Ten Quick Thoughts on the Case Against Bob McDonnell
The indictment of Bob McDonnell is a gut punch to all who knew him, worked for him, admired and believed in him and his leadership style. Earlier today, on Twitter, I posted these ten quick thoughts on the law and politics of the case against him:
1. I was struck by the outburst of snark and schadenfreude from the chattering class on Twitter as news of the indictment broke. Whatever your policy disputes with him, Bob McDonnell played politics in a different way – thoughtful, respectful, fair – even with his opponents. The political chattering class would do well to learn to play Twitter that way, too. There but for the grace of God go we.
2. There has been much focus on the sensational facts of the indictment, but little if any focus on the law.
3. Bob McDonnell was the Governor of Virginia, elected by people of Virginia, exercising authority granted to him by the Constitution and laws of Virginia. And the conduct Bob McDonnell is accused of was entirely legal under Virginia law. For years, the Virginia General Assembly has determined that, without an express quid pro quo, no gift in any amount can corrupt or appear to corrupt a public official. Now, however, the Department of Justice apparently regards Virginia’s law as insufficient to protect the people of Virginia from the man they elected to lead them, so it’s indicting Bob McDonnell under federal law. In so doing, DOJ is substituting its policy preferences for will of the people of Virginia’s elected representatives – charging Bob McDonnell federally for legal state conduct.
4. And where is that quid pro quo? DOJ has Jonnie Williams, so if there was a quid pro quo, wouldn’t he have given it to them? But the indictment of Bob McDonnell pleads no facts proving any express quid pro quo.
5. Of course, the law on the requirement of a quid pro quo in Honest Services and Hobbs Act cases is all over the map. In some cases, it must be express. In other cases, it may be explicit, meaning it can be implied from the facts and circumstances. In campaign contribution cases, the quid pro quo generally must be express – because the underlying act is legal. In gift cases, the quid pro quo generally may be explicit (i.e., inferred) – because the underlying act usually is illegal. The McDonnell case is a gift case, but it’s more akin to a contribution case, because unlimited gifts were expressly legal under Virginia law. DOJ clearly believes it doesn’t need an express quid pro quo to convict Bob McDonnell. Expect this to be a central issue in the case.
6. Speaking of quid pro quos, how about DOJ’s deal with Jonnie Williams? And what about the former Bob McDonnell staffer who Williams actually may have offered a six-figure private sector salary to in exchange for her help? Does she have a deal with DOJ too?
7. I don’t know a single fair-minded Virginian who thinks Bob McDonnell deprived us of his “honest services,” whatever that even means. And I also don’t know anyone who thinks Bob McDonnell used his official position to EXTORT Jonnie Williams, as the Hobbs Act requires. As for the cover-up counts, I don’t think the government should be able to imprison people for covering up crimes they are acquitted of.
8. Everybody’s asking, “Is the prosecution of Bob McDonnell political?” He’s a political figure – of course it is. But that’s not the right question. The question is, “Is the prosecution fair?” From the beginning, the prosecution of Bob McDonnell has been conducted unfairly. Government agents leaking information to Washington Post reporters obtained in the course of a supposedly confidential law enforcement investigation of a presumedly innocent man? DOJ cutting deals with the alleged briber, and possibly his co-conspirator, charging Bob McDonnell’s wife as an accessory instead? Withholding evidence that is clearly exculpatory of Bob McDonnell?
9. For yrs, DOJ has said that public corruption is the federal government’s #1 domestic law enforcement priority. I get that. Corrupt politics strikes at the very foundation of our democracy & undermines the legitimacy of its government. Dishonest politicians stretch the law and push the envelope, so DOJ and the Public Integrity Section must push and stretch to keep them in check. But poor personal and political judgment are not federal crimes. The facts alleged in Bob McDonnell’s indictment reflect poorly on his personal and political judgment, but were expressly legal under Virginia law. DOJ was right to investigate this matter, but given legal state law conduct and the absence of an express quid pro quo, it should not have indicted Bob McDonnell. He has paid and will continue to pay very high price for his mistakes – shamed, disgraced, and flat broke by end of this case. He should not lose his freedom too.
10. Our adversarial justice system depends on defendants having the will and resources necessary to fight the relatively limitless will and resources of the government. Bob McDonnell faces a long, costly, draining fight versus a merciless adversary. I pray he’ll have the resolve and funding he needs to see it through.
Five Take-Aways from the #VaAG Recount
With State Senator Mark Obenshain’s decision to concede the recount of the November 5, 2013 General Election for Attorney General of Virginia, and not to ask the General Assembly to overturn the result of the election in a contest, the post-election proceedings are complete and State Senator Mark Herring will be the next Attorney General of Virginia.
Democrats dominated Virginia politics for many decades, until Republicans took control in the 1990s, but now close elections are the new normal. In the past eight years, five statewide or congressional elections have finished inside the statutory margin for a recount, and three have been recounted.*
With each new close election we canvass or recount, we learn more about Virginia’s system of voting, our election laws, and our post-election processes. Here are five lessons learned, or reaffirmed, by the recount of the 2013 Attorney General election.
1. Elections Are Intended To Be Perfect Processes, But They Are Implemented By Imperfect Humans. There are vigorous debates about the policy merits of some voting laws, but there can be no denying that laws prescribe detailed voting and canvassing procedures, are supplemented by many pages of regulations and guidance documents, and are further informed by practice and accumulated experience.
And yet, mistakes are made. Many, many mistakes. In every election, every year. Hundreds if not thousands of them in this year alone. Those mistakes are simply spotlighted in close elections, when election officials, attorneys, volunteers, and now bloggers and Tweeters identify, scrutinize and correct the mistakes in real time.
We can anticipate more close elections in years to come. While we always should strive to learn from our mistakes and improve the accuracy of our system of voting, at some point we must become comfortable with these facts: imperfect human beings are administering that system, they are going to make mistakes, and the reason we have post-election processes in close elections is to correct them. And in that regard, post-election processes—even ones that don’t change the outcome of elections—safeguard the accuracy and integrity of our elections. Pressuring candidates to forgo them undermines those important interests.
2. It’s A Round World. The defining issue in the 2005 recount of Virginia’s Attorney General Election was whether all, some or none of the optical scan ballots would be hand-counted. Virginia law at the time provided that recount officials should look at the tape of results produced by the optical scanners on election night—and that those results should be accepted as conclusive unless the tape was unclear or the court requested otherwise.
State Senator Creigh Deeds, on the short-end of the certified result heading into the recount, believed that thousands of voters had marked their ballots in such a way that the optical scan machines would not be able to read them—but that if recount officials viewed those ballots and counted them by hand, the voters’ intent would be clear. Senator Deeds asked the recount court to order statewide optical rescanning, which the court denied, and then requested limited optical rescanning in selected jurisdictions.
The 2005 recount court granted Senator Deeds’ more limited request in even more limited part, and ordered rescans and hand-counts in just a few jurisdictions. After Senator Deeds lost the recount, he introduced a bill to reverse Virginia’s recount law and require all optical scan ballots to be re-scanned, with a hand-count for each ballot on which the scanners detected no vote. As a young lawyer on then-Delegate Bob McDonnell’s recount legal team, I reflexively voiced strong opposition to Senator Deeds’ bill. Bill Hurd, McDonnell’s brilliant lead recount litigator, counseled otherwise: “Not so fast. You never know when you’re going to be litigating on the other side of one of these certified results.” Three years later, in the Fifth Congressional District recount, I was. This year, I was again.
Senator Obenshain told a similar story at this year’s Republican Party of Virginia Advance.+ When Senator Deeds’ recount bill came before the Senate of Virginia for a vote, Senator Obenshain was one of only two State Senators to vote against it and oppose true recounts of optical scan ballots. Now, he said, he was glad he lost that vote.
After every recount or near-recount, there is much discussion about changing post-election processes, and I’m sure there will be this year, too. Oftentimes, that discussion divides along the lines of the election just concluded. In such a discussion, partisans would do well to remember that the tables can turn quickly, and to consider policies with respect to their impacts in the next election, instead of in the one immediately past.
3. There Are Uncounted Votes Out There.
In 2005, even from the very limited rescanning and hand-counting of optical scan ballots that the recount court allowed in response to Senator Deeds’ motion, both candidates gained votes. (Now-Governor McDonnell just gained more.) In 2008, in the Fifth Congressional recount, both candidates gained dozens of votes. (Now-Former Congressman Virgil Goode gained more, but not enough.) This year, in the first statewide recount since Senator Deeds’ bill became law, both candidates gained many hundreds of votes. (Attorney General-Elect Herring gained more.)
Senator Deeds was right. There are uncounted votes in every election. They reside on optical scan ballots which voters marked in such a way that their intentions would be clear to any reasonable person who viewed the ballots, but not to a machine. And having just spent three days reviewing 300,000 optical scan ballots in Fairfax County, I can attest that voters find many different ways to mark their optical scan ballots. How hard is it to fill in the bubble next to a candidate’s name? Apparently, harder than you might think—for voters from both parties. Throughout three days of recounting in Fairfax County, voters’ ballot-based expressions of intent provoked much thought, gave rise to bewildered expressions, and prompted smiles and laughs.
A recount should be something more than a mere retabulation of tapes produced by machines on election night. That’s already done in the canvass process. In a true recount, ballots should be viewed and votes should be recounted.~
4. The More Important Contest Standard Is A Practical & Political One, Not A Legal One.
The 2013 Attorney General Election was, prior to the recount,the closest statewide election in Virginia history. Much discussion and debate in recent weeks centered on whether Senator Obenshain would or should contest the election result and ask the General Assembly to overturn it based upon alleged irregularities in the conduct of the election. Immediately following Senator Obenshain’s concession, some speculated that the margin between the candidates simply grew too large to be made up in a contest. I think the analysis is more complicated than that.
Many types of mistakes occur in every election. By definition, these mistakes in the administration of an election are irregularities, in that they are departures from established procedures. Most are unintentional, such as a failure by precinct-level election officials to keep an accurate tally of the number of voters who were allowed to vote in a precinct, resulting in a discrepancy between the number of votes cast in the precinct and the number of voters marked as having voted there. Some are more intentional, such as decisions by election administrators across Virginia to follow or not follow certain guidance, to apply or not apply certain standards.# Nearly all are capable of being quantified, at least arguably, so that the impact of the mistake can be given a numeric value.
Indeed, in any statewide election decided by a few or even several hundred votes, it would not be hard for a team of lawyers to identify enough irregularities, quantify them, and arrive at a number large enough to cover the spread. (This is NOT an allegation or insinuation regarding the election just concluded. It is an observation with respect to all elections generally.) That a candidate elected not to attempt to do so in an election this close, with a highly partisan General Assembly waiting to receive a contest and perhaps overturn the result of the election, should be seen as an indication that there is more to the analysis than just the nature and quantum of irregularities. Practical and political considerations are just as if not more important. Does a candidate want to level legal accusations against election officials, sometimes within his or her own party? Does a candidate want to put voters through such a process? Does a candidate want to take office in such a way? And if so, could such a candidate ever get anything done while in office?
Because there are mistakes and irregularities in every statewide election, and because a statewide election never before has been contested to the Virginia General Assembly—not even one as close as the one we just had—at this point, it seems that mere mistakes and irregularities in the administration of an election are not enough to give rise to a contest.
5. There Is A Virginia Way.
After the recount’s first day in Fairfax County, election law professor Michael McDonald tweeted: “A bright sign from today’s #VAAG recount action: no sign Rep lawyers challenging all Herring votes to create perception Obenshain winning.” To which @greenythebeast replied, “Don’t give them any ideas.”
In fact, that’s just not the way we do things in Virginia. We’ve had enough consequential recounts in the past decade, both parties have now been on both sides of a certified result, and neither side ever has employed that type of tactic. It’s not that we’re not aware of it—we’ve obviously watched and learned from recounts in other states—but that’s just not the Virginia Way.
From the three days I spent in Fairfax County this week, and from reports I received from jurisdictions across Virginia, the 2013 recount was orderly and efficient, the lawyers were competent and fair, and the recount officials and partisan observers overwhelmingly were well-meaning and collegial. From experience, I can say the same thing about the close elections in 2005, 2006, 2008 and 2010. That’s a manner of doing things that Virginians can be proud of and should guard carefully—as it breeds honesty and accuracy in the proceedings, and fosters public faith and confidence in the integrity of the result.
(Disclosure: I was very honored to represent Senator Obenshain in Fairfax County’s recount proceeding, but these thoughts are solely mine, are not attributable to Senator Obenshain or any other member of his legal or political team, and do not reveal privileged, confidential or inside information, strategy or thinking. This is especially true of the discussion regarding the standard for a contest in point #4.)
* 2005 Attorney General (recount, McDonnell def. Deeds), 2006 U.S. Senate (canvass, Webb def. Allen), 2008 5th Congressional District (recount, Perriello def. Goode), 2010 11th Congressional District (canvass, Connelly def. Fimian), 2013 Attorney General (recount, Herring def. Obenshain).
+ In Virginia, Republicans never retreat. They only advance.
~ Would Senator Deeds have won the 2005 Attorney General recount, had he gotten his way and been granted statewide optical rescanning and hand-counting? I don’t think so. Senator Deeds provided the recount court with a detailed statistical analysis showing the localities and precincts in which uncounted votes most likely resided. The court granted his request for the most obvious precincts—those with the largest numbers of potential uncounted votes—and when the rescanning and hand-counting was done, he actually lost net votes (that is, he fell further behind McDonnell’s lead). I don’t think there is any reason to believe he could have closed the gap by rescanning and hand-counting the rest of the Commonwealth—there were, I believe, far fewer optical scan ballots used in 2005 than in 2013, and again, his request was granted for those precincts with the largest numbers of “undervotes”—but I wouldn’t fault him for thinking he might have done so or still wanting to have tried.
# By intentional, I mean that the decision itself was made knowingly and willfully—not that the effect of the decision was intended to influence the outcome of the election. Indeed, I don’t think intent is a required element of a contest in Virginia. I think the question is one of effect and impact.
If you’re reading this post on Wednesday, November 3 because the votes are in and you’re headed for a recount, stop. It’s too late. You may still win the recount, or you may lose, but either way you will not be in control of your electoral destiny. You were unprepared, so just hire a lawyer and hang on for a wild, blindfolded ride through a political haunted house of surprises, apparitions, tricks and dead ends.
Recounts are taking place with more frequency in the current closely-divided electorate, and we learn more with each successive recount. One thing we know for certain — one common denominator to all recounts — is that you must prepare before the Election for what may happen after it. Indeed, pre-election preparation is your only opportunity to get ready for post-election process. When the sun rises Wednesday morning and the post-election process begins, it is too big and moves too fast for you to catch up to it. This is especially true in congressional and statewide recounts.
Fortunately, there are seven key things you can do in the two weeks before an election to prepare for a recount, and to put your campaign in the best possible position to win. Gleaned from my experience litigating a statewide and a congressional district recount, and from consulting and observing numerous others, they are:
1. TWO WEEKS OUT: Recruit volunteers to represent you at the following events:
- Election Night: One volunteer per precinct to observe vote counting and tabulation. Don’t forget Central Absentee Precincts. Volunteers should bring handheld calculators, be in place by 6 p.m. and prepared to stay as long as necessary.
- Wednesday Morning: One volunteer per locality to observe the provisional vote proceeding and post-election canvass. For these events, you want your very brightest, sharpest, most professional volunteers — lawyers, accountants, businesspersons, etc. Be sure to recruit back-ups, as one or more of your chosen volunteers likely will have something happen that will prevent them from covering for you.
- End of First Week – Beginning of Second Week: One volunteer per city or county standing by to obtain copies of election records, as permitted by law, once the provisional vote and canvass proceedings are concluded.
2. TWO WEEKS OUT: Identify and retain a lawyer. Self-serving, I know, but it doesn’t have to be me. You have to get someone on board, however, who knows or has time to learn your state recount law — so he or she doesn’t spend the critical first 12-24 hours of post-election process feeling his or her way around the law and the procedures. Also, and this is CRITICAL: You want your lawyer to develop a set of instructions and reporting forms so that your volunteers in the field will know exactly what to do, what not to do, what information the lawyer needs them to collect, and where and how to find it.
3. ONE WEEK OUT: Contact the Local Electoral Board to identify the starting time and location of each locality’s provisional vote and canvass proceeding. Confirm the answers in writing and request notice of any changes.
4. ONE WEEK OUT: Make sure that your volunteers have the credentials and identification necessary to admit them to the vote count, provisional vote and canvass proceedings.
5. ONE WEEK OUT: Gather precinct-level returns from several relevant prior elections. These are for your lawyer’s use in analyzing returns from your election. (More on this below.)
6. ELECTION NIGHT: Your in-precinct volunteers should:
- Make sure that tapes/print-outs are pulled from all machines, and make sure that all paper ballots are counted. (Only exception: No provisional ballots are counted on Election Night, unless state law provides otherwise.) There is nothing worse than finding out Wednesday morning that a voting machine was forgotten, left on overnight, and has a couple dozen votes on it. Or that a box of paper ballots was left sitting on table.
- Observe the tabulation of the vote. Double-check the election officials’ tallies using handheld calculators, and watch for mathematical and other errors (including transposed digits (e.g., 597 –> 579), transposed vote totals (e.g., Candidate A’s votes are recorded for Candidate B and vice-versa), etc.). Politely point out errors, and make note of any that are not corrected.
- Make sure that all voting equipment, ballots and other election materials are secured prior to leaving for the night.
- Call in to campaign headquarters with a report.
In the meantime, as results are coming in, your lawyer should be scrutinizing precinct-by-precinct incident reports, if available, and comparing the Election Night precinct-level returns with those from past elections, to identify potential irregularities or anomalies.
7. WEDNESDAY MORNING: If there is no concession on Election Night, your provisional vote and canvass volunteers should AUTOMATICALLY do the following:
- Wake-up early and check their e-mail first thing in the morning for instructions and reporting forms from the campaign’s lawyers.
- Plan to dial in to a conference call to discuss legal and political strategy.
- Deploy to the site of the post-election proceedings.
If your campaign can implement those basic steps, you will be very well-positioned to be in control of the recount. The flip side is that if you have holes in your coverage, you’ll invariably end up missing information, scrambling to catch up, and starting the recount off in a reactive mode — costing you precious time and opportunities.
Copyright 2012 – Chris Ashby – All Rights Reserved.
Why the GOP Nominating Contest Is Not Over… Yet.
By: Chris Ashby and Katherine Maxwell*
A few weeks ago—between the “Santorum Sweep” on February 7 and Mitt Romney’s rebound with victories in Michigan and Arizona on February 28—it became impossible for a new candidate to jump into the GOP race for President and win the nomination outright.
Prior to the third week of February, it was still legally and mathematically possible for a new candidate to enter the race, run the table, and win a majority of delegates before the Republican National Convention in Tampa. That window, narrow as it was, is now closed.
But that doesn’t mean that a late entrant couldn’t emerge from Tampa with the nomination. That’s right. We’re telling you there’s a chance. And we’re even giving you the road map.
Cable news and the blogosphere have been buzzing about the possibility that no candidate will win a majority of delegates prior to the opening of the Convention on August 27. Out of such a situation, a “brokered convention” could emerge, in which influential party insiders coalesce around a candidate—perhaps one of the four existing candidates, but more likely someone who did not contest the nomination through the primaries and caucuses—and use their political power to deliver large blocks of delegate votes for the chosen candidate.
There is a different possibility, however—an “open convention.” In an open convention scenario, no one candidate would have a first ballot majority of delegates, most likely because a new candidate would have gotten into the race late, run strong, and denied the nomination to any of the other candidates. Such a candidate would arrive in Tampa with a head of steam. His or her momentum would sway most of the uncommitted delegates, blunt the power of party bosses who might attempt to steer the nomination to someone else, and prove to be a magnetic force to delegates as they became unbound or were released after the first and subsequent ballots. The open convention thus would not be brokered in back rooms, but rather would remain open and would be won on the floor.
The list of would-be candidates who could even think about attempting a maneuver of this degree of difficulty is obviously short—very short. But there are certainly two, and maybe as many as four or five, who could pull it off. To deny a first ballot majority of delegates to any other candidate, and force the GOP nomination fight to an open convention, here is what a late entering candidate would have to do:
1. Immediately get on the ballot Montana (deadline 3/12), Utah (3/15), California (3/23) and South Dakota (3/27). To get on the ballot in these four states requires little more than filing papers, and puts as many as 266 delegates up for grabs.
2. Take a shot at putting as many as 84 more delegates into play by getting on the ballot in two states which require petition drives: Nebraska (100 signatures per congressional district by 3/7) and New Jersey (1,000 signatures statewide by 4/2). (Oregon (28 delegates), which requires 5,000 signatures statewide or 1,000 per congressional district by March 6, is probably impossible.)
3. Contest the mid-March caucuses: Kansas (3/10), Hawaii (3/13) and Missouri (3/17), with up to 112 delegates between them. (Six more states will hold caucuses between now and Super Tuesday, but it likely is too late to contest them in any serious way.)
4. Plan to run as a write-in candidate in the District of Columbia (4/3), Wisconsin (4/3), Pennsylvania (4/24) and Rhode Island (4/24) primaries. There is plenty of time to wage effective write-in campaigns in those states, as well as later in West Virginia (5/8) and Oregon (5/15). There are 211 delegate votes available in those six contests. (Realistically, there is not enough time to mount a credible write-in effort before the Massachusetts primary (41 delegates) on Super Tuesday.)
Those four steps constitute a two-month, 14-state campaign for as many as 673 delegates. Of course, with 2,286 delegates to the Convention this year, and 1,144 needed to win a first ballot majority, 674 delegates would not necessarily be enough to deny the nomination to a candidate who breaks away from the pack on or after Super Tuesday, or simply remains standing as others fold.
What’s more, while a late entrant stands to win as many as 673 delegates, he or she would not win all 673 delegates. This is because a number of the 14 states will be awarding their delegates on something other than a winner-take-all basis—either proportional, winner-take-all by congressional district, or a hybrid method. Thus, a late-entering candidate could finish first in all 14 states, but garner less than 673 delegates, perhaps substantially less.
For this reason, in addition to campaigning in the 14 states identified above, a new candidate would have to do two more things. First, when the Convention is gaveled to order, delegations from Colorado (36 delegates), Illinois (69), Iowa (28), Maine (24), Montana (26), North Dakota (28), Pennsylvania (72), and Wyoming (29) all will be unbound. The Louisiana (25) and Minnesota (40) delegations may be unbound too. And for the first ballot, the Ohio (63) and Arizona (29) delegations are not legally bound, but rather are bound “morally” and by “best efforts,” respectively, making them ripe to be picked off by a momentum-fueled candidate. 84 more delegates—state party chairs, national committeemen and national committeewomen from 28 states—also will be unbound. Altogether, that’s 753 uncommitted delegates when the gavel drops.
Second, a late entrant could urge voters in North Carolina (55 delegates) to vote “no preference” in that state’s primary on May 8, and encourage Kentucky voters (45 delegates) to vote “uncommitted” on May 22. If successful in convincing voters in those two states that a no preference or uncommitted vote was effectively a vote for the late entering candidate, that candidate might be able to expand the universe of uncommitted delegates by as many as 100.
In the final analysis, between the 14-state campaign outlined above and the universe of uncommitted delegates as it could exist on Day One of the Convention, there are a total of 1,526 delegates that still could be won by a late entering candidate. We do not believe that any candidate could win them all—too many states are awarding delegates proportionally this year, ballot access deadlines are looming in a few states, and some percentage of uncommitted delegates may feel bound to vote for the winner of their state’s primary or caucus. If a late entrant could win half or more, however, it might just be enough to deny a first ballot nomination to one of the four existing candidates—especially if three or more of them stay in the race all the way to Tampa.+
Having sketched out what’s possible, a dose of reality is now in order. As noted above, we think there are two, and maybe as many as five, candidates who might be “big” enough to win the nomination in this manner. And with each passing day, it becomes more and more unlikely that any one of them could or will actually do it.
This year, however, is truly unlike any other—in more ways than one. Consider this: Candidate-specific Super PACs are a big part of the new political reality. For the past several presidential elections, the biggest barrier to entry has been the mounting cost of national politics. More than one plausible candidate has been deterred from making the race because she or he did not have the network, time and resources necessary to raise—in $2300 or $2500 increments—the many, many millions of dollars necessary to compete and win in a presidential election.
This year, though, the most expensive aspects of a national campaign—voter identification, mail, TV, and voter turnout—could be handled by a SuperPAC. Presently, there is plenty of political talent and money sitting on the sidelines that could manage and fund such an organization. By placing a trusted former aide at the helm, and securing a blessing of the sort that President Obama gave to Priorities USA just a few weeks ago, the SuperPAC would be well-positioned for immediate success. In the meantime, freed from the burden of raising multiple tens of millions of dollars in hard dollar increments, a late entering candidate could focus on getting on the ballot, developing a message, traveling the country, and delivering that message to voters in person, through earned media, and via the Internet and social media.
If all this seems like too long a shot, so too did the presidential campaign of a former Pennsylvania Senator who lost his last election by more than 25 points.
Even at this late stage, a majority of Republicans are telling pollsters that they are still not satisfied with the current field of candidates. Schizophrenic national polls and split decisions in the early primary states bear that sentiment out. Nothing about the state of the race or the candidates remaining in it provides any basis for believing this dynamic will change anytime soon. If GOP voters truly want another choice, there’s still a chance.
* First-year law student, University of Richmond School of Law.
+ The number of candidates remaining in the race at this relatively late stage, the volatile nature of the Republican primary electorate this year, and the number of states which will be awarding at least some delegates proportionally make it impossible to predict with certainty how many delegates it would take to prevent a first ballot victory. For instance, if two or more of the existing candidates drop out of the race, it will take more delegates to deny the nomination to the remaining candidate(s). If three or all of the existing candidates continue their campaigns, and continue to split delegates, it will take fewer delegates to deny someone a first ballot win.
Twelve Political Law Issues to Watch in 2012
It’s been nearly two years now since the Supreme Court’s Citizens United decision triggered an earthquake that cracked the foundations of our campaign finance system and altered the political landscape. The case roused a dormant Section 527 of the Internal Revenue Code, opened up new channels for soft money, and gave rise to the creation of “SuperPACs.”
Looking back, the 2010 elections looked nothing like the 2008 elections. And as we look ahead to the 2012 elections, we can see that the dust is still settling. In no particular order, here is a non-exhaustive list of twelve political law issues to watch as they unfold this year in the spotlights and shadows of the presidential election:
1. The Crumbling Regulatory Infrastructure. With its commissioners deadlocking along party lines on big questions of policy and enforcement, many fear the FEC as presently constituted appears to have reached the outer limits of its ability—if not its authority—to regulate politics. The Election Assistance Commission, set up in the wake of the disputed election of 2000, is now a commissionerless “zombie agency.” Our system of public financing for presidential campaigns appears to be dead. What will it take to reverse the deregulatory spiral?
2. The Role of the Supreme Court. The Supreme Court, and in particular its conservative majority, has been battered for its decisions in consequential election law cases like Bush v. Gore, Citizens United and McComish v. Bennett, but to what effect? Earlier this week, the Court summarily affirmed a lower court’s decision upholding the prohibition on political contributions by foreign nationals. It also heard oral arguments in a pair of Texas redistricting cases in which Section 5 of the Voting Rights Act was said to be at risk of falling, but commentators have suggested, based on the arguments, that Section 5 appears to be safe, at least for now. Has the Court gone as far as it wishes to go in deregulating politics, or perhaps been brushed back by the uproar over Citizens United? A number of other controversial political cases percolating in the lower courts may provide the ultimate answer—including Danielczyk, challenging the corporation contribution ban, Wagner v. FEC, challenging the ban on contributions by federal government contractors, and Shelby County v. Holder, in which the constitutionality of Section 5 will be more directly at issue.
4. Coordination. For decades, the linchpin of our campaign finance law was the ban on corporate contributions. Now that even Section 441b may be teetering, the FEC’s much maligned coordination regulations are emerging as the most important provisions in Title 11 of the Code of Federal Regulations. As candidates and outside groups continue searching for the outer boundaries of those regs, and reform groups search for opportunities to file complaints like this one, 11 C.F.R. §§ 109.20, 109.21 and 109.22 are going to get a workout this coming year.
5. The John Edwards Trial. Political lawyers from across the ideological spectrum seem to have concluded that United States v. Johnny Reid Edwards is a real stretch. (I disagree, but appear to be in a small minority.) Nevertheless, the case survived Edwards’ motions to dismiss and is presently scheduled for trial this Winter. Resolution of the ultimate question will be interesting enough—whether a federal candidate committed a crime by orchestrating or signing off on a plan to funnel a million dollars from wealthy campaign donors to his mistress—but there are other issues as well, including whether the judge will permit two former FEC commissioners to offer opinion testimony as expert witnesses—not on issues of fact, but on the ultimate legal issue in the case.
6. The Wisconsin Recall Election. Whether or not Mitt Romney runs the table and puts the GOP presidential primary away early, by Spring the center of the political universe likely will have shifted to Wisconsin, where Governor Scott Walker probably will be facing a recall election. Legal issues already have arisen, including a successful claim that the equal protection rights of voters who refused to sign recall petitions are violated by lax validation of the signatures that do appear on the petitions. We can’t know what other legal issues may arise in connection with the Wisconsin recall, but with the amount of attention, money and political talent that probably will be pouring into the Badger State this Spring, we can be certain that legal issues will arise—and that when they do, they will be interesting, consequential and fiercely contested.
7. GOP Presidential Primaries in NH, SC, FL, AZ & MI. The Republican National Committee has stripped New Hampshire, South Carolina, Florida, Arizona and Michigan of half of their delegates for failing to abide by the RNC’s presidential primary calendar—the second consecutive cycle in which this type of action has been taken. Perhaps someone will put the GOP nomination away early and arrive in Tampa with a first ballot majority, in which case this probably won’t become a major issue. But what if no one locks up the nomination early, and two or more candidates find themselves locked in a state-by-state, delegate-by-delegate slog—as was the case for the Democrats in 2008? All of the sudden those extra delegates would become incredibly important, and you can bet lawyers on all sides would be looking for a way out from under this decision from 2008.
8. Americans Elect. As the American electorate’s approval of the incumbents and institutions of our government plunges to generational if not historic lows, Americans Elect is planning to hold an open, online nominating convention that will result in a bipartisan ticket it hopes will be on the ballot in all 50 states. But already the group has been the subject of controversy surrounding its tax status (501(c)(4)), its donors (they’re not disclosed), as well as a veto the organization will hold over the ticket that ultimately emerges from the nominating process.
9. Redistricting Battles. Redistricting always spawns litigation, and this year is no exception, with over 100 redistricting cases now pending in the courts. But some of this year’s cases will go beyond usual issues like contiguity, compactness and communities of interest. Virginia is facing a lawsuit alleging that the General Assembly forfeited its chance to draw new congressional districts because it did not do so in Calendar Year 2011, as required by the state constitution. At least four other states, too, have not been able to pass one or more maps, giving rise to the possibility of judge-drawn maps in those states. The 11th Circuit is considering the constitutionality of a “Fair Districts Amendment” to Florida’s state constitution, which opponents allege violates the Elections Clause of the U.S. Constitution by placing the responsibility for drawing new lines in a commission comprised of unelected citizens. It’s possible that similar laws in a handful of other states could fall too if the Florida law is struck down.
10. Outside Money: You Can’t Stop It; You Can Only Hope to Contain It. Mitt Romney’s call to abolish them notwithstanding, SuperPACs are here to stay, at least for the foreseeable future. So are corporate contributions to (c)(4)s, (c)(5)s and (c)(6)s. So expect reform advocates to attempt to hamstring these groups with new disclosure requirements—aimed at the organizations and their potential donors. Earlier this year, the FEC deadlocked on a request by Maryland Rep. Chris Van Hollen to initiate a new rulemaking to change the disclosure requirements for independent expenditures, but a federal court yesterday heard arguments in a related lawsuit Van Hollen filed concerning electioneering communications. Also, calls for more voluntary disclosure of corporate political spending and shareholder approval of certain political contributions and expenditures are continuing. And then, of course, are the forces pulling the other way, including the newly-formed “SuperPAC for Hire,” as well as Dan Backer of DB Capitol Strategies, who wants to give every PAC the chance to be Super.
11. Tax Status Complaints. Reform groups have filed numerous IRS complaints against politically-active 501(c)(4) organizations, all generally alleging that the groups violated the tax law’s “primary purpose” requirement by engaging in excessive election-related expenditures. Will the IRS move this year against any of these groups? Still other complaints allege that the FEC should be required to regulate certain politically-active (c)(4)s as federal political committees. Would the FEC reach that far across the U.S. Code? Action along these lines by either agency would be a very significant development in this area of the law.
12. Just How Super Will the Colbert SuperPAC Be? Comedian Stephen Colbert’s independent expenditure only committee, Americans for a Better Tomorrow, Tomorrow, has been satirizing SuperPACs for months now, but it has yet to file an FEC report of its own. When it does file later this month, just how super will it be—meaning how many corporate contributions, and individual contributions in excess of $5,000, will it report? Will it continue to be an effective exercise in satire if it does not raise significant soft money contributions? And will it actually attempt to influence a federal election by making a communication that constitutes an independent expenditure?