Week of April 11, 2016

Saving Bob McDonnell | Paying GOP Delegates | Stopping Trump | Skipping Cleveland

SAVING BOB McDONNELL.  With the filing of a reply brief on behalf of former Virginia Governor Bob McDonnell, McDonnell v. United States is ready for oral argument before the United States Supreme Court in two weeks.  At issue in the case is the trial court’s stunningly broad definition of “official act,” which encompassed not only powers deriving from the Constitution and laws of Virginia, but also those which by practice and custom have come to be regarded as part of the office.  Recent developments–including the death of Justice Scalia and the Court’s recent denial of cert in former Illinois Governor Rod Blagojevich’s appeal–have been viewed as blows to McDonnell’s prospects.  But the Court has not been narrowly divided along partisan lines in recent high-profile corruption cases–see the Court’s 9-0 decision in Skilling, as well as its subsequent orders in Black and Weyrauch–and Blagojevich’s corrupt act, the attempted auction of a seat in the United States Senate, was squarely within the powers of the Governor of Illinois as established by law, not practice or custom.  I believe (and hope) that the Court will exonerate Governor McDonnell.

PAYING GOP DELEGATES No one is suggesting that candidates and their supporters could bribe delegates to the Republican National Convention, but that’s not stopping the media from asking if they could.  The resulting debate is worthwhile. however, to the extent that it illuminates the line between out and out bribery on the one hand, and political wheeling and dealing on the other.

+ How far can campaigns go to win support from a Republican delegate? | The Washington Post – Matea Gold and Ed O’Keefe

+ Could Republican Convention delegates be bought? Legally, maybe | CNN – Tal Kopan and Gregory Kreig

+ Cincinnati-inspired bribery law could affect Republican convention | Cincinnati.com – Jeremy Fugleberg

It’s also worth re-upping this analysis from our Digest No. 2:

+ Bribery and the brokered GOP Convention | In the Arena: Law and Politics Update – Brian Svoboda and David Lazarus

STOPPING TRUMP.  Unless something changes, it appears most likely that Donald Trump will not arrive in Cleveland with 1,237 delegates.  The Cruz campaign has been playing the delegate game before anyone else knew there was a delegate game to be played–and as a result, Cruz is now running circles around Trump in the chase for delegates.  Unless Trump is willing to unload many millions of dollars on paid advertising against Cruz in the remaining primary states, we predict it will be Cruz–not Trump–who arrives in Cleveland with 1,237 pledged delegates, and that he only will have to wait for the second ballot before all of them will be freed from their binding and able to vote for him.

+ Donald Trump, losing ground, tries to blame the system | The New York Times – Jeremy W. Peters and Jonathan Martin

+ Despite complaints, delegate system has given Trump a 22% bonus | NBC – Ari Melber

+ RNC tells Trump: Delegate process “easy to understand for those willing to learn it” | The Washington Post – Ed O’Keefe

+ Trump’s delay in building a delegate operation may cost him the nomination | The Guardian – Ben Jacobs

+ Is GOP headed for its own Bush v. Gore? | Washington Examiner – Byron York

SKIPPING CLEVELAND.  GOP candidates in swing states apparently don’t want to be anywhere near the GOP Convention in Cleveland.  Corporations are under pressure from activist groups to skip out, as well.

+ Top Republicans may skip Convention in Cleveland | The Hill – Rebecca Savransky

+ Corporations grow nervous about participating in Republican Convention | The New York Times – Jonathan Martin and Maggie Haberman

+ Companies worry Trump-led Convention could hurt brands | POLITICO – Anna Palmer

+ The GOP Convention will be so messy, corporate America may want nothing to do with it | Slate – Josh Voorhees

+ Great news! The GOP Convention will be a disaster | CNBC – Jake Novak

+ Many GOP lobbyists will go to Cleveland but the thrill is gone | The Washington Post – Catherine Ho

However, as this article highlights, the RNC Convention’s host committee is raising more funds, and faster, than in prior years.  It may be the DNC Convention in Philadelphia that corporate America, feeling The Bern, ultimately decides to skip:

+ Sanders, not Trump, scaring Democratic Convention donors | Bloomberg BNA (paywall – excerpt available here)

About the Political Law Digest

The Political Law Digest is a weekly review of important stories and significant developments in campaign finance, election law, lobbyist regulation and government ethics – compiled by Chris Ashby and the political activity lawyers at Ashby Law.  To subscribe, or to submit a story, email Info@Ashby-Law.com.


Week of March 28, 2016

Foreigners United? | How to Hack an Election | Rules are Rules | It’s the Most Wonderful Time of the Year

FOREIGNERS UNITED?  FEC Commissioner Ellen Weintraub thinks she has discovered the antidote to Citizens United–the foreign money ban.  While CU opened the doors to unlimited independent spending by corporations, the prohibition against spending foreign money in U.S. elections remains in tact–and, unlike the corporate prohibition, it applies to all U.S. elections, not just federal ones.  Commissioner Weintraub would have the FEC use the foreign money ban to police corporate-funded independent expenditure spending, searching for even a dollar’s worth of foreign capital in the company’s treasury.  Her proposal was wildly cheered in the progressive reform echo chamber on Twitter, but thoughtful takes from the left and the right have cast doubt on its constitutionality and viability.

+ Taking on Citizens United | The New York Times – Ellen Weintraub

+ No, Commissioner Weintraub, the FEC can’t circumvent Citizens United | The Huffington Post – Allen Dickerson

+ One FEC Commissioner’s answer to Citizens United | More Soft Money Hard Law – Robert Bauer

+ Foreign money is flowing into U.S. elections, Alito’s lying lips notwithstanding | The Intercept – Jon Schwartz

HOW TO HACK AN ELECTION You think there’s no way this could happen here.  Then, this happens.

+ How to hack an election | Bloomberg Businessweek – Jordan Robertson, Michael Riley & Andrew Willis | “Andrés Sepúlveda rigged elections throughout Latin America for almost a decade. On the question of whether the U.S. presidential campaign is being tampered with, he is unequivocal. ‘I’m 100 percent sure it is,’ he says.”

+ Arizona Secretary of State confirms election fraud happened in Arizona primary | U.S. Uncut – Amanda Girard

RULES ARE RULES.  Donald Trump is learning the hard way that winning primaries is not enough.  You also have to win delegates–and keep them–in order to win the nomination.  Trump narrowly won Louisiana’s presidential preference vote, but Ted Cruz appears to have emerged from Louisiana with more pledged delegates.  (Trump threatened to sue.)  Then, after Trump stated that he no longer intends to honor his pledge to support the eventual Republican nominee, his claim to South Carolina’s 50 delegates is in jeopardy.

+ Welcome to politics, Mr. Trump: You won Louisiana’s battle but lost the war | The Washington Times – Kelly Riddell

+ The Trump-Cruz Louisiana delegate fight could be first sign of turmoil to come | Talking Points Memo – Tierney Sneed

+ Trump threatens lawsuit over lost Louisiana delegates | Washington Examiner – Kelly Cohen

+ Trump camp will file RNC complaint over delegates, not a lawsuit | Talking Points Memo – Caitlin MacNeal

+ Trump’s threat on pledge could cost him South Carolina delegates | Time – Zeke J. Miller

IT’S THE MOST WONDERFUL TIME OF THE YEAR.  For LDA nerds, that is.  The Government Accountability Office has released its annual report on Lobbying Disclosure Act compliance.  Once each year, the GAO randomly audits several dozen LDA registrants’ reports, attempting to determine if the registrants’ records line up with their reports.  Of note, over 85% of audited lobbyists responded that they thought it was easy to understand and comply with the LDA–and yet, over 30% failed to comply with one of the LDA’s easiest directives, to report lobbying expenditures rounded to the nearest $10,000.  More importantly, after a period of years in which it seemed regulators had no interest in enforcing the LDA, the report notes a continued uptick in DOJ referrals and criminal prosecutions for registration and reporting failures.

+ Observations on Lobbyists’ Compliance with Disclosure Requirements | Government Accountability Office – March 2016

About the Political Law Digest

The Political Law Digest is a weekly review of important stories and significant developments in campaign finance, election law, lobbyist regulation and government ethics – compiled by Chris Ashby and the political activity lawyers at Ashby Law.  To subscribe, or to submit a story, email Info@Ashby-Law.com.


Week of March 14, 2016

Super PACs, Not So Super Anymore | Unofficially Official Nonprofit Organizations | Anyone But Trump, Continued | No More Free Rides for “Ride Along” Lobbyists | More Anonymous Giving from LLCs

SUPER PACs, NOT SO SUPER ANYMORE.  Earlier this cycle, as pundits were celebrating the Great Super PAC flameout of 2016, I half-wrote but didn’t finish a blog post titled, “Just Wait.”  My thesis was that the real power of Super PACs would become evident in March and April, when the political playing field would expand beyond the initial run from Iowa to New Hampshire, South Carolina and Florida, and paid advertising could begin to move the needle in large, winner-take-all states.  Now it’s clear–despite what $30M in negative Super PAC ads might have done to Marco Rubio–that Donald Trump is Super PAC kryptonite.  (At least until the General Election, when the national media will withdraw its unprecedented in-kind support from his campaign and subject him to the same rules it applies to all other candidates.)

+ Super PACs built a wall around Florida, and Trump destroyed it | The Center for Public Integrity – John Dunbar & Caty Zuvich

+ Trump, Sanders deflate Super PACs in unpredictable 2016 race | AP – Julie Bykowicz

UNOFFICIALLY OFFICIAL NONPROFIT ORGANIZATIONS.  Elected officials sometimes form non-profit organizations to advance their policy agendas–and by extension, their political interests–a practice that is equal parts controversial and effective.  This week, faced with claims of conflicts-of-interests and calls for investigations, New York Mayor Bill de Blasio became the latest politician to shut down his “official” non-profit–which had received over $1 million in donations to support the Mayor’s universal pre-Kindergarten and afforable housing proposals–claiming, “The work is done.”

+ Facing criticism, NYC mayor to shutter nonprofit group | AP – Jonathan Lemire

+ The mayor’s nonprofit that’s not really the mayor’s nonprofit | Voice of San Diego – Liam Dillon

ANYONE BUT TRUMP, CONTINUED.  As we noted in last week’s digest, the GOP is in the midst of an extended, national brainstorm over how to keep Donald Trump from leaving the Republican National Convention in Cleveland as the party’s nominee–or, if he does, how to block him from winning 270 electoral votes in November.

+ The Party still decides | The New York Times – Ross Douthat

+ GOP Official: The party chooses the nominee, not the voters | The Hill – Harper Neidig

+ How to steal a nomination from Donald Trump | Bloomberg Politics – Sasha Issenberg

+ RNC Rules: Insiders speak out on contested convention | NBC News – Ari Melber

+ How an obscure committee could decide the GOP nomination | Politico – Kyle Cheney

+ GOP effort to block Trump may lead to a morass | The New York Times – Al Hunt

+ Top conservatives gather to plot third-party run against Trump | Politico – Shane Goldmacher

+ The Electoral College could still stop Trump, even if he wins the popular vote | The Washington Post – Derek Muller

(Also, an interesting debate is unfolding about whether – and with what – RNC convention delegates can be bribed.  See here and here.)

I SEE YOU, UNREGISTERED LOBBYIST, AND I KNOW WHAT YOU’RE DOING.  One of the great urban legends in lobbying regulation is the so-called “lobbyist shield” doctrine.  In-house government affairs employees often think that, as long as a registered lobbyist accompanies them to meetings with elected officials, they don’t have to register as lobbyists themselves and report their compensation, expenditures and activities.  In fact, that is rarely the case.  This week, California–one of the few states that permitted “ride along” lobbying–changed its law to prohibit it.

Ethics agency changes loophole allowing advocates to avoid registering as lobbyists | Los Angeles Times – Patrick McGreevy

YOU STILL CAN’T SEE ME.  Updating last week’s digest, a new Washington Post investigation finds growing use of limited liability companies to make large political contributions–a practice which shields the identity of the donor or donors who capitalized the LLC.  Even still, a New York judge this week dismissed a lawsuit challenging a provision of that state’s campaign finance law that expressly permits LLCs to make political contributions, and to do so at higher individual limits (up to $150,000 per year, versus $5,000 per year for corporate contributions) and without disclosing their funding sources.

(I still think it’s only a matter of time until a state regulator tags one of these LLCs as a political committee–and penalizes it for failing to register as a PAC, failing to report, and making excessive contributions.)


About the Political Law Digest

The Political Law Digest is a weekly review of important stories and significant developments in campaign finance, election law, lobbyist regulation and government ethics – compiled by Chris Ashby and the political activity lawyers at Ashby Law.  To subscribe, or to submit a story, email Kaitlin@Ashby-Law.com.


Week of March 7, 2016

FEC deadlocks on LLC donor disclosure | As Trump approaches 1237, Republicans examining convention rules, independent bids | NY seeks to require public affairs strategists to register as lobbyists | A war over voting laws rages in North Carolina


YOU CAN’T SEE ME.  The FEC deadlocked on the question of whether an individual may make, and whether a super PAC may accept, a contribution through a limited liability company without disclosing the donor’s identity. The controversial technique is used – perhaps with increasing frequency – effectively to anonymize a donor on the super PAC’s FEC report – the PAC reports a contribution from the LLC, but doesn’t reveal who funded the LLC in the first instance. Critics complain that this is an illegal “contribution in the name of another” – a.k.a. a “straw donor.” I have argued that using an LLC to hide donors is so 2012, that the FEC that deadlocked on this issue this week may not be the same FEC that receives the same complaint a year or two from now, and that the far better use of an LLC is as an exclusive vendor to a single client, or to a very small group of clients sharing common interests.

+ The FEC just made it easier for super PAC donors to hide their identities | The Washington Post – Matea Gold


ANYONE BUT TRUMP.  The Republican Party continues to scheme up ways to nominate anyone but Trump, but as Trump marches closer and closer to the magic number of 1237 delegates, anything and everything is open for discussion, including denying him victory in the General Election. How about an independent bid by Condoleeza Rice? Maybe a deadlocked House allowing House Speaker Paul Ryan to succeed to the presidency? (The latter scenario became even less plausible when Michael Bloomberg pulled the plug on his pre-campaign.) Now, delegate selection and sore loser laws are where the action is.

+ Major GOP donors are turning their hopes toward a contested convention | BuzzFeed – Tarini Parti

+ Seeing Trump as vulnerable, GOP elites now eye a contested convention | The Washington Post – Phillip Rucker & Robert Costa

+ How Trump could be blocked at a contested Republican convention | The New York Times – Larry Buchanan & Alicia Parlapiano

+ GOP pollster: Independent candidate unlikely to win | Politico – Daniel Lipman


WHEN LOBBYING ISN’T LOBBYING.  Five public relations firms this week filed a lawsuit challenging a new New York Joint Commission on Public Ethics rule defining lobbying to include such activities as issuing press releases or other public statements on behalf of a client, pitching op-eds for publication, and other traditional forms of media and public relations, if the communication takes a position on an issue, attempts to influence a public official’s decision, or results in the introduction, passage or defeat of legislation.  The move by JCOPE opens a new front in a nationwide push that is seeking to expand lobbyist registration requirements to cover non-lobbying activities such as sales of goods and services to government agencies and political intelligence gathering.

A Solution in Search of a Problem: New York Defines PR Consultants as Lobbyists | PR Week – Michael Lasky


AT WAR OVER VOTING.  “States around the nation are embroiled in legal battles over voting requirements, district lines and the rules governing elections. But North Carolina feels like the center. It is a place where hyperpartisanship, the focus on voting rules after the disputed election of President George W. Bush in 2000 and the Supreme Court’s dismantling of a crucial section of the Voting Rights Act have created an incessant state of combat over the way elections are conducted.”

+ North Carolina exemplifies national battles over voting laws | The New York Times – Richard Fausset



About the Political Law Digest

The Political Law Digest is a weekly review of important stories and significant developments in campaign finance, election law, lobbyist regulation and government ethics – compiled by Chris Ashby and the political activity lawyers at Ashby Law.  To subscribe, or to submit a story, email Kaitlin@Ashby-Law.com.


Size Matters

A while back, I had lunch with another election lawyer. Ashby Law was two or three years old at the time, and he was checking in to see how I was doing as a solo lawyer. “When we got your launch announcement,” he said, “we all thought, ‘Wow, it will be interesting to see how this goes.'”

Ashby Law will turn five in August. I’m still going. And with the addition of two new attorneys and one full-time professional staff member, the firm is growing.

This Winter, Jon Waclawski joined the firm as a partner. Last Fall, Kate Rennolds joined the firm as an associate. Kaitlin Murphy is our Director of Operations.

Together, we have deep experience on the business side of politics. We worked on campaigns and for politically-active nonprofit organizations before entering the legal field, so we’ve been the client before and we understand the environment in which our advice will play out. That experience and understanding is the foundation of our approach to the practice of political law—strategic, creative, practical.  And as a team of four, we are better leveraged, which means that we can serve our clients more efficiently and effectively.

When I began the firm in 2011, I had two anchor clients. Today, our clients include top tier presidential candidates and some of the most important statewide officeholders in America, the PACs and lobbyists of Fortune 500 companies and multi-national corporations, one of the largest Super PACs in the country, nonprofit organizations that are registering voters and making independent expenditures, impact donors to candidates, parties, PACs and causes, and innovative companies that are changing the way campaigns are run and won.

We are grateful for the trust and confidence of our clients, and for the support of our friends and referral sources. We will keep working hard and smart to justify it. And we are grateful for the continued opportunity to help our clients win elections, change law and policy and move the needle of public opinion during this exciting and important era of American politics.

The Five Most Important Political Law Developments of 2015

With 365 days in the year and a seemingly infinite amount of space on the Internet to be filled with content, it’s easy to lose perspective.  No one ever picked up many Twitter followers downplaying the importance of a news story.  Lawyers, reporters, bloggers and other commentators tend to make each day’s new development seem like the most important development since, well, yesterday’s new development.

But the end of any year – especially the one before a presidential election year – is a good opportunity to look back and try to identify the most impactful developments in law and practice.  Some developments changed politics immediately and obviously.  The impact of others will be realized fully only in the coming year and in years that follow.  Here is my list of the five most important political law developments of 2015.

5.  DOJ Enters the Fray

With its prosecution of a Virginia-based operative for violating the anti-coordination provisions of federal campaign finance law, and its settlement with a well-regarded lobbying firm for violating the Lobbying Disclosure Act, the Department of Justice signaled that it will enforce federal lobbying laws, and that it will not cede enforcement of the thorniest campaign finance laws to the Federal Election Commission.

On the lobbying front, for several years following the post-Abramoff reforms to federal lobbying and ethics laws, some in the industry suspected that DOJ lacked the interest or resources  necessary to enforce the LDA.  Coming on the heels of a handful of LDA prosecutions in 2013 and 2014 involving little known defendants that resulted in one $200,000 default judgment and settlements ranging from $30,000 to $50,000, the Justice Department’s $125,000 settlement this year with the blue chip firm The Carmen Group should put any such notions to rest.

Perhaps more importantly, the Carmen Group case appears to be the first to involve issues other than registration and reporting failures.  Indeed, the failure to disclose issues lobbied with sufficient specificity is one of the most prevalent LDA reporting mistakes, and it might be the one that first drew Justice’s attention to The Carmen Group.

On the campaign finance front, DOJ prosecutions in recent years seemed to have centered on relatively straightforward issues like corporate contributions and straw donor schemes.  But with the prosecution of Tyler Harber for illegally coordinating expenditures between a Virginia congressional candidate and a Super PAC he controlled, the Justice Department took on an issue as to which the FEC itself has been unable to reach much if any agreement this decade.

One additional aspect to this development:  Over the years, “watchdog” and other political reform groups have filed many dozens if not hundreds of largely unsuccessful civil complaints against candidates, campaign committees and other political players.  Frustrated in recent years by what they perceive as a lack of enforcement by the FEC, these groups now seem to have been emboldened by the uptick in DOJ enforcement, and have begun requesting criminal investigations of candidates and their campaigns.  Expect continued use of this tactic in 2016 and beyond.

4.  “Independent” Redistricting

Since our nation’s founding, one of the greatest perks of incumbency has been the constitutional authority to redraw legislative district lines.  In the most recent redistricting rounds, Republicans — aided by developments in computers and technology — have wielded redistricting power with incredible effect.  Today, some people even believe that gerrymandering is the root of all political evil — particularly when combined with unacceptably low voter registration rates and barely-there turnout by voters in party primaries.

Against this background, there have been attempts in states across the country to make redistricting more “independent” by insulating it from raw political considerations.  Many of these efforts center on involving unelected citizens as influencers or decision-makers in the redistricting process.  (I have expressed skepticism about these efforts.)

Voters in Arizona actually stripped the Arizona state legislature of its redistricting authority via a constitutional amendment, and vested the power instead in an independent commission.  The Arizona legislature sued to recover its authority, but in June, the Supreme Court upheld the constitutional amendment and the independent commission it established.  The legislature argued that the independent commission violates the Elections Clause of the federal constitution, which states that the time, place and manner of holding elections are to be established by the legislature in each state.  However, the Court reasoned that, because the legislative power derives from the people, the people of a state are its legislature — and thus they can act directly through a constitutional amendment, instead of indirectly through their elected representatives, to change the manner in which legislative districts are drawn.

We are now more than halfway to the next round of redistricting.  As technology advances, gerrymandering becomes even more effective, and the electorate continues to polarize, expect voters to continue to devise ways to weaken — or, following Arizona’s lead, to strip altogether — state legislative redistricting power.

3.  Super PACs Do Grassroots

There are two ways to look at Super PACs.  The first is the traditional way.  A Super PAC raises money in unlimited amounts from individuals, corporations and other PACs and non-profit organizations, and spends the money on paid media.  The new way takes stock of the amount of funds that are potentially available to be raised and spent in support of a candidate, and then attempts to raise those funds into the entity that can spend them most effectively and efficiently relative to the other entities supporting that candidate.

There are some things that a Super PAC never is going to be able to do — such as scheduling the candidate, moving him or her from A to B, prepping for debates and writing speeches.  There are other things that Super PACs have begun doing this cycle — retail events, research, rapid response — and have done pretty effectively.  Still, there remain a few things that Super PACs conceivably could do but, for the most part, have not been doing.  Chief among them has been grassroots organizing.

Just this week, Right to Rise USA, the leading Super PAC supporting Jeb Bush, mailed blank correspondence cards and envelopes to its backers, requesting that they write handwritten notes to undecided voters in early primary states.  Throughout the past year, Super PACs supporting Carly Fiorina and Bobby Jindal have held town hall meetings — featuring appearances by the candidates the candidates themselves — at which the Super PACs collected the names and contact information of potential supporters.  And for the past several years, Ready for Hillary engaged in a multi-million dollar campaign to create a national database of Clinton supporters.

I don’t think anyone has figured this out yet.  Ready for Hillary built what by all accounts was a huge national list, but the Clinton presidential campaign has it now.  It is unclear what the Fiorina and Jindal Super PACs are doing or might in the future do with the relatively fewer signups they have collected.  (Some suspect the signups were just a ruse to facilitate a Super PAC-funded campaign event for the candidates.)  But someone is going to figure this out — the opportunity is just too big not to — and when that happens, it will be a game changer.  In addition to making for a more efficient use of the total dollars behind a candidate, it will further strengthen Super PACs and the consultants who run them.  At the end of the cycle, instead of being left with an empty bank account, the PACs will have very valuable lists and data — and that will make those PACs players in future cycles.  (See #2, below, regarding the institutionalization of valuable information in LLCs to be used across organizations and cycles.)

2.  Political LLCs

Using an LLC to hide the source of political contributions is so 2012.  The far more cutting edge use of an LLC and other corporate forms is as a highly specialized vendor to a very specific type of political client, or a limited number of clients.

Of course, for many years, the LLC has been the corporate form of choice for political consultants and vendors who need to invoice clients, pay themselves and one or more employees, and protect themselves against contract and tort liability.   What’s different about the emerging model is the placement of the LLC at the very heart of a movement, campaign or project, where it functions as a servicing company to an array of aligned entities — for example, a 501(c)(3), a (c)(4), a non-connected PAC and a Super PAC.

Instead of being spread out across multiple entities, strategy, data, other valuable information — as well as talent — is institutionalized in the LLC.  The payment of fair market value by the LLC’s clients for the services and products they use insulates the clients against most (but not all) campaign finance violations.  And the LLC’s for profit tax status and private ownership mean that there is very little if any transparency over its financing and operations.

This model of product and service delivery is not for amateurs.  There is real potential for excessive contributions, corporate contributions and coordination that must be anticipated and protected against.  But for well-funded, sophisticated operatives and projects, it is a powerful new approach.

1. The Pre-Candidacy Phase

No surprise here, and no shortage of controversy.  The most important political law development of 2015 was the emergence of a “pre-candidacy” phase.  During this phase — which ends when an individual begins to “test the waters” or declares a candidacy and thus comes within the scope of the FEC’s regulatory jurisdiction — potential candidates work closely on political projects with an array of operatives and organizations, some of whom they would be barred from coordinating with if they were testing the waters or running for office.  Potential candidates also raise funds for such organizations during this time, including in some cases funds that are in amounts or from sources that the Federal Election Campaign Act would prohibit if they were exploring or running.

Jeb Bush exploited this phase fully and aggressively, helping Right to Rise USA raise over $100 million, strategizing with it, and sitting for interviews and participating in the shooting of other footage that the Super PAC later could use in support of his candidacy.  Now languishing in low single digits in most  polls, the success of Bush’s pre-candidacy phase is a — if not the — primary factor keeping him in the race.

Much has been written, and much more will be written, on this subject.  The FEC recently issued an advisory opinion.  Multiple complaints are pending at the FEC.  Watchdog groups have demanded a criminal investigation.  And in the event of an enforcement action, litigation could ensue over whether the FEC’s regulatory jurisdiction — which, to the extent that it encompasses exploratory activities by potential candidates, already is stretched beyond the limits of the FECA — covers activities and expenditures by individuals who, despite what the press, watchdogs and political opponents say, maintain that they are neither exploring nor running for office.  We are likely years away from clarity on this issue, but in the meantime, it has fundamentally altered the presidential campaign playbook, and the impact already is trickling down the ballot.

Joy Comes In The Morning

In the early morning hours of November 8, 2000, Al Gore telephoned George W. Bush to retract his concession in the presidential election and famously told him, “You don’t have to get snippy about this.” Neither candidate spoke publicly that night, but in close elections since, candidates have taken the stage to deliver a new kind of Election Night speech — a speech by a candidate who would not know for certain whether he or she had won or lost until the next morning.

As a former political speechwriter, I think it’s one of the toughest speeches in politics to give. The setting is high profile, the situation on the ground is in flux, the candidate is exhausted. And while campaigns often prepare two Election Night speeches — a victory speech and a concession speech — no matter how close the polls are in the weeks and days leading up to Election Day, this is one speech that is never written in advance.

As a lawyer, I’ve had a front row seat for six such speeches, and the best I’ve ever seen was delivered early Wednesday morning by now Governor-Elect Charlie Baker in Massachusetts — grateful, graceful, genuine, poignant, and restrained. He thanked his supporters sincerely. He mentioned his opponent in a very thoughtful way. He gave his opponent political space by ceding her right to wait to make a final decision in the morning. He acknowledged the public’s interest in the accuracy of election results, but shifted the focus to the finality that soon would follow. For candidates in future close elections, this is textbook.

Watch it here:

7News Boston WHDH-TV

So You’re Telling Me There’s A Chance

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.

12 for ’12

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.

3.  The Coming War Over Voter ID.  Simply put, this is going to be huge.

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?

Better Things To Do

Today, Thursday, December 22, 2011, is the ballot access deadline for the 2012 Virginia Republican presidential primary.  It also marks the most significant organizational challenge for the presidential campaigns since the Ames Straw Poll on August 13—a labor-intensive task so expensive and time-consuming that at least one and possibly more campaigns will not even attempt it this year.  And, the very real possibility exists that one or more candidates who made a run at it will come up short and be kept off the Virginia primary ballot as a result.

Virginia’s statutory ballot access requirement is, quite simply, one of if not the most daunting in the country:  A minimum of 10,000 petition signatures collected statewide, including at least 400 from each of its 11 congressional districts.  That’s hard enough.  But then there are the additional restrictions:  The petition circulators must be registered or eligible to vote in Virginia.  The signatures must be gathered using the State Board of Elections’ official form, a two-page document which must be reproduced as double-sided.  (Single-sided stapled forms are not accepted.)  Signatures must be collected on forms that are specific to each city, county and congressional district.  Only “qualified” voters may sign a petition.  And every single petition form must be sworn and notarized.

Want a sense of how next-to-impossible this is?  I know top-flight Virginia political consultants who turned down lucrative petition project contracts from presidential campaigns because they did not think it could be done.

And then there’s the Republican Party of Virginia, which is tasked by law with the responsibility of certifying which candidates have qualified for primary ballot access.  RPV has effectively raised the statutory requirement of 10,000/400 by a factor of 50% this year by offering this safe harbor:  The Party first will conduct a facial review of all petitions, and candidates who submit at least 15,000 signatures and 600 from each congressional district will be presumed to have met the statutory 10,000/400 requirement.  Candidates who submit 14,999 or fewer, however, will undergo signature-by-signature scrutiny of his or her petitions—something no statewide candidate in recent memory ever has had to endure.*

For many years, the Virginia GOP generally selected its nominees in conventions.  But the Morse v. Republican Party of Virginia litigation, which challenged RPV’s mandatory convention registration fees as poll taxes, caused the Party temporarily to abandon conventions in favor of primaries.

The first statewide petition drive post Morse was in the 1996 Republican U.S. Senate primary.  Then came the 1997 primaries for Governor, Lieutenant Governor and Attorney General, and in 2000, the Republican presidential and U.S. Senate primaries.

Each successive petition drive has gotten harder and harder as volunteers have grown more and more tired of the arduous, tedious work it takes to gather thousands upon thousands of signatures in ever more frequent petition drives.  The drives have gotten more expensive, too, as campaigns have resorted to paying volunteers to incent their efforts.  What should be a test of a campaign’s organization and grassroots has become a drain on them—exhausting volunteers and siphoning away money better spent contacting voters, delivering messages, identifying supporters and driving turnout, all important objectives that petition drives have proven worthless at advancing.

In 2008, two presidential candidates very nearly failed to meet the minimum requirement of 400 signatures from the Third Congressional District and almost missed the ballot as a result.  Which brings us to this year, when it is probable that at least one and possibly more of the major GOP candidates will fail to qualify for the Virginia ballot.

This is especially unfortunate because this year, for the first time in decades, the GOP nomination likely will not be all-but decided before Virginia’s primary, and thus Virginia’s primary will truly matter.  But due to Virginia’s unreasonable ballot access requirements, all the surviving candidates may not be on the Virginia ballot—which means those candidates wouldn’t campaign here, and Virginia’s voters would have fewer choices.  Even as Virginia has moved up in the primary calendar, it risks marginalizing itself in the presidential selection process as its petition drives become harder and more expensive, and as more candidates fail to succeed or even to attempt them.

It doesn’t have to be this way.  A few years ago, the Virginia Democrats circulated one petition on behalf of all primary candidates, but the Republican Party of Virginia has not seen fit to follow that sensible step.

Many other states require merely the filing of a few forms and payment of a filing fee—and in the case of South Carolina, a substantial one at that.  No doubt Virginia’s political parties—notoriously cash-hungry due to our anything-goes system of campaign finance in which individuals and corporations can contribute unlimited sums directly to candidates—could use such a financial shot in the arm every four years.

And for grassroots-fueled candidacies, or just for those who enjoy the very American act of circulating a petition, Virginia could maintain petitions as an alternative requirement, or perhaps as part of a hybrid system requiring payment of a filing fee and submission of a substantially fewer number of signatures.  (In fact, Virginia might have to retain a petition drive option in order to obtain Section 5 preclearance of a change to a filing fee-based system.)

Regardless of what happens tomorrow, when Republican Party of Virginia officials begin validating  petitions and signatures, it’s time to do away with the 10,000/400 requirement and move to a more sensible ballot access system.  Campaigns have better things to do with their staff and financial resources.  Volunteers’ time and efforts could be better spent.  And when an unresolved presidential primary rolls into Virginia, voters should be able to choose from the full slate of remaining major candidates—not just those who were able to collect 10,000 petition signatures, including 400 from each congressional district.

*  For all candidates who have met the statutory requirement, I think the Party’s plan to scrutinize some candidates’ signatures and not others, based upon the arbitrary standard of whether the candidates submitted a full 50% more than the statutory requirement, violates the Equal Protection Clause under Bush v. Gore.  It seems to me that all candidates who facially meet the statutory requirement should have their petitions and signatures adjudged according to the same standard.  More on that here if it becomes an issue.