[EL] ELB News and Commentary 5/4/18

Fri May 4 08:43:01 PDT 2018

“Trump Undercuts Giuliani About Payments to Stormy Daniels”<http://electionlawblog.org/?p=98974>
Posted on May 4, 2018 8:39 am<http://electionlawblog.org/?p=98974> by Rick Hasen<http://electionlawblog.org/?author=3>

President Trump undercut his attorney, Rudolph W. Giuliani, on Friday, and said the former New York mayor will eventually get the facts right regarding a payment to a pornographic actress who said she had an affair with Mr. Trump.

Everything “has been said incorrectly,” Mr. Trump said, blaming the media coverage and Mr. Giuliani’s short time on the job.

…

“It’s actually very simple,” the president said, without elaboration.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

Florida: “Police use saliva to arrest Casselberry man on voter-fraud charges”<http://electionlawblog.org/?p=98972>
Posted on May 4, 2018 8:33 am<http://electionlawblog.org/?p=98972> by Rick Hasen<http://electionlawblog.org/?author=3>

Orlando Sentinel:<http://www.orlandosentinel.com/news/breaking-news/os-seminole-county-voter-fraud-saliva-20180503-story.html>

State and local investigators said they used fingerprints and DNA from saliva found on five mail-in ballots to track down a Casselberry<http://www.orlandosentinel.com/topic/metro-orlando/casselberry-ORLS0004-topic.html> man and charge him with voter fraud.

Bret Warren, 36, was arrested Wednesday and booked into the Seminole County<http://www.orlandosentinel.com/topic/metro-orlando/seminole-county-ORLS0034-topic.html> Jail on several other charges, including possession of oxycodone.

“It’s really an interesting case in how we were able to find him,” said Evelyn Estevez, a public information officer for the Altamonte Springs<http://www.orlandosentinel.com/topic/metro-orlando/altamonte-springs-ORLS0001-topic.html> Police Department.

In October 2016, days before the general election, several residents of the Spring Valley neighborhood in Altamonte Springs reported to the Seminole County Supervisor of Elections Office that they had not received their absentee ballots.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>

“After Garland Defeat, New Group Hopes to Draw Democrats to Judicial Battlefield”<http://electionlawblog.org/?p=98970>
Posted on May 4, 2018 8:08 am<http://electionlawblog.org/?p=98970> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2018/05/03/us/politics/merrick-garland-judicial-trump.html?rref=collection%2Fsectioncollection%2Fpolitics&action=click&contentCollection=politics&region=stream&module=stream_unit&version=latest&contentPlacement=12&pgtype=sectionfront> on an important new effort:

Democrats learned the hard way in 2016 that the right is much more animated by judicial fights after Republicans’ refusal to consider the Supreme Court nomination of Merrick B. Garland helped rally conservative voters behind Donald J. Trump so he could fill a vacancy held open for nearly a year.

Now a new group is emerging on the left in an aggressive effort to counter that imbalance. Demand Justice, a nonprofit being formed by veterans of Capitol Hill, the White House and the Clinton and Obama campaigns, hopes to become a permanent fixture motivating progressive voters on issues related to the federal judiciary while influencing the Senate on judicial nominees.

The organization, which expects to raise $10 million in its first year, is not planning to devote its energy to changing the views of Republicans. It instead wants to instill the same kind of zeal in progressives when it comes to the courts, to make the argument that in the current political environment, it is the federal courts that are the final authority on issues important to progressives such as immigration, abortion, gay rights, social policy, the environment and corporate power, to name a few.

The group will be led by Brian Fallon, the former spokesman for Hillary Clinton who had previously worked at the Justice Department and on Capitol Hill for Senator Chuck Schumer of New York, the Democratic leader. He said he is giving up a role as a television analyst to concentrate on the new push.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>

Trump Holds Meeting on Election Security, Foreign Influence<http://electionlawblog.org/?p=98968>
Posted on May 4, 2018 8:06 am<http://electionlawblog.org/?p=98968> by Rick Hasen<http://electionlawblog.org/?author=3>
View image on Twitter<https://twitter.com/CelesteKatzNYC/status/992389331900870657/photo/1>
[View image on Twitter]<https://twitter.com/CelesteKatzNYC/status/992389331900870657/photo/1>
[https://pbs.twimg.com/profile_images/981001249012240384/8b_JQ4j9_bigger.jpg]<https://twitter.com/CelesteKatzNYC>
<https://twitter.com/CelesteKatzNYC>
Celeste Katz<https://twitter.com/CelesteKatzNYC>
✔@CelesteKatzNYC<https://twitter.com/CelesteKatzNYC>

<https://twitter.com/CelesteKatzNYC/status/992389331900870657>

“enhanced protections against malign foreign influence....” From the administration that brought you the “very distinguished voter fraud commission”:
6:03 AM - May 4, 2018<https://twitter.com/CelesteKatzNYC/status/992389331900870657> · Manhattan, NY<https://twitter.com/search?q=place%3A01a9a39529b27f36>
·         <https://twitter.com/intent/like?tweet_id=992389331900870657>
9<https://twitter.com/intent/like?tweet_id=992389331900870657>
·         <https://twitter.com/CelesteKatzNYC>
See Celeste Katz's other Tweets<https://twitter.com/CelesteKatzNYC>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>

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Posted in election administration<http://electionlawblog.org/?cat=18>

“How Giuliani’s remarks on Trump and Stormy Daniels change the legal landscape”<http://electionlawblog.org/?p=98966>
Posted on May 4, 2018 8:04 am<http://electionlawblog.org/?p=98966> by Rick Hasen<http://electionlawblog.org/?author=3>

Great Josh Gerstein explainer.<https://www.politico.com/story/2018/05/03/trump-giuliani-legal-landscape-568333>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Google sets new rules for U.S. election ads”<http://electionlawblog.org/?p=98964>
Posted on May 4, 2018 8:00 am<http://electionlawblog.org/?p=98964> by Rick Hasen<http://electionlawblog.org/?author=3>

Axios:<https://www.axios.com/google-election-ad-rules-verification-152539137-ae3b88ae-1fa3-4970-82cc-0503d6cc49c0.html>

The gritty details: Under Google’s new rules, people or groups who want to advertise in elections will have to go through a process that includes producing a “government-issued ID” as well as other information, like a Federal Election Commission identification number and an IRS Employer Identification Number. Google says it aims to confirm that buyers are who they say they are and can legally participate in American elections.
·         Advertisers can go through the verification process starting at the end of May, and Google will start enforcing the new rules on July 10, the company said.
·         The new requirements will apply to ads featuring candidates for federal office or current officeholders in the United States.
·         Google will also start requiring these ads to carry a disclosure that says who paid for them.

Yes, but: The new policy will not cover ads that relate to politically contentious issues rather than a candidate, which was the case for many of the online ads placed by Russian operatives trying to interfere in the 2016 election. The company says it is looking at following Facebook in tightening restrictions<https://www.reuters.com/article/us-facebook-privacy/facebook-backs-political-ad-bill-sets-limits-on-issue-ads-idUSKCN1HD2JH> on those ads as well.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

“Another Trump Effect on Midterms: More Small Donor Money for Democrats”<http://electionlawblog.org/?p=98962>
Posted on May 4, 2018 7:58 am<http://electionlawblog.org/?p=98962> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT reports.<https://www.nytimes.com/interactive/2018/05/02/us/politics/democratic-fundraising-midterm-elections.html>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

Bonkers: “And for the Sake of the Kids”<http://electionlawblog.org/?p=98960>
Posted on May 3, 2018 5:14 pm<http://electionlawblog.org/?p=98960> by Rick Hasen<http://electionlawblog.org/?author=3>

Readers of the Supreme Court’s opinion in Capterton v. Massey may remember that the Super PAC backed by Don Blankenship to elect WV Justice Benjamin was called “And for the Sake of the Kids.”

Now watch this bonkers Blankenship ad<https://politicalwire.com/2018/05/03/swamp-captain/> and see how it ends.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Watch My PBS News Hour Segment with Judy Woodroof and John Carlin on Trump-Rudy-Daniels-Gate<http://electionlawblog.org/?p=98958>
Posted on May 3, 2018 5:11 pm<http://electionlawblog.org/?p=98958> by Rick Hasen<http://electionlawblog.org/?author=3>

Video, audio, and transcript here.<https://www.pbs.org/newshour/show/the-key-legal-question-about-the-stormy-daniels-payment>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“The Legal Issues Raised by the Stormy Daniels Payment, Explained”<http://electionlawblog.org/?p=98956>
Posted on May 3, 2018 5:06 pm<http://electionlawblog.org/?p=98956> by Rick Hasen<http://electionlawblog.org/?author=3>

Charlie Savage and Ken Vogel<https://www.washingtonpost.com/politics/giuliani-said-the-stormy-daniels-payment-was-legal-heres-what-campaign-finance-experts-said/2018/05/03/417a648c-4ef2-11e8-84a0-458a1aa9ac0a_story.html?utm_term=.654684db92d8> for the NYT.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, chicanery<http://electionlawblog.org/?cat=12>

“Tennessee Officials Are Trying To Get To The Bottom Of An Election Night Cyberattack”<http://electionlawblog.org/?p=98954>
Posted on May 3, 2018 4:44 pm<http://electionlawblog.org/?p=98954> by Rick Hasen<http://electionlawblog.org/?author=3>

Sam Levine<https://www.huffingtonpost.com/entry/knox-county-tennessee-cyber-attack_us_5aeb28d7e4b0ab5c3d62bcb1?da> for HuffPo:

Officials in Knox County, Tennessee, are trying to gather more information<https://www.knoxnews.com/story/news/2018/05/02/knox-county-officials-investigating-election-night-cyberattack/572236002/> about a cyberattack that crashed a government website that displayed election results to the public during its primary election for local offices on Tuesday.

Dick Moran, the county’s top IT official, believes Knox County was the target of a denial-of-service<https://www.us-cert.gov/ncas/tips/ST04-015> attack in which actors with both domestic and foreign IP addresses deliberately flooded the county’s servers with traffic to try and crash them. The county website displaying election results went down for about an hour as polls closed on Tuesday. The crash meant that people who went to check election results between 8 and 9 p.m. on election night received an error message, according to the Knoxville News Sentinel<https://www.knoxnews.com/story/news/2018/05/02/knox-county-officials-investigating-election-night-cyberattack/572236002/>. While the website was down, election officials printed out hard copies of the election results and gave them to reporters, WBIR, a local NBC affiliate, reported<https://www.wbir.com/article/news/politics/elections/5-things-to-know-about-the-cyber-attack-on-knox-co-election-commission/51-547980607>.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>

“House: Democrats Risk Disaster in California’s Top Two Primaries”<http://electionlawblog.org/?p=98952>
Posted on May 3, 2018 4:42 pm<http://electionlawblog.org/?p=98952> by Rick Hasen<http://electionlawblog.org/?author=3>

David Wasserman<https://cookpolitical.com/analysis/house/california-house/house-democrats-risk-disaster-californias-top-two-primaries> for the Cook Political Report:

Republicans badly need a few lucky breaks to hold their House majority in November. So far in 2018, it’s been the opposite story — from an unfriendly new Pennsylvania map to Speaker Paul Ryan’s retirement and bleak special election results. But with five weeks to go before California’s June 5 primary, Democrats are at risk of squandering several seats that would otherwise appear to be golden pickup opportunities.

Democrats’ path to a majority depends on California more than any other state: they have excellent chances in seven GOP seats that Hillary Clinton carried in 2016, and a few more could be long shots in a wave. But in at least four districts, Democratic over-enthusiasm has produced crowded fields that could lock Democrats out of the fall race altogether.

Under California’s unorthodox “top two” primary system — first implemented in 2012 — all candidates appear on the same June primary ballot and the top two finishers, regardless of party, advance to a November runoff. In 2012, catastrophe struck Democrats when their top candidate in the new 31st CD, Pete Aguilar, took third place in the primary behind two Republicans, locking them out of a highly winnable race (Aguilar won the seat in 2014).

The same fate could befall other Democrats in 2018. In the 39th, 48th and 49th districts — all Orange County GOP seats that voted for Clinton — the “blue wave” has generated throngs of viable Democratic candidates in districts where GOP voters traditionally make up a majority of the primary vote. And while Democrats have struggled to break out of their packs, there are at least two viable Republican candidates on the ballot in each of those races.
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Posted in political parties<http://electionlawblog.org/?cat=25>, primaries<http://electionlawblog.org/?cat=32>

“‘No Corporate PAC’ Pledges Go Beyond Cheap Promises”<http://electionlawblog.org/?p=98950>
Posted on May 3, 2018 4:39 pm<http://electionlawblog.org/?p=98950> by Rick Hasen<http://electionlawblog.org/?author=3>

Eliza Newlin Carney<http://prospect.org/article/%E2%80%9Cno-corporate-pac%E2%80%9D-pledges-go-beyond-cheap-promises> for TAP.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Stormy Watch<http://electionlawblog.org/?p=98948>
Posted on May 3, 2018 4:37 pm<http://electionlawblog.org/?p=98948> by Rick Hasen<http://electionlawblog.org/?author=3>

In addition to my Slate piece<https://slate.com/news-and-politics/2018/05/rudy-giuliani-may-have-just-implicated-president-trump-in-serious-campaign-finance-violations.html> from last night, here are some notable contributions:

USA Today: Trump could face more legal trouble after confirming he repaid Michael Cohen, watchdogs say<https://www.usatoday.com/story/news/politics/2018/05/03/donald-trump-could-face-more-legal-woes-over-payments-michael-cohen-stormy-daniels/576299002/>

WSJ: Trump’s Payment to Stormy Daniels Raises Campaign-Finance Questions<https://www.wsj.com/articles/trump-and-giuliani-comments-about-stormy-daniels-heighten-questions-about-campaign-violations-1525376281>

The Atlantic: Giuliani’s Defense Only Intensifies the Legal Risks for Trump<https://www.theatlantic.com/politics/archive/2018/05/rudy-rudy-rudy/559577/>

CPI, Donald Trump, Michael Cohen and the Stormy Daniels payment: a Q&A<https://www.publicintegrity.org/2018/05/03/21733/cohen-payment-stormy-daniels-trump-giuliani>

Politifact: The $130,000 Stormy Daniels payoff: Was it a campaign expenditure?<http://www.politifact.com/truth-o-meter/article/2018/may/03/130000-stormy-daniels-payoff-was-it-campaign-expen/>

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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Regulating Campaign Finance through Legislative Recusal Rules”<http://electionlawblog.org/?p=98946>
Posted on May 3, 2018 4:19 pm<http://electionlawblog.org/?p=98946> by Rick Hasen<http://electionlawblog.org/?author=3>

Gene Mazo has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3171297> on SSRN (forthcoming, Timothy K. Kuhner and Eugene D. Mazo (eds.), Democracy by the People: Reforming Campaign Finance in America). Here is the abstract:

Each time reformers have sought to regulate campaign finance by statute, they have witnessed their efforts unravel before the Supreme Court. Given the Court’s hostility toward campaign finance restrictions, some scholars have come to view the legislative path as littered with pitfalls and have begun advocating for campaign finance solutions that are not legislative in nature. Congress does not need to pass a statue to address the problems of our campaign finance system. Instead, it can simply turn to its internal procedural rules. Such procedural rules are easier to pass, and they can be designed to have many of the same regulatory effects as more traditional statutory reforms. Moreover, Congress’s legislative procedural rules are much harder to subject to judicial review. As such. using legislative procedural rules to regulate money in politics may provide a path for Congress to get around some of the recent problems that its statutory reforms have faced.

One particular innovation that Congress could use to regulate campaign finance is legislative recusal. Legislative recusal rules, enacted separately in the House and Senate, would preclude members of each chamber from voting on any legislation that presents a member of Congress with a significant conflict of interest. For example, if a Super PAC spends a large sum of money to run ads on behalf of a candidate and its funders happen to have a strong interest in a specific piece of legislation, that congressional candidate, once elected to office, would be deemed to have a conflict and would be precluded from voting on such legislation.

In the early days of our republic, the very first House of Representatives adopted a legislative recusal rule. Today, legislative recusal rules exist in many state legislatures. Recusal rules are also common for judges and found throughout the judiciary, both at the state and at the federal level. The Senate and House have very different procedural rules, and legislative recusal rules that address campaign finance would have to be adopted separately in each house. A model for what these rules might look like could be borrowed from the judiciary. Importantly, because such recusal rules, in regulating the vote of a member of Congress, would only control legislative “outputs,” they would not interfere with the ability of donors or spenders to do what they wish with their money. As such, they would not impinge on anyone’s First Amendment rights. This is one of the most important reasons why campaign finance reformers should champion this path.

There has recently been a growing literature on how private ordering and private action can be used to make independent expenditure spending prohibitively expensive. For example, Ganesh Sitaraman has written about how private contracting between political candidates can be used to influence outside independent expenditure spending. Similarly, Nick Warshaw has explained how “super PAC insurance” can be used to threaten outside expenditure groups, whose spending activity would trigger an insurance premium payout to a candidate and thus provide the insured candidate with greater spending in response. These and other private ordering innovations seek to make it more expensive for independent expenditure groups to influence the outcome of an electoral campaign. Private ordering schemes are designed to ratchet up the cost of independent expenditures and make it more painful for entities like Super PACs to function.

Legislative recusal rules have similar goals. Such rules seek to diminish the influence that any particular political spender has. They do so by separating independent campaign spending from the ability of the officeholder to vote in favor of the spender’s legislative goals. If politicians are not able to vote for the financial interests of those who support them, we would have to worry less about donors and spenders trying to influence politicians nefariously, for the legislative votes of those who are the recipients of a donor’s or spender’s largesse would be taken away.

In 2000, John Copeland Nagle wrote about how legislative recusal rules could be used to combat the possible corruption that comes from large campaign contributions. Nagle proposed a solution whereby contributors should be allowed to give whatever they wish to political candidates, but successful candidates would then have to recuse themselves from voting on any legislation that directly affects those interests. More recently, Justin Levitt has suggested that legislative recusal rules might be used to combat independent expenditure spending as well, by making a winning candidate ineligible to take legislative action unusually benefiting the sponsor of the expenditure in question. Despite the efforts of these able scholars, however, our theory and knowledge of how legislative recusal rules should work in practice remains largely underdeveloped.

This article discusses how legislative recusal rules should be implemented in each house of Congress, how these rules should be structured to regulate campaign finance, and what advantages such rules have over statutory reforms. Part I discusses the source of Congress’s internal procedural rules and how controversies concerning legislative procedure have been handled by the courts. Part II looks at the judicial recusal rules used by the judiciary, as well as at some of the criticisms levied against current judicial recusal mechanisms. Part III proposes a system of regulating campaign finance through the adoption of legislative recusal rules in Congress. It addresses questions concerning when such recusal rules should take effect, what activities would trigger them, and who would make the decision of whether a legislator must recuse himself in a particular instance. Finally, Part IV discusses the procedures that would need to be followed in each house of Congress for the rules proposed here to be adopted.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>

“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>

--
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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