[EL] ELB News and Commentary 1/3/17

[Rick Hasen]

New Office of Congressional Ethics Cannot Communicate with Public in Any Way<http://electionlawblog.org/?p=90227>
Posted on January 2, 2017 6:44 pm<http://electionlawblog.org/?p=90227> by Rick Hasen<http://electionlawblog.org/?author=3>
Matt Viser highlights a wow detail.<https://twitter.com/mviser/status/816092686474158080>
Eric Lipton <http://www.nytimes.com/2017/01/02/us/politics/with-no-warning-house-republicans-vote-to-hobble-independent-ethics-office.html?smid=nytcore-ipad-share&smprod=nytcore-ipad> for the NYT:
The surprising vote came on the eve of the start of a new session of Congress, with emboldened Republicans ready to push an ambitious agenda on everything from health care to infrastructure, issues that will be the subject of intense lobbying from corporate interests. The move by Republicans would take away both power and independence from an investigative body, and give lawmakers more control over internal inquiries.
Bryson Morgan notes <https://twitter.com/bryson_morgan/status/816113738319269889> the office also cannot speak to law enforcement without Committee approval.
And Politico notes<http://www.politico.com/story/2017/01/house-republicans-gut-their-own-oversight-233111> it cannot act on anonymous tips.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, conflict of interest laws<http://electionlawblog.org/?cat=20>, ethics investigations<http://electionlawblog.org/?cat=42>


‘House Republicans gut their own oversight”<http://electionlawblog.org/?p=90225>
Posted on January 2, 2017 5:29 pm<http://electionlawblog.org/?p=90225> by Rick Hasen<http://electionlawblog.org/?author=3>
Politico:<http://www.politico.com/story/2017/01/house-republicans-gut-their-own-oversight-233111>
In one of their first moves of the new Congress, House Republicans have voted to gut their own independent ethics watchdog — a huge blow to cheerleaders of congressional oversight and one that dismantles major reforms adopted after the Jack Abramoff scandal.
Despite a warning from Speaker Paul Ryan (R-Wis.) and Majority Leader Kevin McCarthy (R-Calif.), House Republicans on Monday adopted a proposal by Judiciary Chairman Bob Goodlatte (R-Va.) to put the Office of Congressional Ethics under the jurisdiction of the House Ethics Committee.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D90225&title=%E2%80%98House%20Republicans%20gut%20their%20own%20oversight%E2%80%9D>
Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>, ethics investigations<http://electionlawblog.org/?cat=42>


“Ethic advocates warn Trump that he needs to do more to divest from family business”<http://electionlawblog.org/?p=90222>
Posted on January 2, 2017 3:19 pm<http://electionlawblog.org/?p=90222> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo<https://www.washingtonpost.com/news/post-politics/wp/2017/01/02/ethic-advocates-warn-trump-that-he-needs-to-do-more-to-divest-from-family-business/?utm_term=.792bf065b1ee>:
A bipartisan group of ethics advocates lobbed a second letter to President-elect Donald Trump Monday evening warning him that he needs to do more to separate himself from his family business <https://www.washingtonpost.com/news/post-politics/wp/2016/12/09/bipartisan-group-urges-trump-family-to-divest-from-private-business/?utm_term=.520c928f7fa0> interests.
The letter comes after Trump has announced some changes in his business empire with more expected before inauguration day.
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Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>


“House Republicans Fret About Winning Their Health Care Suit”<http://electionlawblog.org/?p=90220>
Posted on January 1, 2017 11:15 am<http://electionlawblog.org/?p=90220> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT:<http://www.nytimes.com/2016/12/31/us/politics/house-republicans-health-care-suit.html?ref=politics>
Congressional Republicans have a new fear when it comes to their two-year-old health care lawsuit against the Obama administration: They might win.
The incoming Trump administration could choose to no longer defend the executive branch against the suit, which challenges the administration’s authority to spend billions of dollars on health insurance<http://topics.nytimes.com/top/news/health/diseasesconditionsandhealthtopics/health_insurance_and_managed_care/index.html?inline=nyt-classifier> subsidies for low- and moderate-income Americans, handing House Republicans a big victory on separation-of-power issues.
But a sudden loss of the disputed subsidies could conceivably cause the health care program to implode, leaving millions of people without access to health insurance before Republicans have prepared a replacement. That could lead to chaos in the insurance market and spur a political backlash just as Republicans gain full control of the government.
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Posted in legislation and legislatures<http://electionlawblog.org/?cat=27>


NC: “GOP legislative leaders ask US Supreme Court to halt 2017 elections”<http://electionlawblog.org/?p=90218>
Posted on January 1, 2017 9:52 am<http://electionlawblog.org/?p=90218> by Rick Hasen<http://electionlawblog.org/?author=3>
News & Observer reports.<http://www.newsobserver.com/news/politics-government/state-politics/article123887379.html>
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


“Likely Changes in US House Seat Distribution for 2020”<http://electionlawblog.org/?p=90216>
Posted on January 1, 2017 9:49 am<http://electionlawblog.org/?p=90216> by Rick Hasen<http://electionlawblog.org/?author=3>
FairVote reports.<http://www.fairvote.org/likely_changes_in_us_house_seat_distribution_for_2020>
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Posted in redistricting<http://electionlawblog.org/?cat=6>


“Seattle voters will soon get $100 in ‘democracy vouchers’ to donate to candidates”<http://electionlawblog.org/?p=90214>
Posted on December 31, 2016 9:36 am<http://electionlawblog.org/?p=90214> by Rick Hasen<http://electionlawblog.org/?author=3>
Looking forward <http://www.seattletimes.com/seattle-news/politics/seattles-democracy-vouchers-going-to-voters-next-week/> to watching this unfold in the new year.
I’ve supported public financing through campaign finance vouchers since the 1990s<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1961263>.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>


Correction: North Carolina Officials Try for Emergency SCOTUS Relief in Racial Gerrymandering Case<http://electionlawblog.org/?p=90201>
Posted on December 30, 2016 9:40 pm<http://electionlawblog.org/?p=90201> by Rick Hasen<http://electionlawblog.org/?author=3>
Note: This post has been significantly corrected. See below.
Back over the summer, a three-judge federal court found that a number of NC state legislative districts were unconstitutional racial gerrymanders. The state has an appeal of this ruling pending now at the Supreme Court, North Carolina v. Covington, No. 16-649.
The three-judge court at the time of the ruling declined to put a stop to the upcoming 2016 elections being held under the illegal lines. The court said it was too close to the election to make a change. The elections were held, and then in November the three-judge court ordered<http://electionlawblog.org/?p=89590> that the NC legislature create a new districting plan to fix the constitutional problems by March 15, 2017, and that there be special elections held in 2017.
The state of North Carolina asked the three-judge court to stay its own order pending an appeal to the Supreme Court. That motion remains pending, and ordinarily things would wait for the lower court order to issue.
But now the state has filed this emergency motion<http://electionlawblog.org/wp-content/uploads/2016-12-30-Covington-Stay-Application-FINAL.pdf> with Chief Justice Roberts asking for the Chief or the Court to stay the requirement for a special election, in essence pushing the matter to the 2018 elections and giving the new current legislature the freedom from a new round of redistricting and new elections. The petition requests an order before January 11, 2017, when the new NC legislature convenes.
The petition, with Paul Clement as counsel of record, seems unlikely to succeed. To begin with, as noted, the Court would ordinarily wait for the lower court to rule before ruling itself. And although Jan. 11 is the beginning of the new NC term, nothing requires the legislature to begin work on the petition that day. The work must be done by March 15.  So this seems like an odd rush. Why not at least wait until after the first of the year to file this, so that Justice, clerk, and lawyer time can be better preserved over the holidays?
The timing is no mystery. Gov. McCrory leaves office tomorrow night. The new incoming governor, Roy Cooper, is a Democrat likely to have different views on these issues than McCrory.  Just as a Trump DOJ will differ from an Obama DOJ, the Cooper administration will differ on these issues from a McCrory administration. Although the governor is not a party to the redistricting suit, the Governor and AG will likely express opinions in the litigation going forward, opinions adverse to the Republican legislature.
The goal here is to preserve as much Republican power in the state as possible despite the election of a Democratic governor, attorney general, and now majority on the State Supreme Court. Republicans could suffer losses in 2017 elections, and this motion would forestall it. It is of a piece with efforts to take away Cooper’s appointment powers and to mess with the election commissions<http://electionlawblog.org/?p=90195> to take away Democratic majorities on those commissions.
On the merits, given that the lower court could have imposed new districts for 2016, it does not seem like a special election in 2017 is a great impingement on voters’ rights as the petition alleges. Indeed, the harm to the other side is two more years of districts found to be unconstitutional.
My guess is that the Court does not issue the stay, especially not a Court of 8 where Justice Kennedy has sided with the liberals in the recent racial gerrymandering cases. But what will be interesting to see is what the state of NC files after Cooper takes office, and if the legislature seeks to file its own papers adverse to the position of the state’s governor and attorney general.
Important note and correction: The original version of this tweet stated that outgoing Gov. McCrory was involved in filing this emergency petition. This is in error. The state provides no role for the governor in redistricting controversies. Chris Geidner<https://www.buzzfeed.com/chrisgeidner/north-carolina-governor-moves-to-stop-special-legislative-el?utm_term=.vpAnWO7xG7#.snLdvEabxa>: “A spokesperson for McCrory confirmed to BuzzFeed News that, ‘Governor McCrory did not have anything to do with the legal motion filed in the US Supreme Court.” The spokesperson went on to say that the governor’s office is not a party to that lawsuit and not involved in the case.'”
I very much regret the error and apologize to Gov. McCrory.
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Posted in election administration<http://electionlawblog.org/?cat=18>, redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>


FEC, on 6-0 Vote, Rejects Complaint Clinton Campaign Joint Fundraising Operations with 32 State Parties Illegal<http://electionlawblog.org/?p=90210>
Posted on December 30, 2016 6:27 pm<http://electionlawblog.org/?p=90210> by Rick Hasen<http://electionlawblog.org/?author=3>
Yup,<http://eqs.fec.gov/eqsdocsMUR/16044404607.pdf> the problem is not what’s illegal but what’s legal.  It is fine to raise hundreds of thousands of dollars using joint fundraising committees despite a $2,700 individual contribution limit of money going directly to candidate campaigns.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>


After Years of Unconscionable Delay in Texas Redistricting Case, Another Plea for an Order<http://electionlawblog.org/?p=90206>
Posted on December 30, 2016 6:17 pm<http://electionlawblog.org/?p=90206> by Rick Hasen<http://electionlawblog.org/?author=3>
The Texas redistricting plaintiffs are getting desperate for a ruling, out of fear that further delay will endanger fixed maps for the 2018 elections.  This case has been going on for the better part of a decade. Plaintiffs have now submitted in this lette<http://electionlawblog.org/wp-content/uploads/Plaintiffs-letter-to-court-11-29-20161.pdf>r and this motion for judgment<http://electionlawblog.org/wp-content/uploads/Plaintiffs-motion-for-Judgment-12-30-2016.pdf> before the three-judge court asking for relief to come very soon.
I have no inside knowledge of what is going on behind the scenes, but I’ve long had a guess, which I’ll now make public: Judge Smith, who is a likely dissenter from the ruling, is dragging his feet precisely to delay a final resolution until the 2018 elections (and now until there is a new (conservative) 9th Justice confirmed to the Supreme Court.
Here is some bits from my November 2015 post <http://electionlawblog.org/?p=77373> on this case and the unconscionable delay:
The three-judge panel, which has been hearing permutations of this case for about half the redistricting cycle, today issued a 7-page unanimous order<http://electionlawblog.org/wp-content/uploads/perez-order.pdf> rejecting some of the plaintiffs’ request for a preliminary injunction to change the redistricting plans pending a further resolution on the merits.
When this motion was filed, I saw it as an attempt <http://electionlawblog.org/?p=76697> to prod what plaintiffs must believe to be a dilatory three-judge court. But today the three-judge court essentially said two things: (1) we are working really hard on a final decision but we are not there yet; and (2) doing yet another map is just going to confuse things and make them worse.
I expect what is going on behind the scenes is that we are not going to see a unanimous opinion.  Instead we are going to see a split opinion, and if Texas is on the losing end of things, a quick appeal to the Supreme Court.  (Maybe an appeal if Texas wins too, but that’s less certain.)
The wheels of Justice turn slowly, but if they turn much more slowly we’ll be gearing up for the next redistricting cycle! The best case scenario now is a ruling in a case originally filed in 2011 affecting the 2018 elections.
And here’s a post from April 2016 where I called the delay unconscionable<http://electionlawblog.org/?p=82071>.
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Posted in redistricting<http://electionlawblog.org/?cat=6>


Obama Strikes Back at Russia for Election Hacking”<http://electionlawblog.org/?p=90199>
Posted on December 30, 2016 12:17 pm<http://electionlawblog.org/?p=90199> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT<http://www.nytimes.com/2016/12/29/us/politics/russia-election-hacking-sanctions.html?ref=politics&_r=0>:
President Obama<http://topics.nytimes.com/top/reference/timestopics/people/o/barack_obama/index.html?inline=nyt-per> struck back at Russia<http://topics.nytimes.com/top/news/international/countriesandterritories/russiaandtheformersovietunion/index.html?inline=nyt-geo> on Thursday for its efforts to influence the 2016 election, ejecting 35 suspected Russian intelligence operatives from the United States and imposing sanctions on Russia’s two leading intelligence services.
The administration also penalized four top officers of one of those services, the powerful military intelligence unit known as the G.R.U.
Intelligence agencies have concluded that the G.R.U. ordered the attacks on the Democratic National Committee and other political organizations, with the approval of the Kremlin, and ultimately enabled the publication of the emails it harvested to benefit Donald J. Trump<http://www.nytimes.com/topic/person/donald-trump?inline=nyt-per>’s campaign.
President elect Trump on Twitter<https://twitter.com/realDonaldTrump/status/814919370711461890>, after Putin declined to eject American diplomats: “Great move on delay (by V. Putin) – I always knew he was very smart!”
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Posted in chicanery<http://electionlawblog.org/?cat=12>



--
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
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>
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