Skip to main content

tv   Republican National Lawyers Association Hosts Policy Conference  CSPAN  May 5, 2017 1:00pm-4:52pm EDT

1:00 pm
times the mass of pluto. pluto lovers were never told that, were you. so welcome to the company of informed people regarding pluto. >> during the live three hour conversation we will take your calls, tweets and facebook questions for mr. tyson who is also the director of the hayden planetarium in new york city and author of several books including welcome to the universe, death by blackhole, and his most recent astrophysics for people in a hurry. watch in-depth live from noon - 3 eastern sunday on the tv on c-span2. >> now back live to the national press club for the republican national lawyers association, the annual policy conference continues. >> more recently, we have
1:01 pm
deployed 117 lawyers to ensure open, fair and honest elections in ten targeted states and an additional 35 for recount. in addition, are in a leaders have trained over 800 lawyers and pull watchers. members participated at some level, either paid or volunteering to ensure honest elections throughout the country. i want to take the opportunity to recognize all those who volunteered and helped elect donald trump and other republicans. we hope to see you in michigan august 4 and fifth. we don't know if it's detroit or grand rapids yet. and offer your assistance in the virginia elections this year. i will turn it over to john to kick off our next panel. >> thank you elliott. i am john ryder. i'm cochairman of the rn l.a. i'm in private practice in
1:02 pm
memphis and i reject him stealing all my blue suede shoe lines. that's my role to say thank you, thank you very much, but i do thank you very much elliott, and i want to thank kimberly reed our chairman and thank you to david who is the chairman of this event and has put on a fantastic program, and thanks to our staff who has made all of this possible. i also want to thank our sponsors because money may be the mother's milk of politics but it's also what makes conferences run and so we thank our sponsors. [inaudible]
1:03 pm
let's give our sponsors a round of applause. [applause] we didn't know how propitious this topic or how appropriate this topic would be for this particular point in time. yesterday, as you know, president trump signed an executive order which promises to protect and vigorously promote religious liberty. we did not know this was happening when we scheduled a discussion on religious liberty. the timing is perfect and our panel is perfect.
1:04 pm
we have with us today kelly for dork from the alliance defending freedom. she is legal counsel there. she is one of the lawyers who participated in arlene's flowers versus washington state. she is a graduate of the university of dallas and the abbé maria school of law. since joining adf into thousand 12 she has defended religious liberty, marriage and the family against legal attacks. she has offered federal and state legislation and advised members of congress, state legislators, state attorney generals and policymakers on how to preserve first amendment of freedoms. robert is professor of law and the founding director of the interdisciplinary program in law in religion at the catholic university of america, columbus school of law in washington. he has been a member of the
1:05 pm
faculty since 1982 and served as interim dean from 1999 until 2001. from 1983 until 1989, he has served as commissioner on the united states commission on civil rights and lead the commission's discussions and areas of discrimination on the basis of national origin and religion. he served as special counsel to the ohio attorney general and the ohio secretary of state on election matters in general counsel to the catholic league for religious and civil rights. he served previously as an adjunct professor of law at marquette university. he received his ba at miami university and his jd from the university of california at berkeley. all right. each of you are armed with microphones. let's see if they are live.
1:06 pm
okay. let me start with this. let's start with the executive orders. what did it do, what did you do, is it important, is it enough, is it too much? let me start, ladies first. >> i would say my first reaction was definitely excitement. four months ago this wouldn't even be a possibility that we would have a president and administration so committed to our first liberties. i would say first and foremost it's definitely a step in the right direction that we have a commitment from the administration to protect the liberties of all americans but i was particularly shocked when he said no american should be forced to choose between the dictate of the federal government and the
1:07 pm
tenant of their faith. i think the sentiment we are seeing was very good. i do think there is more to be done as we move forward. he said during the campaign, one of his first priorities would be to procure and protect religious freedoms. i'm hoping we will see, there were three components of the executive order. i wouldn't say anything changed operatively but in some ways executive orders are trying to restore balance and i think one was expressing the commitment to vigorously defending religious liberty under the law. the irs will alleviate the burdens that the amendment has imposed amon on religious entities over the year end it directed federal officials to consider issuing amended regulations that could protect individuals. this part we will really the
1:08 pm
agencies to step forward on. in some ways it was great to hear the sentiment coming from the president, but at the same time, a year ago the u.s. supreme court said look, you need to figure out and find this accommodation to protect the conscience of those religious nonprofits who had a conscientious objective to providing abortion inducing drugs but i think we still need to see the agencies take some action, but i'm hopeful that in the days ahead we will see them doing just that. >> professor. >> well it's both less and more. i went to lissemore in the sense that we've all heard the phrase about the fish rafts from the head. the executive order is about 78% of what it should've been.
1:09 pm
i thought that's great because if hillary was president we would be at minus 100. what you have is a theme that has now been set by the president. what we need the president to do is get those agencies staffed up with people who really understand what religious liberty is all about so we can get some training done and we don't have to deal with all the holdovers who make our lives miserable when we deal with these agencies. there is that piece. i'm also hoping, especially the johnson amendment piece, i've written a lot about that. lyndon johnson never really intended it to go after churches, but all you really have to do is see how often the democrats campaign in churches from the pulpit. then you see, on the other side of the spectrum, all these churches that are scared
1:10 pm
to death of the irs and of course, what we have found in the abuse of the irs scandal is that they actually did have something to be afraid of. so, this shows up in many different ways. i will mention it more specifically later, but it's not an accident that the state department missed the arab spring, the iranian revolution, the growth of isis because they don't take religion seriously except as a problem and because they don't take it seriously, the evenness it when it is a problem. >> professor, square this with the rulings on the executive order on immigration which treated that as providing a religious test. >> there is not much writing about what a religious test is. i think i am one of four or
1:11 pm
five people, another from notre dame has written systemically about religious test. executive order is not religious test. i probably would've written it that way because the bad guy are necessarily coming from the countries that he identified, but if you were going to write one with laser precision, which is basically what equal protection is about we have to admit were not looking for quakers coming across the border. how you write in order like this? i would probably worry less about the border than about american prisons and all the saudi's who will train the moms were radicalizing the prisoners there. how do you define the threat matrix? i don't think we've had that discussion. radical islam is not sufficient. it's too broad a term.
1:12 pm
we are looking for people who are jihadists and were looking at their behavior. of 70 tells me as he's going cross the border, oh yeah, i would murder my sister if she converted, out. this is not the kind of person we want in here. there are a lot of wonderful muslims in the united states who are probably our best weapon in this war against jihad is him. >> so you don't see an inherent conflict between yesterday's executive order and the prior. >> absolutely not. properly understood, the thing we would have to do is sit down with the lawyers of the justice department to make sure they understand what the nature of the enemy is. we really don't talk about it very often, and how you actually argue the case. it's eventually going to get to the supreme court, we know. the president has the right to
1:13 pm
do what he's done. if i were writing it, i would've written it a little differently. >> you have worked particularly in the area of conscience in the post burger fell area. how does this executive order impact the trajectory of that jurisprudence? >> they talk a little bit about immigration, i think we have such a rich history in the united states of balancing very important government interest with a vast variety of viewpoints and protecting individual freedom, whether it's on immigration, abortion, healthcare, education, and also marriage. unfortunately, in the past two years we are seeing a growing intolerance advance by the government for those who want to live and work consistent with their convictions about marriage. we are representing a number of individuals who willingly serve, employ lgbt individuals
1:14 pm
, it's not about their sexual orientation, but there is a line for them and there's certainly events that they can't use their creative abilities to support or celebrate or participate in certain events and yet we are seeing the government use the force of law to come after them in an attempt to speak a message or participate in an event that violates their belief. in the days ahead i think we need to define ways to continue to preserve religious liberty, free speech for everyone regardless of your viewpoints. we have a florist in washington state and she highlights this really well. for ten years, she served and traded floral arrangements for couples and she has a couple who is now suing her. she created flowers for workdays and anniversaries and a whole host of events. when they asked her to prepare
1:15 pm
flowers for a wedding, he referred her to someone else and he has now sued her both personally and corporately saying she has to participate and celebrate this event or she can be find and lose her business. one of the things they will tell you, when she talked about this is the couple that are suing her, they have the freedom to live consistent with their viewpoint about marriage. they can get married, they can celebrate that, they can live that out in every aspect of their life. she is asking for the same constitutional guarantee freedom. unfortunately the supreme court ruled against her in february even though the attorney general conceded during arguments that she creates floral arrangements and doesn't have to control the expression she creates and celebrates.
1:16 pm
i think when the government has that much power when they can come in and say this viewpoint is allowed but this viewpoint isn't, we need to be able to respect and defend and protect both the minority and the majority viewpoints as we move forward. we are actually going to follow a petition in her case in july asking the supreme court to take up this case. i think there's a lot of stakes for the future of the first amendment. in terms of the executive order, it doesn't really have an effect on that other than expressing a commitment, a lot remains to be seen how the various agencies implement that agenda and also speaks to other area that folks can get involved. in some way they can't take care of everything. executive orders can't correct that law. we need congress to step in,
1:17 pm
pass a fair speech and fairness act. that would create the bad law that is the johnston amendment. there's definitely a lot of steak and i'm hopeful and optimistic, especially with judge gorsuch on the court will see some of these wrongs righted so every american can live consistent without the belief, without fear of government punishment. >> and i would hope the brief of the united states, the amicus brief would come in on the right side. >> i would certainly hope so. >> professor. >> the case involving the florist and photographers in washington and new mexico respectively, really trays of fault line that has been in american first amendment jurisprudence for long time. i'm i you to think back to one of the most famous first amendment cases out there, west virginia board of education versus barnett.
1:18 pm
in the court, after initially ruling in the case that kids should be forced to salute the flag, if there's any start in our constitution, you can be forced to salute and to say things that you don't want to say. i would question the dress designers who refuse to make address for ivanka trump. they say we need to be able to stand apart from those other guys. we need to be able to express ourselves. under the current understanding of the establishment clause of free speech, that door only goes one way. if you look, there was an exchange that a professor and i had last summer where he
1:19 pm
talked about how it opens and closes around how much religious liberty you want to have. my response, we wrote them separately, i didn't see his before mine and vice versa, the establishment clause was always about control. it's always about, it's always been about who had access to the public square and whether or not you can be catholic or a jew or muslim, just don't act like one in public. what we need to do is recapture our understanding of religious freedom the constitution has religious freedom written into its dna. there is also the negative
1:20 pm
implications that deliberately left religion out of the qualifications for congress, people and senators. the president, you can't require to be a member of a certain religion. one of the most bloodied battles during the constitutional convention was over the swear or affirm cause because quakers couldn't swear. this whole idea that we are americans and we are equal, and this comes back to what's left out of the executive order, is they don't have to affirm, then when why do i have to affirm. the whole idea is why doesn't the government just take us as they find us. if you go back to the screaming over hobby lobby and
1:21 pm
everything else, what you will see is this is compulsion. she is entirely entitled to use her own money to buy her birth control pills but she has no right to stick her hand in the little sisters of the poor to get the money. that is the other thing i want you to think about, religious liberty is not an entity to itself. what was happening, what they're suggesting in the hobby lobby and other cases is a public taking for private use. that's why tying religious freedom together with the first amendment and the right to petition and association, we need to develop a more holistic way of looking at the fact that we are all americans and the constitution welcomes us here and if the new york dressmaker doesn't have to make address for ivanka trump,
1:22 pm
then neither does the florist have to make the bouquet for the gay wedding. >> one quick point to add-on, religious freedom is for both the religious and non- religious alike. it protects all of us. civil liberties travel together. when one starts to get chipped away at, you will soon see other freedoms chip the way out. if you look at other countries around the world, minorities suffer, the freedom of the press, all of those freedoms are put into jeopardy when we fail to protect the most fundamental freedoms we have including religious freedom. religious freedom, in recent years has been demonized and seen as a bad thing or as a license to do harm to others and i think it's important to make sure that we articulate well how vital this freedom is
1:23 pm
and how it protects how we come out on the political ideological spectrum. >> let me turn to the other current religious issue which is trinity lutheran verses, and how you see that case coming out. >> quick facts summary for those of you who aren't familiar, this is a playground case from the state of missouri where there was a preschool run by a lutheran church that applied to participate in a neutral program getting recycled tire from the state to build playground surfaces for their schools. they were denied their application because they -- even though they ranked number five for meeting the criteria.
1:24 pm
we suit on their behalf saying this is unconstitutional, the state can't deny access to a neutral program, a neutral benefit simply because the preschool is run by a church. i thought the oral arguments went very well. it was wonderful to have justice gorsuch there but i was struck by justice kagan line of questioning which would suggest me we might see a 7 - 2 decision on this. both of them were very concerned, justice breyer was very concerned that if the lower court ruling stands, what does this mean for other neutral programs and benefits including safety. he was arguing if we uphold your line of reasoning, what does that mean about the fire department. are they no longer able to show up at a church or christian school. what about when it comes to police and other safety protections pretty also raised battered women's shelters who provide services to the communities that receive some sort of public benefit or funding, what are the implications of that and in
1:25 pm
kagan, i saw something that bodes poorly for the state and good for our client, she said this is a clear burden on the constitutional right because religious individuals and groups are barred for competing in otherwise neutral benefits. i'm very hopeful about what the court will do in this case and the importance of making sure that if you are allowing any nonprofit to compete for participation of a particular grant program, you can't discriminate against an entity simply because it's run by a church. >> do you share her optimism. >> i do. i read the oral argument. you can't always predict, but i was surprised, i wouldn't be surprised -- i think this is a relatively safe that justice ginsburg and probably justice breyer will say this is a moot case, but in the end i think we have to come back to this
1:26 pm
question of neutrality and public programs. most people don't realize that the court has come along way since 1947, recognizing there ought to be equal access to public benefits, and of course, we don't want to say, we don't want to pay for bibles and other things although i must say one of our most effective programs in south asia has been to translate the quran and have these kids read it and learned that it says you don't kill people, you don't kill innocent people. that has caused some problems to but nonetheless, the connection between school desegregation and the establishment is something most people don't think about. the desegregation case that eventually turned into simmons harris which was -- it's very
1:27 pm
tight. the african-american parents in both the milwaukee and cleveland area set enough already, give us the money and get out of our way and so in the end, it will be the private sector that will solve the problem with the government caused in all of this, and i agree, just give them the money and get out of the way. >> i think we have time for a few questions. i will turn it over to the audience to try to get responses to your thoughts and concerns.
1:28 pm
[inaudible] >> i think the first amendment defends that and it's an important piece of legislation that was introduced last congress and i expected to be introduced here pretty soon by this congress. something that president trump said during the campaign that he would in fact find that. i think it's a valuable piece of legislation that says in the specific area, tax-exempt statu status, the government can't discriminate against an individual or organization based on their viewpoint about marriage whether it's supporting same-sex marriage or marriage between a man and woman, the government can't discriminate or punish them for participation in specific areas. i am hopeful that will be introduced. i think it has a chance more so in the house and senate. it would be wonderful to see that moving forward. >> is there room for state
1:29 pm
action, at the state level. >> absolutely. i think states can and should do similar versions of the first amendment at the state level and simply say, in this area we will not punish someone or discriminate against them based on their viewpoint about marriage. we will not exclude someone from accreditation if they are public university which has been a concern raised and i think it's definitely concern that many institutions share, licensing of adoption agencies is another concern. i think it would be very helpful if the states passed laws to ensure that the government will not punish individuals has of their belief of marriage. this is something that's similar to what we saw the days after roe v wade. in the wake of that, the next few years we saw efforts at
1:30 pm
both the state and federal level to protect the conscious rights of americans who held different viewpoints. : and it's something we need to take to heart here, which is how do you talk about religious liberty when he assumption is that you are racist homophobic? that's basically come how many times, i don't know about you,, but i have been to many, winter christmas parties and everything else and said don't mention trump, you know? i'm sick to death that my alma mater uc berkeley has completely given up its free-speech orientation. i got a publication was there
1:31 pm
because of the free-speech orientation. they said we might take every word he said but this is berkeley and we have to believe in free speech. that's on now. and now we're in this idea of, that's why made the point, a long time ago i used to say you can be a catholic, you can be a jew. don't like one. now if you act like one, you're an aggressor and your grading and see space for people. -- you are an aggressive. remember the safe spaces movement is anti-first amendment. we heard about it in stuart taylor's excellent talk about the so-called rape culture on campuses where all your constitutional due process rights go out the window. your first amendment rights are, religious freedom rights are on the chopping block, too, but smart people like all of you need to start thinking what are the talking points for the
1:32 pm
congressman or the state legislator, and what are your talking points when you stand in front of a judge who thinks that your governor is a big? those are the kinds of issues, that's what happens in the executive order, the immigration executive order case. the ninth circuit assumed trump was a bigot and that was it. the fact that he actually is the chief executive and part of his job is to keep us safe, that's just kind of surplus i guess. >> next question. >> straight back. >> i have a wonderment. there isn't a university in the country, except hillsdale and one other, that get federal money and there's all kinds of federal programs. how did he get away with violating the constitution? are they not subject to federal law?
1:33 pm
and kept the money some way soma cut the money. that would certainly focus them. if they are subject, if they're getting federal money and there's all these federal programs, then how can they get away with not following the constitution? >> well, you need to have, first of all there's nothing in the law that specifically suggest respect peoples religious liberty. but they don't even cut the budget of school districts that are found guilty of race discrimination. when you follow the money, you find out where the power really is. and they could cut off, but that's what it used that dear colleague letter in the context of rape. that was money. so that take you back to my initial point, which is the president appoints. let's get the appointments are done so that we can start to undo some of this stuff and use
1:34 pm
that money as a weapon that was always intended to be. but just remember, there's another federal court in san francisco that just said the president can't cut off money for sanctuary cities either. so this money question cuts both ways. >> b see if there is one back there. i'm having trouble with lights here. i don't see one back there. over on the right. all right. very good. let's get our panelists a round of applause. [applause] >> and beyond -- on behalf of the rnla, to each of you this paperweight which shows the country as it ought to look. because of the guy with the hat. thank you very much, professor,
1:35 pm
kelly, and michael, what's our next -- [inaudible] >> ten minute break so they can clear the room. we are back at 1:45. [inaudible conversations] [inaudible conversations]
1:36 pm
[inaudible conversations]
1:37 pm
1:38 pm
they came to me at the if i would run. what spoke to me the most, i've done a lot of philanthropy and we have the largest synagogue and nevada. what spoke to me most is based at the best work you can do is serving to constituents in your district. that was an outgrowth of a lot of the philanthropy i've been doing and how i felt about something about and how it was so great for me to live there and raise my family and all my friends, and that i could tell people they are and take their voices here and use that to hopefully drive good legislation in a commonsense wife. >> you mention senator harry reid. was that his pitch to you? how did you know him before this process? >> guest: las vegas is a small town. he has lived there of course his whole life i've lived there nearly 40 years. a lot of friends in common
1:39 pm
especially to my philanthropy work. so when him and a few others reached out to be he said this is exactly you are. you been working so hard in the community to try to bring services to try to do good things. you can just take it to the next level and that really spoke to me. >> host: did you ever see yourself in politics before the? >> guest: if you ask anyone whhas been a synagogue president they will tell you it's very political. it was the biggest blessing of my life but i learned so much there that really prepared me for here. because we have a ten-acre campus, and we service so many service communities. we work with nevada and for the common good. we work with family promised and the homeless. we do senior health fairs, tax services, open up our building to kyrgyz service groups like a a and all those different things. so you see across the spectrum of the kind of thing that all
1:40 pm
come to your church or your synagogue. military families, seniors, single mothers, single fathers, widows. people who have cancer. you see every type of person so it's kind of a cross-section of what the district is. i feel like helping them really taught me, when i heard their stories and learn how we're trying to do for them on our small way, i can take it on and beglevaguely satisfied he said o run. >> host: one of the issues that is, early in congress is increased threats to jewish community centers and cemeteries. what you think us calls that? >> guest: unfortunately i think some of it is a bit the internet because there's a veil of secrecy that you can put up anonymously and that often emboldens people if they don't come out and say who they are. i'm sorry to say a little bit this election cycle there's been a lot of anger for whatever reasons. some of it is deserved, some of it not but it has emboldened people in some not so good ways.
1:41 pm
what i do want to say is that when i say never again for hate, it's never again for everyone. it's never again not just if you are jewish but latina, black, lgbt, whatever that is. we should really be a country with these great values that are not built on hate. i want to promote cooperation and communication and tolerance everywhere we see. that's was going to keep us a wonderful nation that we are. >> host: you were born in chicago, lived in minnesota. how did you make your way to nevada? >> guest: i got a degree in psychology and come in computers, learned, i'm a computer programmer systems analyst by trade, and when i was in college my parents moved from chicago, they follow some friends and want to get out of the cold weather and i was a december graduate it was literally 50 below zero windchill factor december 1979,
1:42 pm
about 75 degrees in las vegas. my parents said why don't you come to las vegas cracks seems like a good idea. i state and uam and typically think that is ever happened to me, my delight is because of southern nevada, a place on the. >> host: you make in computer programming. what kind of programming due to write? >> guest: i make the joke on the dais or because i learned to code in 1970s with a card decks. i walked around campus. we learned in cobalt in fortran, similar, pl one can all those languages that are the legacy code now. i guess i could probably go out, maybe so my programs still out there someplace but the mainframe applications automate the joke i wrote apps before the recall that's because the recalled application. >> host: do you have any children? >> guest: i have a daughter who is a junior in college. >> host: is your family stay in nevada or come here to d.c.? >> guest: i meant empty-nesters. my husband is a radiologist and for the last ten years he has
1:43 pm
worked for our va hospital. he's worked for the va system. i'm very proud of the work he does there and the stories he brings home for our veterans. although when she works with and the once he served everyday. >> host: what committees are you serving on traffic armed service committee, and within the i'm on the military personnel and on tactical air and land which is great because military personnel is very important. one out of every 300 people who live in nevada is either a better or inactive duty military so it's important to me and personnel and, of course, we have with air force base and, of course, we have hawthorne, and so working on tactical land and hearst with it. i'm on space science and technology come on the image committee hoping to work with water, solar, those kind of energy issues. and research and technology might background in computer, cyprus could do something i believe strongly in and we need
1:44 pm
to move on come straight in. we need to dome of cybersecurity i think for all those attacks that could be coming in. i hope to work on that within that committee. >> host: on the energy subcommittee, is yucca mountain something that comes up on that committee or something you will be working on? >> guest: yucca mountain, i'm not sure if it's in the jurisdiction of that committee or natural resources. my come out of natural resources but what am hoping to work on in that committee is working on water and energy, renewable energy for solar work of course other nevada 367 days seven days a year, unlike washington. there's a lot of clouds here. i'm not used to seeing clouds, but hoping we can move forward in solar energy development and research. and, of course, water issues. our water security and safety so important to our national security that we are forming and appropriate ways that we are reclaiming our groundwater, we are conserving and creating good
1:45 pm
ways that we use our water. that's really important for our national security, safe and secure words hunter food source and water source. >> host: do you like to gamble? >> guest: i don't like to gamble but coming here, maybe that's a gamble. i wrote computer software in the early '80s and own all the casinos, howard hughes corporation, a bunch of others. i wrote software in the beginning so i know what happens behind the curtain and they don't build those tickets used i shouldn't say come have a great time, come to las vegas to enjoy your vacation, but you know, gambling is a little tough. >> host: between visiting casino at hoover dam? >> guest: i would do both. we have the best food, the best shopping. we have great golf courses, weight hiking in red rock candy.
1:46 pm
we have hoover dam. it's a wonderful weather. we have unbelievable shows entertainment. we won't tell that your golf score really is. , and have a great time. it's a wonderful place for a vacation and a great place to live. >> host: congresswoman jacky rosen thank you so much free time. >> guest: thank you. appreciate it. >> backslide to the national press club in washington as our coverage of the republican national lawyers association annual policy conference continues, an all-day conference in washington, d.c.. the next discussion on executive branch overreach should get started in just a few moments as attendees wrap up a short break. [inaudible conversations] [inaudible conversations]
1:47 pm
[inaudible conversations] >> [inaudible conversations] [inaudible conversations]
1:48 pm
[inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations]
1:49 pm
[inaudible conversations] [inaudible conversations]
1:50 pm
[inaudible conversations] [inaudible conversations] [inaudible conversations]
1:51 pm
[inaudible conversations] >> all right. maybe it's not on. good afternoon everybody. my voice is loud so if the mic is not on i'm just going to go ahead and speak up. welcome back, everybody. i hope you enjoyed that panel. as you can see we have shrunk things down a bit back you. we don't need quite as many people seated up here for the next battle. but it's going to be a good one. this one works i bet. there we go. it's my pleasure to introduce ron hicks who is the rnla vice president for community action and a partner at meyer and
1:52 pm
scott. he's a pittsburgh en and also a great guy. i'm going to let him introduce our panel here about lobbying -- it's a good thing none of those have been in the news recently. >> good afternoon everyone. i want to congratulate david for pronouncing the name of my firm correctly. everyone always butchers it. i'm from pittsburgh pennsylvania and not only was this conference pertinent with regard to what's going on today but, of course, there's a more significant event tomorrow night and that's when the penguins will beat the capitals. [applause] [booing] i just say no, i have been also i'm keeping track of the pittsburgh post-bet sidney crosby did, in fact, practiced full practices but expect to be
1:53 pm
on the ice tomorrow. so there has been a significant amount confusion lately regarding lobbying and what the requirements are and when in fact, you should be a polite and you should not be applying and what should they be applying. most of the confusion centers around two statutes which your esteemed panel speakers go to talk about today. the wind is known as the foreign agents registration act of 1938 and the other one is the lobbying disclosure act of 1995. a lot of people have been talking about them but officially been no 30 is exactly what those acts do come when people need to apply it, and exactly what their intentions were for purposes of those acts. so that's why we've assembled his team of esteemed lawyer should talk about that. the panel who we have here today, to might be left is claudia from king and spalding. claudia is an associate with king and spalding government efficacy and public policy
1:54 pm
practice group in washington, d.c., with 15 years experience in washington she has worked both on capitol hill and in the private sector. currently claudia counsels from client on federal and state campaign-finance ethics and lobbying lawmakers including the ethics rules and regulate the american products to state medical purchasers. she is a native of san francisco, a tragedy university of california at berkeley and gender law degree from the catholic university of america columbus school of law. after claudia you hear from jason. jason specialize in campaign-finance, election law and lobbying disclosure. in 2007 campaign election magazine named him arises or politics or jason frequently lectures on campaign finance and ethics within two subjects and provides commentary to the media on election related matters. jason holds a ba in government and public policy from the college of william and mary, and his law degree from the college
1:55 pm
of william and mary school of law. the last person is elliott burke. not only does elliott serve a aa managing partner of this firm he also serves as our current president of the rnla. prior to starting as current law firm, he served as a partner and as a practice group cochair at mcguire woods. he's been named as a national best lawyer and by the washingtonian as one of washington's best lawyers. he is a criminal -- grad of weight force and emory university school of law. with that introduction i'm going to turn it over to claudia will do with the first subject, which is the lobbying disclosure act. >> thank you, ron. [inaudible] >> you think so? hello? definitely. all right. i don't want to make is too much in the weeks but there are a lot of very complex issues with regard to law being registration
1:56 pm
and disclosure that everyone should be aware of if one is intending upon engaging with federal officials, officeholders, and other employees here in d.c. and otherwise. and we should have a powerpoint. we do, okay. first slide. okay. it's working. as ron mentioned, the overarching law here is the disclosure act of 1995. it replaced and law from 1946 which was largely ineffectual, and then in 2007 -- thank you -- due to largely the scandals surrounding mr. abramoff, congress in its wisdom enacted the honest leadership and open government act of 2007. we will go into some of the details that were put in place at that time to ensure increased
1:57 pm
transparency and accountability by lobbyists in town. the lobbying disclosure act of 1995 has relatively easy compliance framework. requires registration, the court reporting of activities and then because of hloga the semiannual reporting of contributions and in particular ethics rules certification. this is it. the devil is in the detail and the definition are keen to turn whether one is a lobbyist and whether one's activities require registration and otherwise compliance. so who is a lobbyist? a lobbyist is an individual whose employed or retained by a client for financial or other compensation for services that include more than one lobbying contact. i'll go to all these definitions in these slides. there's a carveout for those
1:58 pm
individuals whose lobbying activities constitute less than 20% of the typ time engaged in e service provided in a period. in addition, this is often important for companies, an organization employing in-house lobbyist is exempt if they do not expect to exceed $13,00 $13n a quarterly. in these activities. so what is a lobbying contact? this is any oral or written communication in these days including electronic communications of course to a covered executive branch official or a covered legislative branch official that is bit on behalf of a client with regard to these four defined areas. and what is a lobbying contact? again, there are 19 types of activities that are exempt from registration including if one is called to give testimony before a committee or is otherwise providing written comments, ends of this nature.
1:59 pm
so who are these covered executive branch officials? and in the loft these are very specific a president, vice president and then these for other categories of individuals in the executive branch. generally if one is a schedule c, would be deemed lobbying contacts. in the lead set up right a bit more broad. basically anyone in the legislative branch from the chief of staff for a member for even the individual outfront that might take your business card when you walk in whidbey deemed covered legislative branch official. and what are lobbying activities? this is where oftentimes many of the issues arise, lobbying activities are defined for the barometer not only the lobbying contacts made within efforts in support of such contacts including preparation and planned activities, research and other coordination with other individuals in order to
2:00 pm
effectuate those contacts. at the federal level, grassroots lobbying is not considered lobbying activity. certainly we can answer any questions that you might have about the specifics. if you determine that you are, in fact, lobbying or a lobbyist, what his first report is registration. that's triggered on the date that employee or a lobbyist is employed or retained to make more than one lobbying contact on behalf of your client, or on the date that employer lobbyist and took mixed at second contact i mentioned earlier. in either case registration is required within 45 days. i key point here is the lobbyist, unlike in this date i will mention briefly at the end of my presentation, the registration is required of the entity that employs that lobbyist. it doesn't follow the lobbyist. it follows the entity. and registration given the ld
2:01 pm
one simple things like mailing address, the expected issues that you're planning on lobbying on, codes that are use that a fairly broad, and then those lobbyists involved, and also something goes very critical of the time that the law was put into place, if they're in for an interest in those lobbying activities. electronic filing is now required. then there are quarterly reports, april 20, july 20, october 20, january 20 and those who are a more detail about what one's activities have entailed. critically, the amount of money spent on those lobbying activities, if you are a lobbying firm, that is, the money that you have, the revenue you've taken in. if you are a lobbying employer or retainer then those expenditures that you have paid. once again the issues and more
2:02 pm
specifically the law and guidance that is issued by the house and senate requires not merely a discussion of i lobbied on tobacco. it's important to be a little bit more detail at this point unless in fact, one is famously wandered around the hill stuffing tobacco somehow. and then also what government entities one lobbied and once again a reiteration of the four entities that might be involved in that lobbying. and finally with the enactment of hloga, the ld 203 report with putting place and it is a bit repetitive if one follows both the sec and other disclosure but nevertheless, i do semiannual. one is required to indicate both from the entity that employs you, the lobbyist, but also from the lobbyist themselves and packs assuaged with those lobbyists, campaign contributions, presidential library contributions and other
2:03 pm
payments for events associated with one's lobbying activities. more importantly there's a requirement to certify that one is aware of and is in adherence of the control of the house and senate. for our purposes from our practice, this normally would require not merely a reading of these laws, of these rules, but also training and that's one of the things we spend a lot of time is ensuring that people do in fact, comply with that requirement. [inaudible] -- false statements act in providing inaccurate information to the government or otherwise knowingly and not providing proper information to the house and senate in this respect. these days there are several fights of not more than $200,000. -- civil fines. there is enforcement of these lobbying laws.
2:04 pm
what occurs is that the house and senate then referred if there as an egregious issue, they are permitted to refer the issue to the department of justice, and that is where some of the most critical penalties have, most recently. and i detailed three of those here. as a result of hloga in addition now their annual audits required with the gao, which provides a report to congress to the extent of compliance, or lack thereof amongst the regular community. and, in particular there is discussion about even banal lack of compliance in the simple following of forms but nevertheless, the artist to reflect that over time
2:05 pm
compliance has been markedly improved. in addition to house and senate, are required to review a guidance that the issue to assist those in compliance. finally, just the last word. while this focus on the federal registration of lobbying, there are states regulation as well. one of the rule of thumb that we often to our client is come if using one states regulation in this area you've only seen one state regulations. every state, whether in terms of definitions or in terms of thresholds or who in fact, is required to file and complies completely different. these days there are often different rules that certain industries have to abide by, finance industry, public utilities, pension funds. and decrease and rules in the pay to play area that affect, better looking to do work with the various governments in our nation.
2:06 pm
>> i'm going to next turn everybody's attention to the ethics in government act. for those of you spent time in d.c. it governs basically how financial disclosures get file for people in government and what ethics rules they have to apply sort while they're dealing with their day-to-day work in d.c. a little bit of history. in january 200 2009 after presit obama came to office, he signed an executive order that was 13490, executive ethics committees by executive branch personnel which on top of what was in ethics and government act imposes into special conditions and requirements on people who are going to be political appointees in the obama administration. so that rule was in effect for about eight years. january 1 of this year the -- the office of ethics revised some regulations, whether they
2:07 pm
be political appointees or not, for most people sitting in this room probably the most significant one is the reception exception. i think most people enjoy familiar with it. that's the old toothpick rule. if you can eat on a toothpick you can serve it at a reception. what they change body most admittedly for most people in washington is that as a general first, 2017 alcoholic beverages are no longer considered permissible at receptions. i know that's probably going to display a number of people that that was probably the most significant change to the ethics rules as of january 1 of this year. then when president donald trump came into office he signed an executive order also called ethics commitments by executive branch appointees, except this one is number 13700, and he modified and changed a lot of the ethics requirements that were put on obama era political appointees. i want to go through a couple of the big ones for you guys, some
2:08 pm
of you i know may be considering going into government service. but if you go in, when you come in, or when you leave government you have to, when you come to come here to sign ethics pledge which has some restrictions on you worry in the government and has some significant restrictions on you when you leave the government. the first thing is that there is now a five-year ban up from two years which was the obama administration ban. the obama administration said you couldn't lobby reform agency for two years now it is a five-year ban not just on lobbying your agency but on any lobbying activities involving your former employee agency. claudia went to some of the differences between what i lobbying contact is of what may be a lobbying activity, so it is in a lot of ways the travel ban is much broader. there is a ban on lobbying activities outside of your agency related to certain senior officials in the executive branch for the remainder of the trump administration.
2:09 pm
no windows at this point if that will be through 2020 or through 2024 but it will be through the remainder of his administration. and even more significantly, and this will touch on what eliot is going to cover, this ethics pledge has a lifetime ban on doing anything that would require registration under the foreign agents registration act. so for anybody that is going to go into service in the trump administration, you are going to be, you have a lifetime ban them acting as a foreign agent. not any number of years, rest of your life you may not act as a foreign agent. so again what's critical is you think about your future, if you go into government is when you come out you will have this restriction on your lobbying activities. one thing it doesn't do is it doesn't extent the restriction on certain senior administration officials contacting your former agency before the one you. for those of being in and out of government, there's a one-year ban if you're a senior official on contacting your former agency.
2:10 pm
on behalf of any other person. this is true even when people leave capitol hill. the executive order does not extend the requirement of the statute, so that when you ban on contacting the former agency will still be there. there's also as part of this what you would call a reverse revolving door, upon your entry into government service under the trump ethics commitment executive order, yet the site and ethics pledge that has two parts to it. one, you have a two-year ban on participating in any agency matter involving parties that are directly or substantially, directly and substantially related to your former employer, or for those you come from law firms are lobbying firms, your former client. there's a two-year ban on former registered lobbyists or just bring in any matter in which to engage in lobbying prior to their appointment. but you are no longer banned from being appointed to agencies
2:11 pm
you lobbied if you are a lobbyist. so that's important to note. the lobbyist gets ban that was intimated for political appointees under the obama administration has more or less been kept the same. so if you come into the government you cannot accept any gift from a lobbyist even if the falls under one of the exceptions. like the obama administration executive order, the top administration executive order illuminates some of the receptions, for some of the exceptions. for example, there is an exception like this. if you are speaking at a widely attended gathering, you accept a meal. but if you're just attending a widely attended gathering in your political party you may not eat the new. so the secretive commerce comes and speaks at someone's event, he can eat the meal with a c22 aid who comes within whose a political appointee and is not speaking cannot accept the meal. but, look, it's important for younger people are going into government is to know that the
2:12 pm
penny on your role at thursday that you may be tending their may be different ethics rules that apply to you. you've got to be conscious of these. the lasting anybody wants is to be accused of violating and ethics commitment. finally, there is a procedure in the trump administration executive order with the president or his designee may grant waivers of any of these restrictions. who knows what waivers have been issued. the waivers are not an executive order, otherwise made public, but you can get waivers if you need a waiver. and finally, enforcement is under the terms of the executive order through civil actions by the attorney general, and if you violate this ethics pledge you could be barred from lobbying for five additional years if the attorney general takes action against you for violating the ethics legislation. those you considering going into government or if your income and now make sure you're well aware of what the ethics commitment or because it is one of the best tripwires to washington is a violet and ethics rule.
2:13 pm
such is the conscious and aware of it. and with that i'm going to turn it over to elliott. >> with our remaining time ago to talk about the foreign agents registration act, or fair as it is noted my firm is burke tried to. -- fara. fara is a criminal statute unlike the lda, and while there is largely an administrative process, it is administered by the justice department. the unit is within the national security division, and while you may hear that people never get prosecuted for fara, it's not entirely too. there's other criminal applications with it which i will discuss tour to end of my presentation. fara was enacted in 1938. it was largely enacted in response to concerns about german propaganda in lead up to world war ii. it is a bus at pretty arcane
2:14 pm
concept. there are first amendment associated with it, but that has to be balanced out and ultimately these you win at the end of the day, good for you but it is in force a while in force comply with it. the purpose essentially is to register, to show public transparency on anyone who agrees to act as a foreign agent for a foreign principal took a foreign principal really can be anything from a foreign government, foreign political party, foreign organized entity or even a foreign individual. the way the process works is that within ten days of agreeing to become a foreign agent, you are supposed to register with the justice department with your registration statement. but before taking any actions. there's a big issue, i'm sure my colleagues here have experienced this, a client comes to us as
2:15 pm
i've agreed to do this and i've already started acting but i know i have ten days. technically that's not correct. they have to register within ten days of agreeing but not taking action. that's different from the lda where you're 45 days to register even if you're already acting as a lobbyist. so within the ten days you register. there's a number you have to father what is a registration statement. it is much more specific than your ld-1 under the lda. it includes things like your own personal address, the date you were born. you will have to include political contributions within a set number of time before the registration, description of what you intend to do on behalf of your client, and you are also going to have to file a short form for every single person that is going to act as a foreign agent. so if there's three people at your firm that are going to be foreign agents, each one individually has to file inside a short form. you then have to also file
2:16 pm
essentially your articles of incorporation through your business, if you're a business. most of that is on the public record anyway so it's not necessarily a big deal. but you also to file the contract. this also comes up a lot in practice. as you can imagine a lot of clients, i want to be very specific in terms of what you're going to do. and if they're not advise on the front and that will be a matter of public record. it can cause some consternation with client relations. so draft contracts are fine, proposals are fine. those don't need to be on the public record. once the contract is executed it is filed. once you file you then have to report every six months about your activities. unlike the lda it is much, much more specific so it's not house, senate, executive office of the president. it is specific to the date of the contact, the individual you contacted, what you talked about, all of those need to be
2:17 pm
disclosed. the other big misconception about fara is that it is not limited to simply lobbying. it also covers public relations activities. and so if you are, the statute refers to public relations counsel, that really means public relations. if you're hired a country to do public relations, this is an example, you still need to register under fara and then report technically every contact you have with even journalists. that fara office again as i mentioned recognizing there are some first amendment concerns here, so working with the fara office sometimes can be a little more lenient about the specificity of those contacts, limiting it more to the media outlets rather than the individual journalists or not being as precise. but generally they will want to see the nature of those contacts. you report every six months. the other reporting obligation is if you file what's called
2:18 pm
informational materials. that's anything you disseminate on behalf of your foreign principal client. that can be press releases, position papers. you need to label those informational materials with a clear disclaimer saying that this is being disseminated by you a as a foreign agent on behf of the foreign principal. if you need more information, it's on file with the justice department. those need to be filed within 48 hours of dissemination. and so we always get questions about email blasts and things like that. again, that fara unit while the statute really hasn't been updated, they are pretty good about working with you to figure out what needs to be disclosed to make sure if you come for instant send that one blast e-mail, you know, to 100 different individuals do need to file everything one of them? technically that is no. you can follow want and say this is where we set out.
2:19 pm
it's essentially attention and the choice of law that congress enacted in 1998 that allows an option to register under the lda for certain foreign principles. those are really all foreign principles that are not foreign government or foreign political parties. a foreign business or for individual cookie may be able to register under the lda which is preferable because the specificity in disclosure is not nearly as extreme. but if it's a foreign government or foreign political party you don't have that option. you do have that option even if your client is a foreign company and you try to influence public opinion which is really the purpose of fara is to influence public opinion about any sort of foreign issue. you can register under the lda even if you're not lobbying if it qualifies for the exemption
2:20 pm
or the choice of a non-foreign government, foreign political party, which is what a lot of public relation firms do, even though they've really nothing to report because under the lda, report lobbying, not public relations. one of the biggest questions that always comes up is you have a certain type of client and you say, well, what could we do here? can register under the lda? if it's a foreign visit or state owned business, that's an example. and again there's a process in place for asking the fara unit questions. you can ask for advisory opinion. that's on the public record. you can also request confidentiality in certain situations but a lot of times depending on the situation they may give you an answer, sort of an informal basis. but the real rule of thumb is, is that if the entity stands in the position of the foreign government, then it is a foreign
2:21 pm
principal for purposes of fara. that does not allow you to register under the lda. an example of that, and these have actually come up in my practice, once i had a client that, their client was going to be the saudi owned business that was the majority was held by the saudi government, but it really operated as a private business. it had a private board of directors, private ceo and the fara unit said that's a private business. it's not controlled by the government even though the government owns it. you can register on the lda. you'll just have to list it as a fort industry there. -- foreign industry. it was pretty clear that the russian government controlled the entity in that case. that this is needed to be registered under fara. in terms of enforcement, as i said earlier, there's kind of, fara has been in the news a lot
2:22 pm
lately. a lot of jurors was a nobody has ever prosecuted under fara that is not entirely too. there are been cases brought, not a ton, about a dozen, 12 to 15 over the years. the most recent involve the former congressman from michigan who pled guilty and was sentenced to prison for representing a group that essentially was organize as a nonprofit but it was really controlled by foreign government. government. he pled guilty to that. but more importantly, i'm saying more and more that the justice department is using fara as a tool when you think some else is going on. they use it as an example in a russian spy case around 2010 when i think there were 12 12 russian spies of the profound, and rather than try to bring a case under the espionage act, they had to plead guilty to conspiracy to violate fara. if there's tax evasion, allegations of that, fara is
2:23 pm
such an open and shut case in a lot of ways to say you agreed to this agency, you are ready to need them, we can come in but we really think of the things are going on. so while there hasn't been a lot of cases brought under the statute, it is being used more and more as a tool. the last point or last two points i want to emphasize is that there's often no contingency fee of arrangement allowed under fara. that's against federal law. so you cannot take a client, that is a foreign government or foreign palooka party or if you otherwise register under fara won a contingency fee. and also i like the lda there's no pro bono exception or exemption, even if you agree to be a foreign agent and you don't have a contract and you don't receive any compensation. you still need to register technically under fara. it's the agency principle which dictates. and so in some cases you may
2:24 pm
say, well, look, i've got a client that is a foreign government, but i also have my first amendment rights. i mean, if i'm doing it, if i'm going to the hilt and talking to members of congress that i'm doing on my own behalf, it gets into a very tricky situation. you don't check your first amendment rights obviously, but you have to understand that if you're doing it at the direction or request of a foreign principal, then technically you're getting into fara territory, and tread lightly. >> so we have about 15 minutes, and go ahead and take questions. >> so say you are michael flynn and you decide to represent sokoloff, hypothetically, and you decide to represent sokoloff airlines in russia, which is basically 50% owned by russia.
2:25 pm
do you have to register? >> well, i'll speak hypothetically. if you're in a situation like that we've got a foreign entity, a foreign owned business, you really have to scrutinize how it is owned just as a set and how it is controlled. you are probably not going to get prosecuted if in a good faith effort you take a look at it, if you determined no, this would equate to something i can register under the lda and you registered under the lda. that fara office may contact you and say, we think you need be registered under fara, that happened some time to type it they will contact you with respect to find a say we need more specificity. usually it's a process, they don't bring a criminal case against you. however, you have to have a good faith basis for making that decision. and if you're going to register
2:26 pm
under the lda, jeff to do it properly. so even if you say look, i relied on this, i sought counsel. they said i could do this. my firm registered. i was doing the work but i didn't register, i wasn't listed, you are technically not in that safe harbor exemption. and so you have to be very, very careful. but as i said if you have a good faith basis, you have researched it you only know what you know, you've done your due diligence and you register under the lda, the worst that potential cavity is fara office contact you and says you made a mistake and you need to register under fara. >> any other questions? >> can you cheer at? >> you can pick again, the fara office will tell you they seek voluntary compliance. i mentioned there just has been a lot of cases brought at if they don't think some else is
2:27 pm
going on, you can cure it. typically there pretty understanding. it depends on the circumstances that yeah, you do have an opportunity to fix it. pr wise of the damage may be done and the consequences can be very grave, but as i said, did you seek voluntary compliance. >> this may be somewhat naïve, but from a lobbying and registration perspective, as a law from a as a lawyer how does it interact with our statewide or pretty much multistate requirements of confidentiality related to your client? >> generally at least on ethics aside, the federal rules at least when you think about financial disclosure, what are the things you to do when you go into government is disclosed on your public financial disclosure
2:28 pm
in the client that is paid you $5000 or more for personal surface of the nuclear you look at, for example, all the morris went into the administration, often had to list the client from the provide more than $5000 in personal services. the federal governments reaction to questions about like confident judge rules is look, we are the feds can we override any state law or to employment because of the sabbath is a cluster are will save you have to disclosure clients, disclosure clients. there are sometimes you can get the ethics officer to sign off on a meeting things if there's something particularly market sensitive or bike a grand jury investigation that is otherwise not public yet and you're representing summit in that kind of matter. sometimes you can get them to say okay, under that circumstance you don't have to disclose it. but at least with respect to the ethics in government act they basically take the position the ethics in government act
2:29 pm
overrides any state law or rule. >> i guess from the lobbying disclosure perspective, one would have to make the conclusion as to whether activities engaged in as a lawyer would rise to the level of required registration in general. there's no question whether in our law firm or otherwise one can have an arrangement for lobbying activities that are made public, but that also have obviously an arrangement for legal activities, which are not made public. however, i mean, those are the kind of calculation when asked to make i would think. >> what are the point on the lobbying registration. one of the things that is not lobbying under the disclosure act as represent your plight in judicial proceedings. ..
2:30 pm
>> started to answer my question with respect to representing your client in a judicial proceeding to have to register but if i look at the statute, it says one of the orders is waving united states represents the interests of the principal before any agency or official of the government of united. does the government of the united states, in that context include the judicial branch and if so, under that particular provision lobbying to represent them before any entity within the united states bring you as a lawyer representing them in a legal proceeding within the
2:31 pm
statute? >> i should've mentioned there are exemptions to registration and one is being a lawyer before proceeding. there's also exemptions for doing religious and charitable work and things like that. a lawyer exemption has to be, and they take a very broad view of this, if you are a lawyer and let's say you're representing, country on sovereign immunity in the courts, that's clear. that would fall under the exemptions but if you are walking the halls of congress talking to members of congress about the issue, they would see that as outside and see that as being a foreign agent for registration or boarding purposes. the other part of it is that they do believe that if you say for instance i'm a lawyer and i'm not lobbying, which isn't something i'm researching legal issues for them and you don't anticipate it going before a proceeding,
2:32 pm
that's when it gets into the gray area. staff has said that's not what we're talking about but then there's obvious room for analysis there. even what they view the exemption is as when you are representing a client of some sort and acting as a lawyer andnot as a lobbyist . >> next question? so another question that at least touches on my personal experience that the client had with sarah, elliot, can you talk a little bit about discovering that you need to register after the fact. and you were talking about curing earlier but it's impossible for anyone to be doing work for a client that
2:33 pm
they that time don't believe to be a foreign government or political party. but to learn a year later that in fact it was. i'm interested to get your perspective on that. >> that certainly has come up. again, if it's almost like a self-report. >> is not without risk area but this very unit itself is you know, is usually pretty understanding and situation. obviously if you said well, i was hired by rolando to represent rwanda and i didn't realize i needed to register, i was hired by some company and i didn't think it was government controlled but things have come up recently that we thought it would be nice to register, they're
2:34 pm
probably not going to have a problem and the understanding but also understand that there is over sears within the national security division and it doesn't mean that the national security division, criminal division will see it that way. but by a fair unit itself, is a rule of thumb is going to understand the situation and explain it to them and they will work with you on that sort of trying to prepare that issue.>> in my experience and myclients experience . the fair unit was quite reasonable. >> a follow-up question on that, as i understand, it would create a lifetime ban? is there any indication how that is going to be, that maybe on people? >> the way the executive
2:35 pm
order is written assuming it's not amended by a future president is that enforcement is done by the attorney general who also has enforcement under pharaoh so i mean, i guess they could take the restrain you from registering under farah if you thought to register under farah and if you sign that pledge and file the document with the government, who will want to do it, sort of a couple to go back. how enforceable it is, i'm not sure i'd want to represent the person testing it. >>. [inaudible] can you have a contingency fee contingent on the bill passing? >>. >> the lobbying disclosure act itself doesn't mean the contingency program but there are other statutes like farah, the federal acquisition regulations, just
2:36 pm
lobbying on capitol hill, technically there's not a position at the federal level although a lot of people have a lobbying contingent prohibition. the reason being the history behind those is when those contingency fees are available, it keeps text lobbyists to do things that if they were contingent on the bill passing. so there's a history of these in the states where lobbyists have done things that were bad under the law. >> also there's a long line of federal facilities that have said if you look at the lobbying disclosure act guidance that the secretary said in the senate , and the clerk is the house issue it's in there and they will say that calls other than lobbying disclosure, it would have arrangements for lobbying. >> part of what they mean there is there's this kind of cases going back to i think 1840 in which the supreme court has said that
2:37 pm
contingency fee arrangements for lobbying violate public policy and the contracts are rendered. >> so you're not going to go to prison for it but if you enter into a contract like that, it may be rendered unenforceable and you will get a and that's been a consistent line of cases since then. they have to distinguish in some ways obviously questionable services for any lawyers trying to recover debts, that legislation versus favor legislation but your point, if you're trying to get a bill passed, it would fall into that category that courts have scrutinized and rendered the contracts. >> any other questions? all right, well we're done a little bit early. we will thank our panelists hear. [applause]
2:38 pm
>> will take a 15 minute break. before the next set of panelists. >>. [inaudible conversation]
2:39 pm
2:40 pm
>> live coverage from the national press club today, republican national lawyers association annual policy conference, attendees and a break now, 15 minutes now, the program should resume. they will be taking up an election law update. our all-day coverage continues on c-span2. while we wait for the forum to resume we show your recent conversations with two new members. of the 115th congress. >> congresswoman jackie rosen, representative of the third district, a democrat, when and why you decide you wanted to run for congress. >> i wanted to run a little over a year ago and i tell you why. and some of the folks obama made a center lee and others approached me they were looking for someone for our district that had been there a long time, raised a family, built a business, don't community work there were proud of and i took care of my in-laws so i had experience but i had
2:41 pm
experience going through social security and medicare and unfortunately we have hospitals with broken next and hips and all that so they wanted somebody with the prospect of experience and they came to me and asked me if i'd run and what spoke to me the most, i get done a lot of philanthropy and had the second largest document in nevada but what spoke to me most is they said the best thing you do is serving the constituents in your district and that was an outgrowth of the philanthropy i've been doing and how i felt in nevada and how it was so great for me to live there and raise my family and my friends there and that i could help people there and take the voices here and use that to hopefully drive legislation. >> human mentioned senator perry reed, was that his pitch to you? how did you know him before this process?>> is lived
2:42 pm
there of course his whole life, i lived there nearly 40 years and we had a lot of friends in common especially through my philanthropy work so when he and a few others reached out to me, this is exactly who you are, you've been working so hard in the community to try to bring services, do good things. you can just take it to the next level and that really spoke to me. >> you ever see yourself in politics before this? >> i think anyone who's been a synagogue president, that is very political but it was the biggest thing all of my life but i learned so much there that really prepared me for here because we have a 10 acre campus and on our campus we service a hub for so many community services and we work with nevadans for the common good, work with the homeless, we do senior health fairs, tax services, open up buildings to community service groups like aa and all those different things.
2:43 pm
so you see across the spectrum the kind of people that come to your church or your synagogue. military families, seniors, single mothers and fathers, widows. who have cancer. you see every type of person so it's kind of a cross-section of what the district is so i feel like helping them, when i heard their stories and learn what we are trying to do for them in our small way, i look at that the same way so that's what i centered around. >> one of the issues that come up in your career in congress is influence in the jewish community centers and cemeteries, what do you think caused that? >> unfortunately i think some of it is a little bit the internet because there's available secrecy you can put up anonymously and often emboldens people if they don't have to come out and say who they are and i'm sorry to say this election cycle there's been a lot of
2:44 pm
anger for whatever reason, some of it deserved, some of it not and it's emboldened people in not so good ways and i want to say that when i say never again for hate, it's never again for everyone. not just if you're jewish but if you're latino, black, lgbt, whatever that is, you should really be a country for these great values that are built on hate. and i want to promote cooperation and communication and tolerance. that's what's going to make us the wonderful nation we are you were born in chicago, minnesota, how did you make your way to southern nevada? >> and i was in college in minnesota i got a degree in psychology and computers, learn how to become a computer programmer instance analyst by trade and when i was in college, my parents moved from chicago and
2:45 pm
followed friends, wanted to get out of the cold weather and i was a december graduate. it was literally 50 below zero wind chill factor, december 1979 with about 75 degrees in las vegas and my parents said why don't you come to las vegas, it seemed like a good idea and here i am in every great thing that happened to me my adult life is because of nevada. >> you mention your work in computer programming, who did you write for? >> i make a joke that i'm a dinosaur because i learned in the 1970s with those card decks, i walked around campus. learning cobol and fortran and assembler in the old one. all those languages that are their legacy code now. i guess i could probably go out there, maybe some of my programs are still out there someplace but they made application so i make a joke that i wrote before they were called, they were called applications. >> i have a daughter, she's a junior . >> and is your family staying
2:46 pm
in nevada? >> an empty nestor so she's happy in college and my husband is a radiologist and for the last 10 years he has worked for our va hospital. our hospital isn't newer but he's worked for the va system so i'm proud of the work he does there. and the work he does for our veterans, all the ones he works with who deserve pay what are your committees in congress? i'm on the armed services committee and military personnel and i'm on taxable land which is great because military personnel is a very important one. >> one out of every 300 people who live in nevada, there a veteran our military and active duty. so it's very important to me and personnel and of course we have now air force base and we have region hawthorne so there's more taxable land and it's terrific and i'm in science and technology, energy community and work with water, solar, those kind
2:47 pm
of energy issues and research and technology and my background in community computers, cyber security is something i believe we need to improve on, strengthen, we need the iron dome of security for all those attacks coming in. and i hope to work on that within the next few years. >> on the energy subcommittee on that committee, is the mountain something that comes up or something you'll be working on? >> yup the mountain, i'm not sure if it's in the jurisdiction of that committee or natural resources. it might come out of natural resources but what i'm hoping to work on is working on water and energy, renewable energy. for solar, 360 sunny days here unlike washington, i'm getting used to it and there's a lot of clouds here, i'm not used to seeing clouds but hoping we can move forward in solar energy development research and of course water issues, water security and safety, and so
2:48 pm
important to our national security where working in appropriate ways to retain our groundwater, that we are conserving and creating good ways that we use our water. as really important for our national security, seeing resources in water sees resources. >> you like to gamble? >> i don't like you but i was in congress, media together to do that. i wrote computer software for a company called corporation in the early 80s and they earned all the casinos , how the corporation, they joined the frontier, castaways and a bunch of others though i wrote software in the beginning. but i know what happens behind the curtain and they don't build those seals, i shouldn't say they have a great time, come to las vegas, enjoy your vacation. but you know, definitely gambling is tough. so you did the casino and hoover dam? >> i'll tell you this, we
2:49 pm
have the best food, the best shopping, we have great golf courses, great hiking in the canyon, hoover dam. it's wonderful, we have an unbelievable shows and entertainment so you can't tell how many chocolate covered strawberries you might eat on the buffet. we won't tell what your golf score is so common have a great time, it's a wonderful place for a vacation and a great place to live. >> congresswoman jackie rosen, thanks for your time. >> i appreciate it. >> back live now to the republican national lawyers association conference. next session just getting underway. >> we said we're not going to put any stories in there where somebody claims they saw that something happened that shouldn't happen, and polling place, the only thing we are putting in our database is cases in which someone has been convicted in a court of law, committing fraud. or pages in which a judge has
2:50 pm
ordered a new election because of irregularities and fraud for the reelection. this week, we added another 20 cases and where up to 492 cases. 773 because often there are multiple defendants and this is, i brought a visual aid. this is a printout of our database. >> and each instruction is only a shortparagraph. there's a lot of stuff in here and it goes all across the country . these cases, i'll tell you about two of them that we put in this week. a guy in colorado who pled guilty to voting twice for a deceased father, once in the 2013 general election and again in 2008. and another case we just added which for those of you
2:51 pm
familiar with the account fraud that is sometimes committed in this country and his seen cases where campaign workers go into particularly urban and poor neighborhoods. when they know that absentee ballots are arriving in the mail and go up either to tell the people that are getting them how they need to vote or take a ballot from them and fill them out themselves, we added case from texas where a man who is a postman pled guilty to a federal bribery charge. he admitted to taking $1000 on the page campaign worker in exchange for a list of the names and addresses of mail in absentee ballot recipients on his postal route so i think you all can imagine what was being done in those addresses. >> how big is this problem, you don't know because there is no systematic expert to
2:52 pm
look at this. >> we have an honor system pretty much, through the country, the registration is voting so even went fraud occurs, that's very hard to detect and it's used by accident, before hundred 92 cases here are the tip of the iceberg. and i'll give you an example of what i mean and something that this voter fraud can commission needs to look at. there are a number of states in the country that are part of , it was set up my canvas some years ago, call the interstate prospect program. the state in this program, once a year, kansas gets all their statewide registration list and they compare and each state gets back requirement on all the people in that particular state who also just happen to be registered in other states. now i have in front of me the 2016 report and i thought i
2:53 pm
would study this for example. virginia which is where i live right across the river in 2015, it turned out they had 284,618 people registered in other states. north carolina had almost 1 million voters registered in other states. illinois also had half 1 million, your dad more than half 1 million. any of these may be inadvertent errors. there are people who move to another state , the old state where they use to live, that they have changed names, residents have changed boats and nothing ever happened to this. on the other hand some of these people maybe like pascoe parker, a man who we recently added into our voter fraud database. we put him in north carolina although he actually was
2:54 pm
listed because our database is broken down by space, you look at the state and find out the fraud cases there. we put him in north carolina although we put could have put him in north carolina florida and tennessee. >> the reason being, he was registered to vote in all three states and in the 2012 federal election, email that absentee ballot to florida and north carolina and voted in person. now, the important point in this particular case, and this is important to the entire issue is the fact that his triplicate voting wasn't discovered by election officials in north carolina, tennessee or florida. >> was discovered by a citizen group in north carolina called voter integrity project. this started going through these lists trying to find people who had registered and
2:55 pm
potentially voted in more than one state and this citizen group all volunteers had done this, this guy would have walked away with nothing. because the pointis that many states while they are getting the data , they don't often get resources needed to actually start checking the voter histories on these individual and finding out whether are they breaking the law and are they getting away with it. like you all may recall, years ago the democratic congressional candidates, in maryland, her name was wendy rosen. she was riding in the democratic congressional primary. and opposition research was done on her where they discovered that she had voted and registered and voted in the same election in both maryland and,
2:56 pm
she was forced out of the race, pled guilty to election fraud, she's one of the other cases but the point there is that would never have been discovered. >> said she ran for office and research was on her. the election researchers. this is something that needs to be looked into the voter fraud commission. i will tell you that the opponents of election integrity and there are many of them are so concerned over this that recently, the governor, remember how many hundreds of thousands of people i posed through in virginia are also registered in other states. the virginia legislature passed a verygood bill . the senate bill 1581. >> it would require the department of elections of virginia to provide general registrars with the resources to investigate and check out these double registers. that was vetoed by the governor.
2:57 pm
there is absolutely no reason whatsoever. to veto a bill that is simply , the resources check out possible double registration, unless you ought to ensure that fraud can be committed and it can be gotten away with. let me give you another example. of the kind of cases that are out there. prior to the last election, public interest legal foundation ended up, they ended up having to sue but they ended up getting records on just a counties in virginia. eight counties. >> they discovered that over 1000 registered voters in virginia had been taken off
2:58 pm
the polls because it turned out they were not registered. many of them had voted in prior elections. these were found by accident. now, your immediate question would be well, were any of these files turned over to law enforcement for investigation. as you probably know it's a felony under virginia law do not be registered to vote and the answer to that is noand in fact both had to go to court to get these records even though they had a right to view them. since that time , they have gotten records from other counties in the state and they have found even more non-citizens registered and voted in prior elections in the state. some may say okay, you found 1000 and eight counties. i cantell you there are hundreds if not thousands of more in other counties across the state . is that significant?i would remind you that in the last decade we've had to statewide
2:59 pm
ag races in virginia won by less than 1000 votes but by only 300 votes so is very possible that individuals who are ineligible to vote may have voted in past elections and now there is hardly anything to deter noncitizens from registering and voting. chances of getting caught are minimal and every state has tried to do something about this, for states, kansas, arizona, georgia, alabama who have tried to do something about this by putting in provisions that require you to provide roof of citizenship when you register to vote have ended up in enormous battles in court because the league of women voters and other groups, many of them funded by george soros did not want anything to improve the security of the american election process so these efforts have been stymied.
3:00 pm
the other thing that the commission needs to look at and i will stand with this. again, that just hasn't been done. the resources have not been used is this, for example, you all probably know that in every federal district court in the country, the us attorney's office, we have 94 us attorneys and there have been a number ofreports , at least one gao study out there that took a look at people called for federal jury duty, in federal district court. where did district court put their lists of people for jury duty? >> they get them from federal registration lists in the area and in every single district, people are excuse from federal jury duty because they swear under oath that they are not standing. >> now, has any of that information ever been forwarded five us attorneys
3:01 pm
offices or the federal district courts back to the election officials to let them know that the person that they got from the election list is not a us citizen? >> and do you think that any us attorneys offices in any of the 94 districts have ever actually asked for the voting and registration files on each of these individuals so they can investigate it and see if there's a possible prosecution for isolation of the federal law? no, that hasn't ever happened. >> that is something the justice department ought to be doing right now. >> going through those records in every single district across the country to find, investigate those cases, some of them may be mistakes but others we know are not mistakes i have sitting on my desk in my office three decisions from the seventh circuit court of appeals, each one of them
3:02 pm
about a noncitizen who as soon as they got to the country went and got a drivers license, registered to vote and then voted in an election and you know why they got caught? >> election officials then, it was because they went to try to get a change of status with the irs. and by telling you that those are also records that needed to be combed through, i guess that's never been done. i have had, sources inside dhs who have told me that there are literally hundreds if not thousands of files inside the justice, inside homeland security of individuals who applied for citizenship and you when it came to question 12 on the application for naturalization, there's a questionnaire if they ask a
3:03 pm
noncitizen have you ever registered to vote in the election and you'd be surprised at how many people truthfully answered yes i have. like, what you think has been done with any of those files? so that's the kind of thing that voter fraud has been, and i hope, i have to say i hope there's not a lot more voter fraud discovered but unfortunately i think that if they actually do this , that if the doj and dhs darted putting the kinds of things they should do it like i described, that the next time i come to you i'm going to have to probably bring a cart to carry all the volumes. >>. >> good afternoon, my name is don palmer. thank you for having me. i wanted to take a different approach from the voter fraud commission and talk about
3:04 pm
perspectives of someone who served at a cheap election control in the state election into state and this is really an opportunity. i might go to my last point since we had this big binder here but my point would be, i'll go first with this. >> the voter fraud issue, is democrat on the left continue to , isn't that there's zero fraud or its small fraud, that we have a epidemic of fraud. the fact of the matter is that just one or two people interns have collected this over a couple of years. and i would encourage you as lawyers in each state to become aware of what those contingencies are because my experience as a lawyer in the state and my experience inthe department of justice is you may have access to indictments , grand jury that
3:05 pm
have, the descriptions that have been released. you may have access to more information and sometimes quality is better than quantity. because it's so difficult to record and report these things, this is very valuable and i found that actually having indictments and those sort of things in what's happening in your state is valuable for you to use. >> the first thing i want to talk about, the major points i wanted to say is voter fraud is an opportunity to do a review and audit of 2016 elections. as an election official, we all hope things are run perfectly but we know there's irregularities across the country. there's processes that work at times so we want to see what happened. were voters impacted? what did our failings show and how can we improve that? what are our weaknesses and vulnerabilities in the system?
3:06 pm
sometimes we have to look at what the data shows to show that we need to take steps to reform how we verify the registration process, how we create a voting process that then ensures that you get one vote for each person. some of these specific issues, some of which hans pointed out that rt across the country is the vice president and president specifically noted that there are people registered sometimes voting in different states across the country and that is a problem that has been around for almost a decade now. continues and part of the problem is states are not adequately communicating with each other so hans mentioned iv rc, and this other organization that do comparisons. but not all states are participating. for example, i wrote to out. florida is not participating. i think in florida, they got a vote that's not going to make it, they're going to allow data sharing but these are major states that are not
3:07 pm
participating in these programs. when you look at the list, some of them are not fully participating so our responsibility is that the commission looks at this is there needs to be an identification of this as a problem that needs to be resolved and the commissions should make recommendations that all states participate. the issue with verification is emotional, i'm not sure why. we have qualifications and verifications of all types of issues before a voter is fully qualified to vote. to be a citizen, that's one of those basic qualities in most state constitutions to vote. and in in election. we should have a process that verifies citizenship. and it's on right now, it's virtually an honor system. and that works some of the time but there has to be processes in place that don't provide as much in position
3:08 pm
so that we can verify the citizenship of the voters. the information is out there, the question is will agencies within the federal government provide that in a manner that can allow state and local election officials to do the verification? right now that's not taking place. perhaps the commission can take a look at how that would work in the future. >> as an election in administrator, there are steps that both state and local election administrators can do to reduce and mitigate the risk of voter fraud, both absentee and in person. times it takes the help of state legislators but in the end, i vote that this commission takes a look at what are those processes, what are the steps that can be taken to reduce the risk that we find sometimes across the country?and then
3:09 pm
provides recommendations that legislators can act upon. again, i'll end with the same note i started with. the other side tries to minimize the conviction of voter fraud and in many ways, that's really sad because committing a crime in double voting, running when you are not qualified, committing conspiracy to defraud the voting system is a crime against democracy and prosecutors across the country sometimes don't take it very seriously. my hope is this commission will take a look at that and why it is a crime against democracy. and federal and state prosecutors across the country prosecute these crimes. [applause] >> mister goodman? >> thank you. it's hard to pick up a newspaper or turn on the television today without
3:10 pm
noting the trend of cultural munition and the value we place as a society on first amendment rights. what happened on college campuses is writ large and that the federal election commission where i work , the debates that you hear coming out of the federal election commission, whether the debates are hyperbolic we characterized as money or dysfunction at the federal election commission boiled down really to one issue and that's whether we're going to regulate first amendment freedoms more or less and whenever you hear complaints about what's happening at the federal election commission, you can understand that debate to be about the first amendment. nothing more, nothing less. and those who call us dysfunction or lay other labels on what the republican commissioners do in
3:11 pm
restraint, reproach regulation at the first amendment, you should see through those labels and understand that the debate is over one central issue, restrict first amendment freedoms more or restrict first amendment freedoms less. even if you want to restrict first amendment freedoms more, you ought to be fair and honest in the words you use and the debate you carry on about that. >> to say what i'm really upset about is that i want to regulate first amendment freedoms more and the republican commissioners less. >> so let me start with a passage from a 2016 decision of the united states court of appeals in the district of columbia. the ftc is unique among federal administrative agencies in having as its sole purpose the regulation of core constitutionally protected activities. the behavior of individuals and groups only in so far as
3:12 pm
they act, seek and associate for purposes. thus, more than other agencies whose primary tasks they be limited to administering a particular statute. >> every action the ftc takes implicates the fundamental rights. it went on, to observe that the ftc's unique riot is to safeguard the first amendment when implementing its congressional duty. >> now, that is a statement, that statement from the us court of appeals cites prior us court of appeals decisions. from the circuit, going back 20 years. >> it's not part of the roberts court doctrine. >> it recognizes that this agency was created to regulate and an area permeated in everything it does by the solemn first
3:13 pm
amendment rights of the american people. so if i am to be criticized honestly for a restrained approach, my critics should at least acknowledge the profound importance of the first amendment and what i am trying to do when i tried to strike a balance between regulation and first amendment freedom. let me raise three flashpoints in this debate. we debate fundamental human rights associate and see every day of the commission, you can't walk around the hallways of the ftc. without bumping into somebody constitutional right. >> let me give you three examples. of that flashpoint and the arguments we're having with the commission. the first is the internet. 2006, siobhan stokowski was
3:14 pm
there, he can tell you the commission went out for public comment, to decide what to do about this new form of speech, this new medium of speech called the internet. in 1999, the commission had its first brush with law and regulatory agencies, task agencies, sec. the internet and the activity and communication that it facilitated strained old regulatory regimes designed for brick and mortar worlds. so in 1999, a gentleman named leo smith in connecticut decided he had had enough of the efforts to impeach president clinton.and so he was one of the first wave of website designers so he's using his little corporate facilities, meaning a computer and an internet
3:15 pm
connection and the software used to work for clients. he created his website and it was highly critical of nancy johnson, a congresswoman from connecticut. and encouraged people to vote against nancy johnson because she was embroiled in the effort to impeach president clinton. there were allegations that leo smith made illegal corporate expenditures by building that website and communicating to people about nancy johnson. he quickly came to the ftc and asked for an advisory opinion and the federal election commission took the positionthat the cost to his computer, the cost of internet access , the cost of software, the purchasing to the website, all of that would constitute a political expenditure regulated by the ftc. >> it soon became clear that
3:16 pm
that was not going to be an effective regulatory role. >> because in regulating everyone's use of their personal computer and home internet connection. >> on their kitchen table. so the fec went into rulemaking that resulted in subsequent litigation and went back to the commission. and after several years in 2006, the commission adopted a rule that entered, that exempted from our regulation free speech on the internet. with really, one exception and that is, if you pay a fee. to post a banner ad or other material on a third party's website, the commission would regulate that just like we do if you pay the fee to the paper edition of the washington post to run an ad. if you pay a fee to a third-party, is regulated. if you communicate with your own resources, it is not. >> and that in the commission recognized that the medium as
3:17 pm
a practical matter carry very little measurable expense for groups as well as individuals . >> well, fast forward to the past two or three years and my democratic colleague at the commission, had begun to rethink the rest of that freedom on the internet. and in case after case, we are splitting our votes, 3 to 3. with the three republicans observing the exemption, a robust interpretation of the exemption under the 2006 rulemaking. and our colleagues voting to find notes and crannies of regulations in an otherwise broad exemption. second flashpoint of the last few years has been a lack of sensitivity for the free press rights of press
3:18 pm
publishers. by my colleague on the other side of the aisle at the federal election commission. case in point, target of a 2015. >> the fox news is hosting a debate among republican presidential candidates. >> they set criteria for their debates, they would take the top 10 bowling candidates and put them on a debate stage and tele-. >> the newsroom editorial decision leading up to the debate, we believe our viewers deserve to see more candidates. so, leading up to in the two weeks leading up to the debates, fox news altered its criteria. and it took an added seven additional podiums to another party under car debate if you recall. they looked at the field and
3:19 pm
thought there were very serious people that need to be added to the group of 10, carly fiorini, jim gilmore, george bit happy, these people are newsworthy. >> and exercise in complete newsroom editorial decision. >> they added seven podiums and then if you recall watching that debate, they sliced the answers from the earlier debates into the main debate as part of their news coverage. >> complaint was filed by a candidate who didn't make even the 17. claiming that fox news made an unlawful corporate contribution to the 17 candidates by changing its criteria. off the general counsel, the federal election commission recommends a finding that fox news made illegal corporate contributions.
3:20 pm
three democratic commissioners concluded that fox news had violated the law. to of my democratic colleagues voted to punish fox news, to impose civil penalties on fox news for violating the law despite the existence of a press exemption that exempts the press from our regulation altogether and the press exemption is been there since 1974. another case, independent filmmaker makes an exotic still. questioning the parentage of the president of the united states leading up to the 2012 elections. and distributes that film for free to people in select states. >>.
3:21 pm
>> three democratic commissioners find that independent filmmaker, a bona fide documentary filmmaker to have nearly 20 films to his credit. >> violated the law. by making a documentary film and distributing it to viewers. >> heard flashpoint in the debate. >> is the meat and bounds and jurisdictional lines of the federal election commission with respect to associates, associational practice. >> and this is what you popularly hear term as the quote, dark money today. >> let me tell you what the so-called dark money is. and what is not. because if you read popular press, you would believe that our nations federal elections are a lot. and dark money is flooding the airwaves. dark money is spending by groups that do not have the
3:22 pm
major purpose of being a political committee. we have regulatory jurisdiction over the political committees. and if you are a political committee you have to register with the federal election commission and you have to report every dime in, every night out on an ongoing perpetual basis. >> you have to surrender your associational freedom by disclosing all of your donors. now, clearly there must be a definition of what a political committee is. >> definition sets the hour limits of my regulatory jurisdiction. >> beyond that definition, if you are not a political, we still have jurisdiction over your expenditures and every time you may an independent expenditure or you fund and electioneering communication as a non-political committee,
3:23 pm
you are required to file one time reports with the ftc disclosing your expenditures so the american people , no. says the us chamber of commerce or planned parenthood action fund makes an expenditure in connection with a specific election, but we do not have blown comprehensive regulatory jurisdiction over those groups because their major purpose is in an election year, they have a lot of other purposes.we are engaged in an ongoing debate over the meats and battles of where your associational privacy in our regular station during jurisdiction is. >> and if my democratic colleagues have their way, every little political thing you do. >> with very little definition around every little political thing you do, will evidence your political purposes, broadly defined and you will be swept into the fold jurisdiction of
3:24 pm
the federal government and you will surrender your association privacy. now, as to the extent of this issue, 2012 the total disbursements by nonpolitical committees, nonprofit 501(c)(3) organizations and nonprofit 501(c) for action social welfare groups total $306 million or four percent of total expenditures by all political committees circulated by the ftc and by 2016, that number had declined 306 million to 196 million from four percent to about 2 and a half percent. of total expenditures and we know it down to the penny because you are required to file those and there are specific reports.
3:25 pm
i can get down to the penny that planned parenthood action fund is approximately $7.7 million. that's a vote for jones or vote against smith in the 2012 elections. i can tell you down to the penny how much the united states chamber of commerce has spent in election after election. what we don't always have jurisdiction to pry into is who gave money to planned parenthood action committee and who gave money to the us chamber of commerce. i contend that for me as a listener, to assess the messages i received from planned parenthood action fund or theus chamber of commerce , i don't really need to know who gave money to planned parenthood action fund or the us chamber of commerce in order to assess those. i think i know enough about the organization that is
3:26 pm
sponsoring that speech and at the end of the day, we have to draw a line somewhere and to say that we drew the line where 98 percent of the expenditures are fully disclosed and two percent of them are in event specific, add specific disclosures means that we tailored that line pretty tightly. but if my democratic colleagues have their way, who becomes a political committee will be far broader than we know and if you are registered voters, to be engaged in issue advocacy anywhere near an election, all of that activity will be counted toward a major purpose and you will be fully regulated by the federal election commission. >> so, after citizens united, and given a muscular exercise
3:27 pm
of first amendment sensitivity among republican commissioners, we have seen the left generally speak other measures to reverse citizens united. either effectively or legally, first of course was the whole thing to replace justice scalia on the supreme court and change the balance of power on the supreme court. >> another measure that you hear about which is again, all about the regulations of the first amendment rights is an effort to amend the first amendment. >> in the popular press, you will often read that the effort to amend the first amendment is about reversing citizens united. if you look at the last iteration, the last congress, it went far broader than citizens united. it completely countermanded
3:28 pm
the buckley viva leo analysis that the resources it takes to seek implicate first amendment rights. >> .went in the reverse buckley versus vallejo. >> third, we hear all the time efforts to create legal theories. to countermand citizens united. the latest approach was to define all publicly traded organizations that have any foreign ownership, i dare you to find a publicly traded corporation on any given day that doesn't have some degree of foreign ownership on the us exchange.the effort was to define all publicly traded us corporations as foreign nationals. >>
3:29 pm
>> such as the "new york times." i was told no, not the media. when asked about international labor unions that have foreign membership, many of the american labor unions also of members in canada, for example, and without this on their website. i was told not the labor unions. it was a targeted approach to counterman corporate free-speech rights in our elections and counterman in citizens united.
3:30 pm
failing that, what you are seeing now is an effort to fill what the reform community believes is a void at the federal level, to ask the securities and exchange commission and/or state attorneys general to fill the void by requiring more and more disclosure of members and donors at the state level under the theory that if you can get that, you can arrest that disclosure and make it public in california and new york, and maybe one or two other large estates. you can effectively counterman the associational privacy rights of those groups through the back door of the states. and finally my favorite is that the fec is so dysfunctional because we have a 12% resolution rate at the boat of three-three
3:31 pm
in 2016. 12.5 resolving most complicated cases by a vote of three to three in 12.5% of the% of the time has been deemed dysfunctional by the left and the reform community, as an argument in favor of converting the commission into being a 3-2 body instead of the 3- 3-3 body congress set up in 1974, to prevent one party from taking vantage of the others. it is important that you understand what this function means when you hear it. it means that the left is unhappy with the substantive results at the fec, and they want more regulation of your first amendment rights. and it is nothing more nor less than a narrative that fits that result.
3:32 pm
thank you. [applause] >> so we would like to open the floor for questions for our panelists. and if you'd raise your hand if you have a question, a microphone will find you. start right here. >> thank you. it is to me i've always been disturbed by the motor voter law, that it's a way to encourage noncitizens to vote because they can get a drivers license in so many states and then there's the form right there to register vote at the same time. have you seen any evidence that that sort of thing is happening where, under the motor voter law when they get a drivers license they are also noncitizens have a much easier time and will register to vote when they shouldn't? >> earlier i mentioned the three decisions i have on the seventh circuit court of appeals. in every single one of those
3:33 pm
cases the noncitizen who got to the u.s. went to a drivers license bureau, cut their drivers license and registered to vote at the very same time. and as you know, california has now put in an automatic voter registration law that will automatically register everyone getting a drivers license in the state of california. last year i think about half a million of the drivers licenses they sent out what you people are in the country illegally. and there is no indication that they really have anything in place is going to effectively prevent those individuals from also registering to vote. >> next question. >> yes. the first gentleman asked my question but i do have a follow-up question for mr. goodman. when the fec has tie votes 3-3, my question is what is the legal
3:34 pm
effect of that? >> when congress decided this organization, you can imagine the debate that was sent. we were just coming out of scandals involving the nixon administration misused at the department of justice, misuse of the irs to go after any needs of the president. and so it was in the wake of watergate and watergate scandals that congress design this agency. so when congress set this agency up to avoid one party taking advantage of the other party because that's all we regulate, is their political activities, congress designed agency a as a six-member body with no more than three democrats and no more than three republicans. and congress inserted into the law a requirement that there be for affirmative votes to take any sensitive action to issue an advisory issue, to adopt or regulation. we have two have for affirmative votes.
3:35 pm
so what you will hear -- you will hear 3-3 votes characterized by the left as deadlocks, dysfunction. i actually characterize it quite differently. if you set up a body, if you wanted a keen you should just set it up with one director to make all the decisions -- king. congress designed a commission with six people, and presumably if you have a six independent thinking people you're going to have votes that divide sometimes six to zero. sometimes 521. sometimes four digit and yes some of your votes are going to stream a bit 3- 3-3 special in a collocated area where you are supposed to be first amendment sensitive and yet any. a fax that come on. so come before you. so 3-3 vote something mean that a case or some regulatory
3:36 pm
decision came before us and it did not convince the requisite for back affirmative votes. many people say that's a failure of the commission. i say no, it's a failure of the idea to garner for votes on a bipartisan basis. >> let me add, this is really, really important. all the reformers say the fec are to be like all these other commissions like the sec, otto von odd-numbered so you never have a tie vote. the whole point is the fec,, astley has free will explained it, it is regulating in one of the most sensitive areas we have, first amendment activity. and the only way to guarantee that when you're someone in the white house, that persons political party doesn't take control of the agency, and use it, and use its enforcement powers to target members of the other political party is to make sure that you have an even number of commissioners at any
3:37 pm
time it takes action, they have to condense one member of the other party to do it. you hear a lot of complaint about the fec dysfunctional, et cetera, which i don't agree with. the one thing you don't ever hear is a claim that they only enforce the law against members of one political party and not the other. that's because it takes oath parties to agree to go after someone for violating the law. that is very important. >> let me add. there are proposals floating, to reconstitute the commission, to have two democratic members and two republican members, and one super chairman who will be an independent. [laughing] and i always say, appoint me and i promise you i will be independent. i can assure you i will be independent as long as i am the person making decisions and entrepreneur here can make that
3:38 pm
representation. >> isn't bernie sanders and independent? >> some history here is important. for about the last seven or eight years the commission has had a self-proclaimed independent on the commission. he's a good man. i like it very much, stephen walter. he was recommended for the commission by harry reid, and on the commission he has caucused for years with the democratic commissioners and has voted with the democratic commissioners probably over 90-95% of the time. he's a good man. i'm not criticizing him or his conviction or his votes, but you need understand, in a grand idea drawn up on paper to make this agency a two-two with one super chairman as in a panic and we've already the independent on the commission. so you can use history as a guide for where that idea would
3:39 pm
take you here. >> next question in the back. >> thank you very much for what you should pick it's almost seems wrong to be getting legal credit for this. such a pleasure to i wanted to ask why, when we're discussing voter fraud would always talk of it as if it is almost a victimless crime. it came home to me once when i was underemployment out of south dakota actually. there were kids running around who are getting extra votes. at the same time of watching a farmer coming in from the fields in his overalls with his little boy. and is coming, i hard-working men coming to cast his vote. it occurs to me that those kids running around stealing votes were stealing from, is not a victimless crime. the victims are the hard-working
3:40 pm
people who deserve to have their vote not diluted or devalued by the voter fraud. >> i think that's the point i was trying to make about these type of crimes being a crime against democracy. i have seen many of these up close, heard the facts come actually read or heard the facts of it. and you're right, because what you're talking about is usually a conspiracy by activists to try to sway or rebut the will of the people. and as an election official you have the duty to uphold that, the votes are counted and cast, cast and counted, and the results are clear. and when individuals try to manipulate the process, that's a crime against all of us as a democracy. >> the one thing i will add,
3:41 pm
that's what makes the opposition, the voter integrity measures, so sad to me. and that is often the victims as you call them of these, for example, vote stealing plots, are poor and often racial minorities. a great example of that is a couple of years ago several individuals were convicted of voter fraud in troy new york and they were basic engaging in absentee ballot fraud, stealing absentee ballots and they were targeting a poor minority neighborhood. and one of the campaign consultants who was convicted was asked by the police why did you target that particular neighborhood? and what he said was well, because those are the people who are least likely to notice or object to the vote having been stolen. >> i would also point out that we can debate how extensive voter fraud is, but the fact of
3:42 pm
the matter is it does exist. and when you look at the surveys of iraqi people, and this is important to me as a state election official, they distrust the system, different parties may for different reasons but there are significant numbers that believe that voter fraud can't and does impact elections and it does in close elections, particularly. i guess what i'm trying to point out is unless the american people believe that we take this seriously, honestly take a look at it and what practical measures can we recommend, lets a commission does look at this,, do what can our legislators in the states do to sort increase voter confidence? if we just ignore the problem, the polls are going to get worse and worse of the american people having confidence in our elections. and i for one want to stop that trend. i want to reverse it. i don't want to just stand pat and except where we are right now here. >> any other questions? larry.
3:43 pm
>> you probably don't need the microphone. >> first, i want to thank commissioner goodman for your service, and previously in defending the first amendment rights of all of us in the commission. i know it's mostly a thankless task. i for one want to thank you for that. but for those of us who cherish the first amendment, i've noticed in the last couple of years a rash of complaints mostly coming from crew and other liberal organizations that are attempting to criminalize associations or associational rights. if you are republican or conservative, if you support a pack or exercise your right to speak during the electoral process, and you happen to
3:44 pm
actually be a friend of someone in the administration or going into the administration, or you are at a package of a friend who is on the campaign or you want to work together, there seems to be this movement to attempt to criminalize that and say, because you had an association, you must be conspiring to violate the freedom, the law and illegally coordinate. with little more than that as the linchpin. i know there are a bunch of complaints floating out there. have there been any decision or is their biggest debate within the sec on this issue? >> -- fec. >> your observations raise several points. one, first let me go back to the subject of this question about the constitution of the agency. we have a complaint process created by statute that allows any citizen to file a complaint
3:45 pm
with the federal election commission. about any other citizen. sort of a private attorney general complaint system. i support that system. but if you're going to allow private citizens to file complaints and begin harnessing the regulatory enforcement process on people for exercising first amendment rights, you better have a very strict screen for reviewing and processing complaints. because the punishment can be the process. complaints are filed usually accompanied by a press release to stigmatize an organization. then to freeze the organizations don't interest in continuing to associate with that organization while it's under cloud violation to then drain the resources of that organization to legal fees to address a regulatory action so the complaint process can be
3:46 pm
abused and that's why the commissioners are important gatekeepers, and because we have seen an 2015 at 1., i just look at the whole cash of complaints, pending in the building. and my count was uprightly 75%, excuse me, once you sorted out those that were nonpartisan, corporations, you know, non-politically identified groups, of the politically identified groups, for which there are complaints pending in the fec, 75% of them were against republican and conservative groups and 25% of them were against democratic and liberal leaning groups. now, i don't indict the private complaint system that allows people to file the complaints, but it certainly places a premium on maintaining the
3:47 pm
political balance on the agency, given that one side will attempt to use permit attempt to use come by the way, it can go either way. it can be a nixon administration misusing the government. it can be left-leaning groups, lobbying lois lerner and politicizing the irs approach to approvals of nonprofit applications. or can be at the fec where people file complaints challenging the political activities of their opponents. so you must have a balanced organization to receive complaints at the rate of three to one against one side fairly and without bias. now, as for guilt by association under the broad doctrine of coordination, larry, at some
3:48 pm
point we were accused by our liberal colleagues of dismissing about, and i don't have the numbers in front of me, this was about a year ago, dismissing 30 coordination cases. in other words, in the new era where expenditures are free for incorporated organizations, and coordination remains as the doctrine that keeps corporate expenditures illegal because then you have an illegal contribution, people are criticizing us for not enforcing the coordination doctrine strenuously enough. i scratched my head, and we pulled up the approximately 30 cases where the accusation was made. and in approximately 28 of 30, i may be off by a number here or there, the office of general counsel within the commission, which is a fairly reflexively pro-regulatory group, by and
3:49 pm
large, had recommended dismissal of those cases because it wasn't enough evidence to go forward. i can tell you that the republican commissioners united here to guilt by association. we do require a very concrete showing of direct coordination in order to find reasonable -- reason, even open investigation into coordination because all of us who have integrated coordination cases know that they are the most invasive investigations because they go far and wide into every e-mail, every association, everyone who knows anybody. and so they are highly invasive investigations into associational rights and privacy. so i know that the office of general counsel has been come it's been pretty fair with these and requires a fairly high level of evidence before it recommends
3:50 pm
proceeding. and i can the three republicans also require a high level of evidence. and we do not accept mere guilt by association. >> let me add something to that because you talk about trying to criminalize what's happening. this is a general trend of people on the left and reform community, they want to criminalize constitutional political activity. and what, the whole reason there's this big push, the term dark monday, this is something a focus group came up with because it sounds terrible. the whole push in this area is because look, they want the donors disclosed at advocacy organizations, pro-life groups, pro-second amendment groups, for one reason only. not so that the public can make its own decision when a pro-life group runs an ad or the nra runs an ad.
3:51 pm
i want to get the donors disclose so they can harass and intimidate those donors, and dry up the resources of these organizations. it is the modern version of a classic supreme court case naacp v. alabama when the government wanted to force the naacp to disclose their members and donors in order to try to weaken the organization. that is what is going on today. and what people don't understand today with our disclosure rules is that social media has made it extremely easy to run campaigns that really hurt people and harass and intimidate them in a way that was never able to be done before. a classic example of this is brandon ice, the former head who was driven out of the company that he owned. why? because he made a totally legitimate, legal contribution
3:52 pm
to a referenda, a referendum in california on the gay marriage issue. why in the world would you require disclosure in the referendum or proposition area? you can't i guess justify disclosure when it comes to campaign contributions to candidates are going to get into office and to then make, can affect legislation. but when you're contributing to a referendum on one side or another, what, that's going to illegally influence all the people of the state you are in? there is no legitimate reason for it, and the only reason for this push and the dark money area is so that it makes harassment intimidation campaigns easier to map. >> as long as you are on the unwanted tattoo that because this is one of the great debates in campaign finance era, in this era. two books that treat the subject
3:53 pm
of silencing by kirsten powers, fox news commentator, and the intimidation game by chemist also of the "wall street journal" both document chapter and verse plan b that is really ramped up since citizens united. i called it plan b, meaning if i can't absolutely prohibit people from speaking, well then, i'm sure going to out them and shame them and attack their businesses and attack their careers. and we're going to try to run them out of the political process another way. and i want you all to think back, today this is largely a left on right strategy. but it was just 60 years ago that it was a right on left strategy, when you think about the anti-communist efforts whether it was dalton trumbull
3:54 pm
and the hollywood ten, the writers who are members of the communist party being subpoenaed to come to washington, d.c., and testify before the house un-american activities committee, to name the names, disclose all of your associations, right, larry? name all your friends who d you get together and meet with to talk about marxist economics. it was a very interesting jurisprudential development that led to the naacp case in 1958, but it really started in 1947 when dalton trumbo and other liberal commenters writers in hollywood were subpoenaed to come to washington. and it was so sure they had a first amendment that many of them jousted with the committee. they didn't take the committee seriously. they would not name the names of their fellow members of their associations.
3:55 pm
and for that they were arrested. for contempt of congress. they then challenged their arrest under the first amendment in the u.s. district court of the district of columbia, which did not rule in their favor. they appealed to the u.s. court of appeals for the district of columbia, and they did not prevail. they didn't petition for certiorari to the united states supreme court, show that they were going to be vindicated in the supreme court. and in 1949 the u.s. supreme court did not grant certiorari in their cases. and so all ten of those writers actually went to prison for not disclosing the names of their fellow members of their medical associations. over the next five years, estates got in the game. where have you heard that before? in the state attorneys general decided i had a multiply protecting the united states
3:56 pm
against anti-subversive activity. and people were being called in in states and to congress, now joe mccarthy is getting into the activity. they're being asked, name the names of your political associates. people didn't have any confidence in the first amendment rights any longer because the supreme court didn't protect the hollywood ten. so some of them resorted to invoking their fifth amendment right, but no one wanted to invoke his fifth amendment right to admit that had engaged in any subversive activity. so they were in a catch-22. then in 1954, the attorney general of new hampshire, louis wyman, under anti-subversion statute, the assembly that new hampshire adopted, subpoenas paul sweezy. paul sweezy had been a member of
3:57 pm
the roosevelt administration. he believes the new deal economics. he was a marxist economist. he served his country in the red states army, and he founded the monthly review which is a marxist economic magazine that is still in publication. and he taught at the university of new hampshire. and he was subpoenaed by louis wyman to come in and among other things to name the names of the other people who founded and formed the progressive party of new hampshire under the theory that they might be subversive. at the beginning of his testimony he said, i have never supported the overthrow of my government through force or violence. and i don't know anybody who has. that should injure inquiry under this anti-subversion statute.
3:58 pm
instead, they questioned him for two days committee answered most of the questions about his own clinical beliefs and conduct, except that he would not name the names of the other people who formed the progressive party. he was found in contempt, arrested, let out on bail. took the challenge that all the way to the supreme court of new hampshire. supreme court of new hampshire, of course, upheld the convicti conviction. he then appealed to the united states supreme court. and in june of 1957, the supreme court struck his conviction by a vote of 6-2 mac-two with one justice absent picked a significant opinion in sweezy versus new hampshire in 1957 decision is the concurring opinion of them written by justice frankfurter joined by justice harlan and which for the
3:59 pm
first time the supreme court are at least two justices of the supreme court recognized our right of a association of privacy under the first amendme. one year later, in 1958, the right of associational privacy under the first amendment is adopted by a majority of the court in naacp v. alabama, and the frankfurter doctrine became the law of the land. now, paul sweezy always understood the inquiry into them not to be about whether he posed a threat to the united states. he always understood the political campaign against him was to prevent, to impede the labor movement and to impede those liberals who wanted to build a new deal economics, and institutionalize them at the next level in american political economy. and today we are seeing some of
4:00 pm
the same tactics on the left to prevent capitalist from speaking, and capitalist free market ideology from thriving. and i think we have to remember the history to know where this right of political privacy comes, and to be able to understand these guilt by association theories in a broader context. [applause] >> well, you certainly got your cle credit for this one. [laughing] >> i would like to thank the panelists, fantastic as an you guys would be. these are guys doing great work in their respective fields, and i think we have a very robust panel and good question from the audience. i'm going to turn it over to david. >> thank you. really appreciate it.
4:01 pm
a token of our appreciation to those of you in the audience i think are used to this by now, but we've got a little something. tom, i think you have seven of these already. county by county map of the election results. on the other side our logo with make america great again. thank you very much. another round here. [applause] and we are bringing everybody back together. the breakout panels are over now, but we've now got the next plenary session back in here and basically as soon as we can change the table cards. that something at the near and dear to all of our hearts, the judicial confirmation process, rules of the senate and its constitutional role of advice and consent, and we would get folks appear for that right now.
4:02 pm
>> can we get a group photo appear real quick? [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations]
4:03 pm
[inaudible conversations] [inaudible conversations] [inaudible conversations]
4:04 pm
[inaudible conversations] >> the buzz about the election law panel we just had, but i want to move on to one of our big victories with the confirmation of justice gorsuch, and the panel we got now on the senate roll. i'm going to go in and introduce erin, the vice president for judicial affairs. he's in lexington kentucky and long labored in the field in kentucky, both for our senate majority leader and also for the
4:05 pm
republican party in kentucky. eric. >> thank you, david. you are looking at one of the very few unfortunate kentuckians not to be in the commonwealth on this derby even. i do want to thank the national press club for giving the kentucky flag tried of place. i will pretend that's under the sake of the derby and hopefully everybody at home understand i will be back this evening, and please save me a mint julep. i'd like to introduce our panel for the senate roll. ..
4:06 pm
he graduated from mama washington college of wal law and serves on the library of congress. next, currently, president of the committee for justice and veteran of supreme court confirmation battles. it was founded by ward and others in 2002 in response to democrat obstruction of bush nominees. it's promoted to the rule of la law. after graduating harvard with honors, he served as a director of legal and public
4:07 pm
affairs at the center for individual rights. he worked on supreme court case cases. after cir he moved to the department of education office of civil rights where he had headed the title ix initiative. he has an ms mba from computer science and brown university. he worked in artificial intelligence before law school and wrote a successful patent application. >> thank you. eric, i point out that we have a pretty good team in virginia, the gold cup that draws 20000 people so you will
4:08 pm
be okay if you need a horse race. i cannot possibly compete with marty on knowing the rules of the senate so i will focus on the confirmation process from a larger political viewpoint. i will touch on -- let me focus on the supreme court because as many of you know there's a good chance there will be another vacancy this summer, those closest to justice kennedy think he is likely to retire at the end of this term or the next. there could be be as much as three more vacancies in addition to gorsuch, given the ages of ginsburg and breyer. jump has an opportunity to do something which we haven't seen in our lifetime which is
4:09 pm
have a genuinely conservative majority on the supreme court. i know liberals like to refer to the current part as conservative but i don't think any of us in this room think kennedy is a genuine conservative. not since the 1930s have we had a genuine conservative majority. the gorsuch battle was a little contentious but the next will be a lot bloodier because we won't be replacing scalia, will be replacing a liberal or kennedy. the dems know that. you can't blame them for fighting hard on the next one because so many of their secret issues will be at stake. i think what a truly conservative majority would do. i don't know that they
4:10 pm
would overrule roe v wade but they would allow a lot more restrictions on abortion under the undue burden test. abortion is their most sacred probably second most sacred is gay-rights, again i don't think there's much chance that it would be overruled but the hottest issue right now in any area is a battle between gay-rights and religious liberty and i think liberals would rule four religious liberty were often then unfettered protection of gay-rights. angun control is another sacred issue. almost ten years ago there were victories where the court established individual rights to own a gun but they could
4:11 pm
put more meat on the bones. i think they would put some meat on the bone some of those cases where the death penalty, eliminating that is a goal of the left making progress to replace kennedy and a conservative court would rein in the cherished state, racial preferences would never made a dent in that, that's an issue i've put a lot of work into it i think we finally would make a dent if we had a truly conservative force. i should temper that by saying republican presidents haven't had the greatest record of appointing conservatives. this all depends on them doing that. we've been disappointed going all the way back to eisenhower.
4:12 pm
my own personal view, by the wa way, is that it's not enough to appoint someone who has a conservative record. you need to appoint someone who is not afraid or has shown that they can be politically incorrect. they don't value the new york times and cocktail party circuit. some of reason they wanted prior early on was that he had that quality. gorsuch, we'll see. i don't know if he has that edge. i think the good news is that with the filibuster gone, he can appoint someone very conservative if you wants to. he doesn't have to win over moderate democrats.
4:13 pm
the bad news is we have to keep the republican party united. the days days when we can count on either party getting votes from the other side are gone. our side has probably never waged a better campaign for supreme court nomination than this time in terms of messaging in the millions of dollars that were spent to target vulnerable democrats and yet he only got four democrats to vote against the filibuster. we would've needed eight to prevent regular option. we don't have much room to play with. i got six republicans voted against. you can be in trouble either way. if the president president were to nominate someone who wasn't conservative enough you can
4:14 pm
have the harriet meyer situation. i would expect mike lee and ted cruz would not vote for harriet miers and then you can have the opposite problem where you have someone who's too much of an outspoken conservative such that you start to lose others. you'd have to worry if the nominee, someone like pryor who has said roe was wrongly decide decided. a good reason for optimism and that mcconnell did such a great job, i think he shocked us all when he held the caucus together on garland and he probably doesn't get credit as he showed for the nuclear options because there were several republicans who are wavering, behind-the-scenes with advertising, but they all came around.
4:15 pm
i think mcconnell has showed himself to be a master here. now, if the democrats were smart, they probably wouldn't try so much to defeat the next nominee, they would try to influence the pick. they would be smart if the 20 people left on trump's list, list, if they made it clear that if you pick this person are these two people there will be a lot of resistance. that would be the smart move, but they didn't exactly, they overplayed at this time so maybe they will do so again. if we lose the senate and any vacancies after 2018, obviously that will be a different story, the democrats will want revenge for garland. that doesn't mean republicans did anything wrong.
4:16 pm
i'm sure no one has to be convinced that the republicans went under obligation to have a vote on him. if if they were the filibuster would be unconstitutional to that said, it's been 26 years since thomas that a supreme court nominee was approved with the opposite party and controlled the senate. all bets are off. it wouldn't necessarily blocking nominee but i think they could force trump to pick a moderate. that's probably how it would play out. i don't expect things to be any prettier in the confirmation battle over lower court nominee nominees. there's a lot at stake. 120 vacancies. the average is less than 90.
4:17 pm
another 20 announced retirement. if you you take that figure of 140, that's more than 15%. to give you perspective, president, generally in four years, replaces 18% of the judiciary so trump could do a lot more the way things are going. the other reason i don't expect a lot of civility is just history. since early in george w. bush presidency, civility has been gone. as eric pointed out, that's why my organization was founded. the last last two have been no exception read got rid of the filibuster except for the supreme court and under an earlier compromise in which they only
4:18 pm
got postclosure debate they rammed through a number of district court nominations which angered republicans and then they got back at them by not confirming too many judges. the democrats can get away with more obstruction on lower court nominees than the supreme court because people are watching us closely. all that spells rough times even for lower court nominees. let me end by saying a lot of people have asked me, given that the dems don't have much leverage will they abuse the blue slip. that just says that the two senators from the home state has to approve and hand in
4:19 pm
their blue slip for there to be a hearing. while while it's informal it's also adhered to almost all the time. occasionally very few exceptions where was wandered -- honored. both parties gain a lot from it, regardless of who controls the presidency. no one thanks they're going to abuse it, they just like it too much. the date that date dates back 100 years. i think they would be quicker to abuse the legislative filibuster and wind up losing that then they will to abuse the blue slip. the answer is i don't think they will abuse it. let me stop there.
4:20 pm
>> good afternoon ladies and gentlemen. i was working on the staff majority leader of bill frist when the filibusters broke out and it was a singular moment in senate history because, in the entire history of the united states prior to 2003, there was one judicial appointment blocked and that was a bipartisan filibuster against abe fordyce to be supreme justice in 1868 near the end of the johnson administration. the fordyce filibuster did not set a precedent for anything for 35 years after there were no filibuster, there were nominees defeated.
4:21 pm
for example several went down on up or down votes but nobody lost on a filibuster. until we came to mcgill estrada in 2003. we held seven cloture votes and could never get above 55 votes. then in the course of that congress, ten appointees were not confirmed by reason of filibuster, never to get an up or down vote. when the democrats did that, it did not change a thin a single, in the rules. the. the rules are exactly the same. what they changed was the norm , the greatest rule of the senate is the rule of self-restraint, to say that the minority does not necessarily do all that it could do, the same way that dirksen didn't lock kennedy and johnson appointees and so forth.
4:22 pm
but senator -- and senator reid and the democratic caucus did block bush appointees and basically senator reid and the next congress had to be defeated on this issue and said president bush, don't send send those people back up your again. they've already been defeated. if you like we will give you a list of people we won't filibuster and you can pick from it. i would honestly say that the filibusters of the judicial appointments in 2003, 2004 was a major factor to the decline of the senate and the polarization of the senate which has characterized, i started working there 1972. it was a very different place than is highly partisan, highly polarized body you have now and one of the reasons for it was the filibuster of the judicial appointments in the 10h
4:23 pm
aids congress. bill frist decide it was time to exercise the nuclear option because every other step had failed. we tried cloture votes, we raised the issue in oh four election, got nowhere with anything. read said in oh five the problem with the previous congress was that too few people had been filibustered. he was unyielding. he began to amass the votes for the nuclear option in 2005. did he have the votes? hard to know but he was going to push the button and see. in may 2005 it was the gang of 14 agreement which was seven republican saying they wouldn't vote for the nuclear option and seven democrats saying they would no longer filibuster as an instrument of party policy, instead they would take things on a case-by-case basis.
4:24 pm
they greenlighted three of the bush appointments through and said others would be judged according to a standard of whether or not there were extraordinary circumstances to justify a filibuster. after that happen, senators like byrd and lieberman again voting for cloture which they had not done a single time in the party filibusters of the previous congress. the agreement of the gang of 14 bound the senate only for that congress. in fact, it, it carried forward for a few years thereafter until they gradually began to unravel. by 2013 senator reid decided to use the nuclear option unless something was done to ease the confirmation process and this is what they talked about, the agreement to go down on district court judges of two hours of the republicans gave read that which it did early in 2013, but by november reid knew it.
4:25 pm
he knew it for everything other than the supreme court. it was the first time in senate history that you ever had majority cloture. it had been involved in the senate since 1917 but always required a super majority. the rule. the rule was never amended. it was simply overridden again for the first time with majority cloture. that set up the circumstance for the finishing of the job by senator mcconnell in 2017. they mentioned how much credit mcconnell should get for that. he doesn't get enough credit. there are two things that essentially allowed this to happen. the first is that reid did it first. without that, i'm not sure mcconnell could've kept the votes together, but you weren't going to have one set of rules for democrats and one set for republicans. the democrats loved the 60 vote threshold when they used it against bush appointments
4:26 pm
until they hated it when they were going to use it against obama and they loved it again against corset gorsuch. the double standard meant republicans would stay in line for the nuclear option. the the second reason it worked was because of gorsuch. if you had a nominee that was more questionable than someone could have said we wouldn't mind voting for it for this nominee or that nominee, but were not sure about the existing nominee. we were able to make an argument that if gorsuch would be filibustered, anybody would be stopped on a filibuster. therefore it was indiscriminate use of filibuster. that was the second main condition. so you have the ingredients for the exercise of the nuclear option each brings us to this position, the senate rules remain 60 votes, but
4:27 pm
they are in exercise of the constitutional rulemaking power. so is the exercise of the nuclear option, establishing a precedent that precedent that contradicts the rule. the later exercise in time for males because these things stand on equal footing with one another. so you have a precedent and a rule that are contradictory to each other. the rule gives way to the president and we now have a circumstance where the trump cabinet and we can confirm another justice to the supreme court without worry of a filibuster. in a sense this remakes the senate but in another sense, it's restorative to the fact that although the power of device and consent has been powerfully used to stop nominees, sometimes on up or down vote on the floor, other times to block the main committee and other times by not returning the blue slip, he never never had been used until 2003 on a partisan basis
4:28 pm
to block confirmation votes of people who are out of committee and brought to the floor and it can't be used any longer for that purpose. in that that sense, while the legislative filibuster has a long history in the senate, judicial filibusters do not and they are now dead and will remain dead unless and until this nuclear option is reversed. [applause] >> thank you very much. we have a little time for one question. >> all of the banning of the democrat's out and we will expect all our judicial nominees have smooth sailing or will we see real
4:29 pm
obstructionism, and what form would you walk through if a person is nominated to be a magistrate or entry-level judge? >> i think the biggest way, democrats can obstruct, they could obstruct with the blue slip, but i think that will be limited. we are back to the compromise for only two hours of debate on post culture nominees and now it's back to 30. any of you who have worked in the senate know how precious floor time is so the fact that the democrat get those 30 hours and can bargain with it gives them some ability to obstruct. so, can make slow things down? yes. will they sometimes be able to paint the nominee as so extreme that they pry away some republican votes mark yes , but i think you will see a lot of bitter confirmation
4:30 pm
fights but only a few nominees blocked. >> all you want to do is keep forwards in mind. out of the mainstream because that is what you will hear about every one of these appointments if the person is out of the mainstream and they will do what they can to discredit people and peel away the votes, but beyond that, did you see how long it took to confirm the trump cabinet? democrats use the 30 hour post culture. culture. and required a process on everybody and they will require that even on people who are not controversial because if the senate is busy with the process, they are not busy voting in favor of a nominee. so, i would anticipate that cooks or will become a routine process. i believe it will be an effort
4:31 pm
to stretch things out as much as they possibly can on the theory that the senate will only have so much time to confirm so many people. those kind of delays plus discrediting specific nominees if they can do it. >> thank you very much. >> for these guys as well we have a small token of appreciation. i'm sure you need something to hold papers down. now we are ready for our final panel of the day and we will let folks. i will start mentioning manny iglesias who will do the honors here. they are on their way up. he is the president and ceo of
4:32 pm
the holdings who is a diversified holding company and manny has the honor and the privilege of introducing the general. >> good afternoon. it is my privilege to be the last moderator and have the privilege to talk briefly about two great conservatives, 22 great republicans, two great americans. it's a great honor for me to welcome the general to the stage for whom we have named
4:33 pm
the highest award. he needs no introduction. he is an inspiration to lawyers, law students, conservatives and republicans and personally, my hero. they are honored to recognize other leaders in his name who have upheld the rule of law in the face of very adverse political challenges. before he presents the award, i would like to say a few words why he was selected as the warty. don has been a longtime friend. he first spoke here in 2002 as general counsel. more importantly has long been a leader in election law. he has addressed us on multiple occasions as the commissioner and chair. in that context, he is a local
4:34 pm
hero of the new york times and a lot of liberals. throughout, he has the respect of even the democrats and lawyers such as bob bauer. all that pales in what he has recently accomplished. in being donald trump's counsel, both for the election and is a white house counsel, as you all know, president trump made a very exciting for the media and for us, but don was there from start to finish and i think it's telling that the campaign never had a significant legal problem. for that we thank you. [applause] >> the podium is yours. >> thank you very much and thanks for the privilege of being here with you this evening. i have great respect for this organization and enjoy my
4:35 pm
membership along with all of you. it is important, because of all the good work you have done repeatedly, but particularly over the course of the last election. i think the devotion of the republican national lawyers association and integrity cannot be matched by any other organization in this country. certainly at the job we have to keep up the effort on as there are people continually trying to play down the threats to the integrity of our electoral system that have the potential for taking place. each week we are finding new examples of exactly that. that's one reason why your work is so important. i'm glad to be here at this time to commend you for what is ahead. we have just gone through eight years of the most lawless administration in the history of the country.
4:36 pm
we have gone through periods where the constitutionalists was shredded virtually almost every week. we have have gone through some of the worst decisions in the history of the judiciary. as you can can see from the topics you've been discussing today, there is much work to be done and already the kinds of ideas and strategies put forward in these panels indicate what's ahead. as your chairman mentioned, this award named after me as a matter of great honor, not only because of the association that presented it in my name but the great people over the 14 different recipients over the past decade and a half. today's recipient is certainly continuing that line of distinguished lawyers,
4:37 pm
distinguished citizens, and in many cases distinguished public officials. as many of you know and as the chairman has already lifted his many accomplishments. let me comment briefly on them. as the lawyer for the national republican campaign committee, he did a great job of defending a lot of good republicans who were being unfairly attacked. as a member and chairman of the federal election commission, he was outstanding
4:38 pm
in protecting the livelihoods of so many people that were the victims of partisan attacks by those who use that particular organization and to attacked the reputation of so many friends who are purely partisan. he has not only done a great job in the campaign, but he has now embarked on a very important task and that is to defend the white house, the president and the current administration from what are often unfair attacks by our opponents. particularly important is the way he has already embarked on carteret and chang coordinating the efforts in the general counsel in the various departments so we can have a united front of professional lawyers defending this administration against those who would attack it, whether in the courts or in the congress or wherever else it might be. that's why it's a great pleasure to present to him this award. he is a great reputation of support for this organization and participation. it's a pleasure to ask don to come appear and present him with the award from the board of governors and the members of the republican national lawyers association. congratulations and keep up
4:39 pm
the great work in the important work you're doing for all of us. [applause] >> thank you very much this is really a great honor for so many reasons. to have an award that has the general's name on it is surreal, a once-in-a-lifetime opportunit opportunity. it's an honor. i remember the first time i met him, it was many years ago , i had just moved to washington d.c. it was 1995 and it was a federalist society event at the mayflower, i'm back than
4:40 pm
the federal society wasn't as large as it was now. i had just moved to washington and i was younger than and i remember, i went to this dinner and i really didn't know anyone and i was walking around and there was an empty seat at the table and i heard someone say you can sit here. he introduced himself and i thought while, this is one of the guys. this is one of the reagan guys. we went around the table and i looked up and said hi i'm ed neese. i thought you looked just like ed neese. i remember the night because i remember how warm everyone was and how they made me feel like i belonged at the table even though they had no idea who i was and i was looking for
4:41 pm
someone to sit with and i lucked out. it shows how much of a nerd i was. i called my parents and said you'll never guess who i had dinner with. i said ed neese. they said wow. i assumed this was how every weekend would be. it was probably 13 years later. [inaudible] i was maybe not as excited because i learned to contain my enthusiasm. i do remember what an impact it made to meet one of my heroes. many years later, somehow i am now white house counsel and many of you know me and you find that more remarkable than i find it. here we are, and really every day i take inspiration from what general neese did.
4:42 pm
he started something that i humbly will try to continue at the announcement of justice neil gorsuch, we invited him and we said we will try to continue what you started. one thing is about the legacy that justice scalia has left, not only for the court but how we inspired an entire generation's of law students to pick up the pen and fight for their rights. it was really ed neese who made that happen. talking about the constitution and the rule of law and judges is not policymakers but decision-makers. that really would not have happened but for one individual. to get an award with his name on it is very meaningful to me. i can't overstate or
4:43 pm
understate or misstate or otherwise state the importance that he has had on all of us. it was a sad day when justice scalia passed, and it was not easy. he can never be replaced, never will be replaced. that being said, the president made clear that he felt to do the judicial branch was critical to our country for democracy and our people and ensuring liberty. he campaigned on courts very openly. most political consultants would say stay away from that stuff. not this president. he embraced it, he made it a central theme of his campaign, he put out a list of qualified persons, potential judges all of whom are current judges,
4:44 pm
and from that he picked our supreme court justice who i am very proud and humbled to have played a small role in that recommendation to the president. the president delivered on his promise and i think he hit a home run. the president made his first circuit court nomination, a district judge in kentucky after the six circuit. here he had his hearing before the senate judiciary committee and did quite well. he is very sharp, a very strong writer. he set the designation on number of appellate decisions are ready. he is someone who the president feels will be an exceptional judge at the appellate level.
4:45 pm
he's already an exceptional judge at the appellate court level. >> will soon roll out more nominations as we put the finishing touches on a few folk folks. without getting too far ahead of ourselves, you will be amazed at the exceptional list of them all. their qualifications are amazing and it will truly be an amazing thing. it's an honor to be a part of it. it really will show, i hope that we will be able to pick up where he left off. i look to him as an inspiration every day as to how to serve the president with advice on that issue. in closing, i want to thank the rn l.a. for the work you do. many of you have been friends
4:46 pm
for years. many of you helped during the campaign. some of you were in critical states, florida among them, thank you. there's a number of other people here, if i start naming them i will leave people out so i don't want to hurt any feelings but thank you to all of you who were of assistance to get it over the finish line. the president has had a robust first 100 days, and artificial benchmark, but when you look up the things that matter, the fact that we managed to get supreme court justice through the senate and confirmed is remarkable. we are ready have a circuit court nominee and a number of orders. in addition to the gorsuch successful nomination, the president has had an number of successes including regulatory reform. the president is taking this very seriously.
4:47 pm
it's not regulation for the sake of regulation. it's very tough to plan your life one plans always change. it's tough to enjoy the promise of america when the proverbial goalpost is changing. there will be more successes to come. the house just past a bill, it's a good first step for the obamacare repeal and replace. the president was very engaged and did a remarkable job engaging with house members in a way that some predecessors really did not know how too do or did not bother to do. thank you to everyone.
4:48 pm
this is an honor to be here. thank you very much. i am going to try to make you proud. thank you. [applause] ,, go. [inaudible conversation] >> thank you everybody.
4:49 pm
thank you don for coming and speaking, thank you for presenting that award. we are wrapping up the conference but the party is not over. we have a reception next door in honor of the award winner and i want to thank michael and britney, the rest of the fabulous staff. they did a great job putting on this conference. we we could not have done it without them. i also want to thank the rest of the officers, kim reed, manny, elliott, everybody else on the board of governors, you all chipped in and made this a success and last but not least, a point of personal
4:50 pm
privilege, high rex and mary, i hope you enjoy seeing daddy on tv. >> thanks a lot everybody. [applause]
4:51 pm
[inaudible conversation] [inaudible conversation]


info Stream Only

Uploaded by TV Archive on