[EL] ELB News and Commentary 12/5/19

Thu Dec 5 20:57:51 PST 2019

Is Mike Bloomberg Breaking the Law by Continuing to Control Bloomberg News While a Presidential Candidate?<https://electionlawblog.org/?p=108304>
Posted on December 5, 2019 8:55 pm<https://electionlawblog.org/?p=108304> by Rick Hasen<https://electionlawblog.org/?author=3>

News item:<https://www.theverge.com/2019/12/5/20997567/bloomberg-terminal-redirect-promote-michael-presidential-candidate-campaign>

Michael Bloomberg temporarily had a tiny but extremely questionable advantage in the 2020 presidential race: if you typed “Mike” into one of his company’s roughly 325,000 news terminals around the globe, you were redirected to his campaign site, reported the Financial Times<https://www.ft.com/content/884c6aca-177a-11ea-8d73-6303645ac406?accessToken=zwAAAW7X2e3wkdOITGrKF3oR6tONc2MDZFrEBg.MEUCIQD1SaOVZ1z9WxyOpMyZGJCByQpbSmhJt9ww826OzNFddgIgYS7VfNYnlPqF2mvspl_B0umilpdmWNIYK2V8VoRqgto&sharetype=gift?token=a5ad4100-c5d3-4120-81b9-e5679a0e84de>.

Federal regulations<https://www.govinfo.gov/content/pkg/USCODE-2017-title52/pdf/USCODE-2017-title52-subtitleIII-chap301.pdf> generally exempt the press from having to report what would otherwise count as campaign expenditures or electioneering communications. So, for example, here is an exemption for press activities from the FEC definition of “expenditure:” “(i) any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate.” (My emphasis.)

While Bloomberg has put limits on what Bloomberg News can cover, the news organization is still writing about presidential candidates. As I type this, I can find the following article on Bloomberg News’s site: Joe Biden Calls Iowa Man ‘Damn Liar’ for Raising Ukraine Issue<https://www.bloomberg.com/news/articles/2019-12-05/joe-biden-calls-iowa-man-damn-liar-for-raising-ukraine-issue?srnd=politics-vp>.

But the law only exempts when the press makes expenditures (which would be express advocacy, like “Vote for Mike”) and electioneering communications, which include TV and radio (but not online) news and commentary broadcast 30 days before a primary or 60 days before the general election. Bloomberg News can easily avoid express advocacy, but it has TV and radio coverage in addition to its online coverage, which raises a more serious question as we approach the first 30-day window before the first presidential primaries and caucuses.

Brad Smith in an article<https://dailycaller.com/2019/11/26/bloomberg-news-campaign-finance-concerns/> in the Daily Caller makes the following argument:

Former FEC Chairman Bradley Smith told the DCNF that the key factor to determining whether Bloomberg News’s editorial policy puts its press exemption at risk is whether the commission determines that Trump is Michael Bloomberg’s opponent at this stage of the Democratic primary.

“A good argument nonetheless could be made that the press exemption should not apply here, given Bloomberg’s own declaration, ‘I’m running for president to defeat Donald Trump and rebuild America,’” Smith said, citing Michael Bloomberg’s campaign website<https://www.mikebloomberg.com/?gclid=EAIaIQobChMIv42XhbOI5gIVzZyzCh3nqwG1EAAYASAAEgKV-fD_BwE>.

However, Smith said he believes the better argument is that Michael Bloomberg<https://dailycaller.com/2019/11/08/michael-bloomberg-height/> and Trump aren’t officially considered opponents from a campaign finance perspective until they have secured their respective parties’ nominations.

“I don’t believe that the FEC or a court have ever ruled on this type of situation, so I suppose it’s an open question,” Smith said. “Certainly, it reveals the flaws of having a regime in which some very large, influential corporations (those designated ‘press’) have a freedom that other Americans do not.”

Brendan Fischer of the Campaign Legal Center told the Daily Caller: “Bloomberg News declining to cover any Democratic presidential hopeful means that they are giving equal coverage to all opposing candidates in the primary, but President Trump will be the Democratic nominee’s opponent in the general.” “Fischer said it would be appropriate for the FEC to weigh in on the legality of Bloomberg News’s editorial policy, but the commission is currently unable<https://dailycaller.com/2019/11/18/federal-election-commission-poll/> to take any official actions as it has only three active commissioners on its six-member board, rendering the agency incapable of meeting its four-member quorum”

I’m not sure that the Trump/Democratic rivals issue is the right question. Instead, it is about whether Bloomberg News can continue to keep its press exemption even during the primary period if it is broadcasting on TV and Radio and covering the candidates. Seems to me this is a question that deserves more scrutiny. I welcome the thoughts of others.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, campaigns<https://electionlawblog.org/?cat=59>

“Indictment Details How Emirates Sought Influence in 2016 Campaign”<https://electionlawblog.org/?p=108301>
Posted on December 5, 2019 8:13 pm<https://electionlawblog.org/?p=108301> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT:<https://www.nytimes.com/2019/12/05/us/politics/indictment-uae-influence.html>

The indictment accused Mr. Nader of funneling more than $3.5 million in illicit campaign donations through Mr. Khawaja to buy access and influence in Washington — initially with Mrs. Clinton and her Democratic allies during the 2016 campaign, and then with Donald J. Trump after he won the election — to gain “favor” and “potential financial support” from an unnamed foreign government.

A close reading of the 64-page indictment makes clear that the unnamed government is the United Arab Emirates, where Mr. Nader owns a business and advises the crown prince.

At a time of intense debate in Washington over foreign interference in American politics, critics say the scheme outlined in the indictment is one of the most brazen attempts in memory by a foreign power to buy influence during an election. Although lobbyists with foreign clients routinely contribute to campaigns, seldom has a foreign head of state been so personally linked to allegations of evading campaign finance laws.

It is the latest example of an ostensible American ally seeking to shape American policy from the inside, and it is all the more striking because Crown Prince Mohammed, widely known as M.B.Z., is one of the biggest foreign spenders on legal forms of influence — from hiring registered lobbyists to funding think tanks….

Mr. Khawaja and Mr. Nader attended Mrs. Clinton’s election night party in Manhattan, according to people familiar with the event.

But immediately after Election Day, the indictment charges, both Mr. Nader and Mr. Khawaja pivoted to redirect their illicit support to Mr. Trump, beginning with a $1 million donation for the inauguration.
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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>

New Hampshire: “In Court, Students Share Concerns Over Election Law But Say They Could Still Register to Vote”<https://electionlawblog.org/?p=108299>
Posted on December 5, 2019 8:00 pm<https://electionlawblog.org/?p=108299> by Rick Hasen<https://electionlawblog.org/?author=3>

NHPR reports.<https://www.nhpr.org/post/court-students-share-concerns-over-election-law-say-they-could-still-register-vote#stream/0>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Mississippi: “Southaven Republican challenges 14-vote loss to Democrat, asks House to overturn election”<https://electionlawblog.org/?p=108297>
Posted on December 5, 2019 7:58 pm<https://electionlawblog.org/?p=108297> by Rick Hasen<https://electionlawblog.org/?author=3>

Mississippi Today:<https://mississippitoday.org/2019/12/05/southaven-republican-challenges-14-vote-loss-to-democrat-asks-house-to-overturn-election/>

State Rep. Ashley Henley, a Southaven Republican, is asking the GOP-led Mississippi House to overturn the results of the election she narrowly lost to Democrat Hester Jackson-McCray.

Jackson-McCray won the Nov. 5 general election by 14 votes, according to election results certified this week by the Secretary of State’s office.

Henley filed the election challenge on Wednesday, according to a copy of the challenge obtained by Mississippi Today. In the petition, Henley writes that several findings of her ballot box examination show a failure “to adhere to proper election procedures to insure a fair and legitimate election” under state law.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“A Holdover From the ‘Hanging Chad’ Debacle Is Making It Harder to Secure Voting Systems”<https://electionlawblog.org/?p=108295>
Posted on December 5, 2019 4:31 pm<https://electionlawblog.org/?p=108295> by Rick Hasen<https://electionlawblog.org/?author=3>

Chris Iovenko at Slate.<https://slate.com/technology/2019/12/voting-machine-certification-process-software-elections.html>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Ohio Finds Cases of Noncitizens Registered to Vote in 2018; State’s secretary of state says instances are ‘exceedingly rare’ thanks to controls and processes of election system”<https://electionlawblog.org/?p=108293>
Posted on December 5, 2019 8:48 am<https://electionlawblog.org/?p=108293> by Rick Hasen<https://electionlawblog.org/?author=3>

WSJ reports.<https://www.wsj.com/articles/ohio-finds-cases-of-noncitizens-registered-to-vote-in-2018-11575518052?mod=e2tw> Given earlier patterns, I would not be surprised to find that the number of noncitizen registrants and voters is far lower than this initial report.
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Posted in election administration<https://electionlawblog.org/?cat=18>

“Voter Identification and Nonvoting in Wisconsin—Evidence from the 2016 Election”<https://electionlawblog.org/?p=108291>
Posted on December 5, 2019 7:41 am<https://electionlawblog.org/?p=108291> by Rick Hasen<https://electionlawblog.org/?author=3>

Michael G. DeCrescenzo and Kenneth R. Mayer have written this article<https://www.liebertpub.com/doi/pdf/10.1089/elj.2018.0536> for ELJ. Here is the abstract:

How much did Wisconsin’s voter identification requirement matter in 2016? We conducted a survey of registered nonvoters in the counties surrounding the cities of Milwaukee and Madison to estimate the number of registrants who experienced ID-related voting difficulties in the 201 presidential election. We estimate that 10 percent of nonvoters in these counties lack a qualifying voter ID or report that voter ID was at least a partial reason why they did not vote in 2016, and six percent of nonvoters lacked a voter ID or cited voter ID as their primary reason for not voting. Theoretically, we argue that voter ID requirements ‘‘directly’’ affect voters who lack qualifying IDs but also ‘‘indirectly’’ affect voters who are confused about their compliance with the law. We find evidence of such confusion, with many respondents mistakenly believing that they did not have th necessary ID to vote when they actually did. Our analysis permits us to calculate bounds on the possible turnout effect in 2016. Most of our credible estimates suggest that the voter ID requirement reduced turnout in these counties by up to one percentage point.
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Posted in election administration<https://electionlawblog.org/?cat=18>, The Voting Wars<https://electionlawblog.org/?cat=60>, voter id<https://electionlawblog.org/?cat=9>

--
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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