[EL] Big DC Circuit campaign finance (non-)decision; more news

Tue May 14 08:52:09 PDT 2019

It appears there were only two votes in favor of en banc review (though we
cannot be certain because judges are not required to disclose their en banc
votes on the D.C. Circuit). This is particularly interesting given the
current makeup of the court. Only three of the ten judges participating in
the vote were appointed by Republican Presidents.

JHA

----
Jonathan H. Adler
Johan Verheij Memorial Professor of Law
Director, Coleman P. Burke Center for Environmental Law
Case Western Reserve University School of Law
11075 East Boulevard
Cleveland, OH 44106
ph) 216-368-2535
fax) 216-368-2086
cell) 202-255-3012
jha5 at case.edu
SSRN: http://ssrn.com/author=183995
Blog: http://reason.com/people/jonathan-adler/blogs
<http://www.washingtonpost.com/news/volokh-conspiracy/wp/author/adlerj/>
Web: http://www.jhadler.net

On Tue, May 14, 2019 at 11:44 AM Rick Hasen <rhasen at law.uci.edu> wrote:

> Breaking: DC Circuit Denies En Banc Consideration in Crew v. FEC Case,
> Essentially Giving Republican Commissioners Unfettered Ability to Block All
> Campaign Finance Enforcement Matters with No Judicial Review of the Decision
> <https://electionlawblog.org/?p=105136>
>
> Posted on May 14, 2019 8:37 am <https://electionlawblog.org/?p=105136> by *Rick
> Hasen* <https://electionlawblog.org/?author=3>
>
> Huge decision
> <https://www.fec.gov/resources/cms-content/documents/crew152038_ac_order2.pdf> not
> to take the case en banc today. Under the ruling, if the FEC deadlocks
> (typically along party lines) on an enforcement matter and those blocking
> enforcement claim “prosecutorial discretion,” there can be no meaningful
> judicial review of the matter.
>
> As Judge Pillard explains in her dissent from denial of rehearing en banc:
> “If a partisan bloc of the FEC can thwart a case like this one, FECA’s
> controls on campaign money, including the political committee registration
> and disclosure requirements here, are not worth much. “
>
> Or as FEC Commissioner Weintraub put it
> <https://www.fec.gov/resources/cms-content/documents/2019-04-05_ELW_Statement_-_DDC_decision_in_New_Models.pdf> last
> month: the decision in this case “vividly shows how a few magic words
> sprinkled onto the end of a statement by less than a majority of
> commissioners, suggesting what they could have done – but didn’t – in a
> case, can paper over even thoroughly debunked legal reasoning and protect
> even the most outrageous dismissals from any review whatsoever. The power
> the D.C. Circuit panel granted to these magic words eviscerates the right
> that Congress gave the American public to review this agency’s decisions.”
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D105136&title=Breaking%3A%20DC%20Circuit%20Denies%20En%20Banc%20Consideration%20in%20Crew%20v.%20FEC%20Case%2C%20Essentially%20Giving%20Republican%20Commissioners%20Unfettered%20Ability%20to%20Block%20All%20Campaign%20Finance%20Enforcement%20Matters%20with%20No%20Judicial%20Review%20of%20the%20Decision>
>
> Posted in campaign finance <https://electionlawblog.org/?cat=10>, federal
> election commission <https://electionlawblog.org/?cat=24>
>
>
>
>
> “Ron DeSantis ‘not allowed’ to disclose which two Florida counties were
> hacked by Russians” <https://electionlawblog.org/?p=105138>
>
> Posted on May 14, 2019 8:35 am <https://electionlawblog.org/?p=105138> by *Rick
> Hasen* <https://electionlawblog.org/?author=3>
>
> Tampa Bay Times reports
> <https://www.tampabay.com/florida-politics/buzz/2019/05/14/which-florida-counties-had-election-hacks-russians-fbi-and-now-gov-ron-desantis-all-know-but-we-dont/>
> .
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D105138&title=%E2%80%9CRon%20DeSantis%20%E2%80%98not%20allowed%E2%80%99%20to%20disclose%20which%20two%20Florida%20counties%20were%20hacked%20by%20Russians%E2%80%9D>
>
> Posted in Uncategorized <https://electionlawblog.org/?cat=1>
>
>
>
>
> Today’s Must-Read: Jessica Huseman of ProPublica Went with Secretaries of
> State on Civil Rights Tour, and They Have Very Different Views About How
> Far We Have Come on Voting Rights and Racial Justice
> <https://electionlawblog.org/?p=105133>
>
> Posted on May 14, 2019 7:29 am <https://electionlawblog.org/?p=105133> by *Rick
> Hasen* <https://electionlawblog.org/?author=3>
>
> Read it here
> <https://www.propublica.org/article/voting-officials-take-civil-rights-tour?utm_content=buffer8df2d&utm_medium=social&utm_source=twitter&utm_campaign=buffer>
> .
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D105133&title=Today%E2%80%99s%20Must-Read%3A%20Jessica%20Huseman%20of%20ProPublica%20Went%20with%20Secretaries%20of%20State%20on%20Civil%20Rights%20Tour%2C%20and%20They%20Have%20Very%20Different%20Views%20About%20How%20Far%20We%20Have%20Come%20on%20Voting%20Rights%20and%20Racial%20Justice>
>
> Posted in election administration <https://electionlawblog.org/?cat=18>, Voting
> Rights Act <https://electionlawblog.org/?cat=15>
>
>
>
>
> El-Haj on Kang on El-Haj on Responsive Party Government
> <https://electionlawblog.org/?p=105131>
>
> Posted on May 14, 2019 7:22 am <https://electionlawblog.org/?p=105131> by *Rick
> Hasen* <https://electionlawblog.org/?author=3>
>
> Tabatha
> <https://columbialawreview.org/content/the-possibilities-for-responsive-party-government/> Abu
> el-Haj in the Columbia Law Review Online:
>
> *Despite finding my diagnosis of the ills of contemporary American parties
> and my indictment of responsible party government and its hold over First
> Amendment doctrine “almost undeniable,” Professor Kang raises two
> fundamental worries about the associational path to party reform in
> his response
> <https://columbialawreview.org/content/the-problem-of-irresponsible-party-government/> to
> my essay, Networking the Party: First Amendment Rights and the Pursuit of
> Responsive Party Government
> <https://columbialawreview.org/wp-content/uploads/2018/05/Abu-El-Haj_Tabatha-Networking-the-Party.pdf>. In
> essence, he challenges me to explain why the associational path is not only
> theoretically optimal but also practically possible, and I take up that
> challenge in the friendly spirit in which it has been offered in my
> reply, The Possibilities for Responsive Party Government
> <https://columbialawreview.org/content/the-possibilities-for-responsive-party-government/>.*
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D105131&title=El-Haj%20on%20Kang%20on%20El-Haj%20on%20Responsive%20Party%20Government>
>
> Posted in political parties <https://electionlawblog.org/?cat=25>, political
> polarization <https://electionlawblog.org/?cat=68>
>
>
>
>
> “Bernie Sanders, a Front-Runner With Financing to Prove It, Struggles to
> Retain Outsider Status; The candidate who blasted the campaign-finance
> system as ‘corrupt’ has drawn support from outside groups with few
> restrictions and undisclosed donors
> <https://electionlawblog.org/?p=105129>
>
> Posted on May 14, 2019 7:18 am <https://electionlawblog.org/?p=105129> by *Rick
> Hasen* <https://electionlawblog.org/?author=3>
>
> WSJ reports
> <https://www.wsj.com/articles/bernie-sanders-a-front-runner-with-financing-to-prove-it-struggles-to-retain-outsider-status-11557759378?emailToken=55ba80f301f56e1f1a25fd237e56e82epZriVdAL+OQjzSPkP8Lo5UP+bXZYPAQQPvFnnW9zecgMBXYU/75msQzxkXIZ2Qadf7e6rxrdIQupySaalMqCSX0RokFwm+JCpEPX8TP4AKKL6Tvjmtiw72O4unxRP4hAGcrJNuy3cFBlC6eIfZS537E7/69hNXK6j6CcVbcJSt4%3D&reflink=article_email_share>
> .
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D105129&title=%E2%80%9CBernie%20Sanders%2C%20a%20Front-Runner%20With%20Financing%20to%20Prove%20It%2C%20Struggles%20to%20Retain%20Outsider%20Status%3B%20The%20candidate%20who%20blasted%20the%20campaign-finance%20system%20as%20%E2%80%98corrupt%E2%80%99%20has%20drawn%20support%20from%20outside%20groups%20with%20few%20restrictions%20and%20undisclosed%20donors>
>
> Posted in campaign finance <https://electionlawblog.org/?cat=10>,
> campaigns <https://electionlawblog.org/?cat=59>
>
>
>
>
> “Justice Department Is Now Inviting Foreign Interference in 2020 “
> <https://electionlawblog.org/?p=105127>
>
> Posted on May 14, 2019 7:15 am <https://electionlawblog.org/?p=105127> by *Rick
> Hasen* <https://electionlawblog.org/?author=3>
>
> Frank Wilkinson
> <https://www.bloomberg.com/opinion/articles/2019-05-14/william-barr-invites-2020-election-interference> for
> Bloomberg View:
>
> *Democratic Senator Chris Coons of Delaware asked
> <https://www.c-span.org/video/?c4795496/chris-coons-questions-william-barr-mueller-report> the
> attorney general this: If North Korean intelligence officers were to offer
> a U.S. campaign dirt on their opponent, should the campaign contact the
> Federal Bureau of Investigation?*
>
>
>
> * This was not a trick question. North Korea is a barbarous regime that
> tortures and murders its own people while perpetually threatening other
> nations. Yet the law maintains that even Canadians are “broadly prohibited”
> from providing a “thing of value” to a U.S. campaign. Barr paused, treading
> water, seemingly unsure how to answer. Finally, he allowed, “a
> foreign intelligence service, yes.”*
>
>
> * There is nothing in U.S. law stipulating that only intelligence services
> are barred from such actions. The nation’s highest law enforcement officer
> was defining law downward in real time.*
>
>
>
>
>
> * It wasn’t an isolated comment. Barr was similarly unwilling to defend
> the law when Republican Senator Ben Sasse of Nebraska asked him whether a
> foreign enemy of the U.S. could put campaign operatives on retainer and
> send them off to volunteer for a U.S. campaign. Sasse’s hypothetical, one
> of few questions posed by a Republican on the panel that was meant to
> solicit information rather than advance false narratives
> <https://www.kansascity.com/opinion/editorials/article229963854.html>, was
> based on the real-life example of Trump campaign chairman and convicted
> felon Paul Manafort. In 2016 Manafort joined the Trump campaign while
> deeply in debt to Russian oligarch Oleg Deripaska, whom Sasse called
> <https://www.newsweek.com/republican-ben-sasse-slams-paul-manafort-working-trump-campaign-while-working-1411990> a
> “bad dude” with “no alignment with the interest of the U.S. people and our
> public.” Again, Barr demurred. “It depends on the specific circumstances,”
> he said. “It’s a slippery area.”*
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D105127&title=%E2%80%9CJustice%20Department%20Is%20Now%20Inviting%20Foreign%20Interference%20in%202020%20%E2%80%9C>
>
> Posted in chicanery <https://electionlawblog.org/?cat=12>, Department of
> Justice <https://electionlawblog.org/?cat=26>
>
>
>
>
> “NC Democrats’ ugly double-standard on Kim Strach”
> <https://electionlawblog.org/?p=105125>
>
> Posted on May 14, 2019 7:12 am <https://electionlawblog.org/?p=105125> by *Rick
> Hasen* <https://electionlawblog.org/?author=3>
>
> Charlotte Observer editorial
> <https://www.charlotteobserver.com/opinion/editorials/article230372054.html>
> :
>
> *Kim Strach, the executive director of the state Board of Elections, was
> doing a good job before she got fired Monday
> <https://www.newsobserver.com/news/politics-government/article230336224.html>.
> She’d helped guide the board through the minefield of the 9th Congressional
> District election fraud scandal. She’d offered strong suggestions to
> lawmakers about preventing future fraud, and some of those recommendations
> became part of a truly bi-partisan N.C. House bill
> <https://www.ncleg.gov/BillLookUp/2019/H944>.*
>
> *So why did Strach get shown the door? It’s because she is a Republican
> and the Board of Elections is majority Democrat. It’s legal. It’s happened
> before. And it’s wrong…*
>
> *Instead, Democrats on Monday launched an ugly attempt at character
> assassination, with N.C. Democratic Party chair Wayne Goodwin accusing
> Strach of protecting Republicans both as an investigator and chair. The
> reality is that Strach and the board under her have vigorously pursued both
> Democrats and Republicans, most recently when she resisted Republican calls
> to leave Mark Harris alone in the 9th District. Even Cordle, the Democratic
> board chair, said Monday that Strach had done an excellent job for the
> state.*
>
> *Among Strach’s other offenses, according to Goodwin? She is married to
> Phil Strach, an attorney who regularly represents the Republican-led
> legislature in court cases, some of which involved election law issues. It
> was an absurd and sad public moment for Goodwin, a long-time state servant,
> and it speaks to precisely why Strach’s firing was wrong. For years, N.C.
> Republicans have tried to use legislation involving voting and elections
> <https://www.charlotteobserver.com/opinion/editorials/article193909454.html> —
> including the composition of elections boards — to hold and tighten their
> grip on power. For years, Democrats have decried such tainting of elections
> with politics. Strach, meanwhile, has done her job the way any party should
> want it done. That includes with the 9th District scandal, which was a
> jarring reminder that elections boards from the county level to Raleigh
> should be free from politics, and that North Carolinians should have the
> confidence that the people who rule on election disputes do so without
> partisan considerations.*
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D105125&title=%E2%80%9CNC%20Democrats%E2%80%99%20ugly%20double-standard%20on%20Kim%20Strach%E2%80%9D>
>
> Posted in election administration <https://electionlawblog.org/?cat=18>, political
> polarization <https://electionlawblog.org/?cat=68>
>
>
>
>
>
>
>
> --
>
> 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
>
> http://www.law.uci.edu/faculty/full-time/hasen/
>
> http://electionlawblog.org
>
> [image: signature_1835808188]
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