Monthly Archives: February 2023

“West Virginia Adds to Election Deniers’ Ongoing Takeover of State Politics”


In January 2021, days after rallying outside the U.S. Capitol against legitimate presidential election results, West Virginia state Senator Mike Azinger said he hoped for an encore.

“(T)here’s a time where we all have to make a little bit of sacrifice. Our president called us to D.C.,” he told local news at the time. “It was inspiring to be there and I hope he calls us back.”

His loyalty to election denialism has not appeared to harm his political career; he was re-elected last fall after a tight Republican primary and a blowout general election, and, earlier this year, he was named chair of the Senate panel tasked with reviewing election policy. 

Azinger is now one of several election deniers leading legislative committees on election law, including in the battleground states of Pennsylvania and Arizona. Others have been elected to lead state Republican parties in recent weeks.

This takeover of GOP infrastructure by candidates who spread false conspiracies about the 2020 election has continued even since their high-profile losses in the fall of 2022. But in West Virginia, voting rights advocates say Azinger’s appointment to the chamber’s elections subcommittee has barely registered as scandalous. Bolts found this is neither being covered in local media nor inspiring any particular outcry among fellow lawmakers or the general public.

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“The Deepfake Dangers Ahead; AI-generated disinformation, especially from hostile foreign powers, is a growing threat to democracies based on the free flow of ideas”

 Daniel Byman, Chris Meserole And V.S. Subrahmanian essay in the WSJ:

Domestically, deepfakes risk leading people to view all information as suspicious. Soldiers might not trust actual orders, and the public may think that genuine scandals and outrages aren’t real. A climate of pervasive suspicion will allow politicians and their supporters to dismiss anything negative that is reported about them as fake or exaggerated….

he options for democracies are complicated and will have to blend technical, regulatory and social approaches. Intel has already begun work on the technical side. Last November, the company’s researchers proposed a system called FakeCatcher that claimed 96% accuracy in identifying deepfakes. That number is impressive, but given the sheer volume of synthetic material that can be churned out, even a 99% accurate detector would miss an unacceptable volume of disinformation. Moreover, governments will have the services of highly skilled programmers, which means that their deepfakes are likely to be among the least detectable. Even the most ingenious detectors will have their limits, because breakthroughs in detection will almost certainly be used to improve the next generation of deepfake algorithms….

The U.S. government and other democracies can’t tell their people what is or isn’t true, but they can insist that companies that produce and distribute synthetic media at scale make their algorithms more transparent. The public should know what a platform’s policies are and how these rules are enforced. Platforms that disseminate deepfakes can even be required to allow independent, third-party researchers to study the effects of this media and monitor whether the platforms’ algorithms are behaving in accordance with their policies.

Deepfakes are going to change the way a lot of institutions in democracies do business. The military will need very secure systems for verifying orders and making sure that automated systems can’t be triggered by potential deepfakes. Political leaders responding to crises will have to build in delays so that they can make sure the information before them isn’t false or even partially manipulated by an adversary. Journalists and editors will have to be leery of shocking news stories, doubling down on the standard of verifying facts with multiple sources. Where there is doubt, an outlet might mark some news with bright “this information not verified” warnings.

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“What Happens When a Senator Is Incapacitated?”

Jerry Goldfeder:

The hospitalization of Sen. John Fetterman for depression raises a host of questions. Of course our first reaction is to convey good wishes for a speedy recovery and acknowledge that mental health issues are as real as physical problems. Indeed, to appreciate the often-concealed suffering associated with such disease, one need only read the heart-stopping book, “Invisible Storm: A Soldier’s Memoir of Politics” by Jason Kander, the former Missouri Secretary of State and U.S. Senate candidate who dropped out of a sure-win Kansas City mayoral race when he finally recognized that his depression and PTSD had made his life unbearable. Fortunately we are a far cry from Sen. Tom Eagleton’s experience of being removed as George McGovern’s vice presidential running mate in 1972 when it was discovered that he had gotten electroshock treatment for depression. (By the way, after several years of therapy, Kander seems to be doing pretty well.)

Beyond any sympathy or empathy one might feel for the Pennsylvania senator is his hospitalization’s political impact. Aside from the fact that his constituents’ needs are being temporarily unmet by him (though I am sure his staff is working 24/7), there is the issue of whether his absence imperils the majority’s effectiveness in the Senate. After all, neither Fetterman nor his physicians can predict how long he will be away from Washington. The good news is that the Democrats have a two-vote edge, so his course of treatment does not deprive them of a majority. But life being as unpredictable as it is, the majority party is only one heartbeat away from an evenly split Senate. Although Vice President Kamala Harris could then cast a tie-breaking vote, that would depend on Majority Leader Chuck Schumer’s being able to count on his full caucus (remember Sens. Joe Manchin and Kyrsten Sinema?).

Unfortunately, Fetterman’s situation is neither new nor unique: Sen. Tim Johnson from South Dakota was out for eight months after suffering a brain hemorrhage in 2006; Sen. Ben Ray Lujan from New Mexico had a stroke in 2022 and it took him a few months to recover; and former Vermont Sen. Patrick Leahy checked into the hospital last year when the Senate was 50-50. These are just a few of the recent examples. And, in that the Senate does not allow proxy voting (unlike the House during the pandemic), all members need to show up. John McCain, battling brain cancer at the time, had to appear personally in the Senate chamber to save Obamacare.

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Did Rupert Murdoch Make an Illegal In-Kind Campaign Contribution to the Trump Campaign by Sharing Biden’s Campaign Ads in Advance?

The latest filing in the Dominion lawsuit against Fox News alleges that “During Trump’s campaign, Rupert provided Trump’s son-in-law and senior advisor, Jared Kushner, with Fox confidential information about Biden’s ads, along with debate strategy. [Citation]; Ex. 603 (providing Kushner a preview of Biden’s ads before they were public).”

Rep. Ted Lieu raises the question whether the actions of Murdoch are illegal. Corporations may not make contributions to candidates in any amount (a law that the the Supreme Court upheld against constitutional challene in the 2003 FEC v. Beaumont case). But corporate expenditures by a press entity do not count under the so-called “media exemption” when the press is engaed in normal press functions, like providing commentary or reporting on the news.

In this case (assuming the facts as alleged in the Dominion complaint are true—they may not be), sharing one candidate’s ads that have not aired with a competing candidate does not appear to be part of any press function. The ads were not shared for the purpose of newsgathering or opinion writing. They appear to be outside the context of the media exemption, and potentially illegal.

A helpful Harvard Law Review student note by Emily Hogin explains:

1. Most traditional media corporations’ activities fall within the press exemption. — Since Reader’s Digest, the FEC has nearly always concluded that content disseminated by traditional media companies falls within the press exemption. In a 1982 Advisory Opinion, the FEC advised a TV station owned by Turner Broadcasting System, a corporation, that donating two hours of free cablecast time on one of its channels to both the Democratic National Committee and the Republican National Committee fell within the press exemption — and therefore was not an impermissible corporate contribution.58×58. FEC, Advisory Opinion 1982-44, at 2–3 (Aug. 27, 1982). Note that it is a “coordinated communication” to republish campaign materials under 11 C.F.R. § 109.21(c)(2), (d)(6) (2015). A nonmedia corporation that offered to pay for two hours of free cablecast time would thus likely be making an impermissible corporate contribution.Show More The Commission concluded that the proposed programming was “commentary” and therefore not an expenditure under the press exemption because “providing two hours of free time to both major political parties to discuss issues, to attempt to show the differences between the two parties and to encourage support of political parties is a vital part of covering and commenting upon political campaigns.”59×59. FEC, Advisory Opinion 1982-44, at 3; see also FEC, Advisory Opinion 1996-41 (Oct. 4, 1996) (advising a corporation that owns and operates seven television stations that it may, under the press exemption, air interviews with candidates in which each candidate is asked the same question and given five uninterrupted minutes to respond).Show More

In 1996, the FEC advised Bloomberg L.P., an online financial information network, that its proposal to host virtual town hall events in which Bloomberg customers, not professional reporters, could ask questions directly of federal candidates fell within the press exemption.60×60. See FEC, Advisory Opinion 1996-16 (May 23, 1996). In the same year, the FEC advised C-SPAN that it could air candidate video biographies and campaign commercials within its press functions as long as it maintained editorial control over the context in which those videos were presented.61×61. See FEC, Advisory Opinion 1996-48 (Dec. 6, 1996). The airing is another example of “republishing” campaign materials that would be impermissible under 11 C.F.R. § 109.21(c)(2), (d)(6) but for C-SPAN’s press exemption.Show More Two years later, the FEC advised another cable television system operator that it could offer several candidates “sufficient free time to accommodate up to 750 thirty-second spot advertisements for each of the eight weeks preceding the general election” as part of its press functions.62×62. FEC, Advisory Opinion 1998-17, at 1 (Sept. 10, 1998); see also id. at 3. A reality show featuring fake “candidates” competing in a campaign simulation was advised that it would be within the press exemption to invite real candidates on the show “to enhance the competition between the contestants.”63×63. FEC, Advisory Opinion 2003-34, at 2 (Dec. 19, 2003). The Commission decided by a vote of 4–2 that a nationally syndicated radio program was acting within its press capacity in permitting a sitting member of Congress to guest host the program with no other change in “format[], distribution, or other aspects of production.”64×64. See The Honorable Robert K. Dornan, MUR 4689, at 2 (FEC Dec. 20, 1999) (statement of Vice Chairman Darryl R. Wold and Comm’rs Lee Ann Elliott, David M. Mason, and Karl J. Sandstrom).Show More

The FEC has only twice in recent years found that a media company’s activities were outside of the scope of the press exemption. In 1994, the FEC found that while a cable television provider was acting within its press exemption when it aired an editorial advocating for the defeat of a federal candidate, it was not acting within its press exemption when it included flyers opposing that candidate with its subscribers’ cable bills.65×65. See Multimedia Cablevision Co., MUR 3657, at 23–26 (FEC May 25, 1994) (Gen. Counsel’s Report).Show More When comedian Stephen Colbert established his own political action committee (PAC), the FEC advised his employer, Viacom, that it must report costs associated with producing independent expenditure advertisements and administering the committee as in-kind contributions to the PAC because these activities were not part of its normal press functions.66×66. See FEC, Advisory Opinion 2011-11, at 1–2 (June 30, 2011). These two examples notwithstanding, the FEC has almost always found a traditional media corporation to be acting within its press exemption.

The Murdoch allegations seem much more like the exceptions flagged in the last paragraph. These activities too are not normally part of what the press does.

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“At Arizona Capitol, Republican leaders spotlight far-fetched election conspiracies”

Arizona Republic:

A monthlong series of presentations in the state Senate Elections Committee came to a head on Feb. 23 with the airing of a massive conspiracy theory involving alleged “bribery” of Arizona elected officials by a drug cartel.

The dubious allegation scandal exploded on social media, with conservative pundits highlighting portions of the testimony that smeared Democratic Gov. Katie Hobbs and Secretary of State Adrian Fontes.

But the source of the information, a Scottsdale attorney with a suspended law license, told The Arizona Republic in a phone interview that two members of the joint special meeting of the Senate Elections and House Municipal Oversight and Elections committees, its chair and election conspiracy champion Sen. Wendy Rogers, R-Flagstaff, and Sen. Ken Bennett, R-Prescott, also were potential bribe-takers.

None of the information was backed up by confirmed facts, but neither was other information given prominence in the past few weeks in presentations held at state Senate Elections Committee hearings.

Viewers of this and other hearings, whether in-person at the Arizona Capitol or watching through archived video livestreams, have heard about more than 60 election-related bills that Republicans are pushing this year and have also seen a host of election deniers given opportunities by GOP committee chairs to present their suspicions and unproven facts.

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“Conservatives Have a New Rallying Cry: Down With ESG; A Federalist Society veteran is heading up a multimillion-dollar effort to push anti-ESG messaging and legislation”


Conservative activists are coordinating a multimillion-dollar national campaign to make ESG the next CRT.

Their goal: Transform the acronym for environmental, social and corporate-governance investing into a rallying cry against “woke capitalism,” much the way critical race theory became shorthand for broader criticisms about how race is taught in schools. The same conservative money is behind both efforts, documents and interviews show. 

ESG investments consider a company’s climate-change initiatives, diversity and corporate transparency as financial factors. Some of the largest asset managers, including BlackRock Inc., have said that taking such things under consideration is good business.

A growing collection of conservatives disagrees. They argue that the people whose retirement plans the big firms handle never consented to having their money tied up in what they consider to be liberal causes. Investments, they say, should be based solely on returns….

 conservative nonprofit called Marble Freedom Trust and its consulting firm, CRC Advisors, are leading the anti-ESG push and have spent more than $10 million on the effort so far, mostly through the group Consumers’ Research, people familiar with the spending said.

The trust is overseen by Leonard Leo, a longtime leader at the Federalist Society, a network of lawyers that grooms conservative scholars, officials and judges. Mr. Leo helped former President Donald Trump choose conservative Supreme Court justices.

Formed in 2020, Marble Freedom Trust has received $1.6 billion in funding from Chicago billionaire and former manufacturer Barre Seid. Since then, it has distributed money to groups fighting some of the top conservative causes, including limits on abortion and opposition to critical race theory, according to tax records, advertisements and interviews.

Also on that list is pushing back on ESG. 

“The ESG movement is polluting our culture and assaulting the dignity and worth of people,” Mr. Leo said. “Our enterprise stands with a growing group of Americans who are fighting to crush leftist dominance in this arena.”

Some of the major voices in the debate, including Consumers’ Research, the Heritage Foundation, the State Financial Officers Foundation and the American Accountability Foundation, all received grants from entities related to Marble Freedom Trust, according to tax filings.

Those groups are distributing model legislation in state capitals and providing talking points to state and federal lawmakers. They are funding ads attacking companies that support ESG principles.

A digital ad by the Heritage Foundation’s political-action committee portrays an oil-and-gas driller being denied a small-business loan in part because he has never “identified as a woman or even nonbinary.”

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“Judge overseeing Trump Georgia grand jury speaks after foreperson’s controversial interviews”

ABC News:

After the foreperson of the Fulton County, Georgia, grand jury investigating former President Donald Trump and a push to overturn the 2020 election spoke out in several headline-making interviews, the judge overseeing the case told ABC News on Monday that jurors “can talk about the final report.”

But Judge Robert C. McBurney noted the matter can get “problematic” if jurors start to “synthesize the testimony” and the group’s thoughts on it.

McBurney said in an interview that after the grand jury submitted its report in January, he held a “farewell session,” at the request of the district attorney, in which he “reminded them of their oath, which is a statutory obligation that they not discuss with anyone outside their group their deliberations — that’s the one word that’s in the oath.”

McBurney emphasized that “it’s important for people to understand that witness testimony is not deliberations.”

“I explained you don’t talk about what the group discussed about the witnesses’ testimony, but you can talk about witness testimony,” he said. “You could talk about things that the assistant district attorneys told you. … And then finally, you can talk about the final report because that is the product of your deliberations, but it’s not your deliberations.”

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“PACs poised to supercharge California Senate campaign”


Democrats are rushing in to replace California Sen. Dianne Feinstein — and so are the Super PACs.

The once-in-a-generation contest for a California Senate seat could unleash a tsunami of outside spending as independent expenditure committees with unlimited fundraising powers work to differentiate Democrats jostling in an open field. And that could lead to the kind of negative broadsides that candidates themselves could be reluctant to level.

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“Murdoch Acknowledges Fox News Hosts Endorsed Election Fraud Falsehoods”


Rupert Murdoch, chairman of the conservative media empire that owns Fox News, acknowledged in a deposition that several hosts for his networks promoted the false narrative that the election in 2020 was stolen from former President Donald J. Trump, court documents released on Monday showed.

“They endorsed,” Mr. Murdoch said under oath in response to direct questions about the hosts Sean Hannity, Jeanine Pirro, Lou Dobbs and Maria Bartiromo, a legal filing by Dominion Voting Systems said. “I would have liked us to be stronger in denouncing it in hindsight.”

Mr. Murdoch’s remarks, which he made last month as part of the $1.6 billion defamation lawsuit against Fox by Dominion, added to the evidence that Dominion has accumulated in an attempt to prove its central allegation: The people running the country’s most popular news network knew Mr. Trump’s claims of voter fraud during the 2020 election were false but broadcast them anyway…

The filing on Monday also included a deposition by Viet Dinh, Fox’s chief legal officer. After Mr. Hannity told his audience on Nov. 5, 2020, that it would be “impossible to ever know the true, fair, accurate election results,” Mr. Dinh said, he remarked to Lachlan Murdoch; the chief executive of Fox News Media, Suzanne Scott; and Fox’s top communications officer, Irena Briganti: “Hannity is getting awfully close to the line with his commentary and guests tonight.”

In his deposition, Mr. Dinh, when asked if Fox executives had an obligation to stop hosts of shows from broadcasting lies, said: “Yes, to prevent and correct known falsehoods.”

Lawyers for Fox, which filed its response to Dominion in court on Monday, have argued that its broadcasts after the election did not amount to defamation because they were protected under the First Amendment. In court filings, Fox has defended its commentary and reporting as the kind of work that any journalistic outfit would do by covering events and newsmakers that are indisputably newsworthy.

“A reasonable viewer would have readily understood that hosts were not espousing the President’s allegations themselves, but were providing a forum for the principal architects of those legal challenges,” Fox lawyers said in a brief filed this month.

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Schedule Announced for Safeguarding Democracy Project March 17 Conference, “Can American Democracy Survive the 2024 Elections?” (Register by Mar. 6 if Coming in Person)

On behalf of the Safeguarding Democracy Project, I’m thrilled to announce the conference schedule for the March 17 event at UCLA Law, “Can American Democracy Survive the 2024 Elections?” If you would like to attend in person, you must register by March 6. You have longer to register if you want to watch online. (The event will also be recorded for future posting.)

Here’s the schedule:



The role of media, law, political norms, and technology in assuring free and fair elections and public acceptance of election results in the United States

Friday, March 17, 2023, UCLA, Covel Commons

Safeguarding Democracy Project at UCLA LAW

Generously supported by the Democracy Fund, the William + Flora Hewlett Foundation, and the Knight Foundation

Tentative Conference Schedule

(Note: Institutional affiliations are for identification purposes only)

8:30 am – 9:00 am      Registration and continental breakfast

9:00 am – 9:15 am      Welcome and Introduction

Russell Korobkin, Interim Dean and Richard C. Maxwell Distinguished Professor of Law at UCLA School of Law

Richard L. Hasen, Professor of Law and Political Science, UCLA School of Law

9:15 am – 10:15 am     Panel 1: Election threats: inside and outside


John Fortier, Senior Fellow, American Enterprise Institute


Jocelyn Benson, Secretary of State, Michigan

Neal Kelley, Registrar of Voters, Orange County, CA (Retired)

Stephen Richer, Recorder, Maricopa County, Arizona

10:15 am – 11:15 am   Panel 2: The role of media and social media


Nathaniel Persily, James B. McClatchy Professor of Law, Stanford Law  School


Renée DiResta, Technical Research Manager, Stanford Internet  Observatory

Pam Fessler, Editor and Correspondent, NPR News (Retired)

Jack Lerner, Clinical Professor, UC Irvine School of Law

David Kaye, Clinical Professor, UC Irvine School of Law

Brendan Nyhan, James O. Freedman Presidential Professor, Department of Government, Dartmouth College

11:15 am – 11:30 am   Break

11:30 am -12:30 pm   Panel 3: The role of tech


Elizabeth Howard, Senior Counsel, Brennan Center for Justice


Andrew Appel, Eugene Higgins Professor of Computer Science, Princeton  University

Matt Masterson, Director of Information Integrity, Microsoft

Alex Stamos, Director, Stanford Internet Observatory

Kim Wyman, Senior Election Security Advisor for the Cybersecurity and  Infrastructure Security Agency, U.S. Department of Homeland Security

12:30 pm – 1:30 pm    Lunch and Lunchtime Conversation

Election Denialism and the Future of the Republican Party

 Sarah Longwell, President and CEO, Longwell Partners, and Publisher,  The Bulwark, in conversation with Richard L. Hasen

1:30 pm – 2:30 pm      Panel 4: The role of politics and norms


Bruce Cain, Professor of Political Science and Director of the Bill Lane                                            Center for the American West, Stanford University


Julia Azari, Professor of Political Science, Marquette University

Larry Diamond, William L. Clayton Senior Fellow at the Hoover Institution, the Mosbacher mSenior Fellow in Global Democracy at the Freeman Spogli Institute for International Studies (FSI), and a Bass University Fellow in Undergraduate Education, Stanford University

Norman Ornstein, Senior Fellow Emeritus, American Enterprise Institute

Charles Stewart III, Kenan Sahin Distinguished Professor of Political  Science, Massachusetts Institute of Technology

Michael Tesler, Professor of Political Science, UC Irvine

2:30 pm – 3:30 pm      Panel 5: The role of election law


Edward B. Foley, Charles W. Ebersold and Florence Whitcomb Ebersold  Chair in Constitutional Law; Director, Election Law, Ohio State University


Michael Morley, Sheila M. McDevitt Professor, Florida State University  College of Law

Richard H. Pildes, Sudler Family Professor of Constitutional Law, NYU  School of Law

Bertrall Ross, Justice Thurgood Marshall Distinguished Professor of Law; Director, Karsh Center for Law and Democracy, University of Virginia  School of Law

Ciara Torres-Spelliscy, Brennan Center fellow and Professor of Law, Stetson University College of Law

3:30 pm – 3:45 pm       Break

3:45 pm -4:45 pm       Panel 6: The role of practicing lawyers


Emily Rong Zhang, Assistant Professor of Law, UC Berkeley School of Law


Bob Bauer, Professor of Practice and Distinguished Scholar in Residence; Co-Director of the Legislative and Regulatory Process Clinic, NYU School of Law

Ben Ginsberg, Distinguished Visiting Fellow, Hoover Institution and  Lecturer, Stanford Law School

Janai Nelson, President and Director-Counsel, NAACP Legal Defense Fund            

Nina Perales, Vice President of Litigation, Mexican American Legal Defense and Education Fund

4:45 pm -5:00 pm       Concluding remarks

Richard L. Hasen, Professor of Law and Political Science, UCLA School of  Law

5:00 pm                       Reception

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“Top GA official says ‘coordinated effort’ between DOJ and ‘liberal activists’ to ‘scapegoat’ voting law”

Fox News:

A top Georgia official said Freedom of Information Act (FOIA) documents should show a “coordinated effort” between the Department of Justice (DOJ) and “liberal activists” to use the state’s voting law as a “scapegoat for political losses.”

On Tuesday, a federal judge ordered the DOJ to fulfill Georgia Secretary of State Brad Raffensperger’s Freedom of Information Act (FOIA) request for documents related to a lawsuit looking to strike certain provisions of the law.

The Georgia secretary of state requested any communications that may have played an influencing role in the DOJ’s decision to sue the Peach State over the law after it was passed.

Raffensperger, the top elections official for the Peach State, said the documents turned over should reveal a “coordinated effort” between the DOJ and “liberal activists” to use the voting law for the blame game.

“These documents should show the coordinated effort between liberal activists and the United States Department of Justice to use Georgia’s election reforms as a scapegoat for political losses,” Raffensperger said in the release first obtained by FOX News Digital.

“Considering how blatantly political the Biden lawsuit against Georgia’s commonsense election law was from the beginning, it’s no surprise they would stonewall our request for basic transparency,” the Georgia secretary of state continued.

“I’m gratified that the court agreed that there should be no secrecy between the Biden Justice Department and liberal activists, and I will continue to fight for truth and integrity in Georgia’s elections,” he added.

In the order, the District Court for the District of Columbia wrote that soon after the Georgia voting law was enacted, the DOJ “began working with private organizations and individuals to block the changes through multifaceted litigation.”

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