“A Democratic Super PAC’s New Trump Ad Might Be Borderline Criminal”

Stickycheap speech, chicanery

I have written this piece for Slate. It begins:


Here’s something to scramble your brain: A progressive super PAC in Pennsylvania put out an advertisement trying to suppress mail-in voting by MAGA Republicans, and the Trump campaign responded by saying that the super PAC was violating the same law that Trump has been charged with violating in his federal election interference case. To boot, Trump’s lawyers said in their letter that the super PAC’s actions were just like those of Douglass Mackey, a Trump supporter that the Department of Justice successfully prosecuted for falsely telling Black supporters of Hillary Clinton in 2016 that they could vote for her by text. In the end, the super PAC’s actions appear despicable, but it is much more questionable whether the advertisement crossed a legal line.

The 30-second advertisement in question opens with words onscreen: “MAGA PATRIOTS: LISTEN TO OUR PRESIDENT.” It then turns to a series of statements in which Donald Trump disparages the safety and security of voting by mail, claiming fraud and corruption. It ends with the words: “Stand strong with PRESIDENT TRUMP AGAINST MAIL-IN VOTING.” A disclaimer on the bottom explains that the ad was paid for by “Pennsylvania Values,” and was not authorized by any candidate or committee…

The advertisement sends a terrible message, and the super PAC’s tactics deserve condemnation. All eligible voters should be encouraged to vote in whatever way is most convenient for them, including mail-in voting. This advertisement is only going to fuel more distrust of voting by mail among Trump supporters by reminding them of his earlier statements, and ramp up further negative polarization between the parties by highlighting the voting wars and engaging in a dirty trick: The message is not coming from “MAGA Patriots,” but from partisans on the left….

Mackey was convicted under Section 241 and his case is currently on appeal to the 2nd Circuit, where he is arguing, among other things, that his conviction violates the First Amendment because it squelches too much free speech. I filed an amicus brief along with the Protect Democracy Project and the Yale Media Freedom and Information Access Clinic arguing that so long as Section 241 is read to apply in speech and voting cases only to lies about when, where, or how people vote, the law does not violate the First Amendment.

If that reading is right, the new super PAC ad may not violate Section 241. The ad never lies to voters about when, where, or how to vote. It instead uses Trump’s own words expressing Trump’s distrust of mail-in voting to imply that Trump still does not want his supporters to vote by mail (this implication may be false, but who knows with Trump, who recently called mail-in voting “treacherous”). It also implies that the speech is coming from MAGA supporters. The ad doesn’t quite say the ad is paid for by Trump forces, though it does refer to Trump as “OUR PRESIDENT.” It includes false statements made by Trump about ballots being found in creeks. Maybe that should count as a super PAC lie about how people vote? Perhaps this ad is artfully crafted to potentially just stay on the line of legality under the test we think works in the Mackey case. The super PAC will need some good lawyers.

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Must-read WaPo: “Trump allies test a new strategy for blocking election results”

chicanery, Election Meltdown, election subversion risk

WaPo:

When a member of Georgia’s Fulton County Board of Registration and Elections refused to join her colleagues as they certified two primaries this year, she claimed she had been denied her right to examine a long list of election records for signs of fraud or other issues.

Now the board member, Julie Adams, an avowed believer in the false theory that the 2020 election was stolen from former president Donald Trump, is suing the board, hoping a judge will affirm that right and potentially empower others in similar positions elsewhere to hold up the outcome of elections.

To voting rights activists, election law specialists and Democrats, such actions represent an ominous sign that could presage a chaotic aftermath to the 2024 election. They are particularly worried about the threat of civil unrest or violence, especially if certification proceeds amid protests or efforts to block it.

Adams wrote in her lawsuit that she “swore an oath to ‘prevent fraud, deceit, and abuse’ in Fulton County elections” — duties that she says are not possible without examining the records she has demanded. Her detractors say she is seeking the power to block a victory for President Biden. The Democratic National Committee and state Democratic Party have asked to intervene in the suit, claiming Adams’s actions are part of a coordinated effort by Trump, his allies and the GOP to sow the same kind of doubt in this year’s presidential election that led to the violent attempt on Jan. 6, 2021, to overturn Biden’s first victory.

“They are playing poker with the cards up,” said Tolulope Kevin Olasanoye, executive director of the Democratic Party of Georgia. “They are telling us exactly what they are going to do. We would be foolish if we sat on our hands and did nothing and watched this happen.”

Trump has stated plainly that the only way he can lose this fall is if Democrats cheat. His campaign and the Republican National Committee are spending historic sums building “election integrity” operations in key battleground states, preparing to challenge results in court, and recruiting large armies of grass-roots supporters to monitor voting locations and counting facilities and to serve as poll workers….

But the chaos and confusion that could result from such an effort are themselves a deep concern among voting rights advocates, who believe that unsubstantiated claims of fraud by Trump and his allies are sowing even deeper mistrust in the fall election results than they did four years ago, raising the potential for unrest and even violence on a greater scale too.

“An awful lot of people are looking at a potential parade of horrible scenarios,” said Ben Ginsberg, a longtime GOP election lawyer who is now an anti-Trump democracy advocate. “The number of people who doubt the reliability of elections has only increased. It hasn’t decreased. And that worries me tremendously.”…

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“Trump campaign accuses Democratic group of ‘election interference’ — for quoting Trump”

chicanery

Philadelphia Inquirer:

Donald Trump urged his supporters in 2020 not to vote by mail calling it “totally corrupt.” Now, his campaign is speaking out against an ad featuring Trump’s own comments about mail ballots.

The ad, running on some websites in the state, is paid for by a Pennsylvania Democratic super PAC, and listed as such, but is framed to viewers as coming from the GOP….

Trump’s campaign sent a cease and desist letter to the super PAC, PA Values, on Tuesday, threatening legal action and accusing it of airing a false television ad that “may interfere with the right of Trump supporters to cast their ballots in Pennsylvania.”

“Pennsylvania Values PAC is peddling lies to prevent voters exercising their right to vote,” Brian Hughes, a senior adviser to the Trump campaign said. “President Trump has been clear that his supporters should use all legal methods to cast a ballot this election. … To say otherwise in advertising, as this false TV commercial does, represents an intentional effort to mislead Pennsylvania voters, suppress Trump supporters, and disrupt a fair election this Fall.”

The Trump campaign demanded the PAC “immediately end the ad” and said it “expects law enforcement officials in Pennsylvania to immediately review this issue.”

The listed treasurer for PA Values did not immediately return a request…

I have a piece on this situation posting soon at Slate.

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“The Ground Is Shifting Under Biden and Trump”

political parties, political polarization

Tom Edsall NYT column:

How has the ascendance of well-educated, relatively affluent liberals among Democrats, alongside the dominance of non-college voters in the Republican coalition, altered the agendas of the two parties?

Are low-turnout elections and laws designed to suppress voting now beneficial to Democrats and detrimental to Republicans? Would the Democratic Party be better off if limits on campaign contributions were scrapped?

Nicholas Stephanopoulos, a law professor at Harvard, contends that the answer to these last three questions is changing from no to yes.

In a paper posted last week, “Election Law for the New Electorate,” Stephanopoulos argues that “the parties’ longstanding positions on numerous electoral issues have become obsolete. These stances reflect how voters used to — not how they now — act and thus no longer serve the parties’ interests.”…

The column adds a number of reactions from election law scholars, including me, to Nick’s provocative paper. I’ll have more to say on this broader topic in a big piece posting soon.

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Supreme Court on 6-3 Vote Splitting Conservative and Liberal Justices Makes It Easy to Give Gifts to State and Local Officials to Thank Them for Their Official Acts; Conservative Majority Relies on Legislative History in Part

bribery, Supreme Court

I’ve been following Snyder v. United States closely, not only because I am interested in bribery and illegal gratuities law but also because I based my Legislation course final exam on the case.

To me, it presents a fascinating and close question, and I’m not sure how I would have voted had I been asked what to do. Both the text and legislative history arguments can point in either direction. It is notable, however, that the conservative majority that usually rejects legislative history as unreliable relies on legislative history here to describe the purpose of an amendment to the statute. Majority opn. at 4-5 (“In 1986, Congress amended §666 and thereby avoided the law’s “possible application to acceptable commercial and business practices.” H. R. Rep. No 99–797, p. 30 (1986); see 100 Stat. 3612–3613.”). See also dissent at The House Report the majority quotes as explicating §666 confirms that §666 was meant to track §215—not §201(b), as the majority claims. See H. R. Rep. No. 99–797, at 30, n. 9.”).

How did THIS get by the textualists on the Court (including J. Kavanaugh, who wrote the decision)?

On the merits, this case is likely to increase state and local graft on the margins. Those who engage in outright bribery and take federal funds can still be prosecuted for bribery under section 666. But those who take illegal gratuities and avoid the magic words of a quid pro quo are more likely to be off the hook. Putting this case together with other recent ones, like McDonnell, it’s becoming harder and harder for federal prosecutors to pursue graft at the state and local level.

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Supreme Court on 6-3 Vote Rejects Social Media Government “Jawboning” Claim on Standing Grounds, But Strongly Suggests Claims of Jawboning were False

cheap speech, social media and social protests, Supreme Court

You can find the majority opinion in Murthy v. Missouri of Justice Barrett, along with the dissent of Justice Alito (joined by Justices Gorsuch and Thomas) at this link.

The claim was that government agencies pressured or coerced social media platforms including Facebook and Twitter to remove content (related to the election, Covid, etc.). This what the term “jawboning” refers to.

The Court did not opine on what would have to be proven in a jawboning case involving social media companies, because it held that none of the plaintiffs had standing: they did not show enough of a connection between the government‘s actions and plaintiffs’ injuries. As the majority opinion states: “the platforms moderated similar content long before any of the Government defendants engaged in the challenged conduct. In fact, the platforms, acting independently, had strengthened their pre-existing content moderation policies before the Government defendants got involved.”

Given that the majority said it would not reach the merits of the jawboning question, it’s inclusion of footnote 4, casting aspersions on the ridiculous factfinding of the district court, was notable as a slam. This is arguably the most important part of the opinion:

The Fifth Circuit relied on the District Court’s factual findings, many of which unfortunately appear to be clearly erroneous. The District Court found that the defendants and the platforms had an “efficient report-and-censor relationship.” Missouri v. Biden, 680 F. Supp. 3d 630, 715 (WD La. 2023). But much of its evidence is inapposite. For instance, the court says that Twitter set up a “streamlined process for censorship requests” after the White House “bombarded” it with such requests. Ibid., n. 662 (internal quotation marks omitted). The record it cites says nothing about “censorship requests.” See App. 639–642. Rather, in response to a White House official asking Twitter to remove an impersonation account of President Biden’s granddaughter, Twitter told the official about a portal that he could use to flag similar issues. Ibid. This has nothing to do with COVID–19 misinformation. The court also found that “[a] drastic increase in censorship . . . directly coincided with Defendants’ public calls for censorship and private demands for censorship.” 680 F. Supp. 3d, at 715. As to the “calls for censorship,” the court’s
proof included statements from Members of Congress, who are not parties to this suit. Ibid., and n. 658. Some of the evidence of the “increase in censorship” reveals that Facebook worked with the CDC to update its list of removable false claims, but these examples do not suggest that the agency “demand[ed]” that it do so. Ibid. Finally, the court, echoing the plaintiffs’ proposed statement of facts, erroneously stated that Facebook agreed to censor content that did not violate its policies. Id., at 714, n. 655. Instead, on several occasions, Facebook explained that certain content did not qualify for removal under its policies but did qualify for
other forms of moderation.

Justice Alito, in contrast, found enough evidence of jawboning to find standing (and then a likely violation of the law by the government). He relied in part on a report from Jim Jordan’s “weaponization of government” committee in the House, something that itself is quite unreliable.

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