[EL] Mulvaney

Wed Apr 25 13:51:07 PDT 2018

I make it a priority to devote office hours to students in my classes.  I
see other students, who aren’t in my classes, whenever I possibly can.
It’s hard for me to imagine moving students who aren’t in my class to the
top of the office-hours line based on the size of the end-of-semester gift
they’ve promised me.

Justin

*From:* Law-election <law-election-bounces at department-lists.uci.edu> *On
Behalf Of *Smith, Brad
*Sent:* Wednesday, April 25, 2018 1:44 PM
*To:* 'Fredric Woocher' <fwoocher at strumwooch.com>; law-election at uci.edu
*Subject:* Re: [EL] Mulvaney

Are you saying that members of congress should make non-constituent
lobbyists an equal priority for constituents, other non-lobbyists, and
lobbyists who have supported their agenda?

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

  Professor of Law

Capital University Law School

303 E. Broad Street

Columbus, OH 43214

(617) 236-6317

*From:* Fredric Woocher <fwoocher at strumwooch.com>
*Sent:* Wednesday, April 25, 2018 4:22 PM
*To:* Smith, Brad <BSmith at law.capital.edu>; law-election at uci.edu
*Subject:* RE: Mulvaney

Wow.  God help us.

Fredric D. Woocher

Strumwasser & Woocher LLP

10940 Wilshire Blvd., Ste. 2000

Los Angeles, CA 90024

fwoocher at strumwooch.com

(310) 576-1233

*From:* Law-election [mailto:law-election-bounces at department-lists.uci.edu
<law-election-bounces at department-lists.uci.edu>] *On Behalf Of *Smith, Brad
*Sent:* Wednesday, April 25, 2018 1:03 PM
*To:* law-election at uci.edu
*Subject:* Re: [EL] Mulvaney

I don’t think he had the policy you describe. He said he wouldn’t talk to
lobbyists, not that he wouldn’t talk to anybody. And frankly, I doubt that
he even held to that, if he thought a lobbyist might have helpful
information. And if that’s the case, that non-constituent, non-supportive
lobbyists were a low priority, it seems like a reasonable way to allocate
time.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

  Professor of Law

Capital University Law School

303 E. Broad Street

Columbus, OH 43214

(617) 236-6317

*From:* Fredric Woocher <fwoocher at strumwooch.com>
*Sent:* Wednesday, April 25, 2018 3:58 PM
*To:* Smith, Brad <BSmith at law.capital.edu>; 'Rick Hasen' <rhasen at law.uci.edu>;
Election Law Listserv <law-election at uci.edu>
*Subject:* RE: Mulvaney

That’s a pretty nice re-framing of the issue, Brad.

Are you also prepared to say that you see nothing objectionable (“wrong”)
in a Congressmember having an explicit policy that he will not talk to
anyone outside his district unless they made/make a campaign contribution
to his committee?

Fredric D. Woocher

Strumwasser & Woocher LLP

10940 Wilshire Blvd., Ste. 2000

Los Angeles, CA 90024

fwoocher at strumwooch.com

(310) 576-1233

*From:* Law-election [mailto:law-election-bounces at department-lists.uci.edu
<law-election-bounces at department-lists.uci.edu>] *On Behalf Of *Smith, Brad
*Sent:* Wednesday, April 25, 2018 12:44 PM
*To:* 'Rick Hasen'; Election Law Listserv
*Subject:* Re: [EL] Mulvaney

A bit more from the Times:
"If you came from back home and sat in my lobby, I talked to you without
exception, regardless of the financial contributions," said Mr. Mulvaney...

I’m not persuaded there is or ought to be a requirement that you meet with
people from outside your district who did not support your election, nor
that it is wrong to meet with people outside your district who did support
your election to office.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

  Professor of Law

Capital University Law School

303 E. Broad Street

Columbus, OH 43214

(617) 236-6317

*From:* Law-election <law-election-bounces at department-lists.uci.edu> *On
Behalf Of *Rick Hasen
*Sent:* Wednesday, April 25, 2018 10:30 AM
*To:* Election Law Listserv <law-election at uci.edu>
*Subject:* [EL] ELB News and Commentary 4/25/18

Don Blankenship Refuses to Disclose Finances in Connection with Senate Run
in West Va., Gets Attacked by McConnell Super PAC
<https://linkprotect.cudasvc.com/url?a=http%3a%2f%2felectionlawblog.org%2f%3fp%3d98820&c=E,1,j4_ox5QSzaiJY1iXf0XyzlFbEeHG05d9GJ54juWi5WnKSTI1aR-q3eXnAo3_rL-rs-06MFf2yRP9fvxWhwoJj7G_RJONSL7WtVh2mpEF67eB&typo=1>

Posted on April 25, 2018 7:29 am
<https://linkprotect.cudasvc.com/url?a=http%3a%2f%2felectionlawblog.org%2f%3fp%3d98820&c=E,1,VGUyfXS2sbzcWdPsuWOBdkBRtGI-ebrxPCzQLDTX9IpJVM0fr2DLnyA8zdacn0qWzkidPHGD647DJlBU7ZXOcFJr0KG5mynM1gKbVmT_kDY5IAGZxnkDTFM,&typo=1>
 by *Rick Hasen*
<https://linkprotect.cudasvc.com/url?a=http%3a%2f%2felectionlawblog.org%2f%3fauthor%3d3&c=E,1,xG-0pjZhCPZRz9bzPtCaYYl4kXlddaLIn3498WPKBSZC6Fe-DXFiB9nwq0ZWNy88vU42ZJ4UXzZZqjBSflZYZrAmD6QHBZ3nm7fJKFQGFpRuvLEo&typo=1>

NYT:
<https://www.nytimes.com/2018/04/25/us/politics/don-blankenship-china-west-virginia.html?rref=collection%2Fsectioncollection%2Fpolitics&action=click&contentCollection=politics&region=stream&module=stream_unit&version=latest&contentPlacement=3&pgtype=sectionfront>

*Mr. Blankenship offers no apology for his many contradictions and personal
and business decisions, some of them previously undisclosed. Though he
lives a baronial lifestyle thanks to a fortune built on coal scratched from
West Virginia’s mountains, he says the size and origins of his wealth are
no one’s business. He is the only candidate in either party in the Senate
race who has not disclosed his personal finances as required by law to the
Senate Select Committee on Ethics. There isn’t “much of a penalty” for
flouting the law, he explained in an interview, justifying his refusal.*

*“I don’t personally think anybody should have to disclose private
information,” he said while awaiting the start of a “meet the candidates”
event last week in Cabin Creek, W.Va….*

*In a highly unusual move, a super PAC linked to Mitch McConnell, the
Kentucky senator and Republican leader, began saturating the West Virginia
airwaves last week with **an ad attacking Mr. Blankenship*
<https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fwww.mountainfamiliespac.org%2f&c=E,1,15Xr3tOGPHd8IS7HAMbG5YwTyqAM2VHzf1QCdyKzaNyGlAa0fBFj1RuCJHC2GYdAnHO0-mnv-3XsgFzgoMGdONid6CQKVrXvBSoiR06VIA,,&typo=1>*
for
poisoning local drinking water from his former coal mines. The nearly
$745,000 **campaign of TV and digital ads*
<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.wvgazettemail.com%2fnews%2fpolitics%2frepublican-linked-super-pac-spends-nearly-against-blankenship%2farticle_224a98fc-2d24-562c-a457-bec80a1b1633.html&c=E,1,HRfebR6X5Ufe92FcEFmJd9rsDpxE6i3EQ1s1KdwuOrUHU5_VN7evteOQ-Cg0Wp-7PrJcqybg4wdiICnNzoceMXmU6RbQETE8l0LsmnjKBGE,&typo=1>*
is
meant to boost the chances of two conventional Republicans in the race,
Attorney General Patrick Morrisey and Representative Evan Jenkins. A **Fox
News poll*
<http://www.foxnews.com/politics/2018/04/24/fox-news-poll-three-top-tier-candidates-in-west-virginia-gop-senate-primary.html?wcmmode=preview>*
conducted
last week found a fluid race, with Mr. Blankenship trailing his rivals but
about one in four voters undecided.*

*On Monday, responding to the attack ads, Mr. Blankenship brought up Mr.
McConnell’s marriage to Elaine Chao, the secretary of transportation, and
questioned whether the majority leader faced a conflict of interest in
foreign relations. Ms. Chao’s father is “a wealthy Chinaperson,” Mr.
Blankenship said, speaking on **a West Virginia radio show*
<https://www.youtube.com/watch?v=L7VKFS-rV7s&feature=youtu.be>*, adding,
“And there’s a lot of connections to some of the brass, if you will, in
China.”*

*“I read in books that people think he’s soft on China,” he said of Mr.
McConnell.*

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Posted in campaign finance
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, campaigns
<https://linkprotect.cudasvc.com/url?a=http%3a%2f%2felectionlawblog.org%2f%3fcat%3d59&c=E,1,nJGc3ITt5IacG1-Pp5EUfPXEslpqCysuQq5nZhEk9qGbpVzZvb7r3lBktbFQ4_Le6xffYXEPM5d3jntSN0QBTLa0_uCYytW_zsuhsZ_aU0wZYgs,&typo=1>

Mick Mulaney Sold Access to Lobbyists as a Member of Congress (But Don’t
Worry Because That’s Not Corruption According to Justice Kennedy)
<https://linkprotect.cudasvc.com/url?a=http%3a%2f%2felectionlawblog.org%2f%3fp%3d98818&c=E,1,8_pPCFVmK5fi8P6YzW_jwOmHWWhI0bj4jiKMDA4-sI-S1YCVCSGa6kbICNjAcVKo3xxPKs7VDGbazXyBIEaxUJqClpL8TMxsOcLfki6uaEBX3qwzsQ,,&typo=1>

Posted on April 24, 2018 5:42 pm
<https://linkprotect.cudasvc.com/url?a=http%3a%2f%2felectionlawblog.org%2f%3fp%3d98818&c=E,1,_eP3NSokJJlpvxosITl1qiTCmbD5Y86u1nk5IyI6x36TcMABE2Aj9yMcWeQ67wvFsZyrSSfmZKD00O1tlqD_TwmdzTh18fBSviUAd4p3OhqAtq_5DQ,,&typo=1>
 by *Rick Hasen*
<https://linkprotect.cudasvc.com/url?a=http%3a%2f%2felectionlawblog.org%2f%3fauthor%3d3&c=E,1,45TgrMqVAlCefMYwenRBYpgZ0rHHsdDzQ81Ipyg_r4K8fLvY0PasVwj46CwTyEbgoz1ojLOF976wJsd3Dm31S9DEMFMKpM6LeReFLCKRDOrecw,,&typo=1>

NYT:
<https://www.nytimes.com/2018/04/24/us/mulvaney-consumer-financial-protection-bureau.html>

*Mick Mulvaney, the interim director of the Consumer Financial Protection
Bureau, told banking industry executives and lobbyists on Tuesday that they
should increase their campaign donations to influence lawmakers, revealing
that he would meet only with lobbyists who contributed to his campaign when
he served in the House.*

*“We had a hierarchy in my office in Congress,” Mr. Mulvaney, a former
Republican lawmaker from South Carolina, told 1,300 bankers and lobbyists
at an American Bankers Association conference in Washington. “If you’re a
lobbyist who never gave us money, I didn’t talk to you. If you’re a
lobbyist who gave us money, I might talk to you.”*

Citizens United v. FEC
<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.law.cornell.edu%2fsupct%2fhtml%2f08-205.ZO.html&c=E,1,doXFaMm0Iny8H_6BSply3BIqcAKC148b0QeNtslMhlsJb4hAW6PAOxsIls4f2de-SSim3TeT3LGaQsfD72LkWM00_zmqfFMlnhenTa5Tg0e0dIw,&typo=1>
(2010
opinion by Justice Kennedy):

*     The McConnell record was “over 100,000 pages” long, McConnell I , 251
F. Supp. 2d, at 209, yet it “does not have any direct examples of votes
being exchanged for . . . expenditures,” id. , at 560 (opinion of
Kollar-Kotelly, J.). This confirms Buckley ’s reasoning that independent
expenditures do not lead to, or create the appearance of, quid pro
quo corruption. In fact, there is only scant evidence that independent
expenditures even ingratiate. See 251 F. Supp. 2d, at 555–557 (opinion of
Kollar-Kotelly, J.). Ingratiation and access, in any event, are not
corruption. The BCRA record establishes that certain donations to political
parties, called “soft money,” were made to gain access to elected
officials. McConnell , supra , at 125, 130–131, 146–152; see McConnell I ,
251 F. Supp. 2d, at 471–481, 491–506 (opinion of Kollar-Kotelly, J.); id. ,
at 842–843, 858–859 (opinion of Leon, J.). This case, however, is about
independent expenditures, not soft money. When Congress finds that a
problem exists, we must give that finding due deference; but Congress may
not choose an unconstitutional remedy. If elected officials succumb to
improper influences from independent expenditures; if they surrender their
best judgment; and if they put expediency before principle, then surely
there is cause for concern. We must give weight to attempts by Congress to
seek to dispel either the appearance or the reality of these influences.
The remedies enacted by law, however, must comply with the **First
Amendment*
<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.law.cornell.edu%2fsupct-cgi%2fget-const%3famendmenti&c=E,1,bymX1NAdXAxW7IIcRo7oVpKUfAeoXU9tfOe8oiVKBzAPr3a91NQ052xH4WH4hfhaS_cLdQjm6XQj7bMTC_sJ87FT3WXMP1QFh_e26RYZXePEY8rfLg,,&typo=1>*
;
and, it is our law and our tradition that more speech, not less, is the
governing rule. An outright ban on corporate political speech during the
critical preelection period is not a permissible remedy. Here Congress has
created categorical bans on speech that are asymmetrical to preventing quid
pro quo corruption.*

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Posted in campaign finance
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What is An Injunction? The Texas Redistricting Case at the Supreme Court
and a Way to Duck the Merits
<https://linkprotect.cudasvc.com/url?a=http%3a%2f%2felectionlawblog.org%2f%3fp%3d98816&c=E,1,96F_VnTXZ716YDUpi9wuRdNTHsWagfrJt_-Q_vmj7TI-73N6Bcclj0fC365553Bw0J5Xb6COZh3UStRkkkXAZfX2Be_Cylwf-9RV9OyCSFe30h6x97ivzqMe&typo=1>

Posted on April 24, 2018 4:11 pm
<https://linkprotect.cudasvc.com/url?a=http%3a%2f%2felectionlawblog.org%2f%3fp%3d98816&c=E,1,UGmDnlxvewaUYzsa_0Reaxv6HdlNl160vh0n8W8fwqopuIPqoZ10NyKkNZpQ28VFsflXpJ3KLMWkKmshmCkADy9mrrkyZlWBkoHSql5xZdYkMLJj_to,&typo=1>
 by *Rick Hasen*
<https://linkprotect.cudasvc.com/url?a=http%3a%2f%2felectionlawblog.org%2f%3fauthor%3d3&c=E,1,prqCx9O-82MK3EFN32R8DcKTv0UrxKFM2euKHYHJiWbM67E8ebc6mgNKr0IGNy5Sf8yfBPdU24gUAbMifg3y6niTKerRjHNvgz_FzQxGXptlM48,&typo=1>

It was somewhat of a surprise
<https://linkprotect.cudasvc.com/url?a=http%3a%2f%2felectionlawblog.org%2f%3fp%3d94773&c=E,1,XgjOiUlSs_RsFcbHSMBKeuzeRxsaGAYVJXIR4J-t-SKcAfP__sIb7t21H1gU0WgPFrJUTiUMIxiwDiVPz8YkVOFtNYxeqmn6Ao-ceSepNAY,&typo=1>
in
September 2017 when the Supreme Court on a 5-4 vote blocked a three
judge-court hearing an interminable Texas redistricting case from imposing
final maps. The surprise came because the Court had not yet ordered new
maps; it had only ordered the governor to state within 3 days whether he’d
call a special section to come up with a remedy to solve the Voting Rights
Act and constitutional violations found by the three-judge court.  The
Supreme Court in January agreed to hear the appeal, postponing the
jurisdictional question.

At today’s oral argument
<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.supremecourt.gov%2foral_arguments%2fargument_transcripts%2f2017%2f17-586_5iel.pdf&c=E,1,6BvaB-cIieo9ZoLpO58USBg-A1TtiaY7_b6DAsAIOSNz5jPjv1cM9KmECSQqg5dwMUkIvirGbUMX4OfT1tdVUSb-fFQVZOcejUti2AzZ9Qn35ek,&typo=1>,
the jurisdictional issue was front and center, with the liberal Justices
contending there was no appealable order yet and the conservatives pushing
back. The jurisdictional question was front and center, and the key
exchange appeared to be this one between Justice Kennedy (who said
surprisingly little at this argument) and Renea Hicks, lawyer for some of
the challengers:

*JUSTICE KENNEDY: Could — could Texas have — have used the current maps for
the 2018 elections?*

*MR. HICKS: Yes, in the absence - unfortunately, as far as we’re
concerned, but yes, in the absence of -*

*JUSTICE KENNEDY: I mean insofar as the court’s order was concerned.*

*MR. HICKS: Yes. I don’t think there’s any question about it. If — if they
say we would have been held in contempt if we had gone forward, it would
have been impossible to hold them in contempt because the court itself
said: We have not enjoined use of the plan for any — for the upcoming
elections. So*

*CHIEF JUSTICE ROBERTS: Well, but the judge — the court gave the — the
governor three days -*

*JUSTICE BREYER: Three days.*

*CHIEF JUSTICE ROBERTS: — to call the election. And, I mean, if you were
the governor, would you think, well, maybe we’re not going to be able to
use the 2018 plans?*

*MR. HICKS: No, I would not at all. First of all, that three-day window was
a — a chance for the — the legislature — the governor to come back and say,
I will call the legislature in special session. It wasn’t about when he
would call them into session.*

It is not clear if Justice Kennedy bought this argument, or the liberal
Justices’ claim that if the lower court order counts as an injunction,
there will be many more appeals coming to the Court. But it would provide a
way for the Court to duck this case, at least for a while longer, in a
Supreme Court term where there’s a heck of a lot going on and potential
tumult
<https://www.cnn.com/2018/04/24/politics/conservatives-supreme-court/index.html>
at
the Court behind the scenes.

If the Court kicks the case, the parties will fight over whether to put new
maps in place for 2018, which the district court almost certainly won’t do
given how the 2018 primary season is already underway. The district court
will then impose a final remedy, and there will be another appeal to
SCOTUS, over the maps to use in 2020 (making this a case that may take the
entire 10 year redistricting period to resolve).

If the Court does reach the merits, it does
<https://www.nytimes.com/2018/04/24/us/politics/supreme-court-texas-legislative-districts.html?rref=collection%2Fsectioncollection%2Fpolitics&action=click&contentCollection=politics&region=stream&module=stream_unit&version=latest&contentPlacement=3&pgtype=sectionfront>
seem
that the Court is divided
<https://www.reuters.com/article/us-usa-court-texas/u-s-supreme-court-divided-over-texas-electoral-district-fight-idUSKBN1HV2PM?utm_campaign=trueAnthem:+Trending+Content&utm_content=5adfb00b04d30156b981e61e&utm_medium=trueAnthem&utm_source=twitter>
along
party/ideological lines, with the conservatives believing there was no
evidence that Texas acted with racially discriminatory intent in passing
the 2013 map (with less clarity from oral argument as to how the Court
would resolve various VRA and racial gerrymandering challenges to
particular districts).

So a dismissal of the case for lack of jurisdiction is a real possibility
in this case, which raises this question:

Why did the Court take it in the first place, and not wait for the district
court to finish its long and unpleasant job?

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Posted in Voting Rights Act
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-- 

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

http://www.law.uci.edu/faculty/full-time/hasen/
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http://electionlawblog.org
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