Daily Media Links 4/22

April 22, 2019   •  By Alex Baiocco   •  
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The Courts

Washington Times: Lawyers use Supreme Court’s union ruling to challenge state bar dues on political grounds

By Alex Swoyer and James Varney

Arnold Fleck says his bar association in North Dakota spent $50,000 to oppose a state ballot measure on child custody cases. Mr. Fleck says he supported the measure and doesn’t see why part of his roughly $350 annual dues was used to advocate for an issue he disagreed with.

In Texas, three lawyers filed a lawsuit last month challenging their own dues, saying State Bar of Texas President Joe Longley has been actively fighting President Trump’s immigration agenda, while cloaking it in complaints about access to the legal system for migrants…

Mr. Fleck’s case in North Dakota is the most advanced.

He lost at the district and circuit court levels, but the Supreme Court sent the case back down for more argument after its Janus ruling…

The state bar relies on a 1990 Supreme Court ruling that said an arrangement requiring lawyers to join and pay into a state bar association is legal as long as the bar is not lobbying or engaging in politics.

Legal analysts say the lawyers’ First Amendment claims have merit but that the state interest in regulating the legal profession, such as ethics rules and attorney sanctions, appears to have more weight…

Yet another case is playing out in Oregon, where a federal magistrate judge found against lawyers challenging their bar fees.

Magistrate Judge Jolie A. Russo, in a 27-page opinion, also relied on the 1990 case from the Supreme Court…

Michael Spencer, a lawyer handling the challenge to the Oregon bar, said they expected the ruling and figure the district judge will agree with the magistrate judge.

“We expected this result at the district court level and are planning an appeal to the 9th Circuit,” Mr. Spencer said.

Alaska Landmine: ACLU seeks default judgement against Gov. Dunleavy, Tuckerman Babcock in wrongful termination suits

By Jeff Landfield and Lee Baxter

The American Civil Liberties Union (ACLU) of Alaska has filed motions for default judgment in two lawsuits they brought against Governor Michael J. Dunleavy and his Chief of Staff, Tuckerman Babcock, in January. The lawsuits stem from the firings of Libby Bakalar, a former State attorney, and Anthony Blanford and John Bellville, two former psychiatrists at the Alaska Psychiatric Institute.

Blanford and Belleville refused to sign the loyalty pledge that Dunleavy requested of all exempt and partially exempt State employees. Bakalar did sign it, but was terminated minutes after Dunleavy took office. Many felt Bakalar was a target because of her blog, One Hot Mess, and her sharp and sometimes vulgar criticisms of President Trump.

In the lawsuits, the ACLU claims their firings violated their First Amendment rights of free speech. The lawsuits were originally filed in state court but were removed and transferred to federal court on February 6 by request of counsel for Dunleavy and Babcock.

The ACLU requested default judgement citing that Dunleavy and Babcock have failed to respond to the lawsuits. Here are the motions and declarations:

Update: Not long after this article was published, the ACLU agreed to withdraw its request for entry of default if defendants file a (1) motion to dismiss, or (2) answer by April 23. Here is a link to the agreement:

Agreement with ACLU and SOA


Sludge: What the Mueller Report Tells Us About Campaign Finance Law and Foreign Interference

By Brendan Fischer

Mueller’s report confirms what we mostly already knew: U.S. campaign finance law has a digital disclosure gap. Russia exploited that gap in 2016, but Congress and the FEC still have not closed it…

Under current law, outside groups only have to report spending on digital ads when they expressly advocate for or against candidates. Most of Russia’s ads didn’t meet that standard. Even those ads that Mueller characterized as “overtly oppos[ing] the Clinton Campaign” … may not be considered express advocacy by the FEC…

Congress should extend the definition of electioneering communications to paid digital ads so that ads like Russia’s are subject to the same disclosure and disclaimers that currently apply to political ads run on TV or radio. This fix is included in bipartisan legislation like the Political Accountability and Transparency Act (H.R. 679) and the Honest Ads Act, and it is also in the For the People Act (H.R. 1). The FEC should also clarify that “paid for by” disclaimers are required on digital ads…

For a criminal campaign finance violation, prosecutors must show that it was committed “willfully.” There is no “willful” requirement for civil enforcement by the FEC, which need only find reason to believe that Don Jr. solicited a contribution from a person he knew was a foreign national. That evidence is in Mueller’s report, and the law is on the FEC’s side.

Campaign Legal Center, along with Common Cause and Democracy 21, filed a complaint with the FEC about the Trump Tower meeting in July 2017. That complaint is still pending.

The Mueller report underscored our system’s still-open vulnerabilities to foreign interference online, and it also highlighted already-available tools the FEC has to enforce existing law. It is now up to the FEC and Congress to take the next steps.

Slate: The Mueller Report Makes It Clear: Trump Is Off the Hook in SDNY as Well

By Richard L. Hasen

[A]s with the foreign opposition research case against Trump Jr., the hush money payments case against Cohen-and thus Trump-relies upon a contested legal theory. It is true that the Edwards case is precedent for prosecuting this as a crime, but there is a reasonable counterargument that these payments should be treated as personal, and not campaign-related. Cohen might have pleaded guilty to these crimes rather than fight them raising these potential defenses because he was already pleading to other charges and saw no point in contesting these, which allowed him to attack the president as a co-conspirator in a criminal enterprise. At the very least, there is an argument that to avoid the problem of overzealous prosecutors, the better course is to leave criminal prosecutions of politicians in political cases to the most clear-cut cases of criminal liability…

The bottom line is that SDNY is unlikely to go after the president for campaign finance violations. And unlike the allegations against Donald Trump Jr., these campaign finance improprieties do not involve national security. Don’t expect Congress, which seems poised to possibly look the other way despite heaps of evidence that Trump tried to obstruct the Mueller investigation into Russian interference with our elections, to decide to impeach Trump based upon payments to cover up the president’s affairs.

If Trump opponents are looking for a place to pin their hopes rather than the SDNY, it is looking increasingly that it will be on the voters of Wisconsin and others who will decide Trump’s fate in 2020.

Washington Post: ‘Nothing wrong’ with campaign accepting information from Russians, Giuliani says

By Michelle Ye Hee Lee and Felicia Sonmez

“There’s nothing wrong with taking information from Russians,” Giuliani said in an interview on CNN’s “State of the Union.” “It depends on where it came from.”…

With his comments, Giuliani was “offering a green light” for campaigns to accept in-kind contributions from foreign governments, said Richard Hasen, election law expert at the University of California at Irvine, calling it “troubling.”

“In terms of good campaign practice, as soon as a campaign hears that a foreign government or a foreign entity wants to give help to the campaign, the appropriate thing to do is to go straight to the FBI and to decline that offer,” Hasen said.

In Sunday’s interview, Giuliani told host Jake Tapper that “any candidate in the whole world” would accept negative information on an opponent.

Pressed by Tapper on whether that includes information “from a hostile foreign source,” Giuliani replied, “Who says it’s even illegal?”

Campaigns are not allowed to solicit or accept foreign contributions, defined as “anything of value” under campaign finance laws and regulations. Federal campaigns can hire foreigners to conduct opposition research, as long as they pay a fair-market fee…

In his report, Mueller wrote that “candidate-related opposition research given to a campaign for the purpose of influencing an election could constitute a contribution” that is prohibited under the ban on foreign contributions.

But the special counsel declined to pursue campaign finance charges, in part because it would be difficult to demonstrate that participants knowingly and willfully broke the law, the report said.

The Intercept: Robert Mueller Did Not Merely Reject the Trump-Russia Conspiracy Theories. He Obliterated Them.

By Glenn Greenwald

The centerpiece of the Trump/Russia conspiracy – the Trump Tower meeting – was such a dud that Jared Kushner, halfway through the meeting, texted Manafort to declare the meeting “a waste of time,” and then instructed his assistant to call him so that he could concoct a reason to leave. Not only could Mueller not find any criminality in this meeting relating to election conspiring, but he could not even use election law to claim it was an illegal gift of something of value from a foreigner, because, among other things, the information offered was of so little value that it could not even pass the $2,000 threshold required to charge someone for a misdemeanor, let alone the $25,000 required to make it a felony.

Neither the Trump Tower meeting itself nor its participants – for so long held up as proof of the Trump/Russia conspiracy – could serve as the basis for any finding of criminality. Indeed, the key Trumpworld participants who testified about what happened at that meeting and its aftermath (Trump Jr. and Kushner) were not even accused by Mueller of lying about any of it.


Washington Post: Freshman Democrats keep the ‘green wave’ rolling for reelection bids next year

By Paul Kane

“If you were thinking about running against one of them, you would have to think twice,” said Pelosi (D-Calif.). “Because they’re now battle-tested, they’re now a member of Congress. They’re strong – officially, personally and politically.”

All told, 41 freshman Democrats raised at least $300,000, a threshold level that puts them on pace to raise more than $2 million by the time they face voters in November 2020, according to a database maintained by the Hotline’s Ally Mutnick.

This is an unheard-of level of fundraising for such a group of newcomers. They are the third big class to have flipped the House majority this century, and the other two lagged way behind this crop in terms of early fundraising. In the first quarter of 2011, just 10 freshman Republicans raised at least $300,000 from a class that produced a 63-seat pickup and the House majority in the 2010 midterms, according to Federal Election Commission filings.

And in the first quarter of 2007, just 13 freshman Democrats raised at least $300,000 after their historic 2006 midterm victories knocked Republicans out of the majority.

The class of 2018 has essentially picked up where it left off last fall, keeping the “green wave” of political donations that GOP operatives warned about flowing into its campaign coffers…

Early money is no guarantee of political success.

One of the biggest fundraisers of the GOP class of 2010, Allen West (R-Fla.), lost in 2012 and never won another campaign.

Candidates and Campaigns

Center for Public Integrity: Mum’s The Word: Some Democratic Presidential Hopefuls Won’t Discuss Their Big-Dollar ‘Bundlers’

By Dave Levinthal

Most Democrats who want to win the White House have all but fetishized small-dollar donors.

Enthusiastic supporters who contribute $20 here or $50 there offer candidates grassroots street cred during a presidential primary season in which corporate money and tony fundraisers have become decidedly unfashionable.

But campaigns burn through millions of dollars. Trendy or not, Democratic presidential candidates still need big money to pay bills. Enter “bundlers” – often ultra-wealthy, well-connected political fundraisers – who collect checks from friends and associates and present the loot to a presidential hopeful in a tidy five-, six- or seven-figure “bundle.”

Presidential candidates are under no legal obligation to reveal the identities or activities of these bundlers, unless they’re federally registered lobbyists who bundle at least $18,700 – and most are not…

The Center for Public Integrity asked all major 2020 presidential candidates the same questions about their bundlers:

Do you plan to publicly disclose the identities of all campaign bundlers?

If so, how frequently will you disclose them, and what details will you provide about the money they bundle?

Answers varied greatly…

Congress could pass a law that mandates presidential candidates provide certain information about their bundlers. But so far this congressional session, no such bill has been proposed, and H.R. 1, the House Democrats’ sweeping ethics and campaign reform legislative package, doesn’t address the issue.

The States

Charleston Gazette-Mail: Campaign finance bill closes loophole on anonymous political spending

By Jake Zuckerman

Most the debate around Senate Bill 622 centered on its increase to fundraising caps on different kinds of political donations. However, officials with the Secretary of State’s Office say a simple change to the definition of a PAC (Political Action Committee) will block off an end-run around donor disclosure…

Donald Kersey, general counsel for the secretary of state, said the specific meaning of “primary purpose” will have to be hammered out in the legislative rule making process…

However it breaks, he said the idea is that groups seeking to influence elections won’t be able to point to other non-electioneering functions they perform, like education or grassroots politics, as a reason to shield the identities of their donors.

A conflict of interpretation on this definition played out during the 2018 elections and continues to do so in Wood County Circuit Court…

In June, [Secretary of State Mac] Warner filed a lawsuit against SEA alleging the group conducted electioneering activities in West Virginia without registering as a PAC or properly reporting the full scope of its funding or spending.

In responding court documents, SEA denied any wrongdoing. The case is scheduled for a status conference next week.

“What SEA is going to argue, we think, is that their sole purpose is not for supporting or electing or defeat of a candidate, they also do a lot of education,” Kersey said. “So under their read of the code, which is different than our read, they are not a PAC because they do education and things. Under the new law, if their primary purpose is to support the nomination or defeat of a candidate, then they would be a PAC, which means all those other disclosure laws apply and they can’t just file independent expenditure reports.” …

The new law would not apply retroactively in the case, Kersey said, although it could be considered by a judge in a ruling.

Charlottesville Daily Progress: Experts: Virginia is an advantageous venue for Nunes’ lawsuit

By Tyler Hammel

Republican Rep. Devin Nunes filed a $150 million defamation lawsuit in Albemarle Circuit Court earlier this month against McClatchy, Fresno Bee reporter Mackenzie Mays and Arlington “right-of-center” political operative Elizabeth Mair, despite claims from McClatchy that it does not operate in Virginia…

Though the suit stems from a May 2018 article in the McClatchy-owned California paper The Fresno Bee, and all the involved parties – except for Mair – are based in California, the lawsuit was filed in Virginia…

Paul Levy, an attorney for the D.C.-based Public Citizen Litigation Group, said he suspects the lawsuit was filed in Virginia in an attempt to get around California’s anti-Strategic Lawsuit Against Public Participation statute.

Anti-SLAPP statutes are intended to protect journalists accused of defamation and libel from expensive lawsuits intended to censor content, Levy said, and though Virginia has an anti-SLAPP statute, it isn’t as robust as California’s.

“Unlike California, the Virginia statute does not create a special procedure for filing anti-SLAPP motions that require judges to determine the plaintiff’s probability of success,” he said. “The statue also does not guarantee the granting of attorneys fees for defendants who secure dismissals.”

However, Levy said there is still a chance that California law, and thus California’s anti-SLAPP statute, could still apply to Nunes’ Virginia lawsuit.

“I don’t think it is certain that Nunes will avoid coverage from the California anti-SLAPP statute,” he said. “One thing the court has to decide early on is the extent to which California laws apply; it’s not uncommon to have a case in one state where laws from another govern.”

Evan Masgani, policy director of the Public Participation Project, which monitors anti-SLAPP legislation across the country, said Nunes may be “forum shopping,” looking for a state where his lawsuit has the greatest chance of success.

Alex Baiocco

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