[EL] ELB News and Commentary 3/15/18

Thu Mar 15 08:48:54 PDT 2018

“Trump Administration Sanctions Russians for Election Meddling and Cyberattacks”<http://electionlawblog.org/?p=98158>
Posted on March 15, 2018 8:42 am<http://electionlawblog.org/?p=98158> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2018/03/15/us/politics/trump-russia-sanctions.html?rref=collection%2Fsectioncollection%2Fpolitics&action=click&contentCollection=politics&region=rank&module=package&version=highlights&contentPlacement=1&pgtype=sectionfront>

 President Trump’s administration imposed sanctions on a series of Russian organizations and individuals on Thursday in retaliation for interference in the 2016 presidential elections and other “malicious” cyberattacks. It was the most significant action taken against Moscow since Mr. Trump took office.

The sanctions came at the same time the Trump administration joined a collective statement with Britain, France and Germany on Thursday denouncing Russia for its apparent role in a nerve gas attack on a former Russian spy and his daughter on British soil, calling it a “clear violation” of international law. But the statement included no joint action in response.

The American sanctions announced on Thursday targeted many of the same Russian organizations and operatives identified by Robert S. Mueller III, the special counsel, in an indictment<https://www.nytimes.com/2018/02/16/us/politics/russians-indicted-mueller-election-interference.html> that outlined an audacious attempt to spread disinformation and propaganda to disrupt American democracy and, eventually, influence the vote on behalf of Mr. Trump. The sanctions also responded to other cyberattacks, including a previously undisclosed attempt to penetrate the American energy grid.
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Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>

Coming This Weekend to CSPAN Book TV<http://electionlawblog.org/?p=98156>
Posted on March 15, 2018 8:37 am<http://electionlawblog.org/?p=98156> by Rick Hasen<http://electionlawblog.org/?author=3>

My conversation with Adam Liptak of the New York Times and  Professor Susan Low Bloch of Georgetown Law about my new book on Justice Scalia’s legacy<https://www.amazon.com/Justice-Contradictions-Antonin-Politics-Disruption/dp/0300228643/ref=sr_1_1?ie=UTF8&qid=1516904231&sr=8-1&keywords=richard+l.+hasen> should air some time this weekend on CSPAN Book TV<https://www.c-span.org/series/?bookTv>. The video should post next week and I will link.
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Posted in Scalia<http://electionlawblog.org/?cat=123>, Supreme Court<http://electionlawblog.org/?cat=29>

“Elected Officials, Secret Cash”<http://electionlawblog.org/?p=98154>
Posted on March 15, 2018 8:24 am<http://electionlawblog.org/?p=98154> by Rick Hasen<http://electionlawblog.org/?author=3>

Brennan Center:<https://www.brennancenter.org/publication/elected-officials-secret-cash>

At least two presidents, seven governors and several prominent mayors – from both major parties – have established nonprofits that allow them to raise unlimited, anonymous funds for political spending after election day. In recent years, the risk of dark money in our elections has become apparent, but we pay less attention to the politicking that happens after election day. This report is the first comprehensive analysis of a yawning gap in rules that govern money in politics and government ethics, and poses a serious risk of corruption. It finds that spending by nonprofits that coordinate with elected officials after they take office goes almost entirely unchecked, and calls for new laws to limit political funding by officeholder-controlled nonprofits.

Read the introduction<https://www.brennancenter.org/publication/elected-officials-secret-cash#INTRODUCTION>

Download the report<https://www.brennancenter.org/sites/default/files/publications/EO%20Secret%20Cash.%20V%20March%2014.pdf>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>

“GOP’s new tax law encourages campaign donor secrecy”<http://electionlawblog.org/?p=98152>
Posted on March 15, 2018 8:22 am<http://electionlawblog.org/?p=98152> by Rick Hasen<http://electionlawblog.org/?author=3>

Ellen Aprill oped<http://thehill.com/opinion/finance/378533-gops-new-tax-law-encourages-campaign-donor-secrecy> in the Hill:

As a result of these changes, estimates of the percentage of taxpayers who will itemize has fallen to somewhere between 5 percent and 10 percent.<http://thehill.com/opinion/finance/366773-nonprofits-are-the-unintended-victims-of-new-tax-bill> The vast majority of taxpayers<http://www.taxpolicycenter.org/model-estimates/impact-itemized-deductions-tax-cuts-and-jobs-act-jan-2018/t18-0001-impact-number> will benefit more from taking the standard deduction. Those taxpayers with income between $100,000 and $200,000 will show a particularly large shift from itemizing to taking the standard deduction, dropping from over 50 percent to under 20 percent.<http://www.taxpolicycenter.org/model-estimates/impact-itemized-deductions-tax-cuts-and-jobs-act-jan-2018/t18-0009-impact-tax>

The nonpartisan Tax Policy Center estimates that charitable contributions will decline by about $12.3 billion to $19.7<http://www.taxpolicycenter.org/taxvox/21-million-taxpayers-will-stop-taking-charitable-deduction-under-tcja> billion per year. Charitable organizations most dependent on the middle class<https://www.wealthx.com/report/the-wealth-x-and-arton-capital-philanthropy-report-2016/>, which includes organizations that provide social services, are now likely to have few itemizers among their donors.

A number of nonprofit law experts<https://www.linkedin.com/pulse/prediction-nonprofits-2018-gene-takagi> believe that those interested in social services and other activities supported by the middle class may well decide to form new section 501(c)(4) organizations or encourage contributions to an existing section 501(c)(4) organization. (The National Rifle Association<https://www.nrafoundation.org/about-us/>, the Sierra Club<https://www.sierraclubfoundation.org/faq> and the ACLU<https://www.irs.gov/pub/irs-tege/eotopics00.pdf> are existing among the many groups that have both 501(c)(3) and 501(c)(4) arms<https://www.irs.gov/pub/irs-tege/eotopics00.pdf>).

For donors not itemizing the deductions, there is no tax disadvantage to giving to a section 501(c)(4) organization instead of a section 501(c)(3) entity. But there are advantages. Tax-exempt section 501(c)(4) organizations can not only do good and lobby legislatures freely on issues important to them, but give considerable support to candidates for election who share their positions on key issues.

Thus, given the coming conflict in Congress over the size and scope of the social safety net, the ability to engage in not only in unlimited lobbying but also and especially campaign intervention through a section 501(c)(4) social welfare organization will hold enormous, perhaps irresistible, appeal, as such organizations will undoubtedly explain in fundraising. Recent scholarly work<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3075508> has underscored the importance of fundraising efforts by 501(c)(4) organizations.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, lobbying<http://electionlawblog.org/?cat=28>, tax law and election law<http://electionlawblog.org/?cat=22>

“Justice Scalia’s Fading Legacy”<http://electionlawblog.org/?p=98150>
Posted on March 15, 2018 8:18 am<http://electionlawblog.org/?p=98150> by Rick Hasen<http://electionlawblog.org/?author=3>

Linda Greenhouse NYT column.<https://www.nytimes.com/2018/03/15/opinion/justice-antonin-scalia-legacy.html>

I’ve got a very different view, which I’ll be writing about over coming weeks.
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Posted in Scalia<http://electionlawblog.org/?cat=123>, Supreme Court<http://electionlawblog.org/?cat=29>

“The ‘Voter Fraud’ Myth Is Just Embarrassing at This Point”<http://electionlawblog.org/?p=98148>
Posted on March 14, 2018 8:06 pm<http://electionlawblog.org/?p=98148> by Rick Hasen<http://electionlawblog.org/?author=3>

Charles Pierce<https://www.esquire.com/news-politics/politics/a19434496/voter-fraud-trial-kris-kobach/> on the Kobach-ACLU trial.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>

“Van Ostern Launches Campaign to Oust Gardner as N.H. Secretary of State”<http://electionlawblog.org/?p=98146>
Posted on March 14, 2018 7:32 pm<http://electionlawblog.org/?p=98146> by Rick Hasen<http://electionlawblog.org/?author=3>

NHPR:<http://nhpr.org/post/van-ostern-launches-campaign-oust-gardner-nh-secretary-state#stream/0>

New Hampshire’s Secretary of State is elected every two years, not by voters but by the Legislature<https://www.nh.gov/constitution/secretary.html> – meaning that to win, Van Ostern will have to persuade enough state lawmakers that he’s better suited for the job than the man who’s held the seat for four decades and counting.

To that end, he launched a political committee last fall meant to “support state issues and candidates who are moving New Hampshire forward.” It was originally called “NH Forward” but was recently rebranded as “Free and Fair NH<http://mediad.publicbroadcasting.net/p/nhpr/files/201803/freeandfair.pdf>.” As of its most recent filing, in December, it’s raised more than $45,000 to pour into upcoming legislative races<http://mediad.publicbroadcasting.net/p/nhpr/files/201803/paperfilingbrowsereport__49_.pdf>.

Van Ostern says he will not require legislators to support his candidacy in exchange for support from his political committee, but he will ask them to support his agenda.

That agenda, as outlined at Van Ostern’s press conference, is wide-reaching — covering both well-known aspects of the Secretary of State’s job (protecting New Hampshire’s first-in-the-nation presidential primary) and lesser-known responsibilities (overseeing corporate filings and acting as a resource for local election officials).

His stated priorities include advocating for an independent redistricting commission, modernizing business registration procedures and campaign finance reform, specifically a prohibition on “all corporate and business donations” in New Hampshire political campaigns. Van Ostern also pledged to follow that last rule in his own campaign moving forward….

Gardner’s 42-year tenure as Secretary of State makes him the longest-serving state elections chief in the country. Those deep roots in the position, coupled with his loyal defense of New Hampshire’s first in the nation presidential primary, has made Gardner something of a Granite State icon, known nationwide.

But critics — including his newly announced rival — have also found fault with Gardner’s involvement in the Trump administration’s now-defunct voter fraud commission<http://nhpr.org/post/gardner-sad-see-presidential-election-commissions-abrupt-end#stream/0>, his support for stricter voter eligibility requirements<http://nhpr.org/post/amid-voter-intimidation-concerns-nh-sec-state-supports-gops-voting-bill> and, as recently as this week, his insistence that his office hold the final authority over the scheduling of even town-level elections<http://nhpr.org/post/nh-braces-sequel-last-years-snowbound-town-meeting-day>.
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Posted in election administration<http://electionlawblog.org/?cat=18>

“FEC considers expanding political ad disclaimers to mobile apps”<http://electionlawblog.org/?p=98144>
Posted on March 14, 2018 6:36 pm<http://electionlawblog.org/?p=98144> by Rick Hasen<http://electionlawblog.org/?author=3>

 WaPo:<https://www.washingtonpost.com/politics/fec-considers-expanding-political-ad-disclaimers-to-mobile-apps/2018/03/14/0df362ae-27a5-11e8-bc72-077aa4dab9ef_story.html?utm_term=.dd86c95fddd7>

Federal officials on Wednesday unveiled a proposal that could expand political disclaimer rules beyond websites such as Google to mobile applications such as Snapchat, but could give leeway about how much information would have to be disclosed based on the size of the ad.

The Federal Election Commission voted to seek public comment on the proposed new rules, which aims to update federal regulations to adapt to new technology.

The proposal would apply narrowly to a small category of political commercials and likely would leave largely untouched the types of ads that were linked to Russian operatives in the 2016 campaign. The new requirement may not be in place to affect the 2018 midterm elections, which are now underway.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

In Strange, Unanimous Unpublished Opinion, 11th Circuit Revives Common Cause’s Voter Purge Case Against Georgia<http://electionlawblog.org/?p=98141>
Posted on March 14, 2018 6:14 pm<http://electionlawblog.org/?p=98141> by Rick Hasen<http://electionlawblog.org/?author=3>

The district court had dismissed Common Cause’s claim that Georgia’s voter purge law violated the NVRA and the First Amendment.

Today, the Eleventh Circuit, in a brief, unpublished opinion<http://media.ca11.uscourts.gov/opinions/unpub/files/201711315.pdf>, sent the case back and told the trial court to reconsider the NVRA issue in light of what the Supreme Court will do (presumably by June) in the Ohio voter purge case.

And then, without providing any guidance, it wrote that the trial court “should also conduct a more detailed analysis of the First Amendment question.” It provided no guidance as to how to think about this question.

And it added in a footnote: “On remand, nothing precludes the Plaintiffs from moving the district court for a preliminary injunction to restore those removed voters from the voter registration rolls pending a ruling from the Supreme Court.”

Common Cause rightly treats this<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2FRethinkMedia.pr-optout.com%2FTracking.aspx%3FData%3DHHL%253d8.94%253b2-%253eLCE18-4286-GLCE17.6%26RE%3DMC%26RI%3D4738296%26Preview%3DFalse%26DistributionActionID%3D56747%26Action%3DFollow%2BLink&data=02%7C01%7Cdvance%40commoncause.org%7C5c63ea1995a04802879f08d58a0f934a%7Cdb39e4b4de324cf9b66e9d02d8172178%7C0%7C0%7C636566721874392436&sdata=yTtd3QHVfBB2%2BgiVt7RCz7AlAa1%2FzmX9M35VxXUeWPI%3D&reserved=0> as good news, but the brevity and lack of direction here is downright strange.
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Posted in election administration<http://electionlawblog.org/?cat=18>, NVRA (motor voter)<http://electionlawblog.org/?cat=33>, The Voting Wars<http://electionlawblog.org/?cat=60>

“Approval Of Tempe Ballot Measure Could Set Up Showdown With State”<http://electionlawblog.org/?p=98139>
Posted on March 14, 2018 5:53 pm<http://electionlawblog.org/?p=98139> by Rick Hasen<http://electionlawblog.org/?author=3>

KJZZ:<https://kjzz.org/content/621124/approval-tempe-ballot-measure-could-set-showdown-state>

Tempe voters overwhelmingly approved Proposition 403, which amends the City Charter to “require the disclosure of the origins of major contributions used to influence city elections.”

That goes against a bill in the state Legislature that prohibits Arizona cities and counties from looking into who’s spending what on local elections.

Tom Collins, executive director of the Arizona Clean Elections Commission, is here to talk about this.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

--
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>
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http://electionlawblog.org<http://electionlawblog.org/>
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