[EL] ELB News and Commentary 9/22/19

Sun Sep 22 14:54:25 PDT 2019

“Trump’s Ukraine Gambit Could Be Another Campaign Finance Crime; Unfortunately, Robert Mueller may have given the president the green light to solicit foreign interference again”<https://electionlawblog.org/?p=107412>
Posted on September 22, 2019 2:53 pm<https://electionlawblog.org/?p=107412> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece<https://slate.com/news-and-politics/2019/09/trump-ukraine-campaign-finance-crime.html> for Slate. It begins:

President Donald Trump may well have committed a new campaign finance crime if he, as reported, pressured Ukraine into providing dirt on a political rival, former Vice President Joe Biden, and Biden’s son Hunter. Unfortunately, Special Counsel Robert Mueller may have stymied any future DOJ’s ability to enforce that law when he gave Trump’s son, Donald Trump, Jr. a pass earlier this year on similar conduct. If Trump has again sought foreign assistance in an election, Mueller’s decision not to enforce the law last time around is partly to blame for the president acting with total impunity along with an accompanying decay of democratic norms.

It concludes:

And now here we are in the 2020 election season with Trump and Ukraine. Thinking of the four concerns raised by Mueller, the first three elements do not save the president in this case. As to willfulness, there’s no way the president does not know that the solicitation of foreign opposition research constitutes a crime following the Mueller probe. He was even pressed on this<https://twitter.com/evanmcmurry/status/1138936855435591681?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1138936855435591681&ref_url=http%3A%2F%2Felectionlawblog.org%2F> by George Stephanopoulos last year and said he might accept such research again, which resulted in the head of the Federal Election Commission releasing a statement<https://www.vox.com/2019/6/14/18677631/trump-campaign-finance-law-fec-illegal-fbi> to once again clarify that, yes, this would be a crime. We will likely have a recording and a transcript of the Ukraine call, so evidence of the solicitation itself will be easy to find if it exists. Third, Biden is the leading Democratic presidential candidate who has a good chance of running directly against Trump in the 2020 election; of course any “dirt” on Biden would be worth more than $25,000.

So this leaves the First Amendment defense. Thanks to Mueller, Trump can plausibly claim he has a First Amendment right to go to a foreign government to solicit—even potentially extort—valuable information against political opponents. If the First Amendment protected this conduct from Trump, why even hold elections?

Ultimately, the best legal argument is that Trump committed a campaign finance crime if he solicited dirt on Biden and his son, as appears to be the case, regardless of whether there was any quid pro quo. But Mueller, despite expressing concern<https://www.usatoday.com/story/news/politics/2019/07/25/robert-mueller-warned-2020-russian-election-interference-what-happened-2016/1827616001/> about potential foreign interference in the 2020 elections in his recent testimony before the House Judiciary Committee, may have given Trump a green light through his own report.

Karl Marx once wrote that history repeats itself, first as tragedy then as farce. In this case, I think it is the opposite. The Trump Tower meeting was a farce. The president’s brazen actions now, if proven, will be a tragedy for American democracy.

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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>

“Gov. Gavin Newsom to decide whether American Independent Party must change name”<https://electionlawblog.org/?p=107408>
Posted on September 20, 2019 5:54 pm<https://electionlawblog.org/?p=107408> by Rick Hasen<https://electionlawblog.org/?author=3>

SF Chronicle<https://www.sfchronicle.com/politics/article/Gov-Gavin-Newsom-to-decide-whether-American-14452780.php?utm_campaign=CMS&psid=nWOg5>:

If the state Legislature has its way, the 52-year-old American Independent Party is going to need to find a new name, and it’s going to need to do it in a hurry.

A bill on Gov. Gavin Newsom’s desk would bar any political party from using “independent” in its name and, not coincidentally, give the American Independent Party, the largest of the state’s four minor parties, little more than a month either to change its name or be ousted from the California primary ballot in March.

If Newsom signs the bill, it will spark a court battle about just what rules California can put on a political party, especially when the rules are set by the competing political parties that run the Legislature.

“We have an attorney and as soon as the governor signs it, we’ll be in court the same day,” said Mark Seidenberg, California vice-chair of the American Independent Party.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Koch-Linked Nonprofit Must Disclose Donors, Settlement Mandates”<https://electionlawblog.org/?p=107406>
Posted on September 20, 2019 3:16 pm<https://electionlawblog.org/?p=107406> by Rick Hasen<https://electionlawblog.org/?author=3>

Bloomberg:<https://about.bgov.com/news/koch-linked-nonprofit-must-disclose-donors-settlement-mandates/>

A nonprofit linked to the conservative Koch organization that spent more than $20 million to elect Republican congressional candidates must disclose its donors, according to a settlement with the Federal Election Commission.

The now-defunct Americans for Job Security (AJS), said in a settlement<https://s3.amazonaws.com/storage.citizensforethics.org/wp-content/uploads/2019/09/18205844/MUR-6538R-Closing-Letter-to-Complainant-1.pdf> that it should have registered as a regulated political action committee beginning in 2010 because it spent most of its money to influence elections. Such PACS must disclose their contributors unlike nonprofits that say they are mainly interested in policy issues rather than political campaigns.

The watchdog group, Citizens for Responsibility and Ethics in Washington (CREW), disclosed the settlement Sept. 19, following a years-long legal battle to have a federal district court in Washington, D.C., force the FEC to take enforcement action. The case is one of several filed by CREW pressing the commission to act against what it calls “dark money groups.”
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, tax law and election law<https://electionlawblog.org/?cat=22>

“A ‘No-Confidence’ Vote on Presidential Candidates”<https://electionlawblog.org/?p=107404>
Posted on September 20, 2019 1:17 pm<https://electionlawblog.org/?p=107404> by Richard Pildes<https://electionlawblog.org/?author=7>

Politico is running a piece<https://www.politico.com/interactives/2019/how-to-fix-politics-in-america/> called “99 Ways to Fix American Elections,” with brief suggestions from 99 commentators. One of the most original and intriguing comes from Elaine Kamarck, of the Brookings Institution:

In our constitutional system, presidents don’t govern on their own; they share power with peers in other elected offices at the state and federal level. These people—the elected governors, representatives and senators—are well-equipped to evaluate who has the skill and temperament to govern. And unlike the president, they are directly elected by the people. We should let the representatives in Congress and the governors of each state review their respective party’s presidential candidates and give them a vote of confidence or no-confidence before presidential candidates face the primary voters. This reform would constitute a small check on the chance that a corrupt person with demagogic tendencies would win a nomination and become president.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Richard J. Childress Memorial Lecture: American Election Law in a Post-Truth World”<https://electionlawblog.org/?p=107402>
Posted on September 20, 2019 9:12 am<https://electionlawblog.org/?p=107402> by Rick Hasen<https://electionlawblog.org/?author=3>

I’m looking forward to giving this lecture<https://www.slu.edu/calendar/index.php?eID=8225> and participating in a broader election law symposium on St. Louis University on October 11:

Richard J. Childress Memorial Lecture: American Election Law in a Post-Truth World

Scott Hall
100 N. Tucker Blvd.
St. Louis , MO 63101

Friday, 11 October, 2019
09:00 am – 02:30 pm

Registration 8 to 9 a.m. | Program starts at 9 a.m.
4.8 MO CLE credits available

American Election Law in a Post-Truth World
Rapid technological change and the rise of social media have upended the traditional media’s business model and radically changed how people communicate, educate, and persuade. The decline of the traditional media as information intermediaries has transformed and “coarsened” social and political communication, making it easier for misinformation and vitriol to spread. The result? Political campaigns that increasingly take place under conditions of voter mistrust and groupthink, with the potential for foreign interference and domestic political manipulation via new and increasingly sophisticated technological tools. Such dramatic changes raise deep questions about the conditions of electoral legitimacy and threaten to shake the foundation of democratic governance.

This conference considers how this challenging information environment will affect election law in areas such as campaigns, campaign finance, and voting rights, and what election law might be able to do about it. The keynote speaker is Richard L. Hasen, Chancellor’s Professor of Law and Political Science at the University of California, Irvine.

RSVP here.<https://docs.google.com/forms/d/e/1FAIpQLSf7gfHN22FmFaxmV0vQJMCIEr-SYexZUE2-r4W37e56Cw3MIQ/viewform>

Box lunches are available for pre-order from Chris’ @ the Docket<https://www.chrisatthedocket.com/>. Please call (314) 977-4615 to place your order, EXCEPT during the hours of 11 a.m. to 1 p.m. Box lunches are $10 and include a sandwich, chips, cookie, and fountain drink or iced tea.

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Keynote Speaker: “American Election Law in a Post-Truth World”

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The annual Richard J. Childress Memorial Lecture and Symposium will be held Friday, Oct. 11, in Scott Hall’s John K. Pruellage Courtroom. The annual lecture is hosted by the Saint Louis University Law Journal<http://www.slu.edu/law/law-journal>.

Registration begins at 8 a.m., and the program begins at 9 a.m. 4.8 MO CLE credits available.

The Richard J. Childress Memorial Lecture<https://www.slu.edu/law/law-journal/programs/childress-lecture.php>, named in honor of former Dean Richard J. Childress (1969-1976), is a premier academic event highlighting a provocative and timely area of law. The lecture commemorates the contributions Dean Childress made academically, ethically, and socially to benefit Saint Louis University School of Law.

Schedule
Friday, Oct. 11

8-9 a.m.: Registration
9-10 a.m.: American Election Law in a Post-Truth World: Keynote speech with Rick Hasen
10-10:15 a.m.: Break
10:15-11:15 a.m.: Just The “Facts?” Reflections on Keynote: Panel One with Justin Levitt, Daniel Tokaji, and Guy-Uriel Charles
11:15-11:30 a.m.: Break
11:30 a.m.-12:30 p.m.: The Emerging Election Law Landscape: Panel Two with Derek Muller, Franita Tolson, and Yasmin Dawood
12:30-1:30 p.m.: Break
1:30-2:30 p.m.: Election Law on the Ground: Challenges in Missouri: Panel Three with Denise Leiberman, Jessie Steffan, Kenneth Warren

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Posted in Election Meltdown<https://electionlawblog.org/?cat=127>

“Documents: Top Florida Officials ‘Don’t Know’ How To Verify Felon Voting Eligibility”<https://electionlawblog.org/?p=107400>
Posted on September 20, 2019 9:03 am<https://electionlawblog.org/?p=107400> by Rick Hasen<https://electionlawblog.org/?author=3>

WLRN reports.<https://www.wlrn.org/post/documents-top-florida-officials-dont-know-how-verify-felon-voting-eligibility>
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Posted in felon voting<https://electionlawblog.org/?cat=66>

--
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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