[EL] ELB News and Commentary 8/17/18

[Rick Hasen]

“The Chance of Michael Cohen Facing Criminal Campaign Finance Charges Just Went Up”<https://electionlawblog.org/?p=100686>
Posted on August 16, 2018 5:06 pm<https://electionlawblog.org/?p=100686> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece<https://slate.com/news-and-politics/2018/08/michael-cohen-paid-stormy-daniels-only-after-the-access-hollywood-tape-emerged-thats-big.html> for Slate. A snippet:

he new Wall Street Journal report describes some apparent documentary evidence. According to the Journal, Daniels’ former lawyer Keith Davidson had approached Cohen in September 2016 about securing a payment from Trump to buy Daniels’ silence. “Mr. Cohen was dismissive, saying the story was bogus,” according to a source who spoke to the Journal. Yet one month later, right as the “Access Hollywood” tape emerged of Trump crudely discussing his sex life and saying disparaging things about women, Cohen was suddenly interested in making a deal with Daniels.

The Journal reports federal prosecutors view the release of the “Access Hollywood” tape as the “trigger” for Cohen’s payments to Daniels.

That’s a big deal. Two important Republican election lawyers have attempted to set a high bar for how to tell when a payment in this context might be campaign-related rather than personal. Charlie Spies told<https://www.wsj.com/articles/was-the-payment-to-stormy-daniels-a-campaign-contribution-1518643885?mod=article_inline> the Journal in February that the payment to Daniels was “an expense that would exist irrespective of whether Mr. Trump was a candidate and therefore should not be treated as a campaign contribution.” And former Federal Election Commission chair Brad Smith wrote in an April op-ed<https://www.wsj.com/articles/stormy-weather-for-campaign-finance-laws-1523398987> in the Journal that “FEC regulations explain that the campaign cannot pay expenses that would exist ‘irrespective’ of the campaign, even if it might help win election. At the same time, obligations that would not exist ‘but for’ the campaign must be paid from campaign funds.”

Even under these tough standards for what counts as campaign-related, the proof of the timing would be damning for Cohen. Why should Cohen not care a whit about protecting Trump’s reputation in his wife’s eyes in September 2016, but be anxious to close the deal—and shut Daniels up—right as the campaign faced a crisis involving allegations of Trump’s treatment of women? The Daniels payment was not an expense that existed until the campaign needed it. But for the campaign, it seems that Cohen would not have paid.


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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>


Despite Enthusiasm for Women Candidates, Gender Gap on Campaign Cash<https://electionlawblog.org/?p=100684>
Posted on August 16, 2018 4:15 pm<https://electionlawblog.org/?p=100684> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/politics/despite-year-of-the-woman-buzz-female-candidates-lag-behind-men-in-pulling-in-campaign-cash/2018/08/16/7d192f84-998c-11e8-b60b-1c897f17e185_story.html?utm_term=.0651a074a633>

Even as a record number of women run for office this year, female congressional candidates overall are lagging behind their male counterparts when it comes to pulling in campaign cash, according to a Washington Post analysis of federal campaign finance reports.

Men running for the House had collected almost 17 percent more on average than their female counterparts by the end of June, The Post found in its examination of candidates who showed viability by raising at least $50,000.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>


Supreme Court Requests Response in Austin Campaign Finance Limits Case<https://electionlawblog.org/?p=100682>
Posted on August 16, 2018 4:11 pm<https://electionlawblog.org/?p=100682> by Rick Hasen<https://electionlawblog.org/?author=3>

From an emailed press release:

This week, the Supreme Court of the United States issued an order<https://www.supremecourt.gov/search.aspx?filename=/docket/DocketFiles/html/Public/18-93.html> requiring the City of Austin to respond to the request filed in July by Don Zimmerman, former District 6 Councilmember, seeking High Court review of two of Austin’s limits on campaign contributions.

Austin had previously notified the Court that it would waive its right to file a response.  The Court’s action this week requires the City to respond to Zimmerman’s petition by September 13.

No doubt Judge Jim Ho’s dissen<https://electionlawblog.org/?p=98733>t from denial of en banc rehearing in the 5th Circuit got this case some attention.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, Supreme Court<https://electionlawblog.org/?cat=29>


“West Virginia’s high court corruption just the tip of the iceberg when it comes to big money’s judicial influence”<https://electionlawblog.org/?p=100680>
Posted on August 16, 2018 2:28 pm<https://electionlawblog.org/?p=100680> by Rick Hasen<https://electionlawblog.org/?author=3>

Jame Sample<https://www.nbcnews.com/think/opinion/west-virginia-s-high-court-corruption-just-tip-iceberg-when-ncna901301> for NBC Think:

In West Virginia, Justice Robin Davis spent an absurd $500,278.23 in taxpayer dollars on renovating her office alone<https://www.washingtonpost.com/national/expensive-renovations-lead-to-impeachment-political-feud/2018/08/15/9cc6c1b4-a0af-11e8-a3dd-2a1991f075d5_story.html?noredirect=on&utm_term=.604022a2b59e>. Mind you, Davis is the same jurist who, through her husband, sold a $1.3 million Lear Jet<https://abcnews.go.com/US/lear-jet-justice-west-virginia-circus-masquerading-court/story?id=27291436> to an attorney trying a multimillion case before her and never disclosed the deal. But while money flowing out of American courts is a problem, we should be paying attention to the bigger issue of money flowing in to judicial campaigns — and even, occasionally, into judge’s personal coffers — from litigants, lawyers and special interests with cases before the very judges who benefit from spenders’ largesse.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, judicial elections<https://electionlawblog.org/?cat=19>


“New York Fusion Laws and the Joe Crowley Imbroglio”<https://electionlawblog.org/?p=100678>
Posted on August 16, 2018 2:25 pm<https://electionlawblog.org/?p=100678> by Rick Hasen<https://electionlawblog.org/?author=3>

Jerry Goldfeder & Myrna Perez<https://www.stroock.com/siteFiles/Publications/JoeCrowleyImbroglioNYLJ.pdf>:

Crowley has taken a different tack. Although he remains on the Working Families line, he immediately endorsed Ocasio-Cortez for the congressional seat. This is not unlike what Andrew Cuomo did in 2002. Running for governor that year, he dropped out right before the primaries and endorsed the eventual Democratic candidate H. Carl McCall. But Cuomo was running unopposed for the Liberal party nomination, and the timing was such that he, like Crowley, could no longer unilaterally decline the Liberal line. So, though he supported McCall, Cuomo’s name appeared on the general election ballot.

The only way Crowley in 2018 or Cuomo in 2002 could have been removed from the ballot was by dying, moving out of the state (because of various residency requirements) or running for another office (if, of course, eligible to do so). Putting aside the option of dying (or in a state race, being convicted of a felony), neither Crowley nor Cuomo wished to move or run for some other office, like Assembly or state Senate. Crowley bluntly said that such a switch would be a “fraud on the voters.” In both cases, then, someone no longer seeking an office remains on the ballot—a situation that is obviously confusing to the voter.
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Posted in ballot access<https://electionlawblog.org/?cat=46>


“Stolen Elections, Voting Dogs And Other Fantastic Fables From The GOP Voter Fraud Mythology”<https://electionlawblog.org/?p=100676>
Posted on August 16, 2018 2:13 pm<https://electionlawblog.org/?p=100676> by Rick Hasen<https://electionlawblog.org/?author=3>

Rick Perlstein and Livia Gershon<https://talkingpointsmemo.com/feature/stolen-elections-voting-dogs-and-other-fantastic-fables-from-the-gop-voter-fraud-mythology> deep dive for TPM.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>, The Voting Wars<https://electionlawblog.org/?cat=60>


--
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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