Category: Elections

Review of Chiafalo and Baca: The “Faithless Electors” Supreme Court Cases

The role the Electoral College plays in American life has confused and confounded many, especially since the U.S. Presidential election of 2016, when the winner of the national popular vote, Hillary Clinton, actually lost the election to President Donald Trump by vote of State-appointed electors in the Electoral College.

The Electoral College was intended by the Founding Fathers to be a buffer between the passions of the masses and the rule by edict of only an elite few, but how much of a buffer and how autonomous the electors within the Electoral College actually are was never fully addressed by the Supreme Court until its decisions late this term in Chiafalo v. Washington, 19-465, (Decided July 6, 2020) and Colorado Dept. of State v. Baca, 18-1173 (Decided July 6, 2020). (The Supreme Court issued its full opinion in Chiafalo).

As a country, we have grown accustomed to watching the national news on election night as states are called for each candidate, and electoral vote tallies are updated to show to us who is “winning” the election when, in reality, all of this is a mere projection, as none of those “electoral votes” are assured, or even cast, until the electors actually cast those votes at a time and place long after November 4.

So who are these “electors” who vote in the Electoral College? Are they “rubber stamps” bound to follow the popular vote of the State who appointed them? Can the State require the electors to sign a pledge to vote consistent with their state’s popular vote winner? If so, can the State punish that elector, including removal as an elector if they violate that pledge and vote for someone else? Or is an elector more of a “free agent” in the vein of those elected as State representatives in Congress? Congressional representatives, of course, are not bound by the State or its citizens’ desires when casting a vote in Congress (though they are held to account for their votes in the next congressional election). If electors are not to use their own judgment, then why does the Constitution call them an “elector” (which connotes some amount of discretion) instead of a delegate, or a proxy, or any number of other terms that would signify a lack of individual authority? Or, more simply, why have electors at all?

In Chiafalo and Baca, electors in Washington and Colorado were appointed by their respective States and were required to make, and did make a pledge when they were appointed as electors to vote consistent with the popular vote of their states. Yet, when the time came to cast their vote in the Electoral College, they didn’t vote consistent with the winner of the State’s popular vote as they had pledged. They voted for another candidate instead, forever earning the moniker of “faithless electors”.  They weren’t the first electors ever to have done that. In fact, it has happened 180 times in our country’s history. The question presented to the Court then was – can they do that?

As it turns out the answer isn’t that simple. To understand how we got here, you need to go back to the Founding Fathers and the debates that forged the U.S. Constitution and the country itself. Let’s start with the misconception that the Constitution provides for a direct popular election of the President by the vote of its citizens.  It doesn’t. At the birth of our country, there was fierce debate over who would elect our President. One group argued for a free and democratic vote, where the (white) (male) citizens directly chose their nation’s leader based upon a direct popular vote. Another group, more skeptical about the passions (and frankly, the ability) of the masses, called instead for a group of wise men to be tasked with choosing the President.  This debate was resolved in an “eleventh hour” compromise at the close of the Constitutional Convention, which attempted to bridge the gap by expressly stating only:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States shall be appointed an Elector.

U.S. Constitution, Article II, §1, cl. 2.  Originally, the Article continued on to describe the process for the vote, but that process was quickly found unworkable and the States scrapped it.

Instead, in 1804, the States replaced the process the electors were to follow with the Twelfth Amendment:

The Electors shall meet in their respective states and vote by ballot for President and Vice-President…, they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and the number of votes for each, which lists they shall sign and certify, and transmit sealed to [Congress, where] the votes shall then be counted.

Yet even after this amendment, the Constitution remained silent as to what the electors’ role beyond merely casting their vote was to be.

In Chiafalo, the “faithless electors” argued that electors could vote for whomever they wished, based on three main arguments: (1) a textual argument that focused heavily on the word “elector”; (2) a historical argument based upon the fact that from early on there were electors who voted contrary to their state’s popular vote; and (3) the “federal function” argument, that once they had been appointed by the State as an elector, that the State no longer had the power to control their vote since they were now engaged a “federal function” of electing the President and Vice President. Central to their arguments was the concept that the right to vote inherently includes the discretion to choose whom they will vote for. And more, that an elector should not be subject to punishment by the State based upon how they cast their vote. While a State can set requirements for electors, i.e. that they be state residents, etc., the electors argued that those requirements end when it comes to the electors’ exercise of their appointed function – the vote.  The faithless electors argued that electors were akin to legislators and that discretion by the voter was inherently part of the Electoral College process. Once the State appointed an elector, they argued, the State did not have the power to “stand over the shoulder” of the elector as they carried out their constitutional function of voting for President and Vice-President. Otherwise, why have electors?  Why not have the States simply report who they had voted for?

The States countered that, consistent with Supreme Court precedent, along with the express power to appoint the electors, came with it the reciprocal and concurrent power to also remove the electors, and therefore States could set conditions of removal on its electors, including punishments for the way in which they vote, such as a pledge that they vote as the state’s voters had in the popular election or suffer a $1,000 fine.  The States argued that this outcome was dictated by a plain textual reading that these powers had been delegated to the States, that the federal government has limited power and authority, and that any powers not expressly given to the federal government in the U.S. Constitution, remain forever within the States’ exclusive right to control.

The gravity of the question the Supreme Court faced in these cases was real. While the outcome of the 2016 election was not changed by these faithless electors’ actions, with our country so closely divided, it is quite possible that faithless electors could change the outcome of future elections.  If the Court had decided that electors were “free agents” who, once appointed, could vote (or not vote) as they wish, then not only could an elector or group of electors “switch sides” and change the winner of the Presidential election, but also, if they instead chose not to vote, they could deny both candidates the 270 votes necessary to win the election, and the matter would be sent to the House of Representatives for a “contingent election.” In a contingent election, each State must cast a single vote, and the victor of that vote becomes President regardless of who won the national popular vote or won States with more than 270 electoral votes combined.

As many publications recognized in advance of the Court’s ruling, this case legally presented a close call.  The Founding Fathers provided little help, as even they couldn’t agree on the best approach – hence the compromise – and essentially just “kicked the can down the road.” A dispositive purely textual analysis (which this Court in its current make-up is increasingly fond of) was unavailing.  The sole clear point is the unconditional power given to the States by the Constitution to choose the electors.

In deciding Chiafalo and Baca, the Supreme Court struck a pragmatic approach. Listening to the oral arguments, once could sense the concern with potential for “chaos” – the “chaos question” Justice Breyer called it – about the “chaos” that could ensue if the Supreme Court suddenly declared all electors to be “free agents” untethered from the will of the States and their citizens, to be instead courted and lobbied by nefarious actors from both home and abroad to vote for candidates regardless of who won the actual popular vote of each State’s elections. A fear that once may have seemed far-fetched, seems much more real today, after 2016, when foreign actors clearly engaged in attempts to manipulate the Presidential election. Consider, as the Court did, the risk of a foreign power hacking the computers of electors and blackmailing them to change their votes. Or the risk of a rich and elite few enticing electors to switch their votes for personal gain. It was these practical rather than legal concerns that seemed a loud and constant undercurrent of the entire debate.

In the end, the Justices, even the most fervent originalists among them, appeared to look more at how electors and the Electoral College is understood today than how the Founding Fathers had actually potentially intended it to work at the beginning.

Writing for the majority, Justice Elena Kagan quoted James Madison’s maxim that “a regular course of practice” can “liquidate & settle the meaning of” disputed or indeterminate “terms & phrases.”  She then reviewed that regardless of what may or may not have been envisioned as an elector’s role 200 years ago, the historical reality is that over time electors have evolved into merely a “rubber stamp” for the vote of the people within their States. (The faithless electors stressed that since the founding, electors have cast some 180 faithless votes for either President or Vice President without objection, but the Court shrugged off this inconvenient fact, concluding “that is 180 out of over 23,000” electoral votes cast).

For a Court that has tacked toward textualism and divining the original intent of the Founding Fathers, its decision as expressed in Chiafalo and Baca was instead a square and practical one. If a State holds an election for President, and the State declares “winner take all” for its electoral votes, then the State has the power to require the electors to vote as the States wants, including the power to condition their service and to mete out punishment on the electors if and when they do not comply. The country has evolved to a place where it is now assumed by the general public that their votes count, and that electors will simply carry out the proxy of the State who appoints them. To change that assumption now would not just upset the apple cart – but may well have destroyed it – disenfranchising millions of citizens and creating grave risks of political corruption that, in the Justices’ eyes, was too much to bear.

© The National Law Forum LLC
Article by David K. TeSelle Trial Lawyer at Burg Simpson and
The National Law Review’s Guest Contributor.
For more on the Electoral College see the National Law Review Election Law & Legislative News section.

Medicare and the 2020 Election

Now that the campaign for President appears to be down to two candidates, we need to address the health care questions that both will face. In this blog, we will talk about Medicare and in a later blog, we will talk about the public option.

A question which has faced not just these two individuals, President Trump and Presidential Candidate Biden, but has faced the country for the last 10-15 years, is the projected deficit in the Medicare program as it is now configured.  In an attempt to respond to and ameliorate this deficit, various steps have been taken in the past which have delayed the impact of the deficit but have not eliminated it.  Past steps that have been taken include the elimination of the cap on W-2 earnings for purposes of calculating the Medicare tax, the application of the Medicare tax to non-W-2 earnings for individuals whose taxable income is above a certain level, calculation of Medicare Part B monthly premiums based upon income (the higher the income, the higher the premium that needs to be paid by the beneficiary), and the attempt to both explicitly and implicitly limit the payments being made by the Medicare program for services provided to Medicare beneficiaries.  The explicit attempt was the development of the Sustainable Growth Rate (SGR), which was never effectively implemented and ultimately repealed.  The implicit attempt is ongoing and has resulted in the necessity for beneficiaries with private insurance to subsidize the care being provided to the Medicare (that’s correct, not Medicaid, but Medicare) beneficiaries.

This “subsidy” by private insurance to health care providers to cover the costs of providing care to the Medicare beneficiaries is slowly having an impact on the care delivery system. It has resulted in a few prior Medicare providers now refusing to render care to Medicare patients in the non-hospital setting.  It is also encouraging physicians only to take Medicare patients who have previously been their private patients when that individual had private insurance so that the continuity of care to those individuals is not being disrupted.

As this subsidy increases, it becomes more and more likely that fewer providers will be providing care to Medicare beneficiaries, to the extent that they can legally opt out.

The next issue raised in the campaign is the extension of the Medicare program proposed by Presidential Candidate Biden to individuals from the ages of 60-65. Unlike the Social Security program, which attempted to resolve its deficit problems by extending the retirement age from age 65 over a period of time to age 67, the proposal by Presidential Candidate Biden is the opposite and that is to reduce the eligibility age for Medicare from 65 to 60.

The questions that need to be answered are:

  1. How much is it going to cost?
  2. The proposal recognizes that the current Medicare program (currently facing a shortfall) cannot pay for the services provided to these new Medicare beneficiaries and proposes that the government pay the costs–which means the taxpayer. The question then is what changes will be made to the tax code and whose taxes will be increased–of course this raises the questions always associated with tax increases.
  3. It appears that all aspects of the Medicare program – Parts A, B, C, and D – will be available to the age cohort 60 to 65. Will the copays, deductibles and premiums, as applied to current Medicare beneficiaries, be applicable to this cohort?
  4. Will the same payments be made to the providers for care rendered to this cohort of new Medicare beneficiaries? Will this adversely impact the willingness of some providers to continue to participate in providing care to Medicare beneficiaries?

When answers to these questions become clear, to the extent that it does become clear, we will analyze these questions in a subsequent blog. Otherwise at this point in time, it is speculation as to the impact.

© 2020 Giordano, Halleran & Ciesla, P.C. All Rights Reserved

We Put the “Ow!” in Iowa

I woke up this morning to a text from a close friend wondering how long it would take me to write about the fact that as of this writing, we still do not have results from the Iowa caucuses last night due to problems with its untried voting app.  I guess I’m firmly established on the “get off my lawn” beat.

The little-known corollary to the time-honored maxim “if it ain’t broke, don’t fix it” is “if it’s broke, don’t replace it with something worse.”    The list of potential problems with using mobile technology for something as important as voting is long.  Rule One might be “don’t hire a company named ‘Shadow, Inc.’ to build your app.”  A fellow Hoya, Matt Blaze, a professor of computer science and law at Georgetown, said that “any type of app or program that relies on using a cellphone network to deliver results is vulnerable to problems both on the app and on the phones being used to run it . . . and that “[t]he consensus . . . is unequivocal . . .[i]nternet and mobile voting should not be used at this time in civil elections.”

Any remote access application will add complexity to a task due to the need for identification, authentication, authorization, and security, of both the device and the person using it, as opposed to a simpler system based on paper or a single machine for each location where any caucus participant could authenticate herself in person. Multiple technology platforms simply increase complexity and likelihood of error. And, as I learned in the mobile payment world, if you are relying on good cell service or wifi availability for your app to do its work, you’re gonna have some unhappy end-users.

Add to these inherent problems that the app was reportedly only put together over the last two months and was inadequately tested.  (Apparently, it was the back-up plan; the original plan was to use the phone to call in votes.  “Hi, do you have Pete Buttigieg in a can?”)

Just because you can doesn’t mean you should.  I have been bringing a yellow legal pad and ballpoint (or “ink pen” down here) to meetings for years.  Clients and colleagues regularly smile indulgently, as if I had just set a butter churn down on the table.  My stock response might be appropriate for the beleaguered folks in Iowa and I offer it here for free:  Paper rarely goes down, never needs to be recharged, doesn’t need an adapter and, best of all: I know how it works.

Copyright © 2020 Womble Bond Dickinson (US) LLP All Rights Reserved.

Read this article on the Hey Data Data blog.
For more on election regulations, see the National Law Review Election Law & Legislative News section.

Executive Immunity and Impeachment: Any Precedent for President Trump’s Strategy?

With the fourth presidential impeachment hearings in our country’s history underway; the National Law Review thought it timely to look at some of the issues related to impeachment; specifically involving executive privilege and how the Trump administration’s invocation of executive privilege and how presidential immunity fits in historically with other impeachments in recent memory.

Sol Wisenberg, a Deputy Independent Counsel from the Starr Investigation, is a white-collar attorney who was written and spoken about the procedures surrounding impeachment and the constitutional law issues in play. He was generous with his time and spoke with the Lead Writer of the National Law Review, Eilene Spear, on executive privilege, recent litigation related to executive privilege, and the ever-present intersection of public opinion, constitutional law, and politics.  Below are excerpts of the conversation, featuring Mr. Wisenberg’s analysis and opinion on the proceedings at hand. This is the second article in this series, the first focusing on comparing and contrasting the Clinton impeachment with the impeachment investigation into President Trump.

ES:  Is it appropriate for Democrats to imply that if a witness in the impeachment investigation refuses to testify that they are trying to undermine the impeachment proceedings?

I mean, look, it’s their show, they are the majority in the House. Adam Schiff came out and said “if you do not appear, then we’ll infer that your testimony would have been favorable to our impeachment inquiry.” Those weren’t his exact words, but that was the essence. Is it appropriate? I would say that it depends on the circumstances. Charles M. Kupperman, President Trump’s former deputy national security adviser, was subpoenaed by House Democrats to testify, but the White House, prior to Mr. Kupperman’s House testimony, said that the President had invoked Presidential Immunity, leaving Mr. Kupperman uncertain about how to proceed.  Kupperman went to the federal district court and basically said: ‘Hey, I’ve got Congress issuing a subpoena and telling me I’m going to be in contempt if I don’t answer. But I also went to the White House Counsel and he’s sent me this letter here saying I’m absolutely forbidden to appear. I want to follow the law. Tell me what to do court.’ I believe he did exactly what you’re supposed to do in that situation. Kupperman’s lawsuit also raised questions about John Bolton’s possible future testimony, as Kupperman’s lawyer, Charles Cooper, also represents Bolton, President Trump’s former national security advisor.  According to CNN, while it remains to be seen if Kupperman or Bolton will ultimately end up testifying, their actions are widely viewed as intertwined, with one source telling CNN that the two men are “simpatico.”

As a purely legal proposition, Adam Schiff’s assertion about inferences to be drawn from refusing to testify or show up is preposterous in Kupperman’s case. The only time a trier of fact is allowed to make a negative inference from the invocation of a privilege is the Fifth Amendment privilege against self-incrimination, and even that is only in a civil proceeding. The Fifth Amendment gives a criminal defendant the right not to testify, and the judge and jurors are not permitted to take this refusal to testify into consideration when deciding whether he or she is guilty See Ohio v. Reiner 532 US 17 (2001).   The people who aren’t testifying or showing up at the House are not, so far, taking the Fifth. These are people saying, “I’ve got a constitutional argument or the President does, and that’s why I shouldn’t appear.” But keep in mind that impeachment is a political remedy. If a majority of the House wants to construe a refusal to appear or testify, even on Constitutional grounds, against the President, they are going to do it.

A Bit of Background:

Executive privilege has been asserted frequently by past presidents, though it’s not explicitly written into the Constitution.  George Mason University professor Mark Rozell explained in a 1999 law review article that executive privilege is “the right of the president and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public.” This power can be used in two circumstances, he continues: “(1) certain national security needs and (2) protecting the privacy of White House deliberations when it is in the public interest to do so.” It’s the second part that is especially valuable, as it allows presidential advisors to freely speak their minds without the threat of a subpoena. The problem is it’s not precisely clear who this privilege covers.

In United States v. Nixon, 418 U.S. 683 (1974), the Supreme Court addressed a subpoena duces tecum during the Nixon impeachment process to produce documents, including full copies of the Watergate tapes which contained meetings between President Nixon and others indicted in Watergate situation or had ties to the Nixon administration.  President Nixon did turn over edited transcripts of some of the conversations included in the subpoena. Before the Supreme Court, Nixon claimed he had an absolute executive privilege to protect communications between “high government officials and those who advise and assist them in carrying out their duties.” The Supreme Court held presidential privilege as to materials subpoenaed for use in a criminal trial did not override the needs of the judicial process on the grounds of a generalized interest in confidentiality.  The large difference is that the Nixon case involved the subpoena of documents, the Trump impeachment subpoenas addressed above involve subpoenas for live testimony only.

Also, in U.S. v. Nixon’s majority opinion, Chief Justice Burger stated, “[n]either the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances.” The immunity claimed by both President Trump and other presidents comes from the position of the executive branch as a co-equal branch alongside the judiciary and legislative branches.

ES:  What do Executive Privilege and Absolute Presidential Immunity cover and do they  apply to people other than the president?

Executive privilege is invoked in the name of the president, but it can cover any executive officer. It is a privilege recognized by the Supreme Court. Presidential immunity purports to cover anyone who works in the White House, or the Executive Office of the president. The theory is that Congress can no more summon a White House employee to appear than it could summon the president.  One reason officials like Kupperman are seeking clarification is that executive privilege and presidential immunity in impeachment proceedings are not open and shut issues. Every president at least since Nixon has claimed immunity–for himself and his key White House aides–from even having to show up in the House or Senate to answer questions, claiming that White House employees are in the same position as the president and are immune from having to appear. This doctrine makes me shake my head a little, and, as noted, is far from settled law in the courts.

No court has ever accepted the absolute immunity argument, to my knowledge. Only one court has ruled directly on it, and that was in the George W. Bush administration. Committee on Judiciary v. Miers 575 F. Supp. 2d 201 (D.D.C. 2008) addressed a House Judiciary Committee’s subpoena to Harriet Miers, former Counsel to President Bush, seeking to compel her to produce documents and to appear and testify about the forced resignation of  U.S Attorneys, and that court ruled against the White House. In the Harriet Miers case, federal district judge John Bates stated “there is no judicial support whatsoever” that a president’s advisers have absolute immunity from testimony, and that such a view “would eviscerate Congress’ historical oversight function.” But the case was settled and has no precedential value, except in Bates’ court. I think the opinion is of some significance, however, because Bates was a Bush appointee and in general a strong supporter of executive privilege.

ES:  Is there any type of immunity from testimony that may apply if executive privilege isn’t applicable? 

There are other forms of privilege that might come up.  I suppose somebody could take the Fifth, you can take the Fifth right in front of the House committee. So that’s always available. There’s attorney-client privilege. To be precise; this idea that if you work at the White House–and are therefore in the same shoes as the president–you don’t even have to show up, that’s technically not executive privilege. That is a presidential immunity argument based upon the separation of powers.  For example, you could put that to a judge and the judge could throw it out, say there is no such thing, and the court rejects that doctrine. Then the individual could go over to Congress and get asked a question, and he could claim executive privilege and he would be completely within his rights.

The Obama administration took the identical position with David Simas, an employee in the Obama White House, that President Trump did in the case of Kupperman and former White House Counsel Don McGahn.  Simas was head of the Office of Political Strategy and Outreach and was subpoenaed in relation to Congressional oversight of Hatch Act compliance. White House Counsel W. Neil Eggleston asserted executive immunity, defying a subpoena from House Oversight and Government Reform Chairman Darrell Issa.  His letter referenced the Office of Legal Counsel’s opinion, saying: “The Executive Branch’s longstanding position, reaffirmed by numerous Administrations of both political parties, is that the President’s immediate advisers are absolutely immune from the congressional testimonial process.” There are examples in every administration, and each party wants to find examples where the other party did the same or a more extreme version of what they are trying to do because people forget and people are partisan.

ES:  That said, how do politics impact the perception of a President’s claim of executive privilege?

Once again, it depends on the circumstances. In the context of an impeachment inquiry with an unpopular President and an opposing party in charge of one or both branches, politics can affect absolutist doctrines fairly quickly. Look at Nixon again.  In April 1973, before the Senate Watergate Committee hearings began, he vowed that his aides would not testify. Nixon’s Attorney General, Dick Kleindienst, told Senator Ed Muskie,  “You do not have the power to compel me to come up here if the President directs me not to, and even if you would attempt to compel me, I would not come here.” If the Senate didn’t like it, Kleindienst smirked to Senator Sam Ervin, “you have a remedy, all kinds of remedies: cut off appropriations, impeach the President.” That was in April. By May 22, with public opinion starting to move against him, Nixon completely capitulated. Ervin called Nixon’s bluff, referring to his broad claims of Executive privilege as“executive poppycock.” Nixon didn’t have Trump’s political power. He had short coattails and both houses of Congress were in Democratic hands. Trump is stronger with his House and Senatorial base, and his party in control of the Senate, so he can pull off that attitude for now. But again, attitudes and public opinion can change quickly, and we’ve already seen the needle move a little bit in terms of public opinion in the last week alone.

You also have the issue of aides, former aides, and Executive Branch officials who simply ignore Presidential directives not to appear or testify. This happened to Nixon, as people like John Dean and Jeb Magruder finally started telling the truth to DOJ Prosecutor Earl Silbert, and ultimately to Ervin’s Watergate Committee. It is happening to Trump now with some State Department and DOD officials–and at least one mid-level OMB employee–talking to the House. I believe this is how Madison and some of the other Framers expected things to play out. It is checks and balances at work. It is one thing to have a nice little formalistic theory of executive privilege or presidential immunity. It is quite another to try to enforce it in the real rough-and-tumble world of politics.

Many thanks again to Mr. Wisenberg for his time, insights and perspective.

Copyright ©2019 National Law Forum, LLC

Clinton’s Impeachment Compared to the Trump Proceedings: Conversation with Sol Wisenberg, former Deputy Independent Counsel during the Starr Investigation

With the Trump impeachment proceedings getting ready to start this week in the House of Representatives, we thought it would be interesting to take a look back at the Clinton Impeachment.  The catalyst for President Clinton’s impeachment was the Starr Report.  Independent Counsel Ken Starr presented to the House of Representatives a case for impeaching President Bill Clinton on 11 grounds, including perjury, obstruction of justice, witness-tampering and abuse of power.  The sexual relationship between the president and former White House intern Monica Lewinsky formed the basis of the lying under oath and obstruction of justice charges.  The lying under oath charge stemmed from the Clinton v. Jones civil lawsuit, which included President Clinton’s inaccurate grand jury testimony about a sexual relationship with Monica Lewinsky.

Solomon L. Wisenberg played a pivotal role in the Clinton Impeachment as a Deputy Independent Counsel during the Starr investigation. Mr. Wisenberg’s grand jury questioning of President Bill Clinton was submitted by independent counsel Kenneth Starr with his report to the House of Representatives as part of the Clinton impeachment proceedings.

Mr. Wisenberg has more than two decades of experience with complex federal white-collar crime investigations and jury trials and is currently the co-chair of Nelson Mullins White Collar Defense and Government Investigations practice.  He is a sought after analyst and routinely appears in a variety of media providing commentary and answering questions on federal white-collar investigations, impeachment, public corruption under the Hobbs Act, bribery and fraud, Foreign Corrupt Practice Act violations and other intricate legal issues.

Mr. Wisenberg was kind enough to take time out of his schedule to talk with the National Law Review on the upcoming Trump impeachment proceedings and how they are similar and different from the Clinton impeachment.

The Starr Report played a central role in the Clinton impeachment proceedings; producing the perjury and obstruction of justice charges stemming from the Clinton v. Jones civil action.

In the Clinton v. Jones sexual harassment lawsuit, Ms. Jones’ attorneys included questions about Monica Lewinsky and President Clinton’s behavior with other women to show a pattern of improper behavior with women by Clinton to bolster Ms. Jones’ sexual harassment claims.

Additionally, Ms. Jones’ attorneys sought to show a pattern concerning President Clinton’s actions in covering up various inappropriate interactions with women.

Do you think the impeachment prosecutors for President Trump will introduce elements from the Mueller report to show a pattern of behavior to bolster any criminal acts and any obstruction of justice case related to the withholding of aid to Ukraine?

Mr. Wisenberg: I think there’s no doubt that they will. I’ve heard some Democratic Congressmen talking about it and it’s very clear that they feel the obstruction portion of the Mueller report has not been given sufficient attention. So I’d be shocked if it does not constitute one of the articles of impeachment.

The Supreme Court in Clinton v. Jones held that a sitting president is subject to civil suits in federal court, this lead to President Clinton being deposed and perjuring himself and being impeached by the House of Representatives, on grounds of perjury to a grand jury and for obstruction of justice.

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If President Clinton was able to be deposed while in office, why are President Trump and other members of his administration, such as Mick Mulvaney, claiming immunity?

Mr. Wisenberg: Trump didn’t ever formally claim immunity, because Mueller never pressed the point. Keep in mind, Clinton vs Jones just said the president is not immune from suits while he is in office. Even President Clinton didn’t take the position that he could never be sued. President Clinton’s position was just that he didn’t have to answer lawsuits brought while he was the president, and the Supreme Court ended up saying yes you do, you don’t have that absolute immunity. But the Court also said that there needs to be respect and accommodations for the responsibilities of the office, for the president’s schedule, time, privacy, all of that kind of stuff.

However, in the Lewinsky criminal investigation where we sent President Clinton a grand jury subpoena after he ignored six of our requests to appear, we ended up withdrawing the subpoena. We did this because President Clinton’s attorney said if you withdraw the subpoena, he’ll sit for grand jury testimony. Clinton’s inquiry involved grand jury testimony, not just a deposition.  So the constitutional issue involving the President’s right to defy a grand jury subpoena for testimony alone was never tested there. I think it would’ve been an interesting issue, because Clinton did not want to be in a position where the president is being subpoenaed or responding to a subpoena, and he certainly didn’t want to be in a position of going to federal court to block the Lewinsky Grand Jury’s subpoena.

So that’s how it was worked out, and we don’t know what would have happened if he would have challenged our subpoena in court. There’s actually a case that came out in 1997. It’s the controlling law in the DC Circuit.  The Office of Independent Counsel that was investigating Agriculture Secretary Mike Espy wasn’t asking for testimony in that case. In the In Re Sealed Case, 121 F 3d 729 (1997). the issue was asking for documents and it’s actually a fairly high standard to be able to force the president to respond to a grand jury subpoena. I believe it’s quite possible that Mueller didn’t press the point because he might not have won under the test laid out for Mike Espy, even if he was just seeking testimony. Every case is dependent upon the particular facts.  And because Mueller already had been given a tremendous amount of relevant information, he may have not wanted to push it, as it’s not at all certain that he would’ve won. So not only would it have been a lengthy process that would have delayed the Mueller investigation, but Mueller may not have won on the issue. It’s not that President Trump was behaving inconsistently with the ruling in Clinton vs Jones. It’s that Mueller never forced Trump to make a choice.

Special Counsel Mueller declined to subpoena President Trump, as Mueller told the House Intelligence Committee that it looked highly unlikely that they would obtain an in-person interview with Trump and because of the perceived need to wrap up the investigation into Russian interference in the 2016 United States elections.

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Do you think Mr. Mueller’s strategy of not forcing President Trump to either testify, fight the subpoena in the courts or defy the subpoena will weaken the prosecutor’s ability to use the Mueller report in the impeachment process?

Mr. Wisenberg: Oh God, no. I mean, not at all. The report is what it is. The obstruction portion of the report (I should say alleged obstruction, because even Mueller doesn’t say that Trump criminally obstructed justice) is what it is. The obstruction portion of the Mueller report is based on witness testimony.  I don’t think there’s going to be much dispute about what happened. And apparently now the House of Representatives has the grand jury backup for the Mueller report’s witness testimony. President Trump has questioned some of Don McGahn’s factual statements, but McGahn was hardly alone in detailing the President’s efforts to stymie Mueller.

The dispute would be on the suggestion that the President criminally obstructed justice. I don’t think he did on the known facts, and the only episode that is even a close call on this was when President Trump allegedly asked Don McGahn to sign a document for the White House’s records denying he’d been told to fire Mueller. I think from the Democrats’ perspective they were waiting and waiting and waiting for the Mueller report and it was a dud. The Democrats blamed Bill Barr, I think, unfairly. The Democrats tried to hold testimony on the Mueller report and, it didn’t get anywhere, again, because of all of the claims of executive privilege and related doctrines. Now that they’ve got impeachment authority in Congress the Democrats are in a much stronger position.  They can say now, any area of inquiry is allowed under our Constitutional power to conduct an impeachment inquiry.

xxxx

Based on President Clinton’s conflicting testimony, Mr. Starr presented a case that President Clinton had committed perjury. Do you think President Trump’s frequent public statements, though not under oath about the Russian interference in the 2016 election and the alleged quid pro quo in the withholding of aid to Ukraine will be used in the impeachment proceedings?

Mr. Wisenberg:  The Democrats can use anything they want if they think it is valuable to them. The Democrats might say President Trump’s frequent commentaries can be construed as non-hearsay party admissions under the Federal Rules of Evidence in any proceeding brought against President Trump. Also, where somebody is accused of criminal wrongdoing and says something about the specific accusation that turns out to be false, this can be used against him as a false exculpatory statement.   So, I see no reason why they can’t consider anything they want to consider.

To answer your specific questions about President Clinton, President Clinton lied under oath in the Paula Jones civil rights lawsuit deposition thereby obstructing justice.  The federal district judge presiding held President Clinton in contempt of court. President Clinton is the only U.S president ever held in contempt by a federal judge. Additionally, President Clinton had his secretary retrieve and remove gifts Monika Lewinsky had in her possession, when the gifts were subpoenaed in the Jones civil suit. President Clinton used a White House employee, his secretary Betty Currie to obstruct justice in a civil rights lawsuit.

There are some people who say private conduct,  even if it’s criminal, should never be impeachable and that we should not be concerned with private conduct. And there is some historical support for this position in writings by the framers and stuff like that. But President Clinton did more than that. He used a White House employee in order to hide items under subpoena. That’s textbook obstruction.

xxxx

If President Trump’s impeachment prosecutors are able to demonstrate that alleged withholding of aid to Ukraine is a criminal act, do you think it will be easier to prove intent in an obstruction of justice case?

Mr. Wisenberg:  No, I don’t think so. I don’t think that helps them on obstruction of justice unless something new related to the Ukraine business comes out, but all he did was to say it’s a perfect call. Right? I think that if you were to somehow prove that this was a campaign finance violation or, or some kind of a crime, it might be a little bit easier to get a few more votes, but I don’t see anything yet that gets them the votes they need to convict President Trump in the Senate.  I understand some people believe that putting the phone call transcript on a separate server was obstruction, but that sounds weak to me.

GOP Senators will point out that President Trump was elected, and we’re a representative democracy. We’re going to hold an election in one year. They will say it’s not right to remove him because of Ukraine. Even if they think, as Senators, that it was a mistake.

I think it is going to take something really dramatic for there to be a shift. Either a dramatic shift in public opinion based on the live testimony or just something new coming out, some new scandal to move the needle on that.

To answer your question, if somebody were to somehow to prove without question that President Trump knew he was violating the law when he made the call, that may be meaningful. And that revelation again moves the needle maybe, but you can’t ignore the politics.

Take a look at the situation with President Clinton. There was no real question in anybody’s mind that he perjured himself and that he obstructed justice, but that didn’t all of a sudden make the Democrats in the Senate vote for removal. I don’t think any of them did. The Democrats during the Clinton impeachment and removal proceedings acted very similarly to how the Republicans are acting now.  You can’t ignore the politics.

Many thanks to Mr. Wisenberg for his time and answers to our questions.

Copyright ©2019 National Law Forum, LLC

Text Messages Inviting Independent Voters to Political Speeches by Former Presidential Hopeful Howard Schultz Were Not “Solicitations” For His Book Tour

The Western District of Washington recently held in Vallianos. v. Schultz, C19-0464-JCC, 2019 WL 4980649 (W.D. Wash. Oct. 8, 2019), that two text messages encouraging recipients to view a livestream of a political speech by the former chairman and CEO of Starbucks Howard Schultz did not amount to “solicitations” under the TCPA. While exploring a run for President, Schultz released a book, “From the Ground Up,” and went on a three-month long cross-country book tour. He also collected from voter records the phone numbers of individuals registered as having “No Party Affiliation” and sent them the text messages at issue. Named plaintiffs Cassandra Vallianos, Stacey Karney, and Mike Barker brought a putative TCPA class action against Schultz alleging that the text messages were sent to them without their consent after they had placed their cell phone numbers on the national Do Not Call Registry.

Specifically, plaintiffs made two claims: first, that Schultz sent the text messages using an auto-dialer and without the plaintiffs’ consent; second, that the calls were solicitations sent in violation of the TCPA’s Do Not Call restrictions. Plaintiffs’ claims were based on two separate text messages Schultz sent Plaintiffs. The first said “Howard Schultz will be speaking in Miami at 12:30! Watch live: https://hs.media.mi-a030[.]” The second said “Howard Schultz will be speaking about his vision for America in Miami at 12:30! Watch live: https://hs.media/mia030[.]” Plaintiffs argued that these text messages were “solicitations” under the TCPA because the text messages were sent with the goal of getting recipients to purchase Schultz’s book. Defendant Schultz moved to dismiss only the Do Not Call claim.

Acknowledging that messages that serve a “dual-purpose” by including both advertising and informational communications are solicitations for purposes of the TCPA, the court looked to the context of the messages to determine whether they constituted “solicitations” under the TCPA. The court reviewed the text messages, the webpage to which the text messages directed recipients, and the speech embedded in the website. The court found that the text messages did not facially discuss Schultz’s book. The court also found that the link in both text messages took Plaintiffs to the homepage of Schultz’s website, which included various video clips, including a livestream of Schultz’s speech and a link to a website where consumers could purchase his book. But the court held that the website was not transformed into a solicitation by the “mere inclusion of a link to a website on which a consumer can purchase a product.” The court found that the speech focused on Schultz’s political views and potential run for president, not his book. The court further found that the website was just a way to facilitate viewing of Schultz’s speech. Thus, the court ultimately determined that the messages did not constitute “telephone solicitations” under the TCPA.

With the seemingly never-ending national campaign season chugging along, we expect to see more such claims filter their way through the courts.

©2019 Drinker Biddle & Reath LLP. All Rights Reserved

For more on TCPA litigation, see the National Law Review Communications, Media & Internet Law page.

Brexit: Turkeys Voting for Christmas?

Brexit delayed again – now it’s off to the races in a General Election

Despite having finally achieved a Parliamentary majority in favour of a way of delivering Brexit, in the Second Reading of the Withdrawal Agreement Bill on 22nd October, Prime Minister Boris Johnson decided – in the face of Parliament’s refusal to allow him to put the Bill through very rapidly so as to meet the 31st October Brexit deadline – to pursue a General Election instead of pushing the Bill through.

After some “after you, Claude” to-ing and fro-ing, the EU agreed to the request to extend the Article 50 deadline of 31st October which the Prime Minister had been forced by Parliament to send. The EU did so under condition that there should be no re-opening of withdrawal negotiations, no disruption to EU business by the UK (including the UK appointing a member of the new European Commission), and that the UK could leave earlier if the ratification process completed earlier.

A delicate game ensued in Parliament about the basis for a decision to hold the election, with opposition parties wanting to remove the Prime Minister’s discretion over the date of the election, and to make it impossible for him to try again to push the Withdrawal Agreement Bill. On 28th October Parliament rejected the Prime Minister’s attempt to secure an election on 12th December. Parliament then decided on 29th October that the election should be held on 12th December. The difference between the first 12th December and the second 12th December would take too long to explain, and would anyway test the sanity of all but the most extreme political geek.

And so the unhappy child of Theresa May’s disastrous 2017 election fades into the twilight…

The election Bill still needs to go through the House of Lords (unlikely to be problematic) and receive Royal Assent, and the House of Commons needs to tidy up some necessary business. So on current plans Parliament will dissolve on Wednesday 6th November for MPs to campaign for the General Election on Thursday 12th December. The British electorate, used to voting at national level every five years, had a General Election in 2015, the Brexit referendum in 2016, a further General Election in 2017, and now a third General Election in 2019 (the Scots also had an independence referendum in 2014).

Was the 2017-2019 Parliament a travesty of democratic accountability, or a powerful example of representative democracy grappling with issues which had split the nation in two through a binary exercise in direct democracy? Historians will judge. It was certainly a tough one for individual MPs, who regularly found themselves objects of extremely hostile, sometimes violent, social media messaging. Parliament certainly seemed to reflect accurately the division in the electorate, which the polls show has not shifted significantly throughout the period since the 52:48 result of the 2016 Brexit referendum.

“Prediction is very difficult, especially if it’s about the future” – Nils Bohr

So what’s going to happen in the 12th December election? It will be the first December election for almost a century, and the hardest to predict for many decades. Will Boris Johnson scoop the Leave vote across the country, or will Nigel Farage’s Brexit Party damage the Conservatives by arguing that Johnson’s Brexit deal is not really Brexit? Will the clarity of the Liberal Democrats’ Remain position help them and weaken Labour, or will Labour be able to sit on the fence on Brexit and focus the campaign on Tory austerity and public services?

The next six weeks will be exhilarating, confusing and passionate. They will decide the future course of the nation. Nothing more will happen on Brexit until after the election. Whether the election provides a clear way forward will depend on whether a party achieves a clear majority or the election produces another hung Parliament. Watch this space…

© Copyright 2019 Squire Patton Boggs (US) LLP

Read more about Brexit on the Global Law page on the National Law Review.

Utah to Test Blockchain Voting Through Mobile Apps

As we head toward 2020, expect significant public debate relating to smartphone applications designed to increase turnout and participation in upcoming elections. The Democratic Party has dipped its toe in the water by announcing in July plans to allow telephone voting in lieu of appearing for neighborhood caucus meetings in the key early primary states of Iowa and Nevada.

Given concerns regarding security and reliability of submitting votes over the internet, jurisdictions around the country have begun to test solutions involving blockchain technology to allow absentee voters to submit voting ballots. Following initial pilot programs in Denver and West Virginia, Utah County, Utah will be the next jurisdiction to utilize a blockchain-based mobile in connection with its upcoming municipal primary and general elections.

The pilot program, which will utilize the mobile voting application “Voatz”, will allow active-duty military, their eligible dependents and overseas voters to cast absentee ballots. Eligible voters will need to apply for an absentee ballot with the county clerk and then download the mobile application. The ballot itself will be unlocked using the smartphone’s biometric data (i.e., a fingerprint or facial recognition) and then will be distributed into the blockchain framework for tabulation.

Copyright © 2019 Robinson & Cole LLP. All rights reserved.
This article was written by Benjamin C. Jensen of Robinson & Cole LLP.

2018 MIDTERMS: The Power of Women, Possibility, and Partisan Rancor

The 2018 midterm elections showcased the power of women, both as candidates and as a key voting demographic. The elections represented a new political moment for women candidates who ran and were nominated in record numbers, particularly in the Democratic party. In total, 272 women ran for House, Senate, or Gubernatorial seats this year. This phenomenon is closely linked to the national gender gap of 25 points in favor of Democrats, which played a particularly key role in highly educated suburbs.

Tuesday’s results also illustrate the power of possibility, with voters siding against newly vulnerable incumbents and in favor of anti-establishment candidates across the country. While the ideological middle of both parties was well represented, progressive Democratic candidates like Beto O’Rourke and Andrew Gillum and anti-establishment Republicans Brian Kemp and Kris Kobach still managed to draw considerable attention and support, signaling increasingly credible challenges from the outer wings of both parties.

Additionally, the elections took place on—and in many ways helped stoke—a toxic and perilous political landscape characterized by negative and fear-inspiring advertisements, the long shadow of potential tampering by foreign states, ideologically motivated domestic terror threats, and tense developments with our allies abroad. The partisan rancor shows few signs of abating, especially as the establishment consensus of both parties continues to fray.

U.S. House of Representatives: Democratic Agenda “For the People” … or Anti-Trump Obstructionism?

The House has changed control and Democrats are now in the majority. Gains for Democrats came primarily from suburban districts Hillary Clinton carried in 2016 like Virginia District 10 (Rep. Barbara Comstock’s district), Illinois District 6 (Rep. Peter Roskam’s district), and Kansas District 3 (Rep. Kevin Yoder’s district). Democrats also made gains in heavily Republican suburbs like Virginia District 7, where Abigail Spanberger defeated Tea Party member Rep. David Brat. Democrats entered with an advantage due to the historically high rate of Republican retirements that surrendered the benefits of incumbency in extremely tight races.

Minority Leader Nancy Pelosi (D-CA) looks likely to ascend to the speaker position over prospective progressive and/or younger challengers. Her speakership would occur despite broader divisions in the party between its long-term establishment leadership and a wave of new candidates and elected officials seeking to pull the party left. The position of minority leader is expected to go to Rep. Kevin McCarthy (R-CA), who has been on the inside track since Speaker Paul Ryan (R-WI) announced his retirement. Majority Whip Steve Scalise (R-LA), who has been spirited around the country along with Rep. McCarthy, will also vie for leadership, but is unlikely to pose a major challenge.

The broader change in control also means committee gavels will change hands. It is an open question whether incoming chairs will focus primarily on articulating a new Democratic agenda or on obstructing Trump administration policy goals. Most likely, they will choose a combination of both. Already, the presumptive chairs of two House committees, Energy and Commerce and Oversight and Government Reform—Reps. Frank Pallone (D-NJ) and Elijah Cummings (D-MD), respectively—have indicated they will greatly increase the number and intensity of inquiries into the administration.

The commitments of the ascendant chairman herald an onslaught of oversight across committees, issues, and departments. Committees will likely take particular interest in issues related to the President’s finances, the Mueller investigation, and the affairs of cabinet officials already subject to ethics inquiries. These inquiries will also focus on industries perceived to have aided in the development of controversial regulatory actions, such as the Department of Energy Grid Resiliency Proposal, and recent moves at the Environmental Protection Agency (EPA) and the Bureau of Land Management (BLM) to relax methane regulations.

One major policy focus for House Democrats may be climate change and countering the administration’s narrative on energy and environmental regulations. Minority Leader Pelosi recently indicated she may bring back the Select Committee on Energy Independence and Global Warming that stood from 2007-2011 and assisted with major cap-and-trade legislation in 2009.

In the midst of these investigations, it is possible that both parties could find common cause on a handful of legislative issues, including infrastructure. Bipartisan legislation on any such issue would require a well-crafted compromise to navigate Democrats’ desire to buck the President, and internal divisions among Republicans on issues like infrastructure funding.

U.S. Senate: Statewide Voting Efforts Boost Republican Candidates 
As the results stand, Republicans expanded their Senate majority to 54-46. Republicans defended seats in key states like Arizona and managed to defeat vulnerable Democratic incumbents in Missouri, North Dakota, and Indiana. Democrats did, however, make one pickup in Nevada where Jacky Rosen defeated Dean Heller.

Senate Majority Leader Mitch McConnell (R-KY) and Minority Leader Chuck Schumer (D-NY) will continue to lead their respective parties in the 116th Congress, but both parties are poised to make changes to committee leadership. Specifically, Republicans will select chairs for two key committees: Foreign Relations, currently led by retiring Sen. Bob Corker (R-TN), and Finance, chaired by retiring Sen. Orrin Hatch (R-UT). Leadership is likely to remain constant on committees with energy and environment jurisdiction: Energy and Natural Resources, and Environment and Public Works. If Sen. Bill Nelson (D-FL) goes down to defeat, Democrats will select a new ranking member for the Senate Commerce Committee. The position falls to Sen. Maria Cantwell (D-WA), but since she is the ranking member of the Energy and Natural Resources Committee, the position may instead go to Sen. Amy Klobuchar (D-MN).

The Senate will likely see considerable action on the 182 executive branch nominees and 71 federal judges that have yet to be confirmed. Additionally, the Senate will likely face a number of high-profile nomination fights, with multiple members of the cabinet reported to be considering leaving in the near future, including Attorney General Jeff Sessions, Secretary of Commerce Wilbur Ross, Secretary of the Interior Ryan Zinke, and Secretary of the Treasury Steven Mnuchin. Additionally, the Senate will consider key appointments at EPA and the Federal Energy Regulatory Commission (FERC), including the possible formal nomination of Acting EPA Administrator Andrew Wheeler, as well as a new FERC commissioner.

While room for agreement will be slim, Senators will have to iron out a compromise on certain must-pass issues such as a debt ceiling increase. Additionally, Senators may work together on legislation to address the nation’s opioid crisis, like Sen. Lamar Alexander’s (R-TN) Opioid Crisis Response Act (2018), which passed 99-1. In the energy space, committees of jurisdiction will likely focus on incentivizing energy infrastructure, protecting key assets from cyberattacks, and new technologies in areas like carbon utilization.

And Outside of Washington

Election Day was also important outside of Washington, DC. 36 states held gubernatorial elections this cycle.  Democratic pick-ups (a half-dozen or so) are important for policy developments pushed down to the state level in light of the current administration’s approach to cooperative federalism in regulation. Further, governors elected this time around will still be in office as redistricting proceeds in 2021. Thirty states also elected attorneys general (AG), increasingly important on energy, environment, healthcare and other issues affected by multistate litigation. The four flips to newly-minted Democratic AG’s could have impacts on infrastructure and oil and gas issues in states like Michigan and Colorado.

We also were watching state ballot initiatives very closely this cycle, given the profound implications many had on energy issues in particular. In Washington state, the much-watched Initiative 1631 that would have imposed a $15 carbon tax per metric ton (increasing thereafter by $2 per year until 2035 goals were met) failed by 12 points. A ballot initiative requiring Arizona to source 50 percent of its electricity from renewables by 2030 also failed by almost 40 points. While a similar initiative passed in Nevada, it will have to pass again before becoming operative. In addition, a Colorado ballot measure imposing distance requirements on oil and gas development—an effective ban if passed—failed by about 15 points and did not enjoy the support of either nominee for governor. In each case, the regulated community took the ballot measures seriously and addressed them with sophisticated advocacy campaigns—a sign to come as more issues devolve to the state level.

 

© 2018 Bracewell LLP
This post was written by Scott H. Segal and Dee Martin of Bracewell LLP.

Why does it Matter if the NRA Used Russian Money to help Donald Trump’s Election?

The old saying goes, that “when you have a hammer, everything looks like a nail.” And as a campaign finance lawyer, I have to remind myself that not every story is a money in politics story. But the more I look at the 2016 election and what transpired, campaign finance is at the heart of the scandal.

To wit, this January, McClatchy reported that the FBI is allegedly investigating whether a Russian banker named Aleksander Torshin (who’s also wanted on criminal charges in Spain for unrelated matters) may have funneled money into the National Rifle Association (NRA) for the benefit of the candidacy of Donald Trump in 2016. At this point, all this is just a press report. We don’t have confirmation of this investigation.

In March, Politico reported that the Federal Election Commission (FEC) is investigating whether there really was any Russian money running through the NRA in the 2016 presidential election. This comes on the heels of Oregon Democratic Senator Ron Wyden asking similar questions to the NRA.

Illegal Political Sources

But why would this be so significant if the story of rubles flowing through the NRA is correct? For one, such spending by a foreigner in an American election is totally illegal under American law. Indeed foreign electoral spending has been barred since 1966 amendments to the Foreign Agents Registration Act (FARA). And with a Special Counsel actively indicting people for their roles in the 2016 election, this could become part of that criminal probe.

We Were Warned

Second, if the NRA-Russia-Trump nexus is borne out by the facts, then it will vindicate warnings from Supreme Court Justices and campaign finance reformers who said inviting secretive corporate money into our politics would provide cover for illegal foreign spending in American elections.

This caution was part of Justice John Paul Stevens’ dissent in Citizens United. He was leery of the possibility that inviting corporations into U.S. elections could invite foreign influence. As he wrote, “[u]nlike voters in U.S. elections, corporations may be foreign controlled.” He also noted the absurdity of giving equal protection to foreign speakers in this context: it would be like “accord[ing] the propaganda broadcasts to our troops by ‘Tokyo Rose’ during World War II the same protection as speech by Allied commanders.”

This warning that dark money could hide foreign money was particularly pronounced from transparency advocates among campaign finance reformers. In 2016, the FEC tried to promulgate new rules to clarify reporting requirements. But the FEC deadlocked and no new rules were finalized.

Without Clear Transparency Rules Dark Money Flourished

In the absence of new clear rules from the FEC, or Congress for that matter, dark money has increased. As I described in the law review article Dark Money As a Political Sovereignty Problem, since 2010, over $800 million in “dark money” has been spent in federal elections. Because of the dark money problem, often we don’t know what we don’t know about corporate money in politics—including whether it is from an illegal foreign source.

There is a data chart showing $183.8 million in dark money in 2016; $177.7 million in dark money in 2014; $308.6 million in dark money in 2012 and $135.6 million in dark money in 2010.

The growth of dark money is often blamed on the Supreme Court’s 2010 decision, Citizens United v. FEC. Paradoxically, Citizens United upheld the constitutionality of disclosure of the underlying sources of money in politics by a vote of 8 to 1. But regulators did not take up the Supreme Court’s open invitation to improve disclosure laws after Citizens United, thereby allowing dark money to metastasize like a cancer on our democracy.

How Dark Money Gets Dark

Here’s how dark political money works. Say you have a company that wants to exercise its Citizens United rights, but it doesn’t want to tell the public. That company gives the money to a politically active 501(c)(4) social welfare organization or 501(c)(6) trade association. Then that nonprofit buys political ads in a federal election. The FEC doesn’t require the nonprofit to reveal where it got the money. Even if the company is publicly traded, there is no SEC rule that requires the company to tell investors that they are spending money in politics. For even more secrecy, money can also be routed through a shell corporation like an LLC to make tracing the money even more difficult.

The Allegation

The reporting by McClatchy (and others) alleges that NRA’s Institute for Legislative Action (ILA), a 501(c)(4) arm of the NRA, that does not disclose its donors, received money from the Russian banker Torshin. We don’t know if that happened.

We do know how the NRA spent its money. In 2016, the NRA expended $54,398,558 in outside political spending. The NRA spent $31 million of that money to support Mr. Trump’s candidacy. According to Open Secrets.org, showing $183.8 million in dark money in 2016; $177.7 million in dark money in 2014; $308.6 million in dark money in 2012 and $135.6 million in dark money in 2010.

It is outlandish to think that the NRA would wittingly or unwittingly violate American campaign finance law? At this point we don’t know if they have done anything wrong. However, the NRA has a long history of fighting campaign finance regulations. In 2010 when the Congress was on the verge of passing the DISCLOSE Act which would have brought transparency to money in politics post-Citizens United, lobbyists for the NRA got a legislative carve out so that new disclosure would not apply to them.

The NRA was also center stage in litigation against the last big federal campaign law, the Bipartisan Campaign Reform Act (better known as BRCA or McCain-Feingold). In 2002, the NRA and one its PACs, National Rifle Association Political Victory Fund were plaintiffs challenging the constitutionality of BRCA. This case was consolidated into the case that became McConnell v. FEC, a case that ended up upholding the constitutionality of BRCA, including its campaign finance disclosure requirements. Moreover, in 2001 the NRA was held liable for campaign finance violations from the 1978 and 1982 elections.

Conclusion

Like so many aspects of the multiple investigations into what really happened in the 2016 election, the public has no idea what will ultimately be revealed. Reading the news has become like a live action spy novel. It is possible further investigation will only exonerate the NRA and the Russian banker. But one strain to keep an eye on is whether any foreign money helped elect a U.S. president. Did I mention that’s completely illegal?

 

© Copyright 2018 Brennan Center for Justice at New York University School of Law