[EL] ELB News and Commentary 11/20/17

[Rick Hasen]

Much Russian Activity Meddling in 2016 Elections Likely Didn't Violate Federal Law, Wouldn't Be Covered by Proposed "Honest Ads Act," and May Be Beyond (Conservative Justices' Views of) Constitution to Limit<http://electionlawblog.org/?p=96061>
Posted on November 20, 2017 7:20 am<http://electionlawblog.org/?p=96061> by Rick Hasen<http://electionlawblog.org/?author=3>

I've already hinted at some of these things in this Politico piece,<https://www.politico.com/magazine/story/2017/09/26/russian-facebook-ads-regulation-215647> but I've now fleshed it out in the latest draft of my forthcoming First Amendment Law Review<http://www.scotusblog.com/2017/11/justices-release-january-calendar/> article, Cheap Speech and What It Has Done (to American Democracy<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3017598>). Here's an excerpt, without footnotes, from the revised Part III.A.:

Campaign finance law provides a good example of how First Amendment doctrine and rhetoric may interfere with sensible reforms. Consider the current controversy over microtargeted and bot-amplified Facebook ads and other online activity which Russia and others engaged in aimed at promoting fake news and stirring social unrest in the 2016 elections. After investigation, Facebook
announced finding at least $100,000 in spending from sources connected to the Russian government on roughly 3,000 ads intended to influence the election. The ads reached at least 10 million people (44 percent before the 2016 election), and some focused on social controversies over immigration rights, gun rights, and racial justice.

It is almost certain that at least some of these ads do not violate current federal campaign finance law if Russia paid for them independent of anycoordination with political campaigns.74 Further, laws that would bar Russia from placing these ads could well be found at least partially unconstitutional under the First Amendment as the Supreme Court currently construes it. Federal law bars foreign nationals, including foreign governments, from making expenditures, independent expenditures, and electioneering communications in connection with a "Federal, State or local election." However, it is at best uncertain whether independent online ads that do not expressly advocate the election or defeat of candidates are covered by the foreign expenditure ban.

For example, a Russian ad promoting a Black Lives Matter rally but not mentioning or showing a candidate for office likely would not be considered an election ad under current law, which does not cover pure issue advocacy even if intended to influence election outcomes.

These advertisements also would not be covered under proposed federal legislation, the "Honest Ads Act," which would extend rules barring foreign spending on television or radio "electioneering communications" to communications via digital outlets like Facebook. Electioneering communications must feature the name or likeness of a candidate for office to be covered.

Even if Congress passed a statute purporting to make illegal all of the activity Russians engaged in during the 2016 elections, such a statute likely would run into First Amendment resistance. After the Supreme Court decided Citizens United v. Federal Election Commission, a 2010 case holding that corporations have a First Amendment right to spend unlimited sums independently to support or oppose candidates for public office, the Court summarily affirmed a lower court decision in Bluman v. Federal Election Commission.

Bluman upheld federal law barring foreign nationals-in the case of Benjamin Bluman, a foreign national working in New York on a temporary work visa-from spending even fifty cents to print and distribute flyers expressly advocating the reelection of President Obama. Bluman seems to indicate that, despite tensions with the holding in Citizens United that the identity of the speaker does not matter for First Amendment purposes, the government has a compelling interest in banning foreign spending inour elections:

"It is fundamental to the definition of our national political community that foreign citizens do not have a constitutional right to participate in, and thus may be excluded from, activities of democratic self-government. It follows, therefore, that the United States has a compelling interest for purposes of First Amendment analysis in limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over the U.S. political process."

But the Bluman court, in an opinion by conservative-libertarian D.C. Circuit judge Brett Kavanaugh, narrowly construed the foreign spending ban to cover only express advocacy and not issue advocacy. "This statute, as we interpret it, does not bar foreign nationals from issue advocacy-that is, speech that does not expressly advocate the election or defeat of a specific candidate." Indeed, three FEC Republican commissioners relied upon this dicta from Bluman in voting to hold that the foreign spending ban does not apply to ballot measure elections.

While this interpretation is not free from doubt-the statute is written broadly to cover all expenditures and not just independent expenditures-it seems the kind of interpretation likely to be favored by the current Supreme Court. Indeed, it is not clear that the courts would accept a more clearly written foreign spending ban going beyond express advocacy and electioneering communications to cover foreign-funded ads meant to stir social unrest without using candidates' names or likenesses. These ads should be covered, not because they necessarily contain false speech, but because they constitute a foreign government's interference with American self-government.

As some evidence of the conservative-libertarian position on banning foreign spending, consider the dispute over whether the President's son, Donald Trump Jr., constitutionally could be prosecuted for the alleged soliciting of Russian government sources for "dirt" on Hillary Clinton, such as emails stolen from the Democratic National Committee. Professor Volokh argued against a broad reading of the statute aimed at preventing foreign interference in U.S. elections, and he advanced libertarian arguments in favor of allowing foreign nationals (including perhaps foreign governments) to share "information" such as "opposition research" with American campaigns, information which might help the public decide who to vote for in elections.

Using the doctrine of substantial overbreadth, libertarians like Volokh have made arguments that would chip away at limitations on foreign intervention in U.S. elections in the name of protecting free speech. These new arguments in favor of foreign campaign spending follow a decade-long conservative-libertarian all-out push to prevent the Federal Election Commission from drafting rules which would regulate more campaign activity conducted via the Internet beyond what's been called "paid ads and spam," with paid ads including only express advocacy. The fight over Internet regulation has been so fierce at the FEC that former FEC chair Ann Ravel faced death threats Others have raised slippery-slope type arguments claiming without evidence that Commissioner Ellen Weintraub's call to investigate Russian social media spending in the 2016 election would allow the Commission to conduct an "inquisition" of conservative media outlets such as InfoWars, Breitbart, and the Drudge Report.

Even the constitutionality of the disclosure of the foreign sources of some ads could be called into constitutional question. Thus far, the Supreme Court has held that mandatory disclosure of most campaign finance activity in elections does not violate the First Amendment. But conservative-libertarian First Amendment advocates continue to push arguments that such disclosure violates the First Amendment, especially if targeting issue ads like some of the Russian-funded ads not naming candidates. It is an argument that may ultimately resonate on an increasingly conservative Supreme Court. Right now, there are three Justices (Alito, Gorsuch and Thomas) likely sympathetic to these arguments, and more Justices with these views may join the Court in the next few years depending upon political developments.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>


Supreme Court to Hear Rescheduled Argument in Ohio Voter Purge Case January 10<http://electionlawblog.org/?p=96059>
Posted on November 20, 2017 7:07 am<http://electionlawblog.org/?p=96059> by Rick Hasen<http://electionlawblog.org/?author=3>

Details.<http://www.scotusblog.com/2017/11/justices-release-january-calendar/>
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Posted in NVRA (motor voter)<http://electionlawblog.org/?cat=33>, Supreme Court<http://electionlawblog.org/?cat=29>


"Bipartisan Harvard panel recommends hacking safeguards for elections"<http://electionlawblog.org/?p=96057>
Posted on November 20, 2017 6:59 am<http://electionlawblog.org/?p=96057> by Rick Hasen<http://electionlawblog.org/?author=3>

Reuters:<https://www.reuters.com/article/us-cyber-election-harvard-project/bipartisan-harvard-panel-recommends-hacking-safeguards-for-elections-idUSKBN1DK0QI?il=0>

A bipartisan Harvard University project aimed at protecting elections from hacking and propaganda will release its first set of recommendations today on how U.S. elections can be defended from hacking attacks.

The 27-page guidebook<https://www.belfercenter.org/CyberPlaybook?utm_source=SilverpopMailing&utm_medium=email&utm_campaign=Cyber%20Campaign%20Playbook_Nov2017%20(1)&utm_content=&spMailingID=18510373&spUserID=MTg5MjM4NDcyMTcxS0&spJobID=1141705977&spReportId=MTE0MTcwNTk3NwS2> shown to Reuters ahead of publication calls for campaign leaders to emphasize security from the start and insist on practices such as two-factor authentication for access to email and documents and fully encrypted messaging via services including Signal and Wickr.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>


"The Trump-Russia-WikiLeaks Alliance and Campaign Finance Laws"<http://electionlawblog.org/?p=96055>
Posted on November 20, 2017 6:56 am<http://electionlawblog.org/?p=96055> by Rick Hasen<http://electionlawblog.org/?author=3>

Bob Bauer<https://www.justsecurity.org/47248/trump-russia-wikileaks-alliance-campaign-finance-laws/> for Just Security:

The WikiLeaks-Trump Jr. correspondence<https://www.theatlantic.com/politics/archive/2017/11/the-secret-correspondence-between-donald-trump-jr-and-wikileaks/545738/> has passed through this round of commentary. I thought that these Twitter exchanges unquestionably deepened the campaign's legal exposure to liability<https://www.theatlantic.com/politics/archive/2017/11/donald-trump-jrs-messages-with-wikileaks-point-to-campaign-finance-violations/545903/> for aiding illicit foreign national activity in U.S. elections. It seemed to me, as I wrote, that "the facts and circumstances here are without precedent" and that "it is hard to imagine that any truly neutral analyst informed about the law would conclude otherwise." And yet there are highly knowledgeable scholars and observers who do not apparently see things this way.

Skeptics included experts such as Paul Ryan and Rick Hasen. Ryan saw nothing especially powerful<https://lawandcrime.com/high-profile/legal-expert-trump-jr-s-correspondence-with-wikileaks-is-probably-not-illegal/> in the contacts: no evidence, as far as he was concerned of "anything of value" that the campaign solicited or received from the Russians via Wikileaks.  He believes that compared, say, to the revelation of the Trump Tower meeting,  the Trump Jr.-WikiLeaks exchanges to be "small potatoes."Hasen has doubted<https://www.theatlantic.com/politics/archive/2017/11/donald-trump-jr-wikileaks/545894/> that Wikileaks' activity was even part of the legal story. He sees it as potentially a foreign media organization operating like any other news entity in receiving and distributing information from various sources, including the Russian government.

This is not to say that either Hasen or Ryan doubt that there is evidence of a campaign finance violation in the public reporting to date on the Trump campaign-Russia connection. Both have <http://www.cnn.com/2017/07/11/politics/trump-jr-legal-problems/index.html> identified <https://www.justsecurity.org/43072/smoking-gun-donald-trump-jr-trump-campaign-committee/> serious issues raised by the June 2016 Trump Tower meeting between senior campaign officials and Kremlin emissaries. , But they hesitate to assign much independent weight to the WikiLeaks correspondence. And on that we disagree,

So what are the reasons for the disagreement?   Of course, lawyers can dispute the law and its application to a particular set of facts, as we do-all the time. But the difference in outlook in this instance is worth exploring.  This difference turns on how any new evidence is evaluated-either more or less in isolation, or in relation to others within the emerging picture of the Russian-Trump campaign alliance.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, chicanery<http://electionlawblog.org/?cat=12>


"Maine secretary of state steps up legal fight with Trump voter fraud panel"<http://electionlawblog.org/?p=96053>
Posted on November 20, 2017 6:51 am<http://electionlawblog.org/?p=96053> by Rick Hasen<http://electionlawblog.org/?author=3>

BDN:<https://bangordailynews.com/2017/11/17/politics/maine-secretary-of-state-steps-up-legal-fight-with-trump-voter-fraud-panel/?platform=hootsuite>

Maine Secretary of State Matt Dunlap is increasing the pressure on President Donald Trump's election fraud commission to release documents he says have been withheld from him.

Dunlap, who is a member of the president's commission, announced Thursday that he has asked a federal court for an injunction in his request that is designed to force the commission to share records and meeting materials.

If granted, the injunction would shorten the timeframe for the commission to respond to his complaint from two months to one week.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>


"Why Are Corruption Cases Crumbling? Some Blame the Supreme Court"<http://electionlawblog.org/?p=96050>
Posted on November 19, 2017 4:05 pm<http://electionlawblog.org/?p=96050> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2017/11/17/nyregion/menendez-seabrook-corruption-cases-crumbling-.html?_r=0>

The trend began in 1999 when a Supreme Court case called <https://www.law.cornell.edu/supct/html/98-131.ZS.html> United States v. <https://www.law.cornell.edu/supct/html/98-131.ZS.html> Sun Diamond Growers of California<https://www.law.cornell.edu/supct/html/98-131.ZS.html> chipped away at the government's ability to prosecute officials for taking what are known as gratuities - or minor gifts given to them by businesses or allies. The opinion found that gratuities were illegal only if the government could connect the gifts to specific favors by officials, establishing a visible quid pro quo.

In 2010, the court attacked another anti-corruption tactic, narrowing the definition of what is known as honest services fraud. The ruling in this case came as the justices reversed parts of the criminal conviction of Jeffrey K. Skilling<http://www.nytimes.com/2010/06/25/us/25scotus.html>, the former Enron chief executive who had been found guilty of charges related to his company's collapse. Although Mr. Skilling was a private citizen, the opinion had a political effect: the newly limited fraud law had frequently been used to go after politicians who served themselves at their constituents' expense.

But the court's most substantial opinion on corruption came last year when it redefined the very nature of political graft in throwing out the bribery conviction of Bob McDonnell<https://www.nytimes.com/2016/06/28/us/politics/supreme-court-bob-mcdonnell-virginia.html>, the former Republican governor of Virginia. A jury determined that Mr. McDonnell had helped a wealthy businessman by setting him up with influential people in an effort to promote a dietary supplement he was selling. But even though the businessman had given the governor several gifts and loans, the court concluded it was not illegal. It ruled that Mr. McDonnell's part of the arrangement - making introductions and setting up meetings - was not in fact a betrayal of his office, or what the law describes as an "official act."
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Posted in bribery<http://electionlawblog.org/?cat=54>


"Mitch McConnell's latest idea to redo the Alabama special election is likely unconstitutional"<http://electionlawblog.org/?p=96048>
Posted on November 19, 2017 4:03 pm<http://electionlawblog.org/?p=96048> by Rick Hasen<http://electionlawblog.org/?author=3>

Jen Kirby <https://www.vox.com/policy-and-politics/2017/11/17/16666364/mitch-mcconnell-alabama-special-election-unconstitutional> for Vox.
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Posted in campaigns<http://electionlawblog.org/?cat=59>


"The House Tax Bill Could Be the End of Charities as We Know Them"<http://electionlawblog.org/?p=96046>
Posted on November 19, 2017 4:00 pm<http://electionlawblog.org/?p=96046> by Rick Hasen<http://electionlawblog.org/?author=3>

Roger Colinvaux:<http://www.law.edu/2017-Fall/2017-1116-ColinvauxHouseTax.cfm>

If the tax bill passed by the House Ways and Means Committee becomes law, partisan politics would overtake the nonprofit world, casting institutions designed to promote the public good into the depraved den of identity politics and selfish motives. Charities would use tax-subsidized contributions to favor or oppose political candidates at the behest of wealthy, anonymous donors with devastating results for charities and democracy.

This is a seismic moment for the conduct of politics in America. The House bill must be changed.
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Posted in tax law and election law<http://electionlawblog.org/?cat=22>


"'Race-based redistricting' imposed on NC 'against its will,' lawmakers say"<http://electionlawblog.org/?p=96044>
Posted on November 19, 2017 3:58 pm<http://electionlawblog.org/?p=96044> by Rick Hasen<http://electionlawblog.org/?author=3>

News and Observer:<http://www.newsobserver.com/news/politics-government/state-politics/article185423903.html>

Lawmakers and the challengers of maps proposed for electing North Carolina's General Assembly members waited until the 11th hour to respond to districts suggested by an unaffiliated mapmaker.

Lawmakers were critical of the process, saying the federal judges who tapped a Stanford University law professor to draw maps for them had done so prematurely and allowed him to consider race as he looked at election districts in Cumberland, Guilford, Hoke, Mecklenburg, Wake, Bladen, Sampson and Wayne counties.

Justin Levitt:<https://twitter.com/_justinlevitt_/status/932052708210569216> "Sigh. NC legislators continue to misunderstand the law, almost as if the misunderstanding is willful. #1: Special Master didn't appear to target any particular racial outcome. #2: Even if he had considered race, it'd raise no const. questions unless race 'predominated.'"
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Posted in redistricting<http://electionlawblog.org/?cat=6>


"Election officials move closer to placing new rules on Facebook and Google"<http://electionlawblog.org/?p=96042>
Posted on November 16, 2017 9:59 pm<http://electionlawblog.org/?p=96042> by Rick Hasen<http://electionlawblog.org/?author=3>

Washington Post:<https://www.washingtonpost.com/news/the-switch/wp/2017/11/16/election-officials-move-closer-to-placing-new-rules-on-facebook-and-google/?utm_term=.1a9ae09a020e>

The Federal Election Commission moved a step closer to placing tighter regulations on Internet ads published on major Web platforms, marking a significant shift for an agency beset by partisan dysfunction and another sign that regulators are seeking to thwart foreign meddling in U.S. elections.

All five members of the commission voted Thursday to start a rulemaking process to require disclaimers for small, character-limited political ads that run online on places such as Facebook, Google and Twitter....

While the entire commission agreed that the process leading to new rules should begin, there was disagreement over when tech companies and experts should be invited to offer detailed input. Vice chair Caroline Hunter, a Republican, flashed frustration when asked by Democratic Commissioner Ellen Weintraub to explain why the commission shouldn't hold a hearing on the matter sooner rather than later. "I don't know how I can be any more clear," Hunter said. She insisted that the commission should take time to digest the more than 100,000 comments it received from the public on Internet ad regulations, as well as material gleaned from three recent congressional hearings, where officials from Facebook, Google and Twitter testified.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>


"Corruption Case Against Senator Menendez Ends in Mistrial"<http://electionlawblog.org/?p=96040>
Posted on November 16, 2017 9:51 pm<http://electionlawblog.org/?p=96040> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2017/11/16/nyregion/senator-robert-menendez-corruption.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news>

The federal corruption trial of Senator Robert Menendez of New Jersey ended in a mistrial on Thursday after jurors said they were unable to reach a verdict, leaving Mr. Menendez, a Democrat, free to return to Congress but injecting uncertainty as he faces re-election next year and his party faces a difficult battle to retake the Senate.

After interviewing jurors individually in his chambers, Judge William H. Walls emerged to tell the court that, after nine weeks of testimony, the jury was deadlocked and that, as a result, "there is no alternative but to declare a mistrial."

One juror told reporters that 10 of the 12 jurors supported finding Mr. Menendez, a Democrat, not guilty, saying that prosecutors had not made the case that the favors and gifts exchanged between the senator and a wealthy eye doctor went beyond what good friends do for each other....

The indictment against Mr. Menendez and Dr. Melgen was handed down in 2015, a year before the Supreme Court decision significantly limited the official acts a politician could be convicted of in a bribery case.

The McDonnell decision loomed throughout the trial with Judge Walls at one point referring to it as "you know what," and hinting that he may have granted a motion to dismiss the case based on the high court's definition of bribery.
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Posted in bribery<http://electionlawblog.org/?cat=54>


--
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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