Monthly Archives: January 2018

Today’s Must Read: “Zombie Campaigns: The campaign is over. The candidate might be dead. But the spending never stops.”

This is something from the Tampa Bay Times:

IT’S BEEN MORE THAN A DECADE since South Florida Rep. Mark Foley was forced out of Congress for sending sexual text messages to teenage boys.

But Foley tapped his congressional campaign fund to dine on the Palm Beach social circuit four times in early 2017, ending with a $450 luncheon at the Forum Club of the Palm Beaches.

Then there’s baseball-star-turned-senator Jim Bunning of Kentucky. He paid his daughter $94,800 from campaign money in the four years after he left office, only stopping when he’d bled his fund dry.

And over the past 17 months, political advisor Dylan Beesley paid his firm more than $100,000 from the campaign account of Hawaii Congressman Mark Takai for “consulting services.”

It’s hard to imagine what Beesley advised. Takai was dead that whole time.

In their political afterlife, former politicians and their staffers are hoarding unspent campaign donations for years and using them to finance their lifestyle, advance their new careers and pay family members, an investigation by the Tampa Bay Times10News WTSP and TEGNA-owned TV stations found.

Their spending makes a mockery of one of the fundamental principles of America’s campaign finance laws: Donations must be spent only on politics, not politicians’ personal lives.

Times/WTSP reporters analyzed more than 1 million records detailing the spending of former U.S. lawmakers and federal candidates. They found roughly 100 of these zombie campaigns, still spending even though their candidate’s political career had been laid to rest.

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Federal District Court Issues Preliminary Injunction Barring NC Legislature’s Elimination of Partisan Primaries for Electing State Appeals and State Supreme Court Judges

You can find the opinion here.

In light of the state apparently offering no reason at all for why it made this change as to appellate judges, the federal court’s decision makes a lot of sense. It might be a very different case if the state came forward with important reasons for the change. As it is, the system looks to create bedlam at the polling place:

Further, the character and magnitude of S.L. 214’s burden is more substantial for appellate judges than for local judges. These judges run statewide, and in 2018 these partisan races will lead the statewide ticket.10 The legislature has decided that judicial races should be partisan, but by giving candidates complete control over party designation, abolishing primaries of any kind, and failing to provide another mechanism for reducing the number of candidates on the general election ballot, the partisan political parties are restricted in their ability to support a particular candidate for these statewide offices and to disassociate at the general election stage from candidates who are not reflective of the parties’ goals in judicial elections. See Doc. 14-1 at ¶¶ 10-12.

This burden is not hypothetical. In 2014, when a vacancy on the court of appeals was decided without a primary, 19 candidates were on the general election ballot. Doc. 14-1 at ¶ 16. After the 2014 general election, the State Board of Elections issued a report on voter wait times, Doc. 14-6 at ¶ 3, which among other things indicated significant problems with voter confusion in the court of appeals race; in counties with certain kinds of voting machines, this confusion and the long ballots were contributing factors to delays. Id. at 8 (noting that the spoilage of ballots resulting from voter confusion over the court of appeals race as contributing to the need to change paper rolls more often, thus removing a voting machine from availability, and, later, noting the long ballot contributed to voter wait times). The winner in that race received only 23% of the vote, just as had happened in 2004 when there were eight candidates for a supreme court seat. Doc. 14-1 at ¶ 16.

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“CLC Report: U.S. Elections Remain Vulnerable to Foreign Influence”


Today, Campaign Legal Center (CLC) released a report detailing the vulnerabilities of American elections to foreign interference that were exposed in the 2016 presidential election. The report outlines solutions for addressing this most urgent issue, which would protect the integrity of our democracy for the upcoming 2018 elections and beyond.

Foreign interference is a democracy issue, and the importance of addressing it goes far beyond the 2016 election. It is about protecting the foundations of our representative form of government, particularly in a world where political advertising is increasingly moving online. From the targeted theft of emails from political parties, to purported offers of opposition research, from a secret social media advertising campaign, to attempted hacking of state election systems, the 2016 elections showed that foreign interference could come in many forms. Our system was not equipped to handle it. In 2018, these threats could come from Russia again, or any number of other foreign countries or actors with an interest in influencing or disrupting U.S. democracy. The report is written by six authors and is a byproduct of a full-day event hosted by CLC in October 2017 convening legal experts, academics, journalists, and practitioners from across disciplines to address the pressing matter of foreign interference in U.S. elections.

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DOJ Drops Menendez Indictment: What Does It Say About the Supreme Court’s Approach to Political Bribery? Not What You May Think

News today that DOJ, after a hung jury the last time, has dropped the remaining charges against Sen. Menendez (some were dropped by the judge after the first trial). Much of the reason for the problems with the charges against Menendez stem from the Supreme Court’s McDonnell case, which some read as giving a green light to all kinds of improper conduct that is now immune from prosecution.

I confess that I did not see McDonnell as having this effect when it was decided, writing that given the way the statutes were written the Supreme Court’s unanimous decision reversing the conviction was the right thing to do. And Dan Tokaji blogged about what he saw as the overreaction to McDonnell

But in prosecutions from Sheldon Silver to William Jefferson to Menendez, the ruling is being felt. It now looks like elected officials can accept gifts and engage in all kinds of odious behavior without running afoul of bribery and related rules.

But remember that the unanimous McDonnell case was about how to read the statutes governing bribery. There should be room to tighten up those statutes and to impose much stricter gift bans to deal with a lot of these problems. Indeed, stricter gift bans would have solved the problems in a number of these cases, without running afoul of the First Amendment or the Due Process Clause.

Some of these decisions are regrettable given the conduct we’ve seen from elected officials for which they face no punishment. But it would be more regrettable not to tighten up the bribery and gift rules to deal with future cases like these.

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North Carolina Republicans May Not Be Done Trying to Mess with Composition of State Election Boards


Gov. Roy Cooper wants the legal wheels to spin faster after the North Carolina Supreme Court tossed out laws governing the makeup of a combined state elections and ethics board, hoping that will let him seat a new elections board quickly….

Rep. David Lewis of Harnett County, who helped shepherd the law that was the focus of the decision, said Tuesday that the Republican legislators would respond to Cooper’s request to the Supreme Court as soon as possible.

“That option is certainly still on the table,” Lewis said, adding he “would certainly expect some action by the General Assembly in the next few weeks.”

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“The Supreme Court’s Past, Present and Future”–Mar. 20 Event at UCI Law with Adam Winkler Discussing Our New Books

This should be great fun:

The Supreme Court’s Past, Present and Future

Tuesday, March 20, 2018
5:30-6:30 p.m.
UC Irvine School of Law, EDU 1111 (Directions)
RSVP to come >


UCI Law presents The Supreme Court’s Past, Present and Future, a conversation with UCLA Law Prof. Adam Winkler and UCI Law Prof. Rick Hasen to discuss their newly released books:

We the Corporations: How American Business Won Their Civil Rightsby Adam Winkler


The Justice of Contradictions: Antonin Scalia and the Politics of Disruption by Rick Hasen

(Reception and book signing to follow)

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“Klobuchar Accuses Tech Companies of Stalling ‘Honest Ads’ Bill”

Bloomberg BNA:

The primary sponsor of legislation to require more information about who’s paying to get voters’ attention says her online advertising bill probably is going nowhere in this election year.
Gathering enough support to get the bill enacted is “hard when a lot of the companies don’t want it done,” Sen. Amy Klobuchar (D-Minn.) said Jan. 30. “That’s our problem.”
The bill titled the Honest Ads Act (S. 1989), cosponsored by Sens. John McCain (R-Ariz.) and Mark Warner (D-Va.), would require disclosure of sources of funding behind paid political ads carried by big online platforms. It would give the Federal Election Commission the authority to require disclosure of sponsors of online ads that focus on elections and issues that could influence elections.
The legislation also would require ad sellers to make reasonable efforts to prevent foreign influence in U.S. elections.
Representatives of Google, Facebook and Twitter have been summoned to Capitol Hill to testify about political messages paid for by Russian sources. U.S. intelligence agencies have concluded Russia sought to intervene in the election to help elect President Donald Trump. Central Intelligence Agency Director Mike Pompeo, in an interview with the BBC, said he expects Russia to target the U.S. midterm elections.
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