June 2011 - Posts

It's No Joke: FEC Oks Colbert Super PAC
Thu, Jun 30 2011 2:25 PM

This morning, at a cozy 9th floor hearing room at the Federal Elections Commission, comedian and talk show host Stephen Colbert received approval to establish his super PAC. Mr. Colbert’s PAC will be able to raise and spend an unlimited amount of money, and make unlimited expenditures, provided all his expenditures are not coordinated with any candidate, political committee, or party.

A so-called “super PAC” is a political action committee that may accept unlimited contributions from authorized sources (individuals, political committees, corporations, and labor organizations), but is only authorized to make independent expenditures (expenditures not coordinated with any candidate, party, or political committee). A super PAC has no limit on the amount of contributions it can accept from authorized sources. Additionally, it can accept contributions from corporations and labor organizations, which candidates, parties, and political committees cannot. Mr. Colbert’s legal issue was not an easy one to decide because of the uniqueness of his request to fall under the media exemption which establishing a PAC. However, Mr. Colbert is not the first one vying to establish a super PAC. While initially against super PACs, Senate Democratic leader Harry Reid and House Minority Leader Nancy Pelosi now want to raise money for Super PACs. (In a separate ruling today, the FEC ruled that federal office holders may not raise unlimited funds for super PACs.)

In a bi-partisan 5-1 vote, the Federal Elections Commission approved an Advisory Opinion which gave Mr. Colbert almost everything he asked for. First, Mr. Colbert is allowed to establish his “Super PAC.,” Second, if the committee is discussed on Mr. Colbert’s show, he does not have to disclose in-kind contributions from Comedy Central’s parent company, Viacom. The Commission determined these activities would fall under “press exemption,” which says that a contribution or expenditure would not result from “any cost incurred in covering or carrying a news story, commentary, or editorial by a news station unless owned by a political entity.” However, in a minor defeat, if Mr. Colbert’s independent expenditures are distributed outside of his show, he must disclose these as in-kind contributions from Viacom. The Commission said these would be considered in-kind contributions because distributing these advertisements outside Mr. Colbert’s show would fall outside their legitimate press function.

The one dissenting vote came from Commissioner Donald McGahn, who agreed that Mr. Colbert should be allowed to establish his PAC and solicit unlimited contributions, as well as make unlimited independent expenditures. However, Commissioner McGahn does not think advertisements outside of Mr. Colbert’s show need to be reported as in-kind contributions. Commissioner McGahn said:

I agree with question 1 and question 3, [pertaining to the establishment of the PAC, soliciting of funds, and production of independent expenditures] but I am skeptical that other advertising by Viacom is definitely something that should be reported. There are still questions of who the media are that need to be addressed in rules after Citizens United.

It is unclear whether Mr. Colbert knew what a legal process establishing his PAC would be. However, the FEC gave Mr. Colbert almost everything he wanted. The FEC is allowing him to establish his PAC, solicit unlimited contributions, and make unlimited independent expenditures. However, they determined that he falls under the press exemption for PAC activity on his program. This one minor defeat will likely not phase Mr. Colbert, as his PAC will most likely be run and monitored by his lawyer and campaign finance expert, Trevor Potter. The FEC’s ruling opens up other political commentators, and talk show hosts, to establish super PACs, as well as discuss these PACs on their respective programs, falling under the media exemption. The FEC gave Mr. Colbert the power, now the question is, will he use it?

 

To read all the proposed advisory opinions, go here. To listen to an audio recording of the hearing, go here

by Brian Bennett | with no comments
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Hearing Held to Determine EAC Commissioners
Thu, Jun 30 2011 2:20 PM

Yesterday, the Senate Rules Committee considered the nominations of three nominees for Commissioner of the Election Assistance Commission: Current Republican Commissioner Gineen Bresso, Democratic House Administration Committee staff member Tom Hicks, and Brennan Center legal counsel Myrna Perez (see our previous post about why her ultra-partisan views will not make her a good choice for the EAC).

Citing brevity, Senator Chuck Schumer, Chairman of the Committee, made no opening remarks and instead entered his remarks on the record. However, Ranking Member Lamar Alexander opted to make opening remarks during the hearing. Alexander said:

This hearing is premature, instead of considering new nominees, we should be abolishing this Commisison. The Election Assistance Commission was constituted in 2003, since then, there has not been one oversight hearing…..I wrote in March to have one, and we didn’t have one. The government is borrowing 40 cents out of every dollar we spend, we have a terrific finance problem with the federal government. Yet, today we are considering new appointments for a Commission that should cease to exis.The Election Assistance Commission was authorized for three years and given certain tasks. The primary task was to deliver federal money to the states to update their voting system. 3.2 billion dollars was appropriated for this purpose, and has been distributed. Given our current fiscal situation, it is unlikely anymore money is forthcoming. The current administration agrees, asking for no funds in is first two budgets. The National Association of Secretaries of State, a bi-partisan organization, has twice voted in favor of a resolution for abolition of the Commission. So, we are in a situation where the government is trying to give help the states don’t want. The tasks of the Commission have been completed or can be done by other entities. They did their job, we should thank the staff for their service. But, if the completion of their appointed tasks is not enough to close them down, the Commission also appears to have serious management problems, though it’s mission has dwindled, its staff has grown. The Commission had 20 staff in 2004, last year it had 64 staff. The average salary of the staff is over $100,000. Why is more staff needed for less work? The cost of overhead exceeds the costs of the program, clearly, something is wrong. Finally, the Commission has a history of hiring discrimination (due to political party and military service) Even if we were to assume the nominees could right the ship, and correct the problems, the question would remain, where would this ship sail? Ronald Reagan once said “there is nothing closer to eternal life than a government agency.” Shouldn’t we try using this opportunity to prove Mr. Reagan wrong.

Senator Schumer then asked the nominees what they would focus on as Commissioner of the EAC. The answers varied from clearinghouse functions to testing and certification. But the most interesting answer came from Ms. Perez. Although she refused to firmly commit to priorities, Ms. Perez said:

One of my focuses would be to grow competence in the agency. It is important that election administrators and Congress feel like they are getting expert service from the EAC, and that Congress and the public feel like taxpayer dollars are being well spent.

This is ironic coming from a woman who has advocated ignoring the Constitution by suggesting illegal aliens should be counted in the census. As well as wanting to ignore laws she does not like, such as Section 8 of the National Voter Registration Act. Sounds like Ms. Perez needs to practice what she preaches.

Then, Senator Alexander asked the nominees whether the administration of elections should be primarily given to state and local officials, or if the EAC should be given even more power than it currently has. Mr. Hicks was willing to leave more power with the federal government, saying “when Congress decides the Help America Vote Act should be changed, I will change with it.”  Ms. Perez concurred on this point, stating, “state and local election administrators need assistance, and Congress determined a federal agency could do that” Ms. Bresso was more willing to defer to the expertise of state and local officials, saying “there is not a one-size-fits all approach.”

The last question, asked by Senator Cochran, directed at current EAC Commissioner Bresso, concerned her opinion on a commissioner’s role in the EAC budget process. Ms. Bresso stated she would like Commissioners to get involved from the beginning, rather than just at the end, “playing a more active role in the budget process.”

Although brief, there was no doubt that the hearing should have been about eliminating the EAC entirely. Senators Alexander and Cochran were clear this was their intention.  Instead, the Senate Rules Committee held hearings to confirm two more Commissioners whose salaries would increase the EAC’s already bloated budget. Let’s hope the Senate can do right what the House did wrong. However, for now, we are stuck with appointing Commissioners so that the EAC can continue to be an example of an eternal government agency long outliving its purpose. 

To watch the full video of the hearing, click here.

by Brian Bennett | with no comments
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Voter Fraud a Reality in New Mexico, Despite Criticism
Thu, Jun 30 2011 8:39 AM

Democrats are at it again, trying to ensure the voting process is unsafe and insecure. In New Mexico, Secretary of State Dianna Duran is trying to do her job by ensuring the safety and integrity of the election process. Duran turned over 64,000 voter files to the state police for review. 

Most people would applaud the Secretary of State for asking non-partisan law enforcement officials for assistance verifying voter rolls. However, it seems that the New Mexico Democratic Party is not most people.

The Executive Director of the Democratic Party of New Mexico contended in a statement released last week that the secretary’s investigation was tantamount to a witch hunt. He said, “There has never been a successful prosecution for voter fraud in New Mexico.”

A couple examples to refresh the Executive Director’s memory: In 1992, an Albuquerque community activist, a former state Democratic Party worker, and her assistant all pleaded guilty, and were convicted on federal charges of voter fraud.

To assert that New Mexico is somehow different from the rest of the country and say voter fraud does not happen is absurd. One of the most liberal justices of the Supreme Court, as well as former Democratic President Jimmy Carter have said voter fraud is a reality. Democrats should be applauding the Secretary of State rather than demonizing her. 

by Brian Bennett | with no comments
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Unlike Obama, Republican Candidates Would Appoint Impartial Judges
Wed, Jun 29 2011 8:42 PM

 

Back in 2008, Obama said that “…the judge then has to bring in his or her own perspectives, his ethics, his or her moral bearings, and, in those circumstances, what I do want is a judge who’s sympathetic…” This “empathy” standard is actually—as Senator Orrin Hatch (R-Utah) has explained—“a code word for an activist judge.”  Obama’s approach of appointing judges whose personal beliefs influence their rulings from the bench has roundly been rejected by the candidates for the Republican Presidential nomination.  Take a look at some of their statements:

Michelle Bachmann: “I do not believe the judges should be legislating from the bench. As President of the United States, I would not appoint judges who are activists.” (June 27, 2011).

Herman Cain: “A justice must issue rulings based on the Constitution, not on any political leanings or desires to legislate from the bench.” (February 22, 2011).

Newt Gingrich: “I believe that the justices who believe that their personal view outweighs the voters of their state, the governor and the legislature of their state are fundamentally acting outside the American system.  I think the American system was one of a balance of power.  I think this whole modern – it starts with the Warren Court in 1958, 1959, this whole modern notion of judicial supremacy is false, and I think that that’s going to be one of the major issues in 2012 and beyond is whether you want judges dictating the nature of American or you want judges who accept the law and who have respect for the legislative and executive branches.” (May 25, 2011).

Gary Johnson: “Judges should be appointed who will interpret the Constitution according to its original meaning. Any court decision that does not follow this original meaning of the Constitution should be revisited.” (Unknown Date)

Tim Pawlenty: “As governor of the state of Minnesota, I appointed to the Supreme Court a conservative court for the first time in the modern history of my state…I’m the only one up here – I believe I’m the only one up here – who’s appointed solidly, reliably conservative appointees to the – to the court.” (June 13, 2011).

Ron Paul: “The political left increasingly uses the federal judiciary to do in court what it cannot do at the ballot box: advance an activist, secular, multicultural political agenda of which most Americans disapprove. As a society, we should reconsider the wisdom of lifetime tenure for federal judges, and pay closer attention to the judicial nomination procedure. It's time for the executive and legislative branches to show some backbone, appoint judges who follow the Constitution, and remove those who do not.” (October 5, 2004).

Mitt Romney: “I will support justices who believe in following the Constitution and not legislating from the bench.” (June 13, 2011).

Rick Santorum: “[E]xtreme liberal judges [are] destroying traditional morality, creating a new moral code and prohibiting any dissent…The Supreme Court has become the supreme branch of the government, imposing its unrestrained will on all of the people…The only way to restore this republic our founders envisioned is to elevate honorable jurists like Samuel Alito who want to replace the hubris of this court with humility and respect for the common sense of the American people.” (July 9, 2006).

 

Disclaimer: The Republican National Lawyers Association (RNLA) provides information of interest to lawyers about candidates for public office.  However, the inclusion of information about these candidates is not an endorsement of a specific candidate for public office.

by Maya Noronha | 2 comment(s)
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New Op-Ed on Voter Fraud by RNLA’s Larry Levy
Wed, Jun 29 2011 12:51 PM

RNLA Vice President for Finance Larry Levy published an article entitled, “Citizens Aren’t the Only People Who Vote” on the prevalence of voter fraud in Colorado.  He discusses a 2011 study by the Colorado Secretary of State that found a large number of non-citizens on the voter registration rolls.  Levy notes that this problem is not limited to Colorado.  Levy recognizes the danger illegal votes poses, writing:

While citizens must demonstrate their commitment to our democracy by voting, a proliferation of illegal votes undermines the very democracy we seek to protect, dilutes citizens’ votes and encourages illegal activity by those seeking political advantage from illegal voters.

To read more, click here or here.

by Maya Noronha | with no comments
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Ultra-Partisan Perez Considered for the EAC
Wed, Jun 29 2011 9:52 AM

Today, the Senate Rules Committee will consider three nominees for Commissioner of the Election Assistance Commission. Two of the nominees, incumbent Republican Commissioner Gineen Bresso, and current House Administration Committee Democratic staff member Tom Hicks are solid choices who will apply the laws fairly. However, one of President Obama’s nominees is an ultra-partisan legal commentator who will only apply the law as she sees fit.

Myrna Perez, currently senior counsel at the Brennan Center for Justice, has made her preferences well known through public statements and papers. Two of Ms. Perez’s most controversial opinions are on Voter ID and universal registration. WThe Supreme Court acknowledged voting fraud as recently as three years ago in Crawford v. Marion County Election Board, saying:

Respected historians and journalists have documented instances of voter fraud throughout American history, which demonstrate[s] that not only is the risk of voter fraud real but that it could affect the outcome of a close election.

But this does not seem to phase Ms. Perez. She wants to make it easier to commit voter fraud. She supports allowing an individual with a college ID and an out-of-state license to vote in-state, sued the state of Florida when they tried to match vital statistics against a state database before allowing individuals to vote, and opposes allowing local election officials to send postcards or other mail and see if it is returned as undeliverable to maintain their voter lists.

Ms. Perez also proposes the unconstitutional notion that illegal aliens should be counted in the census. Citing Article I, Section 2, clause 3 of Constitution, Ms. Perez says:

The Constitution uses the word "numbers" or "persons" -- not "citizens," or "legal residents," or "those lawfully present."  Moreover, the Constitution wholly and explicitly empowers Congress to sort out the details.  The express delegation of the responsibility to Congress casts fulfilling its constitutional obligations to make the policy determinations guiding the census as a bad thing.

 Ms. Perez also opposes the entire idea of voter ID. In a blog post for the Brennan Center on the perils of voter ID, Ms. Perez stated:

There's a better answer. Let's stop passing laws that make it harder for eligible citizens to vote.  Let's focus instead on passing laws to make the American voting system the best in the world.

 Ms. Perez is also not interested in enforcing current law, even laws that are specifically under the jurisdiction of the Election Assistance Commission. Section 8 of the National Voter Registration Act requires states to periodically purge their voter rolls of dead people, felons, illegal voters and those who have moved out of state. However, in 2008, Ms. Perez actually submitted a brief in the United States District Court in Colorado  that sought to enjoin the Colorado Secretary of State from enforcing these provisions of the National Voter Registration Act.

Include all of Ms. Perez’s extreme views with the fact that she has absolutely no election administration experience. Ms. Perez chose to attack election administration from the confines of a liberal policy center for most of her professional career. President Obama should select a less extreme nominee with more experience.

 

- By Brian Bennett

by Maya Noronha | with no comments
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RNLA Co-Chair's Op-Ed Shows Voter ID Protects Americans’ Most Basic Right
Tue, Jun 28 2011 9:30 AM

 

RNLA Co-Chair Heather S. Heidelbaugh recently wrote an op-ed supporting passage of a voter ID law in Pennsylvania. Her article begins with an example of how voter ID laws prevented voter fraud in the 2006 election.  Ms. Heidelbaugh then cites a number of reputable surveys  showing that voter fraud is prevalent, voter ID laws do not prevent eligible voters from casting ballots, and requiring photo ID at the polls is beneficial to elections.  She writes, “Voter ID prevents voting by individuals registered in more than one state as well as from impersonation, voting under fictitious names and voting by non-citizens.”

Representative Daryl Metcalfe’s voter bill (R-Butler, Pa.), mentioned in the article, passed the Pennsylvania House of Representatives by a vote of 108-88 on Thursday evening.

 

by Maya Noronha | with no comments
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Supreme Court Strikes Down Arizona Statute for Burdening First Amendment
Tue, Jun 28 2011 8:19 AM

Yesterday, Chief Justice Roberts applied Davis v. FEC to strike down an Arizona statute that permitted candidates for state office to receive matching funds from the state in direct response to campaign activities of privately financed candidates and independent expenditure groups.

In Arizona Free Enterprise Club's Freedom PAC v. Bennett (along with McComish v. Bennett, also on certiorari to the Court), the Court considered a “matching funds” provision of Arizona law that provided during a primary election, every dollar that a privately financed candidate spends results in one dollar of state funding. Additionally, during a general election, every dollar that a candidate receives in contributions—which includes any money of his own that a candidate spends on his campaign—results in roughly one dollar in additional state funding to his publicly financed opponent. Once the public financing cap is exceeded, additional expenditures by independent groups can result in dollar- for-dollar matching funds as well.

The opinion of Chief Justice Roberts held that Arizona’s “matching fund” scheme substantially burdens protected political speech without serving compelling state interests, and thus, violates the First Amendment. Roberts’ opinion stated the “matching funds provision “imposes an unprecedented penalty on any candidate who robustly exercises [his] First Amendment right[s].”

The Court primarily used the reasoning in Davis v. FEC  to reach its holding. In Davis, the “Millionaires Amendment” of the Bipartisan Campaign Reform Act was found to be an unconstitutional burden on free speech. The provision provided that if a self-financed candidate used a certain amount of his personal funds, his opponent would get triple what the normal contribution limit allowed. In Bennett, the Court held the cash subsidy, provided by the state of Arizona, conferred in response to political speech, penalizes speech to a greater extent and more directly than the Millionaire’s Amendment in Davis.

The Court held that forcing a choice—in which matching funds would be triggered unless a contributor changes his message or does not speak—certainly contravenes “the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.”

The Court cited examples of specific candidates curtailing fundraising efforts and actively discouraging supportive independent expenditures to avoid triggering the matching funds provision. The record also includes examples of independent expenditure groups deciding not to speak in opposition to a candidate. Roberts’ opinion held that it is clear to every court to have considered the question after Davis that a candidate or independent group might not spend money if the direct result of that spending is additional funding to political adversaries.

The Supreme Court also found that there was no valid compelling interest for the state of Arizona in enforcing this statute. The holding found strong support that the only compelling government interest that the state of Arizona had was advocating for an equal playing field, which has been held not to be a compelling government interest. The Court rejected Arizona’s contention that the statute was to further an anti-corruption interest. Because “the use of personal funds reduces the candidate’s dependence on outside contributions and thereby counteracts the coercive pressures and attendant risks of abuse” of money in politics and that independent expenditures do not give rise to corruption.

RNLA Board of Governors member and General Counsel of the James Madison Center for Free Speech, James Bopp Jr., said of the ruling:

Under this system, simply running an ad against a candidate can result in that candidate getting more taxpayer money. Requiring people to effectively fund candidates they opposed simply by exercising their First Amendment rights is blatantly unconstitutional.

Yesterday’s ruling continues the Roberts Court’s impeccable reputation deciding campaign finance cases. Abiding by solid jurisprudence from last year’s decision in Citizens United v. FEC, the Roberts Court has upheld the integrity of the election process as well as ensured First Amendment protections are not burdened. 

by Brian Bennett | with no comments
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Business as Usual: EAC Still Alive
Mon, Jun 27 2011 10:10 AM

Last week, the House of Representatives debated HR 672, a bill that would eliminate the inefficient Election Assistance Commission. The bill seemed to be a logical choice for people wanting to cut government waste by eliminating an inefficient government agency. However, the Democrats suspended House rules to require a two thirds vote to pass the bill, and were able to defeat the bill along party lines.

The bill proposed that the efficient functions the EAC does serve would be transferred to the Federal Elections Commission. Increasing the size of the FEC by less than ten people. It would eliminate the EAC, which has been the subject of two discriminatory lawsuits in ten years. Once, discriminating on the basis of political party, and again for discriminating based on past military service. While both of these discrimination lawsuits resulted in settlements costing the American taxpayers thousands of dollars, it did not seem to affect the EAC’s overall budget or staff salaries. Nearly half of the 54 person staff makes six figure salaries, as the EAC’s 2011 operating budget has risen to nearly $18 million.

The Democrats went to a lot of trouble to keep an agency that has completed four out of the five federally mandated election studies, has zeroed out its remaining election grants, and has been ruled obsolete by the National Association of Secretaries of State on two separate occasions.

During debate, the bill’s sponsor, Rep. Gregg Harper summed up the reasons for elimination perfectly, saying:

This bill is a careful and thoughtful measure to close down a federal agency in a responsible way. To sustain an agency that has completed its assigned studies, dispersed its assigned grants, and fulfilled most of its mandate, is the definition of irresponsibility. We haven’t rushed through this process. We’ve held hearings. We’ve listened to numerous experts. We’ve kept and reassigned the programs that provide true value for election administrators. And now is simply the time to end the EAC and save American taxpayers at least $33 million dollars in the next five years. It doesn’t get any easier to find an example of wasteful spending. If we can’t do this, we might as well pack up and go home, because this is as obvious as it gets.

However, it appears the House should just pack up and go home. The House Democrats who failed to vote in favor of this bill failed to stop what has become the epitome of wasteful government spending by continuing to fund a useless and inefficient government agency.

Rep. Harper, disgusted with the vote, said:

Today’s failure to pass a simple bill eliminating the EAC, an agency that has long outlived its purpose and recklessly mismanages its resources, is frankly an insult to struggling taxpayers across the country. This is exactly what’s wrong with Washington and exactly what we need to fix. Congress must do its job and eliminate wasteful spending – starting with this glaring example. If we cannot do that, we shouldn’t be here.

Since the EAC is still alive it must attempt to conduct business as efficiently as it can. However, currently, the EAC does not even have three Commissioners necessary for a quorum to vote on matters presented to the agency. The Senate will attempt to rectify this on Wednesday, when they hold a hearing to receive testimony on the nominations of Gineen Bresso, Tom Hicks, and Myrna Perez for EAC Commissioner.

by Brian Bennett | with no comments
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9th Circuit Upholds Free Speech in Some Contexts, But Not in Others
Tue, Jun 14 2011 3:54 PM

Last week, the U.S. Court of Appeals for the 9th Circuit affirmed the district court’s decision to preliminarily enjoin a $500 limit on contributions to political committees that make only independent expenditures. The 9th Circuit also affirmed the lower court’s ruling granting individuals, associations, and corporations the right to make unlimited contributions to committees making independent expenditures.

In Thalheimer v. City of San Diego, Plaintiff Phil Thalheimer, a former and prospective city council candidate, brought an as-applied challenge to five of San Diego’s campaign finance laws, suing to enjoin enforcement of campaign finance restrictions he claims violate his First Amendment rights.

Thalheimer was represented by RNLA Board of Governors member, James Bopp, Jr., who commented on the political party independent expenditure limit, saying:

One of the important purposes of political parties is to elect their candidates to office. It is absurd to forbid them from giving money to support their candidates. The Ninth Circuit understood that the First Amendment gives citizens the right to band together in political parties, and that political parties have a First Amendment right to financially support their candidates.

About the independent expenditure ruling, Mr. Bopp said:

The Supreme Court has ruled that there is no permissible reason for the government to limit independent expenditures themselves. This is true even when the expenditures are made by corporations. It naturally follows that if the expenditures cannot be limited, then money to groups making expenditures cannot be limited either, even when the money comes from associations and corporations.

Although there was a lot of good news in the ruling, the 9th Circuit also exercised some judicial misinterpretation. The Court upheld the city of San Diego’s prohibition on political contributions by “non-individual entities” (e.g., corporations, labor unions, and other groups) to candidates, political parties, and other PACs that contribute to candidates. The 9th Circuit’s holding is in direct contradiction with the ruling last week in United States v. Danielczyk, by Judge Cacheris in the Eastern District of Virginia. Judge Cacheris held that the federal prohibition against direct corporate contributions to candidates is unconstitutional under the First Amendment.

Danielczyk correctly adhered to last year’s Supreme Court ruling in Citizens United v. FEC, which stated that the government may not suppress political speech based on corporate identity. Judge Cacheris also correctly distinguished FEC v. Beaumont, which upheld a law prohibiting corporate contributions by non-profit advocacy organizations

However, the 9th Circuit erroneously interpreted these cases, which led to their decision. Holding in direct contravention of Citizens United, the Court suppressed speech based on corporate identity by not allowing contributions by “non-individual entities.” The 9th Circuit also chose to draw a distinction between contributions and expenditures as applied to Citizens United, instead of the broader First Amendment implications of free speech. Additionally, the Court unfairly distinguished Citizens United , stating that the holding was only limited to prosecutions within the criminal context, instead of accepting a broad ruling to be applied in all contexts.

The Court also incorrectly distinguished the holding in FEC v. Beaumont, applying it to corporations, instead of just non-profit advocacy organizations. Additionally, the Court upheld a provision prohibiting the solicitation of contributions outside of twelve months before an election. Lastly, the court upheld a ban on corporations establishing separate PACs to give to candidates. This is even stricter than federal campaign finance laws, which allow the establishment of separate PACS.

The next step would be for the 9th Circuit to reconsider their ruling or an appeal to be filed. It is unclear whether Thalheimer will file a writ of certiorari with the Supreme Court.

by Brian Bennett | 1 comment(s)
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2009 Ed Meese Award Winner Hans Von Spakovsky on Voter ID
Mon, Jun 13 2011 8:36 AM

2009 Ed Meese Award Winner, Hans Von Spakovsky published an op-ed in USA Today this morning on voter ID laws. Mr. Von Spakovsky's op-ed takes the view that voter ID laws ensure election integrity. His op-ed focuses on past voter ID laws passed in Georgia and Indiana that did not decrease minority voter turnout.  Referring to claims of voter disenfranchisement that some tried to advocate when Indiana passed a voter ID law, Mr. Von Spakovsky cites the court, saying:

Despite apocalyptic assertions of wholesale vote disenfranchisement, the plaintiffs produced not a single piece of evidence of any identifiable registered voter who would be prevented from voting.

Mr. Von Spakovsky is relying on concrete facts to back up his assertions. With evidence to the contrary, hopefully this will thwart state legislators from calling voter ID laws as racist and claiming disenfranchisement of minority voters.

by Brian Bennett | with no comments
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RNLA Submits FOIA request to the FEC for Democratic Commissioners
Thu, Jun 9 2011 2:09 PM

The RNLA has submitted a FOIA request to the Democratic Commissioners of the FEC for any and all ex parte communications they have had with leaders on Capitol Hill, as well as liberal advocacy groups. The RNLA's request comes after the liberal group, Citizens for Responsibility and Ethics in Washington ("CREW") made a similar request to the FEC's Republican Commissioners.

RNLA Chair David Norcross said:

I’m pretty sure I don’t trust them. They have a habit of using FOIA requests and lawsuits and discovery and all that junk for social issues, and so, if we’re going to FOIA one side, let’s FOIA the other side. Let’s get it all out there.

Mr. Norcross’s mistrust is because CREW identifies themselves as a non-partisan group, but only targeted Republicans at the FEC. CREW’s claims of non-partisanship also fail because they are funded y the Democracy Alliance. It has been said that Democratic fundraiser George Soros is a major funder of Democracy Alliance.  

Mr. Norcross also said:

Basically, our thought was, we’re not going to let the self-proclaimed do-gooders go out and target Republicans. If we’re going to find out what’s going on over there, let’s find out what everybody’s doing. That’s the basic point of this.

To read the entire article on RNLA’s FOIA request, click here.

 

by Brian Bennett | with no comments
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Judge Cacheris Reaffirms Ruling in Danielczyk
Wed, Jun 8 2011 3:46 PM

Yesterday, Judge Cacheris, a federal judge in the Eastern District of Virginia, reaffirmed his ruling in United States v. Danielczyk, holding the federal prohibition against direct corporate contributions to candidates unconstitutional under the First Amendment.

Upon reconsideration of his initial opinion a week earlier, Judge Cacheris bolstered his ruling by clarifying that FEC v. Beaumont, a 2003 Supreme Court ruling, was still controlling, but did not apply in this case, because it addressed only an as-applied challenged to the corporate contribution ban by a non-profit advocacy organization.  Therefore, FEC v. Beaumont was not a controlling precedent in a facial challenge to the statute in the context of for-profit corporations, which would require a different constitutional analysis.  Ordinarily, the reasoning of FEC v. Beaumont might resolve a challenge by a for-profit corporation, but Judge Cacheris observed that the Supreme Court’s ruling in Citizens United v. FEC had fundamentally abrogated FEC v. Beaumont’s reasoning.  Judge Cacheris concluded that the Supreme Court held that corporations are associations of individuals entitled to the same First Amendment rights as any other association of individuals in the context of independent expenditures and this rule of equality applies with the same force to direct contributions.

Additionally, Judge Cacheris relied upon the reasoning in Buckley v. Valeo, holding contribution limits to candidates constitutional, and First National Bank of Boston v. Bellotti, which stated the identity of the corporation as a speaker, especially in the context of political speech, is of no consequence to the First Amendment protection its speech is afforded.

Reconciling the reasoning of these cases, Judge Cacheris ruled, because individuals can make direct donations within limits without risking corruption, and because the government cannot restrict political speech based on speaker’s corporate identity, corporations must be allowed to donate subject to the same limits as individuals.

The order clarifies 2 U.S.C. § 441b(a)’s flat ban on direct corporate contributions to political campaigns, but only as applied to for-profit corporations at issue in this case.  The case is being litigated by RNLA First Vice President Lee E. Goodman, who briefed and argued on behalf of one of the defendants in the case, while assisting the Federal Public Defenders Office and Todd Richman.  RNLA Virginia Chair Chris Ashby also is assisting in the case. 

“Judge Cacheris reached the correct result twice,” Goodman said.  “Citizens United was a sea change in campaign finance jurisprudence and it compelled this result.” 

RNLA Board of Governors member, and General Counsel of the James Madison Center for Free Speech, James Bopp Jr., said “This is a victory for free speech and the First Amendment. Now citizens who associate together and choose to incorporate will not lose their speech rights in the process.”

by Brian Bennett | with no comments
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DNC Chair Retracts Term, But Not Substance, From Jim Crow Comment
Wed, Jun 8 2011 12:23 PM

As previously reported, DNC chairwoman Debbie Wasserman Schultz compared voter ID laws to the violent and oppressive Jim Crow laws that were prevalent in America until the mid 1960s. Ms. Wasserman Schultz said:

[N]ow you have the Republicans, who want to literally drag us all the way back to Jim Crow laws and literally - and very transparently - block access to the polls to voters who are more likely to vote Democratic candidates than Republican candidates. And it's nothing short of that blatant.

Then, only hours after the inflammatory comment, Ms. Wasserman Schultz retracted her comment (sort of) by stating:

Jim Crow was the wrong analogy to use. But I don't regret calling attention to the efforts in a number of states with Republican dominated legislatures, including Florida, to restrict access to the ballot box for all kinds of voters, but particularly young voters, African Americans and Hispanic Americans.

So, what Ms. Wasserman Schultz is really saying is that she is merely retracting her use of the term “Jim Crow”, but not the substance of her comments. This does not make Ms. Wasserman Schultz’s comments any less incendiary.

Jim Crow laws were a terrible time in America’s history. Blacks were denied the right to vote by grandfather clauses (laws that restricted the right to vote to people whose ancestors had voted before the Civil War), poll taxes (fees charged to poor Blacks), white primaries (only Democrats could vote, only Whites could be Democrats), and literacy tests.

The oppression did not stop with denial of voting rights. African Americans were constantly assaulted if they broke protocol of separate water fountains or bathrooms. However, their assaulters never faced justice, because the criminal justice systems, from the police to the judges, were all white. Police officers would even attend a lynching right in the middle of the town square.

Ms. Wasserman Schultz also compares the passage of voter ID laws with such heinous crimes as rape, being burned alive, and dragged behind a car, all which occurred in conjunction with Jim Crow laws.

It is abhorrent that Ms. Wasserman Schultz compared such atrocious and discriminatory laws with the enactment of a policy that has been ruled constitutional by one of the most liberal Supreme Court justices of the 20th century, and recommended by a former Democratic President. Following the logic of Ms. Wasserman Schultz, Jimmy Carter and John Paul Stevens are both racist and support the denial of civil rights. Ms. Wasserman Schultz should not merely take back her choice of words, but the substance of her comment entirely. 

 

by Brian Bennett | 1 comment(s)
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DNC Chair Compares Voter ID To Jim Crow
Mon, Jun 6 2011 3:11 PM

Voter ID laws in the United States have been deemed necessary, and received constitutional approval by sources such as the United States Supreme Court and the bi-partisan Baker-Carter Commission. In Crawford vs. Marion County Board of Elections, the Supreme Court stated:

The electoral system cannot inspire public confidence if no safeguards exist to deter or detect fraud or to confirm the identity of voters.  Photo identification cards currently are needed to board a plane, enter federal buildings, and cash a check. Voting is equally as important.

Additionally, the bi-partisan Baker-Carter Commission said:

In the United States, where 40 million people move each year, and in urban areas where some people do not even know the people living in their own apartment building let alone in their precinct, some form of identification is needed.

But, this does not seem to be the view of Democratic National Committee Chairwoman Debbie Wasserman Schultz. In an interview from the “Washington Watch” program, Ms. Wasserman Schultz said:

[N]ow you have the Republicans, who want to literally drag us all the way back to Jim Crow laws and literally - and very transparently - block access to the polls to voters who are more likely to vote Democratic candidates than Republican candidates. And it's nothing short of that blatant.

This is ironic coming from the Democratic National Committee’s chairwoman. When, in 2000, during the Florida recount, Democratic Presidential nominee Al Gore tried to exclude thousands of military votes due to hyper technicalities. Vice President Gore even received criticism from his Vice Presidential candidate, Senator Joseph Lieberman.

Now, Ms. Wasserman Schultz is accusing Republicans of disenfranchisement of minority voters, drawing a comparison to Jim Crow laws as strong rhetoric to back up her claims. However, RNC chairman Rence Priebus issued a response, saying:

At the end of the day, this common-sense reform is not partisan but practical. It would instill a simple means by which to further promote and preserve the integrity of our electoral system and the democratic foundation upon which this country was founded. And the act of doing so should not be demeaned or relegated to a Republican or Democratic issue; it should be a priority embraced by all Americans.

Ms. Wasserman Schultz has used inflammatory language for policies that have passed constitutional muster through the eyes of not only the Supreme Court in an opinion written by its then most liberal member, but a former Democrat and liberal President and many others on a nonpartisan basis. Voter ID laws are being passed in states to ensure voter integrity and prevent voter fraud. If Ms. Wasserman Schultz would drop the attacks and view this as a non-partisan issue, she would see that. 

by Brian Bennett | 1 comment(s)
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