[EL] Mulvaney

Wed Apr 25 14:20:11 PDT 2018

No, but a) that does not appear to have been Mulvaney’s policy, even as quoted, and b) I doubt that what is quoted is his actual policy, except for the 1st part—“we had a hierarch”—and non-constituent lobbyists who had not supported his campaign were low on the totem.

Rick’s original post did not reflect the full of Mulvaney’s quote--"If you came from back home and sat in my lobby, I talked to you without exception, regardless of the financial contributions"—and I think that was a meaningful omission, hence my post.

I believe you have misquoted Mulvaney’s policy each time, and tried to commit me and Mulvaney to your misquote.

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 5:01 PM
To: Smith, Brad <BSmith at law.capital.edu>; law-election at uci.edu
Subject: RE: Mulvaney

No, I am saying that I believe it is “wrong” for a Member of Congress to have an explicit policy that he will not talk to any non-constituent (make it “lobbyist” if you prefer, although I’m certain one’s chances of getting access are even lower if not a lobbyist) unless that person contributed to his campaign committee -- which is the question I asked you, and which you either answered in the negative or were unwilling to answer in the affirmative, either of which I consider to be very disturbing.  Are you really okay with a system in which Members of Congress post a sign on their door saying, “If you are not my constituent, I won’t/can’t talk to you unless you contribute to my campaign”?

Fredric D. Woocher
Strumwasser & Woocher LLP
10940 Wilshire Blvd., Ste. 2000
Los Angeles, CA 90024
fwoocher at strumwooch.com<mailto:fwoocher at strumwooch.com>
(310) 576-1233
From: Smith, Brad [mailto:BSmith at law.capital.edu]
Sent: Wednesday, April 25, 2018 1:44 PM
To: Fredric Woocher; law-election at uci.edu<mailto:law-election at uci.edu>
Subject: RE: 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<mailto:fwoocher at strumwooch.com>>
Sent: Wednesday, April 25, 2018 4:22 PM
To: Smith, Brad <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>>; law-election at uci.edu<mailto: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<mailto:fwoocher at strumwooch.com>
(310) 576-1233
From: Law-election [mailto: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<mailto: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<mailto:fwoocher at strumwooch.com>>
Sent: Wednesday, April 25, 2018 3:58 PM
To: Smith, Brad <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>>; 'Rick Hasen' <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>; Election Law Listserv <law-election at uci.edu<mailto: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<mailto:fwoocher at strumwooch.com>
(310) 576-1233
From: Law-election [mailto: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<mailto: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<mailto: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.
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D98820&title=Don%20Blankenship%20Refuses%20to%20Disclose%20Finances%20in%20Connection%20with%20Senate%20Run%20in%20West%20Va.%2C%20Gets%20Attacked%20by%20McConnell%20Super%20PAC>
Posted in campaign finance<https://linkprotect.cudasvc.com/url?a=http%3a%2f%2felectionlawblog.org%2f%3fcat%3d10&c=E,1,fSPO8Kpxow8MfngesSQW40yyRfLcwwBhlmDCxoCG5Na2fJaV8HHixct6dSCV-nlrA9eSGUpZ7TINu-6PAQ4ca-orl3T-j7LE8X22fkdMZEIfjPkHIO1SX_4,&typo=1>, 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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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<https://linkprotect.cudasvc.com/url?a=http%3a%2f%2felectionlawblog.org%2f%3fcat%3d15&c=E,1,FjEdS2gN2tvsoqleI7OllrxLlr33BjfHyq7-t5iOgbyQCbpIFTJGHzTUqED1fUpFO_NvaONXUP3OwBI0HNWAGjVCBXJYzqlG9wkq5PfEEil5ZQ9xCNU,&typo=1>

--
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/<https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fwww.law.uci.edu%2ffaculty%2ffull-time%2fhasen%2f&c=E,1,W4HggIuGH4UN1NSOyWPCeej3Z2KBpe7DBYwWx5cYF3fMdzGTQDXb2lwfm8TJjVZA6sVxHS75bfVrMmBqMVy7HpSpp9v7EfwhNrT-XC2R_cY,&typo=1>
http://electionlawblog.org<https://linkprotect.cudasvc.com/url?a=http%3a%2f%2felectionlawblog.org%2f&c=E,1,u2f8pMFex8Ikis3pjzT4VKGAOgnGFwkf191bl8wmNJyg71XKnfuqRLmOgw0asg-3-YGckRUjTbkFanvvKHAGoS9UIMj_G69iQLa_gTfEV_tS7GS_fuBDVvob&typo=1>

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