[EL] ELB News and Commentary 1/4/17

Wed Jan 4 08:32:30 PST 2017

“In Republicans’ Ethics Office Gambit, a Spectacle of Tweets and Retreats”<http://electionlawblog.org/?p=90258>
Posted on January 4, 2017 8:30 am<http://electionlawblog.org/?p=90258> by Rick Hasen<http://electionlawblog.org/?author=3>
Carl Hulse <http://www.nytimes.com/2017/01/04/us/politics/in-republicans-ethics-office-gambit-a-spectacle-of-tweets-and-retreats.html?ref=politics> in the NYT:
House Republicans might have amusedly applauded Mr. Trump’s cutting tweets when they were aimed at the news media and other common foes, but they found them measurably less funny when the criticisms were directed their way, raising alarms among Republicans about his power to corral them via social media. Following the decision to reverse course, several lawmakers were quietly fretting that Mr. Trump’s megaphone was much more powerful than they had realized.
Other Republicans both on and off Capitol Hill were wondering how the rules-change proposal got as far as it did, given the stated reservations of Mr. Ryan and Mr. McCarthy among others. They said it did not bode well that the rank and file was so willing to ignore leadership on such a potentially critical matter, demonstrating once again how hard it can be to manage the House Republicans even when the party is set to control both Capitol Hill and the White House.
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Posted in legislation and legislatures<http://electionlawblog.org/?cat=27>

“Jeff Sessions says he handled these civil rights cases. He barely touched them”<http://electionlawblog.org/?p=90256>
Posted on January 4, 2017 8:25 am<http://electionlawblog.org/?p=90256> by Rick Hasen<http://electionlawblog.org/?author=3>
Gerry Hebert, Joe Rich, and Bill Yeomans with a WaPo oped<https://www.washingtonpost.com/opinions/jeff-sessions-says-he-handled-these-civil-rights-cases-he-barely-touched-them/2017/01/03/4ddfffa6-d0fa-11e6-a783-cd3fa950f2fd_story.html?utm_term=.1c16fcf16a9f>:
In the questionnaire<https://www.judiciary.senate.gov/imo/media/doc/Sessions%20SJC%20Questionnaire%20F.pdf> he filed recently with the Senate Judiciary Committee, Sessions (R-Ala.) listed four civil rights cases among the 10 most significant that he litigated “personally” as the U.S. attorney for Alabama during the 1980s. Three involved voting rights, while the fourth was a school desegregation case. Following criticism for exaggerating his role, he then claimed<https://www.judiciary.senate.gov/imo/media/doc/Sessions%20SJC%20Questionnaire%20-%20Supplement.pdf> that he provided “assistance and guidance” on these cases.
We worked in the Justice Department’s Civil Rights Division, which brought those lawsuits; we handled three of the four ourselves. We can state categorically that Sessions had no substantive involvement in any of them. He did what any U.S. attorney would have had to do: He signed his name on the complaint, and we added his name on any motions or briefs. That’s it.
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Posted in Department of Justice<http://electionlawblog.org/?cat=26>

“Liberals eye Sessions hearing as preview of Supreme Court fight”<http://electionlawblog.org/?p=90254>
Posted on January 4, 2017 8:18 am<http://electionlawblog.org/?p=90254> by Rick Hasen<http://electionlawblog.org/?author=3>
Ariane de Vogue<http://www.cnn.com/2017/01/04/politics/liberals-jeff-sessions-preview-supreme-court/index.html> for CNN.
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Posted in Department of Justice<http://electionlawblog.org/?cat=26>, Supreme Court<http://electionlawblog.org/?cat=29>

Floyd Abrams, Who Argued Citizens United, Writes Letter for Gov. Cuomo Defending New NY Disclosure Requirements<http://electionlawblog.org/?p=90250>
Posted on January 4, 2017 8:14 am<http://electionlawblog.org/?p=90250> by Rick Hasen<http://electionlawblog.org/?author=3>
Floyd has consistently been an opponent of campaign finance limits, but he has been more open to arguing for the constitutionality of campaign disclosure laws. (In the letter below, he is representing the views of a client, but my sense is he would not write this letter if he disagreed with these arguments.)
Here is a letter<http://electionlawblog.org/wp-content/uploads/abrams-ny-letter.pdf> he wrote to the court defending a recent controversial NY campaign disclosure law:
What remains to be decided is whether the law, as adopted, is consistent with the First Amendment.
In this respect, both of the sections of law at issue in this case were designed to assure that the public has more information about the identity of those individuals and entities that fund speech relating to elections and other public policy issues. Section 172-e addresses a specific issue of nondisclosure brought about by a loophole in the law that has been exploited by several not-for profit groups. Under Article I-A of the Legislative Law (“the Lobbying Act”), sections 1-h and 1-j, organizations subject to Section 501(c)(4) of the Internal Revenue Code that engage in lobbying either on their own behalf or for clients are required to disclose their “source of funding” to the Joint Commission on Public Ethics (“JCOPE”). However, under the law as it existed prior to the enactment of Section 172-e, Section 501(c)(3) organizations were exempt from such disclosure requirements. The result has been that organizations such as Citizens Union that have both a 501(c)(3) entity and a 501(c)(4) one can transfer moneys received from the former to the latter, thus avoiding any disclosure obligation. Indeed, for some such organizations, if one tries to donate to the 501(c)(4), one is directed to the donations page of the affiliated 501(c)(3).
Far from being overbroad, Section 172-e is extremely limited in its scope. It imposes new  disclosure requirements only when Section 501(c)(3) entities provide “in kind donations” valued at $2,500 to a 501(c)(4) entity and only requires entities subject to Section 501(c)(3) to disclose larger donations. It also provides that if any such disclosure “may cause harm, threats, harassment, or reprisals to the source of the donation or to individuals or property affiliated with the source of the donation” the Attorney General or his or her designee may determine not to require the disclosure, a decision subject to appeal to an independent “judicial hearing officer” who is “not affiliated with oremployed by the department of law.”
As for Section 172-f, it was intended to shed sunlight on dark money in politics by requiring Section 501(c)(4) entities that spend a significant amount of money (over $10,000) on issue advocacy, to disclose their identities and the identities of their large donors. Section 501(c)(4) entities that engage in lobbying are already required to register with JCOPE and to disclose their donors; the addition of entities that engage in issue advocacy is similarly constitutional. The law is narrowly tailored, only applying to Section 504(c)(4) entities and only when they spend and receive over a high dollar amount on a specific kind of public political advocacy. This is designed to promote transparency in the political process and to combat the role of dark money in politics. It contains, as well, the same protection for individuals or entities that assert that they may be harmed or harassed as a result of the newly required public disclosure as set forth above.
(h/t Jacob Gershman<https://twitter.com/jacobgershman/status/816648138807242752>)
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

“GOP plans to crush Democratic opposition to Trump Cabinet”<http://electionlawblog.org/?p=90248>
Posted on January 4, 2017 8:03 am<http://electionlawblog.org/?p=90248> by Rick Hasen<http://electionlawblog.org/?author=3>
Politico<http://www.politico.com/story/2017/01/republicans-democrats-senate-confirmation-tactics-233146>:
Senate Republicans have a plan to break the Democratic resistance to Donald Trump’s Cabinet: Make their delay tactics as excruciating as possible.
With Senate Democrats threatening to drag out the confirmation process for weeks, the GOP is preparing to keep the chamber running around the clock if that’s what it takes to speedily confirm Trump’s Cabinet. It’s the kind of retaliatory strategy that would bring all-night sessions, 3 a.m. votes and a long slog through the first months of Trump’s presidency that could sap some of the GOP’s legislative momentum.
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Posted in legislation and legislatures<http://electionlawblog.org/?cat=27>

“Barack Obama’s ambassador legacy: plum postings for big donors”<http://electionlawblog.org/?p=90246>
Posted on January 4, 2017 7:59 am<http://electionlawblog.org/?p=90246> by Rick Hasen<http://electionlawblog.org/?author=3>
CPI reports.<https://www.publicintegrity.org/2017/01/04/20577/barack-obamas-ambassador-legacy-plum-postings-big-donors>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Huge Election Law Biz News: Paul Smith to Campaign Legal Center<http://electionlawblog.org/?p=90244>
Posted on January 4, 2017 7:58 am<http://electionlawblog.org/?p=90244> by Rick Hasen<http://electionlawblog.org/?author=3>
Super lawyer Paul Smith is giving up his partnership at Jenner and Block to become vice president of litigation<http://www.campaignlegalcenter.org/news/press-releases/paul-m-smith-legendary-supreme-court-litigator-joins-clc> and strategy at the Campaign Legal Center. From the release:
Mr. Smith, who has extensive experience in voting rights and redistricting, will also work side-by-side with long-time colleague and friend, Gerry Hebert, director of CLC’s voting rights and redistricting program. When CLC’s landmark partisan gerrymandering case, Whitford v. Gill, reaches the U.S. Supreme Court next term, as seems almost certain, Mr. Smith will present the oral argument.
Prior to joining CLC, Mr. Smith most recently served as a partner at the law firm Jenner & Block. In addition to his role at CLC, Mr. Smith will teach as a Distinguished Visitor from Practice at Georgetown University Law Center.
Tony Mauro:<https://t.co/9LAXC5qISR>
While best known for his gay rights victory [in Lawrence v. Texas], Smith has also argued before the high court in numerous redistricting cases and in First Amendment disputes as well. He has argued in 19 cases before the Supreme Court. While at Jenner, he chaired the firm’s appellate and Supreme Court practice and was co-chair of the media and First Amendment, and election law and redistricting practices. Smith had worked side-by-side at Jenner with Donald Verrilli Jr. until Verrilli went to the Obama Justice Department in 2009. Last year, Verrilli left his position as solicitor general to open a Washington office for Munger, Tolles and Olson.
What a coup for CLC!
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Posted in election law biz<http://electionlawblog.org/?cat=51>

“Police End NAACP Sit-In Against Attorney General Nominee”<http://electionlawblog.org/?p=90242>
Posted on January 3, 2017 8:58 pm<http://electionlawblog.org/?p=90242> by Rick Hasen<http://electionlawblog.org/?author=3>
AP:<http://www.nytimes.com/aponline/2017/01/03/us/ap-us-sessions-protest-.html>
Several NAACP protesters led by their national president were escorted away in handcuffs by police after staging a sit-in Tuesday at the Alabama office of Sen. Jeff Sessions, the nominee for U.S. attorney general, the civil rights group said.
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Posted in Department of Justice<http://electionlawblog.org/?cat=26>, social media and social protests<http://electionlawblog.org/?cat=58>

“Trump Can Forget About Filling Supreme Court Vacancy, Sen. Schumer Says” OR Goodbye Filibuster<http://electionlawblog.org/?p=90240>
Posted on January 3, 2017 8:29 pm<http://electionlawblog.org/?p=90240> by Rick Hasen<http://electionlawblog.org/?author=3>
NBC News<http://www.nbcnews.com/politics/congress/trump-can-forget-about-filling-supreme-court-vacancy-sen-schumer-n702916?cid=par-twitter-feed_20170104>:
Asked by Maddow whether he, too, would seek to keep the vacant seat open rather than confirm a nominee outside the mainstream, Schumer replied: “Absolutely.”
Suggesting that could be any nominee, he said: “It’s hard for me to imagine a nominee that Donald Trump would choose that would get Republican support that we [Democrats] could support.”
There’s little doubt that if Democrats filibuster a Trump nominee who emerges from the hearings with broad Republican support, Republicans will kill the filibuster for SCOTUS nominees (as Democrats killed it for other nominees).
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>

“Blue-state lawmakers want to keep Trump off 2020 ballot unless he releases tax returns”<http://electionlawblog.org/?p=90238>
Posted on January 3, 2017 5:08 pm<http://electionlawblog.org/?p=90238> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo reports.<https://www.washingtonpost.com/news/post-politics/wp/2017/01/03/blue-state-lawmakers-want-to-keep-trump-off-2020-ballot-unless-he-releases-tax-returns/?utm_term=.963a22a8e160>
The constitutionality of such requirements is uncertain.  The Supreme Court in US Term Limits v. Thornton and Cook v. Gralike prevented states from adding qualifications for congressional candidates through ballot access requirements.  If those cases applied here, it would be tough to argue that laws requiring presidential candidates to produce tax returns are constitutional as they would be adding to qualifications. However, those cases did not involve presidential elections, and perhaps state legislatures have much broader power under Article II.  I think it is an open question.

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Posted in ballot access<http://electionlawblog.org/?cat=46>

NH Seeks Supreme Court Review of Decision Striking Ballot Selfie Ban as 1st Amendment Violation<http://electionlawblog.org/?p=90235>
Posted on January 3, 2017 12:29 pm<http://electionlawblog.org/?p=90235> by Rick Hasen<http://electionlawblog.org/?author=3>
Here’s the cert. petition<http://electionlawblog.org/wp-content/uploads/Gardner-v.-Rideout-Petition.pdf>.
More from me when I have a bit more time.
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Posted in campaigns<http://electionlawblog.org/?cat=59>

Facing Public Outcry (Not “Rebuke” from Trump), House Caves on Gutting of Ethics Office<http://electionlawblog.org/?p=90233>
Posted on January 3, 2017 12:26 pm<http://electionlawblog.org/?p=90233> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT:<http://www.nytimes.com/2017/01/03/us/politics/trump-house-ethics-office.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news>
House Republicans, facing a storm of bipartisan criticism, including from President-elect Donald J. Trump<http://www.nytimes.com/topic/person/donald-trump?inline=nyt-per>, moved early Tuesday afternoon to reverse their plan to gut the Office of Congressional Ethics<https://www.nytimes.com/2017/01/02/us/politics/with-no-warning-house-republicans-vote-to-hobble-independent-ethics-office.html>. It was an embarrassing turnabout on the first day of business for the new Congress, a day when party leaders were hoping for a show of force to reverse policies of the Obama administration.
The reversal came less than 24 hours after House Republicans, meeting in a secret session, voted, over the objections of Speaker Paul D. Ryan, to eliminate the independent ethics office. It was created in 2008 in the aftermath of a series of scandals involving House lawmakers, including three who were sent to jail.
The article overstates the criticism by Pres. elect Trump, who called the office “unfair” and simply questioned the timing and prioritization. Yet many, many news organizations portrayed this as Trump rebuking or slamming or torching House Republicans.
And there’s also the question of whether Trump’s tweets were a factor in the caving.  It appears not the main one. Robert Costa<https://twitter.com/costareports/status/816373917900161024>: “Most members tell me blizzard of angry constituent calls were most impt factor in getting the House to sideline the amdt”
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Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>, ethics investigations<http://electionlawblog.org/?cat=42>

Chief Justice Roberts Orders Response in NC Legislature Attempt to Scuttle 2017 Special Election<http://electionlawblog.org/?p=90231>
Posted on January 3, 2017 7:24 am<http://electionlawblog.org/?p=90231> by Rick Hasen<http://electionlawblog.org/?author=3>
The response is due January 9.
My earlier post explaining this stay request is here: Correction: North Carolina Officials Try for Emergency SCOTUS Relief in Racial Gerrymandering Case<http://electionlawblog.org/?p=90201>.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, 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
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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