[EL] ELB News and Commentary 12/4/19

[Rick Hasen]

“Prominent Political Donors Charged in Campaign Finance Scheme”<https://electionlawblog.org/?p=108277>
Posted on December 4, 2019 8:39 am<https://electionlawblog.org/?p=108277> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2019/12/04/us/politics/george-nader-ahmad-khawaja.html>

An influential political power broker who was a witness named in the Mueller report was among eight people charged with conspiring to conceal the source of excessive contributions to groups supporting Hillary Clinton’s 2016 presidential campaign, the Justice Department announced on Tuesday.

Prosecutors say George Nader, a Lebanese-American businessman who was a cooperating witness in Robert Mueller’s investigation into Russian interference in the 2016 presidential election, conspired with Ahmad “Andy” Khawaja, the owner of an online payments company, to conceal more than $3.5 million in donations to the groups. The donations let Mr. Khawaja gain access to Mrs. Clinton during the campaign, and he also visited with President Trump in the Oval Office, according to an investigation by The Associated Press<https://apnews.com/a151466e96b04199b2e731f8c9ad479b/How-a-business-serving-bettors,-porn-donated-to-Dems,-Trump> last year.

The indictment, unsealed on Tuesday, does not name Mrs. Clinton as the candidate who received the donations. But the indictment refers to a female candidate, and donor records indicate Mr. Khawaja gave Democrats and a political action committee supporting Mrs. Clinton millions of dollars. …

Prosecutors said Mr. Khawaja made the donations in the names of himself, his wife and his business, but that the money actually came from Mr. Nader. While arranging the payments, Mr. Nader reported to an official of an unspecified foreign government about his efforts to gain influence, according to an indictment unsealed on Tuesday.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“The Cybersecurity 202: Ukraine claims threaten Senate consensus on Russian hacking”<https://electionlawblog.org/?p=108275>
Posted on December 4, 2019 8:36 am<https://electionlawblog.org/?p=108275> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2019/12/04/the-cybersecurity-202-ukraine-claims-threaten-senate-consensus-on-russian-hacking/5de6a3ef602ff1181f26426a/>

A tenuous Senate consensus on the dangers of Russian election hacking is being threatened by the GOP’s embrace of President Trump’s debunked argument that Ukraine also interfered in 2016.

Numerous Senate Republicans promoted that argument this week, bucking the conclusion of U.S. intelligence officials and ignoring warnings the claims are part of a Kremlin-backed effort to muddy the waters on Russia’s own interference.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Kansas: “U.S. Rep. Steve Watkins tangled in voter fraud, perjury allegations for listing UPS store as residence”<https://electionlawblog.org/?p=108273>
Posted on December 4, 2019 8:30 am<https://electionlawblog.org/?p=108273> by Rick Hasen<https://electionlawblog.org/?author=3>

Topeka Capital-Journal:<https://www.cjonline.com/news/20191203/us-rep-steve-watkins-tangled-in-voter-fraud-perjury-allegations-for-listing-ups-store-as-residence>

U.S. Rep. Steve Watkins’ decision to sign a Kansas voter registration form and two other election documents that asserted his residential address was a UPS Store in Topeka could constitute felony voter fraud under federal law and election perjury under state statute, officials said Tuesday.

Shawnee County records show the first-term Republican listed his official residence as 6021 S.W. 29th St. in Topeka, which corresponds to a UPS Store, when he signed a form to change his residency for voter registration purposes in August, signed an application for a mail-in ballot in October and signed a document to complete advance voting for the November election.

It isn’t clear where the congressman physically resided in Kansas after August nor what Topeka precinct he was legally qualified to be part of when voting in November. By asserting his place of residence to be the UPS Store, Watkins left the Topeka City Council’s 5th District for the city council’s 8th District. He then cast a November ballot in an 8th District contest decided by 13 votes.

Jim Joice, Watkins’ chief of staff, said questions about the residency issue posed by The Topeka Capital-Journal led to a staff review of the congressman’s voter registration. He said Watkins mistakenly portrayed his residence to be the UPS building.

“He just filed it incorrectly,” said Joice, who deflected criticism of Watkins. “I think that’s a little ludicrous.”

A bipartisan contingent of Kansas politicians was critical of Watkins’ handling of his residential declaration. Several of these Democrats and Republicans said they suspected Watkins’ acts rose to the level of criminal conduct.
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Posted in chicanery<https://electionlawblog.org/?cat=12>


“Court fight begins over redrawing of Nevada voting districts”<https://electionlawblog.org/?p=108271>
Posted on December 4, 2019 8:10 am<https://electionlawblog.org/?p=108271> by Rick Hasen<https://electionlawblog.org/?author=3>

Las Vegas Sun:<https://lasvegassun.com/news/2019/dec/03/court-fight-begins-over-drawing-nevada-voting-dist/#.XedaXTdSTmM.mailto>

A court battle has begun over a League of Women Voters of Nevada effort to amend the state constitution to have an appointed commission, instead of the state Legislature, redraw congressional and legislative voting districts following the 2020 U.S. Census.

League President Sondra Cosgrove predicted Tuesday that a ballot initiative proposed to qualify for a statewide vote will withstand a lawsuit calling its wording inaccurate and misleading.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Utah: “Electioneering Investigation Into San Juan County Clerk Complete. No Decision Yet To Prosecute.”<https://electionlawblog.org/?p=108269>
Posted on December 4, 2019 8:05 am<https://electionlawblog.org/?p=108269> by Rick Hasen<https://electionlawblog.org/?author=3>

KUER:<https://www.kuer.org/post/electioneering-investigation-san-juan-county-clerk-complete-no-decision-yet-prosecute#stream/0>

In October, the ACLU raised concerns that Nielson had distributed a letter to the editor about the election to voters at some polling locations. Attempting to influence voters within a polling place is a crime under state law.

“If the county is distributing information about the election, it should be unbiased, so it raises some serious concerns,” John Mejia, ACLU legal director for Utah, said at the time.

Nielson confirmed to KUER that he distributed the letter at polling locations but said his intention was to educate voters.

“It was a mistake — inadvertent. There wasn’t any intention to sway one way or another, just inform,” he said.

Published in the San Juan Record, the letter advocated for the special election, which asked voters if the county should explore changing its form of government. It was written by Blanding Mayor Joe Lyman, who collected signatures to prompt the election.

Critics of the election said it was an attempt to unseat the county’s first majority Navajo commission, elected last year following a lawsuit that resulted in federal redistricting. In the letter, Lyman disputed those claims and advocated for a five-person commission.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


New DOJ Indictment Alleges Millions of Dollars in Foreign Money Illegally Funneled to Support Hillary Clinton in 2016<https://electionlawblog.org/?p=108264>
Posted on December 3, 2019 4:39 pm<https://electionlawblog.org/?p=108264> by Rick Hasen<https://electionlawblog.org/?author=3>

The indictment <https://www.justice.gov/opa/pr/california-ceo-and-seven-others-charged-multi-million-dollar-conduit-campaign-contribution> includes George Nader, who appears to have been seeking influence in both the Trump and Clinton campaigns (and is now being held on child pornography charges):

Earlier today, an indictment was unsealed against the CEO of an online payment processing company, and seven others, charging them with conspiring to make and conceal conduit and excessive campaign contributions, and related offenses, during the U.S. presidential election in 2016 and thereafter.

Assistant Attorney General Brian A. Benczkowski of the Justice Department’s Criminal Division and Assistant Director in Charge Timothy R. Slater of the FBI’s Washington Field Office made the announcement.
A federal grand jury in the District of Columbia indicted Ahmad “Andy” Khawaja, 48, of Los Angeles, California, on Nov. 7, 2019, along with George Nader, Roy Boulos, Rudy Dekermenjian, Mohammad “Moe” Diab, Rani El-Saadi, Stevan Hill and Thayne Whipple. The 53 count indictment charges Khawaja with two counts of conspiracy, three counts of making conduit contributions, three counts of causing excessive contributions, 13 counts of making false statements, 13 counts of causing false records to be filed, and one count of obstruction of a federal grand jury investigation. Nader is charged with conspiring with Khawaja to make conduit campaign contributions, and related offenses. Boulos, Dekermenjian, Diab, El-Saadi, Hill, and Whipple are charged with conspiring with Khawaja and each other to make conduit campaign contributions and conceal excessive contributions, and related offenses.

According to the indictment, from March 2016 through January 2017, Khawaja conspired with Nader to conceal the source of more than $3.5 million in campaign contributions, directed to political committees associated with a candidate for President of the United States in the 2016 election. By design, these contributions appeared to be in the names of Khawaja, his wife, and his company. In reality, they allegedly were funded by Nader. Khawaja and Nader allegedly made these contributions in an effort to gain influence with high-level political figures, including the candidate. As Khawaja and Nader arranged these payments, Nader allegedly reported to an official from a foreign government about his efforts to gain influence.

The indictment also alleges that, from March 2016 through 2018, Khawaja conspired with Boulos, Dekermenjian, Diab, El-Saadi, Hill, and Whipple to conceal Khawaja’s excessive contributions, which totaled more than $1.8 million, to various political committees. Among other things, these contributions allegedly allowed Khawaja to host a private fundraiser for a presidential candidate in 2016 and a private fundraising dinner for an elected official in 2018.

The indictment further alleges that, from June 2019 through July 2019, Khawaja obstructed a grand jury investigation of this matter in the District of Columbia. Knowing that a witness had been called to testify before the grand jury, Khawaja allegedly provided that witness with false information about Nader and his connection to Khawaja’s company. Boulos, Diab, Hill, and Whipple also are charged with obstructing the grand jury’s investigation by lying to the FBI.

Currently, Nader is in federal custody on other charges.

Here is a list of some of Khawaja’s contributions to Democrats in 2016 (via Open Secrets <https://www.opensecrets.org/search?order=desc&q=ahmad+khawaja&sort=A&type=donors&scrim=B> and Scott Stedman<https://twitter.com/ScottMStedman/status/1202024679696982016>). It includes a $1 million donation to the main Democratic super PAC, Priorities USA.

I’m tweeting more about this here:<https://twitter.com/rickhasen/status/1202028760641331200>
[cid:image002.jpg at 01D5AA7E.EE6C16C0]<https://twitter.com/rickhasen>
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Rick Hasen<https://twitter.com/rickhasen>
✔@rickhasen<https://twitter.com/rickhasen>

 · 15h<https://twitter.com/rickhasen/status/1202027340575854598>
<https://twitter.com/rickhasen/status/1202027340575854598>


The donations include $1 million to major Democratic super PAC, Priorities USA. All the major Dems got donations (including Adam Schiff, as I'm sure we will soon hear a lot) https://www.opensecrets.org/search?order=desc&page=1&q=ahmad+khawaja&sort=A&type=donors&scrim=A …<https://t.co/eZERwqayj3> https://twitter.com/ScottMStedman/status/1202024877840056320 …<https://t.co/E4zZ0iBkOb>
<https://t.co/eZERwqayj3>
[OpenSecrets.org]<https://t.co/eZERwqayj3>
OpenSecrets<https://t.co/eZERwqayj3>
opensecrets.org<https://t.co/eZERwqayj3>

<https://twitter.com/ScottMStedman/status/1202024877840056320>
Scott Stedman at ScottMStedman<https://twitter.com/ScottMStedman/status/1202024877840056320>

Read the full thread here for an explanation about why we know it's Clinton. Or listen to UCI Law Prof @rickhasen https://electionlawblog.org/?p=108264  https://twitter.com/ScottMStedman/status/1202020569803309056 …<https://twitter.com/ScottMStedman/status/1202024877840056320>

[cid:image002.jpg at 01D5AA7E.EE6C16C0]<https://twitter.com/rickhasen>
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Rick Hasen<https://twitter.com/rickhasen>
✔@rickhasen<https://twitter.com/rickhasen>


https://twitter.com/rickhasen/status/1202028494768619521 …<https://t.co/PCOCeGO7kN>
<https://twitter.com/rickhasen/status/1202028494768619521>
Rick Hasen<https://twitter.com/rickhasen/status/1202028494768619521>
✔@rickhasen<https://twitter.com/rickhasen/status/1202028494768619521>

Lots of people are suggesting this DOJ filing is politically motivated. The timing could be p=, but this looks very much like the kind of thing we saw Parnas and Fruman doing to get influence over Trump. Of course foreign entities want to buy influence over the likely winner. https://twitter.com/Karoli/status/1202027994631426048 …<https://twitter.com/rickhasen/status/1202028494768619521>

<https://twitter.com/intent/like?tweet_id=1202028760641331200>
20<https://twitter.com/intent/like?tweet_id=1202028760641331200>
4:56 PM - Dec 3, 2019<https://twitter.com/rickhasen/status/1202028760641331200>
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And more on Nader<https://twitter.com/emptywheel/status/1202026951701139456>:
[cid:image004.jpg at 01D5AA7E.EE6C16C0]<https://twitter.com/emptywheel>
<https://twitter.com/emptywheel>
emptywheel at emptywheel<https://twitter.com/emptywheel>

 · 16h<https://twitter.com/emptywheel/status/1202023777045012480>
<https://twitter.com/emptywheel/status/1202023777045012480>

Replying to @emptywheel<https://twitter.com/_/status/1202023740676214789>

It's likely his discussions abt being a straw donor TO TRUMP were covered, but not his straw donors TO HILLARY.
[cid:image004.jpg at 01D5AA7E.EE6C16C0]<https://twitter.com/emptywheel>
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emptywheel at emptywheel<https://twitter.com/emptywheel>


Here's one of the references that make clear Nader was working both sides in 2016. Thus the likelihood his lawyers wondered if this was included under cooperation deal.https://assets.documentcloud.org/documents/6002293/190322-Redacted-Mueller-Report.pdf …<https://t.co/pOuKpvQ2V5>
[View image on Twitter]<https://twitter.com/emptywheel/status/1202026951701139456/photo/1>
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4:48 PM - Dec 3, 2019<https://twitter.com/emptywheel/status/1202026951701139456>
Twitter Ads info and privacy<https://support.twitter.com/articles/20175256>
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42 people are talking about this<https://twitter.com/emptywheel/status/1202026951701139456>

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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>, chicanery<https://electionlawblog.org/?cat=12>


“The Anti-Carolene Court and Gun Politics”<https://electionlawblog.org/?p=108262>
Posted on December 3, 2019 3:53 pm<https://electionlawblog.org/?p=108262> by Nicholas Stephanopoulos<https://electionlawblog.org/?author=12>

A very interesting post<https://sites.law.duke.edu/secondthoughts/2019/11/22/the-anti-carolene-court-and-gun-politics/> by Darrell Miller connecting ongoing Second Amendment debates to my forthcoming article<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3483321>, The Anti-Carolene Court.

Stephanopoulos, as a voting rights scholar, is most concerned with how judicial action (or inaction) aids partisan entrenchment rather than prevents it.  But his observations are also applicable to New York State Rifle & Pistol Association, Inc.  v. New York City<https://www.scotusblog.com/case-files/cases/new-york-state-rifle-pistol-association-inc-v-city-of-new-york-new-york/%20>.   Everyone seems to agree that gun violence is a serious problem – even Justice Scalia recognized as much in his majority opinion in District of Columbia v. Heller.  But he went on to note that the Second Amendment takes “certain policy choices off the table.”   Political process theory, though, would say that how much the Second Amendment knocks off the table is a function of both the risks presented by gun violence and the risks of a policy over-reaction.

Gun rights advocates have gone to extraordinary lengths since Heller to depict themselves as targets of over-reaction, victims of a political process failure, and minorities in need of vigorous judicial protection.   Their self-description is a powerful organizational and rhetorical tool, but is difficult to square with political reality.   There has been an utter lack of political movement on even the most modest (and most popular<https://www.npr.org/2019/08/10/749792493/americans-largely-support-gun-restrictions-to-do-something-about-gun-violence>) gun violence prevention legislation, like universal background checks.  Even back-to-back mass shootings in Texas and Ohio<https://www.nbcnews.com/news/morning-briefing/do-something-mass-shootings-texas-ohio-stun-nation-morning-rundown-n1039186>, and the most recent shooting in a California high school<https://www.cnn.com/videos/us/2019/11/18/saugus-high-school-shooting-victims-california-jaimee-roeschke-madi-roeschke-camerota-newday-vpx.cnn>, have seemingly no effect on the political deadlock.  It seems extremely difficult to see how the political process is failing to prevent a policy over-reaction.

Miller’s post raises the question of what (if anything) political process theory has to say about constitutional provisions, like the Second Amendment, that endorse values completely unrelated to the structure and operation of democracy. John Hart Ely famously thought that such provisions don’t belong in a well-written constitution. Carolene Products also declined to apply its pro-democratic theory of judicial review to “legislation [that] appears on its face to be within a specific prohibition of the Constitution.”

It’s therefore fascinating, as Miller describes, that gun rights advocates are trying so hard to portray themselves as victims of a political process failure. If this were actually the case, it might be legally irrelevant because (per the above quote from Carolene Products) the Second Amendment isn’t a site for pro-democratic judicial review. Or, if political process theory does apply to the Second Amendment, the alleged powerlessness of gun rights advocates might support the invalidation of gun control legislation. On this account, judicial intervention could be based on both standard modalities of constitutional interpretation and a political process malfunction. Lastly, if political process theory is applicable here, but the political process isn’t misfiring with respect to gun control (or is misfiring in the opposite direction, in favor of gun rights advocates), then Carolene Products would counsel judicial restraint. Other modalities might still impel courts to intercede, but political process theory would press in the opposite direction.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Small Donors and Political Polarization<https://electionlawblog.org/?p=108255>
Posted on December 3, 2019 1:42 pm<https://electionlawblog.org/?p=108255> by Richard Pildes<https://electionlawblog.org/?author=7>

I’ve published what I’m sure will be a controversial essay<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3490089> in the Yale Law Journal Forum on the small-donor revolution in campaign financing.  Up until now, reformers have characterized this development in glowing, unqualified terms: as a way to “reclaim” our republic, a development that “significantly enhance[s] the quality of democracy in the United States,” one that promises to “restore citizens to their rightful pre-eminent place in our democracy.”  That’s because advocates see small donations as serving the values of equality, anti-corruption, and increased political participation.

But there is strong evidence that small donors also fuel the ideologically more extreme tendencies, rather than the more centrist ones, in American politics.  The principal aim of this essay is to push for greater discussion and debate about this issue, which requires confronting potential tradeoffs between the equality, anti-corruption, and participation benefits of small-dollar contributions and their tendency to further fuel political polarization.  This essay also includes original analysis of the types of candidates who benefited most from small donations in the 2018 election cycle.

The question whether small-donor financing accentuates political polarization is particularly urgent because the most important campaign-finance reform proposals are now based on small-donor financing.  The election-reform bill the Democratic House passed as soon as it was seated, H.R. 1, includes a new campaign-finance system that would provide $6 in matching public funds for every $1 candidates for the House receive in small-dollar contributions (defined as contributions up to $200).  Thus, a $200 donation to a candidate for the House would be matched with $1200 in public funds.

I’ll include a brief initial excerpt, below, from this essay.  Given the importance of the pending H.R. 1 bill, I’ll do a couple subsequent posts with more specific concerns I want to flag about the particular choices H.R. 1 makes about how to structure a small-donor based system of campaign-finance reform.

From the essay:

In an initial flush of romantic enthusiasm, social media and the communications revolution were thought to herald a brave new world of empowered citizens and unmediated, participatory democracy. Yet just a few years later, we have shifted to dystopian anxiety about social media’s tendencies to fuel political polarization, reward extremism, encourage a culture of outrage, and generally contribute to the degradation of civic discourse about politics. But when it comes to the campaign-finance side of democracy, the internet and the communications revolution are still being celebrated as an unalloyed good. The time has come to ask harder questions about this disconnect between how we view the internet’s effects on public discourse and its effects on fundraising. . . .

Small-donor financing is part of the general trend toward using the communications revolution to bypass traditional intermediaries in politics and enhance direct modes of citizen participation. … Part I describes the ways in which the communications revolution is reshaping our privately financed campaign system. Part II then presents the evidence to date that suggests small donors tend to fuel more ideologically extreme candidates. Finally, Part III identifies specific aspects of H.R. 1’s design that ought to be discussed more widely. Put most broadly, the question posed here is whether the concerns that have emerged about the internet and democracy should suddenly disappear when it comes to fundraising, or whether we need to reflect more on how those same concerns might also apply to the internet’s empowerment of small donors. . . .

The design of a democratic system seeks to realize a number of different values. Most regulations of the political process, including those styled as political “reforms,” actually implicate tradeoffs and conflicts among these values. Yet the staunchest advocates of reform typically present their preferred reforms as unmitigated goods and frequently fail to recognize or confront the reality of these tradeoffs. Advocates so focused on the one dimension of a problem that most concerns them can develop tunnel vision that obscures the costs of their reforms along other dimensions of democracy. Small-donor financing has burst onto the national scene as a major force only in the last few years, which makes the current unbridled enthusiasm for it understandable but potentially troubling, to the extent we ignore the full range of consequences of turning it into the exclusive basis for using public funds to finance elections.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Two Powerhouse Democratic Election Law Firms in California to Merge<https://electionlawblog.org/?p=108253>
Posted on December 3, 2019 12:13 pm<https://electionlawblog.org/?p=108253> by Rick Hasen<https://electionlawblog.org/?author=3>

Release via email:

California’s two leading political and government law firms – Olson, Hagel & Fishburn (“OHF”) and Remcho, Johansen & Purcell (“RJP”) – announced today that they are merging on January 1, 2020 to form the new law firm of Olson Remcho LLP.

The new firm will be a political powerhouse in California.  Among numerous other clients, Olson Remcho will represent the Governor, the Speaker of the Assembly, the Senate President pro Tempore, the California Democratic Party, dozens of labor organizations, and several members of the California Congressional Delegation.

With attorneys located in offices in Sacramento, Oakland and Long Beach, the new firm will include 22 attorneys when launched on January 1.  Olson Remcho attorneys will advise government agencies, nonprofits, unions, ballot measure committees, lobbyists, candidates, public officials, corporations, and political action committees regarding their participation in elections and government decision-making at the federal, state, and local levels.
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Posted in election law biz<https://electionlawblog.org/?cat=51>


--
Rick Hasen
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UC Irvine School of Law
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