[EL] ELB News and Commentary 11/30/16

[Daniel Tokaji]

Latest on #NCGov <http://electionlawblog.org/?p=89595>
Posted on November 30, 2016 8:33 am <http://electionlawblog.org/?p=89595> by
*Dan Tokaji* <http://electionlawblog.org/?author=5>

>From AP
<http://wspa.com/2016/11/30/appeal-on-contested-votes-heard-by-nc-election-board/>
and NYT
<http://www.nytimes.com/2016/11/29/us/north-carolina-governor-race.html>,
which reports that the State Board of Elections’ preliminary tally
has Democratic candidate Roy Cooper leading Gov. Pat McCrory by 9,813
votes, “perilously close to the 10,000-vote difference that would prohibit
Mr. McCrory from demanding a recount.”
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Posted in recounts <http://electionlawblog.org/?cat=50>
Today’s Recount News <http://electionlawblog.org/?p=89593>
Posted on November 30, 2016 8:19 am <http://electionlawblog.org/?p=89593> by
*Dan Tokaji* <http://electionlawblog.org/?author=5>

CBS
<http://dfw.cbslocal.com/2016/11/30/clinton-team-sees-recount-effort-as-waste-of-resources/>:
“Clinton Team Sees Recount Effort as Waste of Resources”

CBS
<http://www.cbsnews.com/news/jill-stein-michigan-recount-efforts-heres-what-you-need-to-know/>:
“Jill Stein’s Michigan Recount Efforts”

Detroit News
<http://www.detroitnews.com/story/news/politics/2016/11/29/recount-cost/94607806/>:
“GOP Warns Recount Puts Michigan’s Electors at Risk”

The Hill
<https://origin-nyi.thehill.com/homenews/campaign/307976-what-stein-is-getting-from-recount>:
“What Stein is Getting from Recount”

Milwaukee Journal Sentinel
<http://www.jsonline.com/story/news/politics/elections/2016/11/29/steins-recount-headed-court-tuesday/94598740/>:
“Judge Rejects Stein’s Request for Hand Recount”

Pittsburgh Post Gazette
<http://www.post-gazette.com/news/politics-state/2016/11/30/Court-hearing-set-to-consider-Pa-vote-recount/stories/201611300173>:
“Court Hearing Set to Consider Pa. Vote Recount”

Politico
<http://www.politico.com/story/2016/11/senate-democrats-recount-231960>:
“Democratic senators: No Harm in Trump-Clinton Recounts”

Politico
<http://www.politico.com/story/2016/11/clinton-recounts-wisconsin-pennsylvania-michigan-231950>:
“7 Questions about Jill Stein’s Recounts”

Vox
<http://www.vox.com/policy-and-politics/2016/11/30/13764566/jill-stein-presidential-recount-explained>:
“The
Presidential Recount, Explained”
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Posted in recounts <http://electionlawblog.org/?cat=50>
“Court Orders Special Legislative Election for NC in 2017 with Redrawn
Districts” <http://electionlawblog.org/?p=89590>
Posted on November 30, 2016 7:55 am <http://electionlawblog.org/?p=89590> by
*Dan Tokaji* <http://electionlawblog.org/?author=5>

McClatchy
<http://www.mcclatchydc.com/news/nation-world/national/article117899123.html>
and
Reuters
<http://www.reuters.com/article/us-north-carolina-gerrymander-idUSKBN13P0E4>
on yesterday’s order
<http://dig.abclocal.go.com/wtvd/docs/new-elections-order-11-29-2016.pdf>
from the three-judge USDC in the North Carolina racial gerrymandering case,
requiring state house and senate districts to be redrawn by March 15, 2017.
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Posted in redistricting <http://electionlawblog.org/?cat=6>
Trump Tweets on Leaving “Great Business in Total” to Focus on Running the
Country <http://electionlawblog.org/?p=89588>
Posted on November 30, 2016 7:39 am <http://electionlawblog.org/?p=89588> by
*Dan Tokaji* <http://electionlawblog.org/?author=5>

Coverage of this morning’s bright shiny object from Bloomberg
<http://www.bloomberg.com/politics/articles/2016-11-30/trump-will-outline-plans-for-leaving-my-great-business-dec-15>,
Fox
<http://www.foxnews.com/politics/2016/11/30/trump-says-hes-leaving-his-businesses-to-focus-on-presidency.html>,
NYT
<http://www.nytimes.com/2016/11/30/us/politics/donald-trump-transition.html>,
and WaPo
<https://www.washingtonpost.com/news/business/wp/2016/11/30/trump-announces-he-will-leave-business-in-total-leaving-open-how-he-will-avoid-conflicts-of-interest/?utm_term=.b161c934c598>.
More information supposedly coming at December 15 news conference.
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Posted in conflict of interest laws <http://electionlawblog.org/?cat=20>
“Bahrain to Host Event at Trump’s D.C. Hotel, Raising Ethical Concerns”
<http://electionlawblog.org/?p=89586>
Posted on November 30, 2016 7:29 am <http://electionlawblog.org/?p=89586> by
*Dan Tokaji* <http://electionlawblog.org/?author=5>

Politico
<http://www.politico.com/story/2016/11/trump-bahrain-hotel-dc-231941>.
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Posted in conflict of interest laws <http://electionlawblog.org/?cat=20>
“What (Lots of) Money Can Buy at Trump’s Inauguration”
<http://electionlawblog.org/?p=89583>
Posted on November 30, 2016 7:23 am <http://electionlawblog.org/?p=89583> by
*Dan Tokaji* <http://electionlawblog.org/?author=5>

NYT
<http://www.nytimes.com/2016/11/29/us/politics/inauguration-donald-trump-president.html?ref=politics>:
“The Presidential Inaugural Committee, the group responsible for planning
and funding the events surrounding Mr. Trump’s swearing-in, made final on
Tuesday the benefits packages it will use to entice big donors, including
corporations, to open their checkbooks for $25,000 to $1 million or more.”
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Posted in conflict of interest laws <http://electionlawblog.org/?cat=20>
“Why One Company Backed Donald Trump” <http://electionlawblog.org/?p=89581>
Posted on November 30, 2016 7:20 am <http://electionlawblog.org/?p=89581> by
*Dan Tokaji* <http://electionlawblog.org/?author=5>

Torres-Spelliscy
<https://www.brennancenter.org/blog/why-one-company-backed-donald-trump>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
Diane Rehm on Recounts and Fraud <http://electionlawblog.org/?p=89579>
Posted on November 29, 2016 2:26 pm <http://electionlawblog.org/?p=89579> by
*Dan Tokaji* <http://electionlawblog.org/?author=5>

Featuring
<http://thedianerehmshow.org/shows/2016-11-29/a-general-election-recount-in-wisconsin-and-charges-of-election-fraud-from-president-elect-trump>
Ned Foley, Kim Alexander, Caleb Burns and Michael Shear.
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Posted in recounts <http://electionlawblog.org/?cat=50>
How Will Congress and the Separation of Powers Function Under a Trump
Administration? <http://electionlawblog.org/?p=89576>
Posted on November 29, 2016 12:32 pm <http://electionlawblog.org/?p=89576> by
*Richard Pildes* <http://electionlawblog.org/?author=7>

Christopher DeMuth, former head of OIRA in the Reagan OMB and former
President of AEI, has a long, thoughtful essay
<http://www.wsj.com/articles/a-trump-ryan-constitutional-revival-1480111914?emailToken=JRrzd/BzYnqTi9AzbMw1kUEyc6wQTvWYT1WSJ3fMIVTNqGHJoOWnzqFwndapoH2mQQMju4BctjdmFGSN>
in the weekend Wall Street Journal in which he explores whether the
separation of powers might see a revival in the Trump administration.

In his view, President Trump will not have “the reflexive support of party
stalwarts on Capitol Hill that his recent predecessors have enjoyed.”  The
revival of a more central role for Congress will follow, he suggests, from
the newfound tensions within both political parties, and from the fact that
Trump is more of a populist than a conventional Republican figure.

In addition to more vigorous competition between the branches, De Muth also
sees Trump as perhaps generating a more bargaining-oriented approach to
policymaking, in contrast to the “spectacles” produced by our
hyperpolarized, intensely ideological and symbolic politics.  I appreciate
his recognition of the way many of us have been trying to insist on giving
Congress and congressional leaders tools to create more possibilities for a
transactional kind of politics:

Spectacles such as these have given rise to a new school of political
realism, led by Jonathan Rauch, Richard H. Pildes, Frances E. Lee and other
scholars. Their essential argument, in Mr. Rauch’s words
<https://www.brookings.edu/wp-content/uploads/2016/08/political-realism-rauch2.pdf>,
is “that transactional politics—the everyday give-and-take of dickering and
compromise—is the essential work of governing and that government, and thus
democracy, won’t work if leaders can’t make deals and make them stick.”

The realists vary in their personal politics. They are united in
understanding that, in a nation of diverse and conflicting views, civil
peace and productive government require more than trumpeting one’s own
positions and seeking to defeat one’s opponents at the ballot box. They
also require accommodation through dialogue, negotiation and practical
compromise.

As the essay puts it: “In combination, candidate Trump’s audacious policy
positions, belligerent rhetoric and zest for deal making seem designed to
establish his bona fides as the people’s own Washington wheeler-dealer.”

De Muth acknowledges that “transactional politics and interbranch rivalry
are no guarantee of happy outcomes, which depend ultimately on the
constitution of the participants.”  His claim is that these are necessary
elements of successful democratic governance, even if not sufficient.  All
speculative at this stage of course, but provocative speculations about
large structural issues in our governance system and well worth a read.
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Posted in legislation and legislatures <http://electionlawblog.org/?cat=27>,
political parties <http://electionlawblog.org/?cat=25>, political
polarization <http://electionlawblog.org/?cat=68>
The New Political Realism: Transactional Politics and Earmarks
<http://electionlawblog.org/?p=89565>
Posted on November 29, 2016 8:35 am <http://electionlawblog.org/?p=89565> by
*Richard Pildes* <http://electionlawblog.org/?author=7>

Last week, Chris Cillizza of the Washington Post reported
<https://www.washingtonpost.com/politics/lets-bring-back-earmarks-please/2016/11/20/a2135af6-af3e-11e6-ab37-1b3940a0d30a_story.html>
that there was “significant support” within the House Republican conference
for bringing back earmarks.  Republicans eliminated earmarks when they took
the House majority in 2010 as part of “political reforms” that would end
“corruption” in Congress.

Cillizza’s piece argues, as many of us have also suggested, that this ban
is one example of the misguided pursuit of “political purity” that has
contributed to making the political process more dysfunctional.  Of course,
voting in favor of restoring earmarks would be political dynamite for any
individual member; it’s no surprise that Speaker Paul Ryan has vetoed the
proposal for now.  But the fact that the issue even has significant support
within the Republican conference and that journalists like Cillizza are
pressing the case for restoring earmarks is noteworthy.

Here are some excerpts from his essay:

But politics — real politics — isn’t a theoretical discussion among
political scientists. And if you believe that Congress works better when
it, um, actually works, then you should be rooting like hell that Ryan
changes his mind if/when the possibility of a return to earmarking comes to
the floor for avote. . . .

Politics works best when compromise is incentivized, not scorned. Earmarks
helped to do just that. They were a lever to pull on the way to the
presumed end goal: dealmaking. Without them, compromise became a dirty
word, and the GOP leadership — Boehner chief among them — paid a price. His
decision to step down from the speakership (and Congress) was fueled by an
inability to rally the bulk of the Republican Conference behind proposals
he supported. He couldn’t do that because he was, effectively, fighting
with one hand tied behind his back because of the earmark ban.

Cillizza references this conclusion, from political scientist Diana Evans
2004 study of earmarking, *Greasing the Wheels:  Using Pork Barrel Projects
to Build Majority Coalitions in Congress:*

‘The irony is this: pork barreling, despite its much maligned status, gets
things done.’ ”

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Posted in legislation and legislatures <http://electionlawblog.org/?cat=27>,
political polarization <http://electionlawblog.org/?cat=68>

Daniel P. Tokaji

Charles W. Ebersold and Florence Whitcomb Ebersold Professor of
Constitutional Law

The Ohio State University | Moritz College of Law

55 W. 12th Ave. | Columbus, OH 43210

614.292.6566 | tokaji.1 at osu.edu
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