidents: potentially hundreds of ineligible votes are being counted each election.

For every Henderson that votes an eligible voter has his or her vote taken away. Whatever convenience Election Day Registration provides is outweighed by the threat that your vote will be discounted because of fraud or incompetence.  

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Indiana Supreme Court Hears Challenge to Voter ID Law
Thu, Mar 4 2010 2:39 PM

Today, the Indiana Supreme Court heard oral arguments on a challenge to the state's voter identification law. Nearly two years ago, the U.S. Supreme Court upheld Indiana and Georgia's voter identification requirements in Crawford v. Marion County Election Board. The law is now being challenged by the League of Women Voters under the Indiana Constitution. reports that oral argument was quite lively. Please click here for the video of the oral argument.

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ACORN’s Lawyer Claims the Organization Still Exists
Wed, Mar 3 2010 5:33 PM

In a letter obtained by the RNLA, the attorney for ACORN representing the organization in litigation in federal court claims that ACORN has not dissolved and still exists: "Plaintiff ACORN, which is a national organization, has not dissolved, has no plans to dissolve, and intends to continue operating as a national organization serving poor and working people."

The letter, dated yesterday, was signed by Jules Lobel, counsel for ACORN in litigation in the U.S. District Court for the Eastern District of New York, where ACORN is challenging the constitutionality of last year's continuing resolution that stripped federal funding for the organization. In December, Judge Nina Gershon (a Clinton appointee), ruled that the legislation amounted to a Bill of Attainder and issued an injunction that prevented HUD, OMB and Treasury from withholding funding to the organization. (Please click here for RNLA's response to the ruling.) There have been numerous filings following Gershon's initial ruling, including ACORN's attempts to get a permanent injunction enjoining the withholding of funds.

The letter from Lobel did acknowledge what was widely reported last week: many of ACORN's local affiliates have cut their ties to ACORN's national organization and have rebranded under different names such as "New York Communities for Change." (However, don't be fooled, these organizations are ACORN in everything but name.)

by Justin Riemer | with no comments
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Brooklyn D.A. Clears ACORN
Mon, Mar 1 2010 5:46 PM

The New Daily News reports that after a four month investigation, Brooklyn District Attorney Charles Hynes has cleared ACORN from any criminal wrongdoing for ACORN employees' advice to undercover filmmakers James O'Keefe and Hannah Giles on how to launder money earned from a fictional prostitution scheme. A source at the Brooklyn D.A.'s office said: "They edited the tape to meet their agenda." This news comes conveniently on the heels of last week's revelation that New York's ACORN organization has dissolved and rebranded itself "New York Communities for Change." 

by Justin Riemer | with no comments
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