[EL] ELB News and Commentary 7/23/18

Mon Jul 23 08:09:10 PDT 2018

“How to Tell Where Brett Kavanaugh Stands on Citizens United”<http://electionlawblog.org/?p=100206>
Posted on July 23, 2018 8:07 am<http://electionlawblog.org/?p=100206> by Rick Hasen<http://electionlawblog.org/?author=3>

Adam Liptak<https://www.nytimes.com/2018/07/23/us/politics/brett-kavanaugh-citizens-united-campaign-finance.html?rref=collection%2Fsectioncollection%2Fpolitics&action=click&contentCollection=politics&region=stream&module=stream_unit&version=latest&contentPlacement=1&pgtype=sectionfront> for the NYT:

Judge Brett M. Kavanaugh has a favorite sentence. It explains why he is likely to reaffirm and build on the Citizens United decision<https://www.nytimes.com/2010/01/22/us/politics/22scotus.html> if he is confirmed to the Supreme Court.

The sentence appeared in a 1976 Supreme Court decision, Buckley v. Valeo<https://www.law.cornell.edu/supremecourt/text/424/1>. It was, Judge Kavanaugh wrote in 2009<https://caselaw.findlaw.com/us-dc-circuit/1159943.html>, “perhaps the most important sentence in the court’s entire campaign finance jurisprudence.”

In 2013<https://www.cadc.uscourts.gov/internet/opinions.nsf/EC6B700AE22F118585257B790052AFB0/$file/12-1337-1438011.pdf> and again last year<https://www.cadc.uscourts.gov/internet/opinions.nsf/06F8BFD079A89E13852581130053C3F8/$file/15-1063-1673357.pdf>, he went further, calling it “one of the most important sentences in First Amendment history.”

He was referring to this: “The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”…

udge Kavanaugh’s most interesting campaign finance decision, Bluman v. Federal Election Commission<https://www.bloomberglaw.com/public/desktop/document/Bluman_v_Federal_Election_Commission_Civil_No_101766_BMK_RMURMC_2?1532193339>, in 2011, appears to cut in the opposite direction, at least at first blush. Writing for a three-judge panel of the Federal District Court in Washington, he said two foreign citizens living in the United States on temporary work visas could not spend money to call for the election of American politicians.

Two things are notable about the decision, Richard L. Hasen, a law professor at the University of California, Irvine, has<https://slate.com/news-and-politics/2018/02/the-campaign-finance-loophole-that-could-make-the-next-russian-attack-perfectly-legal.html> written<https://www.politico.com/magazine/story/2017/09/26/russian-facebook-ads-regulation-215647>. The first is that it is difficult to reconcile with Citizens United. The second is that it was quite limited, leaving plenty of opportunities for foreign influence on American elections.

Harmonizing Judge Kavanaugh’s decision with Citizens United is hard because Justice Kennedy’s majority opinion said that “the First Amendment generally prohibits the suppression of political speech based on the speaker’s identity.”…

At the same time, he carved out an important exception. On the one hand, he said, a federal law barring most foreign nationals from contributing to candidates or spending money to promote their election was constitutional. But he said foreigners remained free to spend money on “issue advocacy — that is, speech that does not expressly advocate the election or defeat of a specific candidate.”

That leaves room for plenty of lawful spending, as it is child’s play to recast prohibited express advocacy (“Vote for Trump”) into a permissible issue advocacy (“Trump wants to help American workers”).
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>

“The super rich boost political giving ahead of November’s tough midterm election”<http://electionlawblog.org/?p=100204>
Posted on July 23, 2018 8:00 am<http://electionlawblog.org/?p=100204> by Rick Hasen<http://electionlawblog.org/?author=3>

USA Today: <https://www.usatoday.com/story/news/politics/2018/07/21/super-rich-step-up-their-giving-ahead-midterm-election-fight/813088002/>

Donors who have given $1 million or more in this cycle contributed $120.1 million to super PACs in the April-to-June fundraising quarter. That’s more than twice the $58.8 million they donated during the previous three-month period.

Republicans accounted for six out of 10 of the biggest super PAC donors in the second quarter.

The biggest contributors: Las Vegas casino magnate Sheldon Adelson and his wife, Miriam, who gave a combined $30 million to the Congressional Leadership Fund, which is aligned with House Republican leaders.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

“RNC Spokesperson: Democrats Want ‘a Few Hundred Thousand Russians’ to Vote in U.S. Elections”<http://electionlawblog.org/?p=100202>
Posted on July 22, 2018 11:54 am<http://electionlawblog.org/?p=100202> by Rick Hasen<http://electionlawblog.org/?author=3>

Newsweek:<https://www.newsweek.com/rnc-spokeswoman-kayleigh-mcenany-says-democrats-pelosi-schumer-want-russians-1036157>

A Republican National Committee spokesperson was shut down during a Fox News segment on Saturday after suggesting that Democrats want “hundreds of thousands of Russians” to come to the United States and vote in elections.
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Posted in chicanery<http://electionlawblog.org/?cat=12>

“Do-It-Yourself Legislative Redistricting; A Michigan ballot initiative points the way to reforming gerrymandering, one of the most anti-democratic practices in American politics” (with note from Ron Klain)<http://electionlawblog.org/?p=100200>
Posted on July 22, 2018 11:49 am<http://electionlawblog.org/?p=100200> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT editorial.<https://www.nytimes.com/2018/07/21/opinion/redistricting-gerrymandering-citizens-michigan.html?action=click&pgtype=Homepage&clickSource=story-heading&module=opinion-c-col-left-region&region=opinion-c-col-left-region&WT.nav=opinion-c-col-left-region>
[https://pbs.twimg.com/profile_images/467404554493894656/6GSI0IXc_bigger.jpeg]<https://twitter.com/RonaldKlain>
<https://twitter.com/RonaldKlain>
Ronald Klain<https://twitter.com/RonaldKlain>
✔@RonaldKlain<https://twitter.com/RonaldKlain>

<https://twitter.com/RonaldKlain/status/1021045699004325889>

Nice @nytopinion<https://twitter.com/nytopinion> piece on redistricting commissions, BUT....

They were ruled as constitutional by a 5-4 SCOTUS vote in 2015.

One of the 5 was Justice Kennedy.

Will the law change if Kavanaugh is confirmed?https://www.nytimes.com/2018/07/21/opinion/redistricting-gerrymandering-citizens-michigan.html …<https://t.co/OShiRHNlJ9>
7:53 AM - Jul 22, 2018<https://twitter.com/RonaldKlain/status/1021045699004325889>
<https://t.co/OShiRHNlJ9>
[https://pbs.twimg.com/card_img/1020737746703405057/Mbq-1JH2?format=jpg&name=600x314]<https://t.co/OShiRHNlJ9>
Opinion | Do-It-Yourself Legislative Redistricting<https://t.co/OShiRHNlJ9>

A Michigan ballot initiative points the way to reforming gerrymandering, one of the most anti-democratic practices in American politics.<https://t.co/OShiRHNlJ9>
nytimes.com<https://t.co/OShiRHNlJ9>

·         <https://twitter.com/intent/like?tweet_id=1021045699004325889>

31<https://twitter.com/intent/like?tweet_id=1021045699004325889>

·         <https://twitter.com/RonaldKlain/status/1021045699004325889>

23 people are talking about this<https://twitter.com/RonaldKlain/status/1021045699004325889>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D100200&title=%E2%80%9CDo-It-Yourself%20Legislative%20Redistricting%3B%20A%20Michigan%20ballot%20initiative%20points%20the%20way%20to%20reforming%20gerrymandering%2C%20one%20of%20the%20most%20anti-democratic%20practices%20in%20American%20politics%E2%80%9D%20(with%20note%20from%20Ron%20Klain)>
Posted in redistricting<http://electionlawblog.org/?cat=6>

“The Scalia Factor: Rick Hasen on his book, The Justice of Contradictions: Antonin Scalia and the Politics of Disruption.”<http://electionlawblog.org/?p=100198>
Posted on July 21, 2018 1:54 pm<http://electionlawblog.org/?p=100198> by Rick Hasen<http://electionlawblog.org/?author=3>

I sat down with Dahlia Lithwick for Slate’s Amicus Podcast. Listen<http://www.slate.com/articles/podcasts/amicus/2018/07/rick_hasen_unpacks_justice_antonin_scalia_s_legacy_in_the_age_of_trump.html>:

In the first of a series of deep dives into great legal reads this summer, Dahlia Lithwick talks with Rick Hasen<https://slate.com/author/richard-l-hasen>, author of The Justice of Contradictions: Antonin Scalia and the Politics of Disruption<http://www.amazon.com/dp/0300228643/?tag=slatmaga-20>, about civil discourse, rock star justices, and what Justice Scalia would have thought of President Trump.

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Posted in Scalia<http://electionlawblog.org/?cat=123>, 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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