“How a ‘Committed Partisan Warrior’ Came to Rethink the Political Wars” (New Bob Bauer Book!)

election law biz, political polarization

Peter Baker on Bob Bauer and his new book, in the NYT:

Once, after he executed a particularly tough-minded legal attack on Republicans, Bob Bauer remembers, a conservative magazine called him an “evil genius.” He took it as a compliment. “I was very proud of that,” he said. “I thought, That’s cool.”

For decades, Democrats have turned to him as their lawyer to wage battles against the opposition. Reverse a House race they seemingly lost? Accuse the other side of criminal activity? Go to court to cut off Republican money flows? Find a legal justification for an ethically iffy strategy? Mr. Bauer was their man.

But now Mr. Bauer, the personal attorney for President Biden and previously the White House counsel for President Barack Obama, is looking back and rethinking all that. Maybe, he says, that win-at-all-costs approach to politics is not really conducive to a healthy, functioning democracy. Maybe, in taking the “genius” part to heart, he should have been more concerned about the “evil” part.

In a new book, “The Unraveling: Reflections on Politics Without Ethics and Democracy in Crisis,” to be published on Tuesday, Mr. Bauer takes stock of what he sees as the coarsening of American politics and examines the tension between ethical decisions and the “warrior mentality” that dominates the worlds of government and campaigns today. And in the process of thinking about what went wrong, Mr. Bauer, who calls himself a “committed partisan warrior,” has stopped to wrestle with his own role in the wars…..

r. Bauer has had a role in most of the significant political-legal wars of the last few decades, representing Democratic Party organizations and candidates, advising House and Senate Democratic leaders during President Bill Clinton’s impeachment battle and serving as Mr. Obama’s campaign lawyer and later White House counsel.

In the last few years, though, Mr. Bauer retired from his law firm, Perkins Coie, and increasingly turned his energies to finding ways to fix the system, working with Republicans like Benjamin Ginsberg and Jack L. Goldsmith. Among other projects, he advised lawmakers who revised the Electoral Count Act in 2022 to make clear that no vice president can single-handedly overturn an election, and he guided a bipartisan group that in April recommended changes to the Insurrection Act to limit presidents’ power to deploy troops to American streets.

Mr. Ginsberg, a longtime election lawyer who represented George W. Bush and Mitt Romney, among others, before breaking with the Republican Party over its support for Mr. Trump, said that Mr. Bauer was always “an ethical, principled guy” who managed to zealously represent his clients without crossing lines that should not be crossed.

“We’ve been battling each other for 40 years on stuff, and it’s always important, he knew, to fight fiercely for your candidate,” Mr. Ginsberg said. “But his concept of the rule of law is that the process works best if you have fierce partisans on each side but with an appreciation for the democratic process, institutions and norms.”

Bob’s new book is fabulous, and here is my blurb of it:

With wit, insight, self-awareness, and humility, Bob Bauer reflects on his life as a leading political lawyer, making an urgent plea for a renewed commitment to political ethics. A must-read warning about how our existential politics has led to norm collapse, and how to bring us back from the brink.

— Richard L. Hasen, Author of A Real Right to Vote and Election Meltdown

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“Mystery fundraising firm takes in millions from the Trump campaign”

campaign finance, chicanery

NBC News:

Former President Donald Trump’s political operation has routed more than $3 million so far this year through a Delaware limited liability company whose owners are not publicly disclosed, according to campaign finance records — a strategy that mirrors past efforts to mask exactly how his campaign is spending donor cash.

The money has been paid to Launchpad Strategies LLC, a company that appears to have been incorporated in Delaware in November, according to state business records and lists a Raleigh, North Carolina, post office box as its address in campaign finance filings. Since it was formally incorporated, the company has received $3.1 million in payments from the Trump campaign and an affiliated joint fundraising committee….

Little is known about Launchpad Strategies LLC beyond its existence and the millions of dollars it has taken in from a presidential campaign.

It has never done other political work for state-level or federal candidates, according to federal and state campaign finance disclosure filings. The first payment from the Trump operation was on Dec. 18, just over a month after the company appears to have been incorporated in Delaware.

The company’s website offers no information about services it offers or who runs it. A contact page that offers people a place to reach out and ask questions appears inactive, and multiple requests for comment NBC News tried to send through the site went unanswered.

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Indiana: “Beckwith poses a ‘serious threat’ to Braun’s campaign, says GOP powerhouse lawyer” (Includes Jim Bopp Memo)

campaigns, chicanery

Indiana Capital Chronicle:

Republican gubernatorial nominee Mike Braun faces a “serious threat” to his candidacy after Noblesville pastor Micah Beckwith was selected as his running mate, according to an internal campaign memo penned by prominent conservative attorney Jim Bopp.

The five-page report, obtained by the Indiana Capital Chronicle Sunday evening, outlines “several negative effects” of Beckwith’s nomination, including concerns that Beckwith will cause “division and chaos” and “undermine” Braun’s leadership.

Chief among Bopp’s worries, however, is the possibility that Beckwith could keep Braun out of the Statehouse altogether.

“Beckwith’s nomination as Lt. Gov poses a serious threat to the Braun candidacy, election and administration,” Bopp wrote, later saying in the memo that “the Democrats have a real opportunity to launch a serious campaign in the fall because of Beckwith’s nomination, and it has already begun.”

The Terre Haute-based lawyer theorized that current Democratic gubernatorial nominee Jennifer McCormick could be swapped out with Joe Donnelly, a former U.S. senator from Indiana, and she would be moved to the lieutenant governor spot on the ticket. 

Bopp said the Democrats’ campaign “would focus almost exclusively” on Beckwith and his “radical” views. He pointed specifically to a video Beckwith made after the Jan. 6 insurrection at the U.S. Capitol, in which he said the assault was “divinely inspired.”….

When asked about the memo, Bopp said in a statement to the Capital Chronicle that, “I do not discuss confidential communications with others. And I think it was despicable that someone leaked it.”

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Arizona: “Court upholds legal fees penalty for former SOS candidate”

Uncategorized

Arizona Capitol Times:

Mark Finchem and his attorney can’t escape a court order that they pay more than $47,000 in legal fees in his unsuccessful attempt to overturn his 2022 loss in the race for secretary of state.

In a ruling Thursday, the state Court of Appeals said a trial judge got it right when she ruled that it was clear that the lawsuit he filed was “groundless.” Beyond that, appellate Judge Samuel Thumma, writing for the unanimous panel, said the lawsuit was not filed in good faith….

But Maricopa County Superior Court Judge Melissa Julian said Finchem “offered no tether between the machine malfunctions and the outcome of the election he challenged here.”

Thumma said there were other problems with his case.

One is that Finchem alleged there were 80,000 votes illegally cast, 60,000 from Maricopa County and 20,000 from Pima County.

“That number is still 40,000 votes less than what Finchem would have needed to challenge the results of an election he lost by more than 120,000 votes,” wrote Thumma in concluding that the lawsuit was groundless.

The appellate judge noted that Finchem subsequently called into question more than 261,000 votes. By that point, Thumma said, it was too late.

More to the point, he said, it’s legally irrelevant to whether there were grounds for him to sue in the first place.

“Claimed post-filing evidence … is not dispositive,” the judge wrote. “The question is whether Finchem brought his claim without substantial justification.”

The problems with the lawsuit, said Thumma, go beyond the finding that there were no grounds for filing it. He said it also ran afoul of provisions that bar cases from filing unless there is a “good faith” belief” there is a legal basis.

That, the judge said, did not occur here — and not only because the number of disputed votes, even if they had gone Finchem’s way, were not enough to alter the outcome.

You can find the opinion at this link. It’s notable that this opinion is not selected for publication and therefore is not precedential. It should be citable.

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Michigan Supreme Court, in Case Against Burkman and Wohl, Holds It Is Constitutional to Punish Intentional Lies About When, Where, or How People Vote (Relevant Also to Pending Mackey Case)

cheap speech, chicanery, First Amendment theory

I have been arguing that it does not violate the First Amendment to make it a crime to intentionally lie about when, where or how people vote. The Supreme Court suggested as much in the Mansky case in 2018. I made this argument in my Cheap Speech book, and in an amicus brief I filed with Protect Democracy and the Yale Media Freedom and Information Access Clinic in the Doug Mackey Second Circuit case involving his conviction for violating federal law by trying to trick Black voters into voting by text or social media hashtag. (That case was argued in April and awaits decision.)

Last week, the Michigan Supreme Court in People v. Burkman considered whether John Burkman and Jacob Wohl could be constitutionally charged with violating Michigan law for robocalls intended to deter Black voters from voting. The Court held that some election related speech could be criminally punished without violating the First Amendment. It narrowly construed Michigan law in ways that avoided the constitutional problem. Here is the relevant part of the majority opinion on this point:

Because invalidation should be avoided where possible, we offer a limiting construction of MCL 168.932(a)’s catchall “other corrupt means or device” language. Specifically, we hold that when the charged conduct is solely speech and does not fall under any exceptions to constitutional free-speech protections, MCL 168.932(a)’s catchall phrase operates to proscribe that speech only if it is intentionally false speech that is related to voting requirements or procedures and is made in an attempt to deter or influence an elector’s vote. This limiting construction cures the serious and realistic danger that MCL 168.932(a)’s catchall provision infringes constitutional free-speech protections by limiting the statute’s reach to areas where government regulation is constitutionally provided or has been historically upheld. See U.S. Const., art. 1, § 4, cl. 1 (imbuing the states with the authority to regulate the time, place, and manner of congressional elections); Const. 1963, art. 2, § 4(2) (giving the Michigan Legislature the same authority for state elections and also providing the power “to preserve the purity of elections” and “to guard against abuses of the elective franchise”); Minnesota Voters Alliance v Mansky, 585 US 1, 19 n 4; 138 S Ct 1876; 201 L Ed 2d 201 (2018) (“We do not doubt that the State may prohibit messages intended to mislead voters about voting requirements and procedures.”). Intentionally false speech about voting requirements or procedures serves no purpose other than defrauding electors with respect to their franchise. Compare Citizens United, 558 US at 339-340 (discussing the purpose of constitutionally protected political speech).

We reverse the Court of Appeals insofar as it concluded that MCL 168.932(a) was not overbroad, and we offer a limiting construction of the statute’s catchall phrase. We remand to the Court of Appeals so that Court may decide whether defendants’ conduct falls within the limiting construction of MCL 168.932(a) offered here and, if so, resolve defendants’ remaining constitutional arguments.

Two justices dissented in part, believing the statute could not properly be construed to be limited in the way favored by the majority. They did not reach the constitutional questions.

Thanks to Eugene Volokh for the pointer.

UPDATE: I had missed Derek’s earlier coverage of this case when travelling.

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