As Elections Draw Near, Legal Bloggers Stoke Debate and Conversation : LXBN Roundtable

By | LXBN | October 3, 2012

Election season is in the air.  Like fall, it has a definitive feel about it that is unmistakable, but in place of brightly colored leaves and crisp mornings, elections treat us to political ads and door-to-door canvassers.  As November 5th draws closer, and the candidates prepare to face off this evening in the first of three debates, it’s time to look at the exceptional election coverage on the LexBlog Network.

From immigration to employment and labor law issues, the authors on LXBN were hitting on all cylinders as the field for the race for President of the United States narrowed to just two men.  As voters prepared to enter the polling booths, they were preparing advice for how to handle the political discussions that were almost certainly entering the workplace.  Robin Shea put it best on the Employment & Labor Insider:

I’m a woman of one word: Shhh.If you know that you and co-worker Zelda agree on absolutely everything except whether Mitt Romney loves Ann more than Paul Ryan loves his mom, then fine. Talk politics with Zelda. You’ll be ok, notwithstanding this minor point of disagreement. If you and co-worker Marvin disagree only as to whether Michelle Obama or Hillary Clinton is/was the greatest first lady ever in the history of the universe, then ditto.

But if you were watching the GOP convention and shouting “Yesssssss!” to every line and tweeting pictures of empty chairs, then don’t even try to talk politics with the co-worker who thinks Sandra Fluke is the glorious future of American womanhood. Not only will you never agree, but you in all likelihood will also never be able to have a civilized conversation about your differences. You are too far apart.”

Elizabeth Acre joined Shea in cautioning restraint, but reminded readers they had certain rights, when it comes to expressing their voting preferences in the office, but less so if that office happens to be a public agency:

The Government Code prohibits public employers from restricting the political activities of any officer or employee.  In addition, the Labor Code prohibits employers from making or enforcing any policy that prevents employees from participating in politics, becoming a candidate for public office, and controlling or directing the employees’ political activities or affiliations.  Employers also may not coerce employees under threat of termination to follow or refrain from engaging in political action or activity under.

However, notwithstanding these restrictions, public agencies may adopt rules and regulations prohibiting officers and employees from engaging in political activity during work hours and on agency premises.  This means agencies can implement a policy or enforce existing rules that essentially requires employees to perform work during the hours they are paid to work. “


Unfortunately, tamping down your zeal for which candidate you support is no easy task.  Many voters base their decision on which candidate supports their beliefs on a small set of hot button topics.   Whether it’s jobs, international relations, immigration, or the environment, it stands to reason that if you disagree with a candidate, you won’t be voting for him come November, and you’re going to let everyone know.

But cutting through each campaign’s rhetoric is a challenge.  Governor Mitt Romney does his best to sidestep each pointed question with a “wait and see” approach to giving hard details, and President Barack Obama responds to similar questions with flowery oratory designed more to tickle your heartstrings than give a straight answer.

It has always been my dream to put each candidate on the spot with a hard hitting question, and it appears I’m not alone.  Daniel Schwartz and Robin Shea (along with a few bloggers outside our network: Eric Meyer, Jon Hyman, and Donna Ballman) teamed up to write a series of posts, each asking a question of the Presidential and Vice-Presidential candidates.  Schwartz’s question for Governor Romney seemed especially pertinent to the lawyers on LXBN, who can’t seem to get enough news about the NLRB:

On your campaign website,you state that the “first step in improving labor policy will be to ensure that our labor laws create a stable and level playing field on which businesses can operate. As they hire, businesses should not have to worry that a politicized federal agency will rewrite the rules of the employment game without warning and without regard for the law.”  Yet, the NLRB is — by its nature — a political agency that shifts its agenda depending on who the President is.  Under George W. Bush, it became more pro-business and under Obama, it became more pro-union.  Are you suggesting that you would try to de-politicize the NLRB? If so, how? And if not, aren’t the changes you propose simply adding to the political nature of the NLRB?”

And I would be remiss if I didn’t pass along the photo Shea used of Representative Paul Ryan for her question for the VP hopeful.


Although immigration concerns have seemingly taken a backseat to economic and employment issues during this election, with millions of undocumented workers in the United States it’s impossible to overlook completely.  Angelo Paparelli, author of Nation of Immigrators and a partner in Seyfarth Shaw‘s Los Angeles office, broke down each party’s position on this always salient topic.  First, the Democrats and the slow march towards comprehensive immigration reform:

“Given the parties’ chasmic differences, is comprehensive immigration reform (CIR) still a bridge to nowhere?  Perhaps not. A convention segment last week on POTUS (Politics of the United States), the satellite radio station, entitled “Hispanic Voices,” offered a plausible route to CIR:

  • Latino voters turn out in large numbers;
  • Obama is reelected, but one Congressional chamber remains under GOP control;
  • Some Republicans — at last seeing a desolate future because the demographic tide has washed away so much of their base — want the contentious issue of immigration behind them;
  • Obama offers the GOP a choice of legislative compromise or more executive orders on immigration that whittle down the undocumented population by creating administrative avenues for relief;
  • This time a deal is struck.”

And after the GOP convention, Paparelli took a look at the Republican’s confusing message on immigration:

“Many waxed rhapsodic about their immigrant forebears who endured every form of privation so that their children might have a chance at freedom and prosperity in America.  As Sen. Mark Rubio offered, his father — a Cuban émigré — worked the bar at the back of the room so that his son “one day . . . could stand behind a podium in the front of a room.”

…..

Apparently, however, given Ryan’s decidedly anti-immigrant stance, for every undocumented person, hope begins only after self-deportation.  The GOP’s muddled message on immigration is not the way to win the Presidency or capture control of Congress.

Republicans seemingly prefer their immigration under glass, viewed from the hermetically sealed distance of generations long extinct, observed through the prism of anodyne nostalgia. “

Perhaps the best advice for workers hoping to see some sort of resolution to our nation’s immigration issues came from Angel Reyes, who proposed undocumented workers wait until after the elections if they’re looking to take advantage of President Obama’s programs:

“BEFORE you apply for Obama’s “Deferred Action for Childhood Arrivals” program that would allow you to live and work in the U.S. legally, please think about what many others are – disclosing information that could come back to haunt you, and the potential election of Mitt Romney as President of the United States. Weigh your decision very carefully and ask yourself if it’s worth the risk.”


With immigration and economic policies being the “sexy” topics on LXBN, it should be noted that campaign contributions/communications, media coverage, and political branding have drawn just as much discussion from interested attorneys.  David Oxenford, author of the Broadcast Law Blog, has provided extensive coverage on political broadcasting laws and developments, including posts on advertising time sold to candidates and attack ads.

In a similar vein, the attorneys of Covington & Burling have been prolific in their discussions of federal electioneering litigation and campaign finance laws over on Inside Political Law.  When a three-judge D.C. Circuit panel removed barriers to electioneering communications, Zachary Parks, an associate in the firm’s Washington DC offices, immediately offered up analysis.  And when another three-judge panel upheld federal contribution limits under the Federal Election Campaign Act, Matthew Connolly had a post ready.  As a resource for campaign finance and lobbying litigation and regulation, Inside Political Law is second to none on LXBN.

Some of most interesting posts came from blogs that I wouldn’t have expected to cover the elections at all.  David Whincup who blogs on Squire SandersEmployment Law Worldview, and usually covers domestic and international employment law issues, took some time off from his normal posting routine to talk about Ryan’s penchant for white lies. Deborah Peckham, author of Lex Indicium, switched from posting on red-soled high heels to political advertising and branding.  And Patrick Maines, President of The Media Institute, discussed media bias in election coverage on his blog, Media & Communications Policy.


As an editor of LXBN, I’ve never felt so proud as I do reading over our Election 2012 page.  The wealth and diversity of legal analysis on such a niche subject is second to none, and is a testament to the Network’s authors.  As a parting shot, I’d like to share with you a few paragraphs from one of my favorite bloggers on LXBN, Steve Honig.  Mr. Honig has blogged on just about everything, from Occupy Wall Street to the Boston Red Sox’s rotation.  His take on the Presidential elections is valuable not only for the analysis he provides, but also for the humility and honesty with which it is dispensed:

“Jobs is the mantra of this Presidential election.  What creates jobs?  I do not know.  There is likely an answer but each party has its own, and the electorate is ill-educated to judge.  I suggest that our own personal analysis is fundamentally flawed by this lack of data: we fill the absence of facts with intuitions informed by prior bias.

….

My problem is not only that I do not know the answers.  My problem is this: I don’t think the candidates know the answers either.  I wonder what would happen in the voting if one of them said so….”