[EL] ELB News and Commentary 5/3/18

Wed May 2 21:41:02 PDT 2018

“Rudy Giuliani May Have Just Implicated President Trump In Serious Campaign Finance Violations”<http://electionlawblog.org/?p=98943>
Posted on May 2, 2018 9:29 pm<http://electionlawblog.org/?p=98943> by Rick Hasen<http://electionlawblog.org/?author=3>

I have written this piece<https://slate.com/news-and-politics/2018/05/rudy-giuliani-may-have-just-implicated-president-trump-in-serious-campaign-finance-violations.html> for Slate. It begins:

Donald Trump’s new lawyer Rudy Giuliani took to Sean Hannity’s Fox News program Wednesday night to defend the president from the ongoing Mueller investigation and to calm the waters for the Trump faithful.

But it looks like he’s gotten the president into potentially greater legal jeopardy by admitting<https://www.buzzfeed.com/chrisgeidner/rudy-giuliani-says-trump-repaid-michael-cohen-for-the?utm_term=.rnYWRYvOx4#.kvQR2mBJ9W>that Trump repaid his fixer Michael Cohen for the $130,000 payment to adult film performer Stormy Daniels to keep her quiet, seemingly contradicting the president<https://www.nytimes.com/2018/05/02/us/politics/trump-michael-cohen-stormy-daniels-giuliani.html?action=Click&contentCollection=BreakingNews&contentID=66919600&pgtype=Homepage> and potentially implicating Trump and his campaign in some serious campaign finance violations.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
Giuliani Says Trump Repaid $130K Payment to Cohen for Stormy Daniels Agreement, Raising New Questions About Campaign Finance Violations<http://electionlawblog.org/?p=98941>
Posted on May 2, 2018 7:18 pm<http://electionlawblog.org/?p=98941> by Rick Hasen<http://electionlawblog.org/?author=3>

I’m exploring them in tthis Twitter thread.<https://twitter.com/rickhasen/status/991862893640531968>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
“Josh Kaul criticizes Attorney General Brad Schimel over voter ID comments and handling of rape kits”<http://electionlawblog.org/?p=98939>
Posted on May 2, 2018 1:29 pm<http://electionlawblog.org/?p=98939> by Rick Hasen<http://electionlawblog.org/?author=3>

Milwaukee Journal-Sentinel:<https://www.jsonline.com/story/news/politics/2018/05/02/josh-kaul-criticizes-attorney-general-brad-schimel-over-voter-voter-id-comments-and-handling-rape-ki/574389002/>

Democratic candidate for attorney general Josh Kaul criticized Wisconsin’s top cop Wednesday, saying he had made ludicrous comments about voter ID, had failed to test rape kits and hadn’t taken action to keep the internet moving at the same speed for everyone.

Attorney General Brad Schimel last month suggested President Donald Trump would not have won Wisconsin<https://www.jsonline.com/story/news/politics/2018/04/13/attorney-general-brad-schimel-suggests-donald-trump-won-wisconsin-because-states-voter-id-law/514628002/> without the state’s voter ID law.

With those comments, Schimel had admitted the law was designed to prevent people from voting, Kaul maintained in his first news conference of his campaign.
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Posted in fraudulent fraud squad<http://electionlawblog.org/?cat=8>
Breaking: Ninth Circuit Denies Rehearing En Banc in Montana Campaign Contributions Case, Teeing Up Issue for Possible Supreme Court Review<http://electionlawblog.org/?p=98937>
Posted on May 2, 2018 12:32 pm<http://electionlawblog.org/?p=98937> by Rick Hasen<http://electionlawblog.org/?author=3>

Back in October, I wrote the following<http://electionlawblog.org/?p=95620>:

In Major Victory in Case with National Significance, Ninth Circuit on 2-1 Vote Upholds Montana Contribution Limits; Judge Bea Would Appear to Hold *All* Limits Unconstitutional
Posted on October 23, 2017 11:20 am<http://electionlawblog.org/?p=95620> by Rick Hasen<http://electionlawblog.org/?author=3>

In Lair v. Motl,<http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/23/16-35424.pdf> a case I have been closely watching, the Ninth Circuit on a 2-1 vote reversed a district court decision and upheld Montana’s contribution limits.

The case is of course important to Montana, but it has national ramifications because the theory accepted by the trial court (and in part by a 9th Circuit motions panel) would have required very specific evidence of bribery-like corruption to sustain virtually any contribution limit. It would have had the effect of bringing down those limits wherever the precedent was applied.  In today’s opinion by Judge Fisher, the court reaffirms the much laxer standard of review that has applied to contribution limits in the past, including in cases like Shrink Missouri, and even the later Randall case.

Judge Bea in dissent believes that the Supreme Court’s decisions in Citizens United and McCutcheon change everything, and that virtually all contribution limits now fail strict scrutiny (this, despite the fact that Citizens United expressly said it had nothing to say about contribution limits).  From Judge Bea:

In footnote 5, the majority opinion notes that “[u]nder the dissent’s logic…Montana’s evidence is inadequate to justify any contribution limit whatsoever, no matter how high.” This is quite correct. Absent a showing of the existence or appearance of quid pro quo corruption based on objective evidence, the presence of a subjective sense that there is a risk of such corruption or its appearance does not justify a limit on campaign contributions. Restrictions on speech must be based on fact, not conjecture.

Whether the Supreme Court would go so far as Judge Bea is uncertain. But because any review would come up to the Supreme Court on a discretionary cert. petition, it may be hard to get the Court to bite on taking a case which would have such major ramifications for campaign financing in this country (particularly because many cases come up to the Court on non-discretionary appeals).

Today the 9th Circuit denied rehearing en banc<http://cdn.ca9.uscourts.gov/datastore/opinions/2018/05/02/16-35424.pdf>. Judge Ikuta, for five judges wrote a dissent, to which Judges Fisher and Murguia responded. Judge Ikuta did not go as far as Judge Bea did in the panel decision. Instead she says that the Supreme Court’s opinions in Citizens United and McCutcheon have changed the Court’s approach to considering evidence of corruption to sustain a campaign contribution law.

Judge Ikuta’s dissent hits on an unresolved question. There are a number of campaign contribution cases, such as Shrink Missouri, decided when the Court was much more deferential to campaign finance regulations and much more willing to let states and localities support contribution limits with a little bit of evidence. No doubt these cases are in tension with McCutcheon, but McCutcheon did not overrrule these cases. And so judges like today divide on what to do.

The Supreme Court could well grant cert. in this case to resolve the ambiguity. The result, under the current Court, would almost certainly be to call into question all campaign contribution limits (as indicated in the Judge Fisher/Judge Murguia response). For that reason, the Court could decide to take a pass, as it has to the multiple challenges to the soft money provisions of the McCain-Feingold law which Jim Bopp has brought to the Court (he’s behind this one too).

In other words: if the Court decides this case following the jurisprudence it has been adopting in the campaign finance cases, it is hard to see how it will conclude many campaign contribution limits will stand. For this reason, the Court may not want to go down that road, given how disruptive and crazy such a ruling would be.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>
“Corruption Is Bad; A new proposal would actually do something about it.”<http://electionlawblog.org/?p=98935>
Posted on May 2, 2018 7:55 am<http://electionlawblog.org/?p=98935> by Rick Hasen<http://electionlawblog.org/?author=3>

HuffPo:<https://www.huffingtonpost.com/entry/government-anti-corruption-oversight_us_5ae8e4ebe4b06748dc8d4b43>

This paucity of serious work is not an accident. Think tanks themselves are meant to influence the political process, and think tanks have to get their funding somewhere. Some of the worst Washington corruption scandals<https://www.vox.com/2015/9/30/9427461/elizabeth-warren-brookings-institution> in recent years have involved think tanks<https://www.nytimes.com/2017/08/30/us/politics/eric-schmidt-google-new-america.html> leveraging their reputations to help corporate donors<https://www.nytimes.com/2017/09/01/us/politics/anne-marie-slaughter-new-america-google.html>.

So the latest policy proposal<http://rooseveltinstitute.org/unstacking-deck/> from the liberal-leaning Roosevelt Institute<http://rooseveltinstitute.org/> deserves special attention. Authored by incoming federal trade commissioner Rohit Chopra as he awaited Senate confirmation for his new post, the paper marks the first comprehensive attempt to rethink federal anti-corruption policy in years ― maybe since the Watergate era. Instead of focusing on campaign contributions and elections, Chopra takes a look at the way special interests exercise undue influence over the federal bureaucracy and the broader policy debate in Washington.

“We can’t just address money in politics,” Chopra told HuffPost. “We have to address money in government.”
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Posted in Uncategorized<http://electionlawblog.org/?cat=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
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http://electionlawblog.org<http://electionlawblog.org/>
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