May 2011 - Posts

Goodwin Liu Withdraws Name
Fri, May 27 2011 12:07 PM

As previously reported, last week the Senate Democrat’s cloture motion to bring the nomination of Berkeley professor Goodwin Liu to a vote failed with bi-partisan support. Displaying even some Democrats’ concerns with Liu, who sought a seat on the 9th Circuit Court of Appeals, and some speculate, the Supreme Court.

Facing opposition from both sides of the aisle, Liu has withdrawn his name for the vacant seat on the 9th Circuit Court of Appeals. Writing a letter to President Obama, Liu said, "with no possibility of an up-or-down vote on the horizon, my family and I have decided that it is time for us to regain the ability to make plans for the future." 

Sen. Grassley, ranking member of the Judiciary committee said:

I hope the President accepts Mr. Liu’s request so we can finally move forward with a consensus nominee who reflects the mainstream of American views, respects the rule of law and the Constitution, and has an appropriate judicial temperament.

Even with three Republican Senators not voting, and one voting present, the Democrats still feel far short of the 60 votes needed in order to close debate and bring Liu’s nomination to a vote. Highlighting Republicans’ willingness to stick together on such an important vote. As Leader McConnell said, prior to the vote:

 The point here is that Mr. Liu appears to view the judge not as someone whose primary job is to interpret the Constitution, but as someone whose lifetime tenure liberates him to advance his views of what the Constitution means and empowers him to impose it on others. In his view, it is the job a judge to create new rights, regardless of what the Constitution says or what the American people, acting through the democratic process, want.

Liu is so extreme that five out of the nine remaining members of the bi-partisan Gang of Fourteen, who agreed in the 109th Congress to only filibuster judicial nominees under "extreme circumstances" voted against cloture. 

Even if the cloture motion for Liu would have passed, it is unclear that his nomination would have been confirmed. Democratic Senators such as Jim Webb said:

The root word of judgment is, of course, judge, and this is our duty today:  to decide whether Professor Liu’s almost complete lack of practical legal experience, coupled with his history of intemperate, politically charged statements, allow us a measure of comfort and predictability as to whether he would be fair and balanced while sitting on one of the highest courts in the land.

This emphasizes the infighting between Senate Democrats, as opposed to the solidarity of Senate Republicans on judicial nominations, hopefully not just for this nominee, but for all nominations in the future.  It is also remains troubling that President Obama would nominate someone so extreme and ill suited that such harsh comments would come from members of his own party.

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EDVa Strikes Down Ban on Corporate Direct Candidate Contributions
Thu, May 26 2011 2:57 PM

Today, Senior Judge James C. Cacheris, applied Citizens United v FEC, 130 U.S. 876 (2010), to dismiss a count of directing corporate contributions to a Presidential campaign, holding that a complete ban on corporate contributions to candidates is unconstitutional (Judge Cacheris notes that the same limits that apply to individual contributions would apply to corporate contributions).

RNLA First Vice President Lee Goodman (of LeClair Ryan) assisted the Federal Public Defenders Office and lead counsel Todd Richman in securing the opinion in U.S. v Danielczyk. et al., 1:11cr85 (JCC) (E.D.Va. 2011) The case was brought on a motion to dismiss charges against two executives of Galen Capital for violating several provisions of federal campaign finance laws in relation to contributions to HIllary Clinton's 2006 Senate campaign and 2008 Presidential camapign.

With respect to count 4 which charged Defendants with directing corporate contributions in violation of 2 USC 441b, Judge Cacheris reasoned that the same rationale underlying the Supreme Courts decision in Citizens United compelled him to find the ban on direct corporate contributions unconstitutional.

In Buckley v Valeo, 424 U.S. 1 (1976), the Court justified individual contribution limits based on the government's interest in preventing corruption and the appearance of corruption, but rejected limits on independent expenditures because of the much lower risk of quid pro quo corruption. Two years later, in First National Bank of Boston v Belotti, 435 U.S. 784 (1978), the Supreme Court held that, especially in the context of political speech, the identity of a corporation as "speaker" is irrelevant to the First Amendment protection afforded. In Citizens United, the Court used Buckley's holding that independent expenditures by individuals do not corrupt, along with the holding in Belotti that corporate identity does not impact First Amendment political speech protections, to find that corporations can not be banned from making the same independent expenditures as individuals.

Judge Cacheris follows the reasoning to its logical conclusion--if individuals can make direct contributions within the limits imposed by FECA (presently $2,500 per person per election) without risk of quid quo pro corruption, then following Bellotti, a corporation can make direct contributions within the limits imposed by FECA without a similar risk of quid pro quo corruption.

Unfortunately (for development of the law, not for the defendants), Judge Cacheris dismissed only this count, so the rest of the prosecution may proceed and this issue appears unlikely to be raised on any appeal. Nevertheless, Goodman's argument and Judge Cacheris' opinion set the stage for additional challenges to the ban on direct corporate contributions. So, I wouldn't go advising my Eastern District of Virginia clients to start soliciting corporate contributions quite yet, but the day may come.

 

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UPDATE: One More Reason to Eliminate the EAC
Tue, May 24 2011 12:57 PM

As posted yesterday, there is a bill to eliminate the Election Assistance Commission. One of the reasons the agency has undergone such strict scrutiny is because of a high profiling hiring scandal. Well, it has come to light that the Election Assistance Commission has another high profile hiring scandal.

During the prospective General Counsel’s interview, it became clear that Commissioner Gracia Hillman’s questioning showed that she had issues with the applicant being a naval reserve officer. Hillman started asking detailed questions about his military service. According to the attorney, Hillman’s questioning showed that she believed “that no military reservist could ever be ‘objectively’ involved with voting issues due to some imaginary legal conflict under attorney bar requirements,” Hillman’s questions showed that the lawyer’s military service was “a negative in her eyes and [she] sought to convey these negative ramifications to the other Commissioners and staff present.”

 Making an even stronger case for eliminating the Election Assistance Commission which Rep. Gregg Harper described as “the epitome of ‘business as usual’ in Washington.”

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Bill Hopes to Eliminate Election Assistance Commission
Mon, May 23 2011 10:50 AM

President Reagan said “there is nothing closer on earth to eternal life than a temporary government agency.” However, HR 672 hopes to do what few bills have, and what Reagan thought was nearly impossible, eliminate a federal government agency.

The federal agency on the chopping block is the little talked about, Election Assistance Commission. Not the Federal Election Commission, the often talked about, other major federal election law agency.

Originally established in 2002 by the Help America Vote Act, the Election Assistance Commission’s main purpose is to:

Establish a program to provide funds to States to replace punch card voting systems, to assist in the administration of Federal elections and to otherwise provide assistance with the administration of certain Federal election laws and programs, to establish minimum election administration standards for States and units of local government with responsibility for the administration of Federal elections, and for other purposes.

However, there is no more funding for grants to states for election improvement. Additionally, the Election Assistance Commission has completed almost all of the research and studies it was assigned under the Help America Vote Act. Even if there was funding available, it could not be spent, because the Election Assistance Commission does not even have a quorum of Commissioners, as two out of the four seats are vacant.

The agency has also had a high-profile hiring scandal. In 2009, the EAC had to pay a substantial monetary settlement to an applicant it offered the General Counsel’s job to in writing. Then, withdrew the offer after learning he was a Republican.

If adopted, the legislation will transfer the Commission’s remaining responsibilities and its authority to the Federal Election Commission while the Election Assistance Commission’s Office of Voting System Testing and Certification program will be transferred to the National Institute of Standards and Technology.

Rep. Greg Harper, the Chairman of the Subcommittee on Elections in the House Administration Committee said:

The Election Assistance Commission is the epitome of ‘business as usual’ in Washington; a program with diminishing responsibilities and escalating staffing costs that will not go away.  Keeping this commission afloat when it has so obviously outlived its usefulness and has mismanaged its resources is simply indefensible. I appreciate the valuable feedback and support I’ve received from election officials across the country and look forward to continuing to work with them as we advance this important legislation.

Elimination of the Election Assistance Commission is not only popular in Washington. Last year, the National Association of Secretaries of State, renewed a 2005 bipartisan letter, asking members of Congress to dissolve the Election Assistance Commission after the 2006 election.

Despite all the criticism, the staff at the Election Assistance Commission probably likes their cushy government jobs. Almost half of the 54 person staff makes a six figure salary. Additionally, the Election Assistance Commission’s 2011 operating budget (funded by a continuing resolution) is almost $18 million. In this budget, 51% of the amount was for management costs.

This is an increase of the $10 million budget it was authorized to operate with until 2005, according to Section 210 of the Help America Vote Act. Luckily, in President Obama’s 2012 budget he is only requesting $14 million. However, instead of saving $4 million, why don’t we save $14 million?

 

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UPDATE: Obama Tries to Enforce Disclose Act Through Executive Order
Fri, May 20 2011 12:02 PM

As previously reported, a draft Executive Order leaked by the White House seeks to enforce provisions of the rejected DISCLOSE Act through Executive Order.

 Read the draft Executive Order here.

 The Executive Order requires that businesses disclose political contributions and expenditures when making offers for federal contracts.

 Rep. Todd Rokita and 42 other members of the Republican Study Committee sent a letter to President Obama opposing the bill, saying:

This Executive Order is a cynical attempt to inject politics into federal government contracting under the guise of transparency and accountability. It will create an ‘enemies list’ that the Administration and their liberal allies will use to punish private citizens and their employers.  As a former Indiana Secretary of State who oversaw elections, I find this to be an outrageous overreach by the President.  I call on the President to withdraw this Executive Order and inform him that should he decide not to, members of the House are prepared to take legislative action to prevent it from taking effect.

 

Additionally, Republican Study Committee Chairman Jim Jordan stated:

Federal contracting decisions should not have anything to do with politics. Instead of keeping the two separate, President Obama’s proposal guarantees that both applicants and bureaucrats would make politics a primary concern.  The President will be hampering the ability of countless private sector companies to compete for work if he implements this Executive Order.

 Read the House Republican Study Committee’s letter to President Obama opposing the Executive Order here

 Senators are also coming out against the draft Executive Order. Republican Leader McConnell called the order the "crassest" political move he's ever seen. "This is almost gangster politics, to shut down people who oppose them. . . . I assure you that this going to create problems for them in many ways—seen and unseen—if they go forward."

 Senator Susan Collins calls the whole reform language “Orwellian”, going onto say “the administration’s argument that this is about disclosure is a fraud.”

 Read more of Minority Leader McConnell and Senator Collins’ opposition here

 It is not just Senators and Congressmen voicing their opposition for this leaked Executive Order. Vice Chair of the Federal Elections Commission, Caroline Hunter also came out against the leaked Executive Order in a letter to the House Committee on Oversight and Government Reform, saying:

 In my perspective as an FEC Commissioner, the draft Executive Order may introduce additional complexity to an area of law that some would argue already places undue burdens on core First Amendment rights.

 President Obama is even receiving criticism from his own party. In addition to the Second-ranking Democrat in the House, Steny Hoyer, being against the bill; last week in a bi-partisan letter, signed by Senators including Joseph Lieberman, Olympia Snowe, and Claire McCaskill, the Senate Committee on Homeland Security and Governmental Affairs said:

We are concerned that requiring businesses to disclose their political activity when making an offer risks injecting politics into the contracting process. Federal contracting law already precludes the consideration of political activity in evaluating contract offers…the requirement that businesses disclose political expenditures as part of the offer process creates the appearance that this type of information could become a factor in the award of federal contracts, which could create new, unnecessary burdens for those officials.

 It is not surprising that there is bi-partisan opposition, Obama’s own aides in the White House cannot even justify the law. Last week, the House joint Oversight and Small Business Committee held a hearing about the proposed Executive Order. During questioning of White House Aide Daniel Gordon by Congressman Trey Gowdy, Gordon responded:

 Rep. Trey Gowdy (R-SC): Does it strike you at all as being ironic to invoke confidentiality and not answering questions when we’re having a hearing about transparency?

Gordon: “It does not, sir. I think there are discussions, even about transparency and developing rules about transparency that we need to be able to have quietly and behind closed doors.”

 During the same hearing, Mark Renaud, a partner of the Election Law and Government Ethics group at Wiley Rein testified:

As drafted, the President’s proposal does little to further the draft EO’s stated goals of transparency, efficiency, and integrity. If anything, the President’s proposal actually creates several new problems where none existed before, and it does so without any empirical justification for the additional burden it imposes.

 In addition to President Obama’s proposal doing little to further transparency, he also aims to implement provisions of the DISCLOSE Act that does not go through the proper process under the Administrative Procedure Act, such as a Notice of Proposed Rulemaking and public comment process. Or, even seek congressional approval for this unpopular proposal.

 President Obama should heed the advice of Sen. Rob Portman, who said:

Politics has no place in the award of federal contracts, and this order risks suppressing disfavored political speech. The President should abandon this ill-conceived Executive Order immediately.

 

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Cloture Vote on Goodwin Liu Fails
Thu, May 19 2011 1:52 PM

Less than an hour ago, a bi-partisan Senate voted against a cloture motion on the nomination of Goodwin Liu to the Ninth Circuit Court of Appeals. This motion denies, at least temporarily,  Liu, a professor at UC Berkely, a seat on the federal bench.

Senator Lindsey Graham, a member of the bi-partisan gang of Fourteen,  in remarks delivered prior to the vote said:

 

“His outrageous attack on Judge Alito convinced me that Goodwin Liu is an ideologue.  His statement showed he has nothing but disdain for those who disagree with him.  Those are debates that are reserved for the legislative and executive branches, not the judicial."  

“Goodwin Liu should run for elected office, not serve as a judge.  Ideologues have their place, just not on the bench.” 

“This episode -- along with his out of the mainstream writings -- requires me to take the extraordinary step of voting no on cloture.” 

 

Liu is so extreme that five out of the nine members of the bi-partisan Gang of Fourteen, who agreed in the 109th Congress to only filibuster judicial nominess under "extreme circumstances" voted against cloture. 

The cloture motion was bi-partisan, as Democratic Senator Bill Nelson from Nebraska voted against cloture.

 

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Stephen Colbert Advisory Opinion Request, No Kidding.
Fri, May 13 2011 7:03 PM

Today's Politico carried a story about Comedy Central's Stephen Colbert appearing in person at the FEC to file an Advisory Opinion request.

Ken Vogel's piece does a great job relating Colbert's long-running Citizens United v. FEC schtick from the Colbert Report to the serious campaign finance law issues raised by his announcement of the Colbert Super PAC (apparently, Colbert hasn't read the RNLA blog post on the law of Super Duper PACs).

Former FEC Chairman Trevor Potter (Caplin & Drysdale), who has appeared three times on the Colbert Report, represents Colbert in his Advisory Opionion request.

The FEC's Pending Advisory Opinion Requests page, does not yet list the request. As usual with Colbert, it's unclear whether or not he'll continue to prosecute the request (see his effort to secure ballot access in the 2008 South Carolina Democratic Presidential Primary).

In addition to Vogel's piece, several other sources picked up the story-Talking Points Memo has the actual request letter (as well as a short piece), Roll Call has a short piece with a clip from Colbert's show, ABC's The Note carries the story, on Friday at 8 pm, Google News search produced 36 stories (I can't imagine the average Advisory Opinion request produces so much attention on the day it's made).

 

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The 2011 RNLA National Policy Conference
Fri, May 13 2011 9:52 AM

The RNLA's 2011 National Policy Conference Celebrating Ronald Reagan's 100th Birthday and Legacy of American Leadership was a rousing success.  Please go to our Facebook page for pictures from the Conference and related receptions but below are some highlights from media reports.  The 2011 Ed Meese Award winner Rudy Giuliani listed one of the many reasons the RNLA chose to salute President Reagan this year:

Rudy Giuliani called for a return to American exceptionalism Friday, telling a group of GOP lawyers gathered in the nation’s capital that Ronald Reagan fundamentally changed how Americans felt about themselves.

Before Reagan was elected, Giuliani said, much had been written about America’s decline and how it was a country of “limited possibilities” that had run its course.

“Sounds familiar, right? There are people who believe that today in America. In fact, some of them are running America,” Giuliani said in a speech to the Republican National Lawyers Association, where he appeared to received the group’s highest honor, the Ed Meese Award.

“The idea that we’re either no better than anyone else, we’re just another country with our set of problems or our set of assets, or maybe we’re not even as good as others. Ronald Reagan found that to be totally wrong, not a correct view of this country and he changed in a very short period of times how we felt about ourselves.”

America's Mayor also made news when he said:

Asked whether he had decided to launch a 2012 White House bid, he said “not yet,” but that it’s a possibility.

“I will sure think about it. … It’s too early and I want to see how it all develops,” he answered. “My major goal is to elect a Republican in 2012. If it turns out that I’m the best one to do that, I can probably be talked into doing it or convince myself to do it,” he said.

“If I thought somebody else had a better chance of doing it, I would be a very enthusiastic supporter of somebody else,” he added.

That is a good example of Ronald Reagan's 11th Commandment.  For all Republicans would agree that President Obama is doing a terrible job, especially on the economy.  But as Ambassador Bolton pointed out, President Obama is even screwing up national triumphs. 

Bolton said Obama’s public relations shambles surrounding the bin Laden information release has tarnished the good news and has possibly jeopardized future national security opportunities. “He’s taken what is a great national triumph and it’s being frittered away in the way it’s been handled very unprofessionally,” Bolton said. “I particularly object to leaking out aspects of what we may have learned in terms of information that was in the compound. I think you need much greater discipline to exploit the potential intelligence that we had and certainly you don’t alert other potential targets that, number one, we gathered a treasure trove of intelligence, and I wouldn’t have even started there.”

While the news media focused on Bolton and Giuliani, there was much more to the conference. Starting with our salute to recently passed longtime RNLA Co-Chair Mrs. Murphy.  The first speaker at the conference was Senator Orrin Hatch was a close friend of Mrs. Murphy's.  Senator Hatch spent part of his time describing the unprecedented power grab of the Obama NLRB. 

Sen. Orrin Hatch, Utah Republican, expressed confidence that Republicans will win the fight against the National Labor Relations Board (NLRB) power grab in South Carolina. “We’re going to win that one,” Hatch told The Daily Caller, referring to the NLRB’s recent charge against The Boeing Company for plans to open a non-union factory in the southern state.   

In remarks to the Republican National Lawyers Association at the National Press Club on Friday, Hatch compared what the NLRB is doing to judicial activism.

. . . “The NLRB, at the behest of Acting General Counsel Lafe Solomon, has taken unprecedented legal action against The Boeing Company to prevent it from expanding productions into South Carolina, a state that assures workers the freedom not to join a union as a condition of employment,” the letter reads. “We consider this an attack on millions of workers in 22 right-to-work states, as well as a government-led act of intimidation against American companies that should have the freedom to choose to build plants in right-to-work states.”

. . .Becker and Solomon were both recess-appointed to the NLRB and, in Becker’s case, all 41 Republican senators wrote Obama to urge him not to make Becker’s recess appointment after the Senate rejected his nomination the first time around. Solomon has not yet appeared before the Senate for confirmation.

After Senator Hatch, RNLA Conference Chair JC Boggs led an enlightening and intimate discussion with President Reagan's White House Counsels, A.B. Culvahouse and Fred Fielding.  This was followed by the reading of a letter from James A. Baker by RNLA Board of Governors Member Dick Wiley which said in part:

I want to sum up as best I can the most important thing that I think Ronald Reagan gave our country: his own unique brand of leadership.  Through dynamic policy, sound wisdom, and inspirational words, he launched the Reagan Revolution and showed us how to be the very best Americans we could be -- citizens defined by optimism, determination and self-reliance. 

Next came the Reagan Legal Legacy all-star panel led by RNLA Board of Governors Member Chuck Cooper and featuring John Bolton and George Terwilliger.  This was followed by a politician of today that continues the Reagan legacy of defined leadership, Virginia Attorney General Ken Cuccinelli. 

At lunch, we took a break from the law to hear Del Wilber, the author of Rawhide Down, a fascinating page-turner of a book detailing the critical minutes after the assassination attempt on President Reagan's life.  Mr. Wilber stayed to autograph his book and it seemed every conference participant bought one. 

We next turned to our outstanding breakout sessions on Tax, Trade, Financial Services and Labor.  These outstanding panels not only entertaining but they informed on substantive areas of the law. 

The conference closed with the presentation of the RNLA Ed Meese Award to Mayor Giuliani and, last but certainly not least, a speech by RNC Chairman Reince Priebus.  Chairman Priebus speech included this thank you to RNLA members:

I know how dedicated this group is to the voter integrity.  I can tell you as Chairman of the Party, you've always done a great job of sending us the best and brightest in to our state, assisting efforts in Wisconsin, making sure that we can do everything we possibly can do to help run elections fairly and as accurately as possible.

Thank you to all who attended and especially our sponsors for helping make this Conference possible.  If you attended, please feel to reply with your thoughts on what the highlights of the conference were. 

 

 

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DC Federal Courts hearing Constitutional challenges to VRA Section 5
Tue, May 10 2011 1:11 PM

Last Friday, a three-judge panel of the D.C. Circuit heard oral arguments in LaRoque v. Holder, a case on appeal from a dismissal in which a prospective candidate for City Council in Kinston, NC, challenges the constitutionality of section 5 of the Voting Rights Act. 

The week before, on April 27, Shelby County, Ala. v. Holder, was filed in the District Court for the District of Columbia, and is now on Judge John Bates docket. Like LaRoque, Shelby County, Ala. v. Holder, challenges the constitutionality of section 5. Specifically, it claims that Congress exceeded its enforcement authority under the 14th and 15th amendment when it reauthorized the Voting Rights Act in 2006.

Lots of action on the Voting Rights Act front, even outside the context of redistricting, which has most of the election law bar occupied full time.

Both suits have prominent members of the bar supported by non-profits committed to constitutional government.

In Shelby County, Ala. v. Holder, Bert Rein and William Consovoy (Wiley Rein LLP), represent Shelby County with the support of the Center for Individual Rights, a nonprofit public interest law firm that seeks to enforce constitutional limits on state and federal power, arranged for Carvin's representation in LaRoque.

In LaRoque v. Holder, Michael Carvin (Jones Day), represents LaRoque with the support of the Project on Fair Representation, the mission of which is to facilitate pro bono legal representation to political subdivisions and individuals that wish to challenge government distinctions and preferences made on the basis of race and ethnicity in four areas, including voting.

Both suits pursue questions left open by the Supreme Court in Northwest Austin Municipal Utility District No. One v. Holder, which held that a small utility district in Texas was covered by the bail out provisions of Section 5, but did not squarely address the constitutionality of the Act itself.

Links to the pleadings (and other relevant info) follow.

Shelby County, Ala. v. Holder:

LaRoque v. Holder:

 

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