[EL] ELB News and Commentary 1/31/16

Sun Jan 31 14:56:02 PST 2016

    Talk of Clinton Indictment Fueling Legal (But Mostly Political)
    Questions <http://electionlawblog.org/?p=79451>

Posted onJanuary 31, 2016 2:46 pm 
<http://electionlawblog.org/?p=79451>byRick Hasen 
<http://electionlawblog.org/?author=3>

Mike Allen’s Playbook <http://www.politico.com/playbook>leads with Peter 
Baker’s comments <https://www.youtube.com/watch?v=kqYefKMNGe4>on CNN: re 
Hillary emails: “Her problem at this point is NOT the Republicans. Her 
problem is the FBI and the Obama Justice Department. And what Democrats 
are quietly, absolutely petrified about is that come summer, … you find 
an indictment of people around her, of her, or a request for a special 
prosecutor — SOMETHING that just basically turns this into a complete 
DISASTER for the Democrats in which it’s too late to change horses.”

I’m hearing more talk from Republicans convinced that there will be such 
an indictment. Seth Barrett Tillmanhas even blogged 
<http://reformclub.blogspot.ie/2016/01/two-presidential-candidates-consistent.html>on 
what happens if such an indictment strikes at various points in the 
election. Tillman’s post gotJack Balkin’s 
<http://balkin.blogspot.com/2016/01/more-grist-for-law-professors-mill.html>attention, 
who says that the general issue deserves some academic attention.

Perhaps so. But this seems much more likely to be a political problem 
for Clinton than a legal one, givenindications from the White 
House<http://www.weeklystandard.com/wh-clinton-wont-be-indicted-based-on-what-we-know/article/2000828>that 
no indictment appears in the cards. The immediate political question 
will be whether Bernie Sanders comes down heavier on this issue. At 
first he said no more about the “damn emails,” and now he said that it 
its a “very serious issue 
<http://www.cnn.com/2016/01/31/politics/bernie-sanders-hillary-clinton-emails-iowa/index.html>.” 
  But whatever Sanders throws will be much less than what I expect to 
see from Republicans after Clinton gets the Democratic nomination.

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Posted incampaigns <http://electionlawblog.org/?cat=59>

    “The New Anti-Sanders Super PAC Is Funded By Anti-Clinton Donors”
    <http://electionlawblog.org/?p=79449>

Posted onJanuary 31, 2016 2:29 pm 
<http://electionlawblog.org/?p=79449>byRick Hasen 
<http://electionlawblog.org/?author=3>

Some three-dimensional chess 
<http://www.huffingtonpost.com/entry/esa-fund-anti-sanders-super-pac_us_56ae76cae4b0010e80ea89fa?4nsl9pb9=>from 
Joe Ricketts:

    About a week ago, a super PAC bankrolled by a wealthy conservative
    donorannounced that
    <http://www.nytimes.com/politics/first-draft/2016/01/25/bernie-sanders-a-target-of-ads-by-republican-donor/>it
    would run an ad attacking Sen. Bernie Sanders (I-Vt.) for being too
    far along the ideological spectrum.

    The group, called ESA Fund, was reportedly backed by $600,000 in
    spending from TD Ameritrade executive Joe Ricketts. And its ad went
    after Sanders for supporting things like free college tuition,
    Medicare for all and tax hikes on the super rich.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns 
<http://electionlawblog.org/?cat=59>

    “How a California senator plans to take on the City of Industry”
    <http://electionlawblog.org/?p=79447>

Posted onJanuary 31, 2016 2:27 pm 
<http://electionlawblog.org/?p=79447>byRick Hasen 
<http://electionlawblog.org/?author=3>

An important and underreported story. 
<http://www.dailynews.com/government-and-politics/20160130/how-a-california-senator-plans-to-take-on-the-city-of-industry>

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Posted inchicanery <http://electionlawblog.org/?cat=12>,voting 
<http://electionlawblog.org/?cat=31>

    “NC’s new Voter ID rule narrows the right to vote”
    <http://electionlawblog.org/?p=79445>

Posted onJanuary 31, 2016 2:24 pm 
<http://electionlawblog.org/?p=79445>byRick Hasen 
<http://electionlawblog.org/?author=3>

Ned Barnett column 
<http://www.newsobserver.com/opinion/opn-columns-blogs/ned-barnett/article57519288.html>in 
the /News and Observer./

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Posted inelection administration 
<http://electionlawblog.org/?cat=18>,The Voting Wars 
<http://electionlawblog.org/?cat=60>,voter id 
<http://electionlawblog.org/?cat=9>

    “Hedge fund managers shower millions on pro-Rubio super PAC”
    <http://electionlawblog.org/?p=79443>

Posted onJanuary 31, 2016 2:20 pm 
<http://electionlawblog.org/?p=79443>byRick Hasen 
<http://electionlawblog.org/?author=3>

WaPo reports. 
<https://www.washingtonpost.com/news/post-politics/wp/2016/01/31/hedge-fund-managers-shower-millions-on-pro-rubio-super-pac/>

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Posted incampaign finance <http://electionlawblog.org/?cat=10>

    “Finding solutions to the campaign finance crisis”
    <http://electionlawblog.org/?p=79441>

Posted onJanuary 31, 2016 2:19 pm 
<http://electionlawblog.org/?p=79441>byRick Hasen 
<http://electionlawblog.org/?author=3>

Norm Eisen and Curtlyn Krame 
<http://www.brookings.edu/blogs/fixgov/posts/2016/01/29-solutions-to-the-campaign-finance-crisis-eisen-kramer>r 
at Brookings.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>

    The Real Crime of the Caucus Process is Not Cruz’s Mailer but the
    Caucus Process Itself <http://electionlawblog.org/?p=79438>

Posted onJanuary 31, 2016 2:05 pm 
<http://electionlawblog.org/?p=79438>byRick Hasen 
<http://electionlawblog.org/?author=3>

Look 
<http://www.newyorker.com/news/news-desk/ted-cruzs-iowa-mailers-are-more-fraudulent-than-everyone-thinks?reload>at 
how Ryan Lizza’s piece on the Ted Cruzmisleading 
mailers<http://electionlawblog.org/?p=79435>ends:

    Donna Holstein, who was listed on one of them, was upset to learn
    that she had been given a failing grade and that her neighbors might
    be told whether she participates in the caucus or not. She told me
    that she has voted consistently but that she can’t this time because
    of a disability.

    “I’m crippled, so I can’t go to the caucus,” Holstein said. She was
    not happy about being shamed in front of her neighbors. “That’s what
    you call a bully,” she said about Cruz’s tactics. “I wish he would
    quit.”

The caucus system is inherently discriminatory against those who are 
disabled, or who have to work or travel during caucus time.  See my 2012 
Slate piece:Kill the Caucuses! 
<http://www.slate.com/articles/news_and_politics/jurisprudence/2012/02/congress_should_kill_the_republican_and_democratic_state_caucuses_and_mandate_primaries_instead_.html>

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Posted inelection administration 
<http://electionlawblog.org/?cat=18>,primaries 
<http://electionlawblog.org/?cat=32>

    “Ted Cruz Defends Mailer Dubbed ‘Misleading’ By Iowa’s Secretary of
    State” <http://electionlawblog.org/?p=79435>

Posted onJanuary 31, 2016 1:00 pm 
<http://electionlawblog.org/?p=79435>byRick Hasen 
<http://electionlawblog.org/?author=3>

Pema Levy 
<http://www.motherjones.com/mojo/2016/01/ted-cruz-defends-voting-violation-mailer-iowa>for 
Mother Jones:

    Ted Cruz on Saturday evening defended a mailer sent out by his
    campaign that has beencriticized
    <http://www.nytimes.com/politics/first-draft/2016/01/30/iowa-official-criticizes-cruz-campaign-over-mailer/>by
    Iowa’s secretary of state as “misleading” and a violation of “the
    spirit of the Iowa caucuses.”

    “I will apologize to no one for using every tool we can to encourage
    Iowa voters to come out and vote,” Cruz said, speaking to reporters
    before a rally in Sioux City, Iowa.

    Earlier Saturday, the Cruz campaign came under fire for sending out
    a mailer, with the look of an official state document, that warns of
    a “voting violation.” It informs voters they are receiving the
    notice “because of low expected voter turnout in your area” and says
    a “follow-up notice” may arrive after the Iowa caucuses.

I’ve been getting questions about the legality of the Cruz mailer.

There is no federal law barring generally misleading campaign speech.  
There are laws against intimidating voters, but I don’t think that’s 
what it is.

The alternative would be some kind of claim of common law fraud (a 
tort), but this could well be a stretch.

There are also first amendment issues related to regulatingmisleading 
campaign speech 
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151618>.

Unless there’s something specific in Iowa law making this illegal (and 
unless such a law is constitutional), I think this kind of mailer is 
allowed.

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Posted inUncategorized <http://electionlawblog.org/?cat=1>

    “The Koch Network Has Already Spent $400 Million In Run-Up To 2016”
    <http://electionlawblog.org/?p=79433>

Posted onJanuary 30, 2016 6:35 pm 
<http://electionlawblog.org/?p=79433>byRick Hasen 
<http://electionlawblog.org/?author=3>

Tarini Parti 
<http://www.buzzfeed.com/tariniparti/the-koch-network-has-already-spent-400-million-in-run-up-to#.drOw39LnQ>reports 
for Buzzfeed from the Koch meeting in CA.

    Koch’s comments at a resort in the California desert were part of
    his opening remarks for the annual winter meeting of the network,
    which intends to spend $889 million on conservative causes and
    candidates in line with the brothers’ political philosophy in the
    two-year 2016 election cycle. The network — called Freedom Partners
    — already spent just under $400 million in 2015, a top official
    revealed Saturday.

    In his remarks, Koch also laid out four priorities for the network
    that he believes will change the country.

    “The first one is to change, reverse the policies that are moving us
    toward…a society that is destroying opportunities for the
    disadvantage and creating welfare for the wealthy,” he said.

    “The second one is the irresponsible, destructive spending by both
    political parties that is making people’s lives worse. And the third
    one is to get government at all levels — that is local, state and
    federal — to focus on the government’s primary responsibility to
    keep America safe instead of being distracted with all sorts of
    other objectives…And last, but not least — protecting free speech,
    which is the foundation of a free society.”

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns 
<http://electionlawblog.org/?cat=59>,tax law and election law 
<http://electionlawblog.org/?cat=22>

    “Brooklyn Law School hosts Buckley v. Valeo discussion for case’s
    40th anniversary” <http://electionlawblog.org/?p=79431>

Posted onJanuary 30, 2016 6:34 pm 
<http://electionlawblog.org/?p=79431>byRick Hasen 
<http://electionlawblog.org/?author=3>

The Brooklyn Eagle reports. 
<http://www.brooklyneagle.com/articles/2016/1/29/brooklyn-law-school-hosts-buckley-v-valeo-discussion-case%E2%80%99s-40th-anniversary>

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,Supreme 
Court <http://electionlawblog.org/?cat=29>

    “A Landmark of Political Freedom” <http://electionlawblog.org/?p=79428>

Posted onJanuary 30, 2016 6:33 pm 
<http://electionlawblog.org/?p=79428>byRick Hasen 
<http://electionlawblog.org/?author=3>

Brooklyn Law 
<https://www.brooklaw.edu/%7E/media/F60BDCB6728444488A14CC5BAF437665.pdfI>:

    As a young lawyer for the ACLU, Professor Joel Gora argued before
    the U.S. Supreme Court in the landmark Buckley v. Valeo case. Here
    he reflects on the history of the case and its continuing impact on
    campaign finance law.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,Supreme 
Court <http://electionlawblog.org/?cat=29>

-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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