“Ex-First Couple’s Defense in Virginia: State of Union”


Former Gov. Bob McDonnell of Virginia and his wife, Maureen, on trial for conspiring to use his office for personal enrichment, outlined an unexpected defense on Tuesday: Their marriage was so broken that they did not communicate enough to conspire about anything….

Prosecutors do not portray Mr. Williams as an angel. Ms. Aber described him dismissively as “a vitamin salesman.” But she alleged a quid pro quo between Mr. Williams’s gifts to the McDonnells and the governor’s actions on his behalf. She presented a text message from Mr. McDonnell to Mr. Williams in May 2012 reading, “Per voice mail, would like to see if you could extend another 20k loan for this year.”

Mr. Williams’s response: “Done.”

Another time, after thanking Mr. Williams for funds to help cover expenses for some real estate investments, Mr. McDonnell sent an email to his policy director just six minutes later telling him to meet to discuss how to advance Mr. Williams’s products.

The aide’s reply: “We need to be careful with this issue.”

Mr. McDonnell’s defense argued such interventions were not improper; they are what all elected officials do to promote state businesses. “To criminalize this bedrock principle,” John Brownlee, one of the former governor’s lawyers, said, “would make felons of virtually every person who’s held public office.”


“Names and addresses of Texans who signed anti-gay petition leaked online”

Gay Star News:

Texas LGBT group has published on the Internet the personal details of Texans who signed a petition against a recent LGBT anti-discrimination bill.

A group under the website HeroPetition.com, named after the Houston Equal Rights Ordinance (HERO), published the 50,000 names and addresses of Texans who want to overturn an anti-discrimination ordinance via public vote in November elections.

On their website, the group claims some voters have been conned into signing against the ordinance and encourages citizens to review all the signed pages of the petitions to watch for voter fraud.


“Leaked Memo Tells Senate Candidate To Spend 80 Percent Of Her Time Raising Money”

HuffPo‘s Paul Blumenthal:

A campaign strategy memo prepared for Georgia Democratic Senate candidate Michelle Nunn last year and leaked online on Monday reveals far more than just the inner workings of one high-profile Senate campaign. Details in the memo illuminate the dominant role of fundraising in the political world.

“Hitting our targets will require us to prioritize fundraising above all else and to focus the candidate’s time on it with relentless intensity,” the memo, written in December 2013 and leaked to National Review, states in a section on the campaign’s finance plan.

To reach the campaign’s target of raising $15 million to $20 million for the entire race, the memo urges that Nunn’s time be budgeted almost exclusively for fundraising, at least until the tail end of the race. Nunn, who would face no serious competition in the Democratic primary, should spend between 70 and 80 percent of her time raising money from January through September, according to the memo. Only in October does the recommended fundraising time drop to 50 percent.

The memo estimates that there are 2,500 campaign hours in 2014 and recommends that 2,201 of them be spent raising money.


“One GOP Consultant, Two Campaigns and a Snarl of Outside Groups”

Must-read Open Secrets deep dive:

Bruce Rauner is a Chicago billionaire who has never held political office, yet this spring he mowed down a crowd of rivals and claimed the GOP nomination to be Illinois’ next governor. David Perdue is a wealthy former executive who also has never been elected to public office, yet he too knocked off a string of far more experienced Republican opponents to win the party’s Senate nomination in Georgia.

Despite never having endured a run for office, both men battled through crowded fields studded with much more campaign-savvy candidates, digging into their own wallets to heavily finance their bids. In a primary season defined by the insider-vs-outsider story line, in both cases the new-guy-with-money pushed by the insiders and outsiders and got the win.

The pair are seeking very different offices in very different states, and don’t seem particularly ideologically aligned. But their campaigns have had two common elements, aside from their success thus far.

First, both benefited from large ad buys by a mysterious Ohio nonprofit that hides its donors and has no obvious interest in Rauner or Perdue’s campaigns. The ads have harshly attacked the two men’s rivals.

Second, they both employed a political consultant named Nick Ayers.

And Ayers, it turns out, worked for the very same groups that funded the attacks against Rauner and Perdue’s opponents.


“Outside Money Drives a Deluge of Political Ads”

Must-read NYT:

An explosion of spending on political advertising on television — set to break $2 billion in congressional races, with overall spots up nearly 70 percent since the 2010 midterm election — is accelerating the rise of moneyed interests and wresting control from the candidates’ own efforts to reach voters.

In the first full midterm cycle where outside groups have developed a sophisticated infrastructure, the consequences are already becoming apparent: a harshly negative tone dictated by the groups and a nearly nonstop campaign season that could cause voters to tune out before Election Day.


“Insurer-Backed Health Care Ad Illustrates Opaque Finance System”


The largely hidden role of the for-profit health insurers highlights the increasingly confusing world of campaign finance, as nonprofit groups like the National Federation of Independent Business and its Voice of Free Enterprise program can keep their donor lists secret, and then present their carefully crafted message, financed in large part by big business, as if it is coming from, perhaps, a more sympathetic voice….The Arkansas television advertisement, run in December, featured John Parke, the chief operating office of Democrat Printing and Lithographing Company in Little Rock, Arkansas, a 143-year-old, family-run company.

“We are a small business that has been part of the central Arkansas community for four generations,” Mr. Parke says in the ad, paid for by Voice of Free Enterprise, which features scenes of worn-out printing presses and laborers hard at work. “What Obamacare means for Arkansas small businesses is tough choices, the mandates, the increased costs, the increased taxes.”

But tax records filed late last year by the group show $1.593 million of the organization’s $4.9 million in revenue came from an anonymous donor in 2012, the largest single contribution.

That is the exact amount that America’s Health Insurance Plans, a trade association run by top executives from companies including Aetna and United Health Care, lists as having spent on “advocacy organizations as part of its advocacy efforts on issues associated with reform of the nation’s health care system.” The tax return prepared separately by America’s Health Insurance Plans does not disclose that it donated the money to, or at least spent it in collaboration with, the Voice of Free Enterprise.


How Much Weight to Give to Gruber’s Statements? Not Much

There’s a great irony in those who up until yesterday supported the DC Circuit’s strict textualist reading of the ACA now pointing to a statement made by a supporter of the law involved in its drafting as evidence of the statute’s meaning. (Never mind that Gruber now says his statement was a mistake.)

Of course, for textualists, the statements of anyone about the meaning of a statute would seem to be irrelevant (except, according to Justice Scalia, such statements might be admissible to prove that a seemingly absurd reading of a text was actually what was intended).

What about for those who rely on legislative history?  For the great majority of judges who do rely on legislative history, committee reports are considered the most reliable.  Statements of individual legislators are the least reliable.  The statement of Gruber seems less reliable still of evidence of the intent of Congress.

There have been some occasions where judges have relied on statements on nonlegislative drafters, but they are controversial.  There is a good discussion in the leading Legislation casebook on this question, Eskridge, Frickey and Garrett, at 1018-20 (notes following Kosak case.) A snippet which comes after explaining why statements of nonlegislative drafters of legislation should not be given much weight:

Notwithstanding these objections, the Supreme Court or individual Justices have occasionally relied on statements by public, nonlegislative officials who draft or promote statutes. [Citations.] Note, however, that (as in Kosak) the Court will not rely on these statements as the most probative — and certainly not the only evidence of statutory meaning. There are very few state cases; almost all of them either reject or denigrate such evidence. [Citations.]…

At least [the person whose testimony was relied on in Kosak] was a public servant. Should the Court consider authoritative the statements of interest groups which draft and press legislation? In some instances the Court or some Justices have considered testimony about legislation by private groups or individuals who drafted or commented on the legislation.

[Original emphasis]

UPDATE: Ed Whelan responds, going with the anti-absurdity point.


“Attorneys for FEC, Republican Party Debate Procedure in Soft Money Case”

Bloomberg BNA:

Lawyers for the Federal Election Commission and the Republican National Committee are arguing in court about whether a new RNC lawsuit challenging the ban on unlimited “soft money” contributions to political parties should be heard under expedited procedures, including convening a special, three-judge court (RNC v. FEC, D.D.C., No. 14-853, hearing 7/16/14).

The outcome of the procedural dispute could have a major impact on how fast the case gets resolved. If the case is heard by a three-judge court, that court’s ruling could immediately be appealed to the Supreme Court, giving the high court a chance to overturn the soft-money ban.
I’d go even further than Bloomberg’s reporter Ken Doyle. If this comes up from a three judge court, the Supreme Court will almost certainly take it, because a decision on an appeal IS a decision on the merits (unlike denial of a cert. petition in the usual course).  That’s why this fight matters so much.  (Here’s more on this inside baseball point about the difference between appeals and cert. denials.)

“Judge ‘skeptical’ he can delay election with unconstitutional map”

Orlando Sentinel:

Facing a looming electoral deadline, a judge said Thursday he was “extremely skeptical” he could delay elections this fall using Central Florida’s illegally drawn congressional maps.

Instead, Leon County Circuit Judge Terry Lewis said he would make a decision by the end of next week on what to do now that he has found they unconstitutionally were drawn with partisan intent.