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

“It’s Not Show Friends. It’s Show Business.”

If it is true, as they tell you in law school, that bad facts make for bad law, then yesterday’s verdict in U.S. v. Robert F. McDonnell has to be one of the worst jury verdicts in the history of ever.

A Rolex.  A Ferrari.  Kinloch.  Oscar, Louis, Armani and Bergdorf.  $10,000.  $15,000.  $20,000.  $50,000.  And every last penny of it?  Expressly, unquestionably legal under Virginia’s lax (read: non-existent) state laws governing gifts to public officials.

But following a brutal, extended takedown by The Washington Post, prosecutors felt compelled to bring federal corruption charges.  And following five weeks of testimony in which a spread of luxury goods was laid in front of a jury alongside the sad, sad details of a dying marriage, the jury obviously felt compelled to convict.

As a young trial lawyer, a mentor once told me that a jury verdict is the most unpredictable thing there is in all of law—so unpredictable that it is to be avoided at almost all costs.*  (Of course, given the jury instructions on the critical issues of quid pro quo and official act in this case, this verdict was entirely predictable, and the jury would have been a rogue jury had it not convicted Governor McDonnell on all corruption counts.) 

What’s more, jury verdicts sometimes make no sense.  Juries don’t have to explain or defend their verdicts, and even if they did, it is unlikely that they could do so to the satisfaction of any trained legal mind in all but the simplest of cases.  So we have an appellate system to fix what juries and trial judges got wrong.

I hate this verdict and hope every conviction on every count is overturned on appeal.  In the meantime—and regardless of what happens on appeal—there also is much to be learned from this case by politicians and those who seek to influence them, however softly or indirectly.  These four lessons should last far longer than the underlying verdict deserves to stand:

1.  Make no new friends.

When news of the relationship between the McDonnells and Jonnie Williams first broke, the McDonnells maintained that Jonnie Williams was their friend.  By the time he slithered to the witness stand—under not one but two grants of immunity from prosecution for a host of alleged frauds—to accuse the McDonnells of taking his bribes, they had learned an awful lesson:  There are no new friends in politics, only old ones.

Testimony at trial revealed that the Governor and his advisers had considered what constituted “friendship” when the Governor was preparing a financial disclosure report that permitted him to omit gifts from “friends.”  One adviser correctly told him, “I don’t think there’s actually any law defining what a personal friend is.”  Like a standardized test with more than one “right” answer, however, another adviser more correctly told him, “those persons you knew prior to running for attorney general” would be a good dividing line.

Early in my political career, I worked for a state legislator who was surprised, following his re-election loss, by just how many of the new friends he had made during his term of office stopped dropping by to see him, returning his calls, and offering him tickets to events.  In the course of running for, winning and holding office, politicians meet many great, helpful people.  The higher they climb, the more great, helpful people they meet.  The more sophisticated and subtle those great, helpful people can become.  And the more likely it is that they will disappear the minute you leave office.

I often advise clients that the time to be friends with “friends” like Jonnie Williams is after you leave office.  Until then, the relevant questions are: Does your friendship pre-date your public service? Did you and do you still celebrate special occasions and spend holidays and vacations together? Do you know the names and ages of their children? Are your children friends? What do you talk about when you spend time together—politics and business, or the good old days and the weather? Have they ever asked you for a favor? Do you split or take turns picking up the tab or bill? Does your friend submit the bill for reimbursement or write it off as a business expense?

2.  Keep your friends close, and your donors at arm’s length.

On this point, the jury instructions in the McDonnell case were frighteningly overbroad.  In essence, the judge instructed the jury that a public official has been corrupted when he or she takes something of value from someone, knowing that the person wants something—even if he or she doesn’t intend to provide it, in fact doesn’t provide it, would provide it for anyone else who has asked, or in fact has provided it to donors and non-donors alike, no matter how worthless the thing may seem or be.

No more “to the victor goes the spoils.”  Combined with the expansive definition in the jury instructions of “official act”—virtually anything a public official does, including matters that are “clearly established by settled practice as part of public office”—this new rule has the potential to exclude donors from routine aspects of political life.  Indeed, there are many times when a candidate or elected official accepts many thousands of dollars in campaign contributions knowing exactly what the donor wants.  Sometimes, it is printed on the event invitation—a picture with the candidate, or lunch and a briefing with a policy adviser.  Other times, it is unstated but obvious—reappointment to a board or commission.  Does anyone think that at least some of these donors to the Obama campaign didn’t want anything at all when they maxed out to the campaign and national party committees, and then bundled hundreds of thousands of dollars more in contributions from their friends and associates, only to be “shocked, shocked!” when President Obama appointed them to be ambassadors? 

As explained in #4 below, there is a very important reason why I do not think this will be the practical effect of the McDonnell verdict, but I do think it is the logical extension of the theory of the case.  “D” is the new scarlet letter of politics.

3.  Have a “No Man.”

Evidence introduced in the McDonnell trial indicated that the Governor may have kept some aspects of his relationship with Williams hidden from his staff.  Evidence also indicated that, even with limited knowledge, some staffers had begun to question the appearance or appropriateness of the relationship—staffers who, had they known the full nature and extent of the relationship, likely would have had the same reaction that nearly everyone outside the so-called “Third Floor”+ bubble had when news of the situation broke.

But there was no evidence that any of those staffers were heeded.  To the contrary, it seems as if they were worked around or just straight run over.

It has become cliché for politicians to bemoan the loss of their private lives.  It also has become cliché for the public to bemoan the corrupting power of public office over even a man as honorable as Bob McDonnell.  But clichés become clichés because they are, for the most part, true.  Corruption can take many forms and has many causes—including not only “selling out” for money, but also losing good judgment and proper perspective by becoming worn down over time from the daily grind and relative isolation of public office, especially high office.

The manager of the first political campaign I ever worked on had this deal with the candidate:  “You can’t fire me, and I can’t quit.”  Any holder of high office needs one person who knows absolutely everything there is to know about the officeholder, keeps confidences and passes no judgment, and can say “no” when the officeholder can’t or won’t do it him- or herself.  If only someone could have stopped the Jonnie Williams “gravy train” before it wrecked Governor McDonnell’s administration and now, his life.

4.  Degree matters.

Most often, the underlying act in a public corruption prosecution is illegal.  When we think of corrupt politicians, we think of suitcases of money in hotel rooms, vacations disguised as conferences, free home renovations and additions—all hidden from public view and unlawful under the law of the prosecuting jurisdiction.  When the underlying act is illegal, the corrupting influence of the act is all but presumed.

The McDonnell case may be the first—certainly, the highest profile—major public corruption case arising out of the provision of gifts that were completely legal in both nature and amount.  And on that point, there is one particular point of law that I think has been underappreciated, if not lost, in most of the commentary and analysis about the case:  As a matter of law, there is little distinction between the lawful gifts in the McDonnell case under Virginia law, and lawful campaign contributions in any other jurisdiction.^

As a matter of fact, however, there is a huge distinction—the luxurious nature, sheer volume and monetary value of the gifts.  Wealthy individuals and moneyed interests have been providing things of value—“gifts”—to public officials in Virginia for decades.  Mostly fancy dinners and trips, worth in some cases several thousands of dollars, year in and year out, for decades, all publicly disclosed.

So an early contention of the McDonnell defense team was, in essence, “everybody’s doing it.”  But not like this.  The watch was a Rolex, not a Seiko.  The car was a Ferrari, not a Ford.  The stores were high-end, not mass market, and the clothes were designer styles, not mall styles.  The golf was at Kinloch, not Belmont.  The wedding presents were cash, not registry gifts.  And all of it was from one source.

It’s hard to imagine that prosecutors could have brought or won this case if Williams’ only gifts had been, say, the use of his lake house and a ride in his Ferrari.  That case truly would have been like probably hundreds of other cases involving many prior Virginia governors who have traveled in their campaign donors’ planes, vacationed in their second homes, and golfed at their country clubs.  Even the weekend getaway to Cape Cod is indistinguishable from other trips regulated Virginia corporations have provided to legislators on committees of jurisdiction every year for many years.

But all of it together—the cash, the loans, the gifts, the travel—all $177,000 of it?  Shocking.  Not illegal, but still shocking—even to those of us who have worked in Virginia’s no-limits, anything-goes-with-full-disclosure system of government ethics for years.  As it turns out, even a no-limits system has its limits.

And I think that is what in practice will keep the verdict in this case—if it is upheld—from criminalizing routine interactions between politicians and the donors who finance their campaigns.  Donors will still donate, bundlers will still bundle.  They will meet with government bureaucrats and get their pictures taken with elected officials.  Governors will still appoint them to state boards and commissions, and presidents will still appoint them to be ambassadors or maybe even Commissioner of the IRS

 

It is all a matter of degree.  Somewhere between Jonnie Williams’ first gift and his last gift was a line.  It’s hard to say even now where the line was in this case—but the jury didn’t have to, because they had no doubt it had been crossed.

*  But not—I think—at the cost of admitting a felony you did not commit and resigning your office in disgrace.  And especially not when The Washington Post already has indicted, tried and convicted you.  There has been much second-guessing Governor McDonnell’s decision to reject a deal in which he would have pleaded guilty to a single non-corruption-related felony count.  Under the circumstances, and on the state of the law as the Governor and his attorneys understood it, I don’t think you can blame him for deciding he had no choice but to seek to be exonerated by a jury of his peers.

+  The “Third Floor” is the term Virginia politicos use to refer to the Office of the Governor, which is housed on the third floor of the State Capitol building.

^  The principal distinction I see between the lawful gifts in the McDonnell case and lawful campaign contributions in any other case is the directness of the personal benefit—but I’m not sure that distinction makes any difference under the prosecution’s theory and the jury instructions of the McDonnell case.  For instance, I believe the government still would have brought the case if Jonnie Williams had given $170,000 to the Governor’s PAC, instead of to his family.

First Take: U.S. v. 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.

The Vindication of Creigh Deeds

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.

A Recount Is Coming. Are You Prepared?

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.

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.

Trust, But Verify

No one ever hires a campaign consultant thinking that the consultant might embezzle from the committee.  And yet it happensAgain.  And again.

Following a spate of high-profile political embezzlement cases, the Federal Election Commission and campaign finance lawyers rightfully are placing renewed emphasis on the FEC’s recommended best practices and internal controls as an important safeguard against embezzlement.  Moreover, if adopted and implemented by the committee, the internal controls provide a safe harbor for an innocent treasurer who otherwise could be held personally liable as a result of an embezzlement that happened on his or her watch.

These recent embezzlement cases point up more than the importance of adopting the FEC’s best practices and internal controls, however.  They also demonstrate the need to run a political campaign like a business—and in the case of many House and Senate campaigns, these are multi-million dollar annual businesses.

It’s difficult to envision any new business forming up and launching a product or service into the marketplace without first taking on some type of corporate form to shield the individuals behind the company from personal liability.  But a quick review of public records indicates that a vast majority of political campaigns decline to undertake this simple step.

It’s similarly hard to imagine a company hiring an employee who immediately will be privy to reams of sensitive information, or retaining a vendor to provide hundreds of thousands of dollars in services, without putting a contract in place to memorialize specific points of the parties’ agreement and to protect the company’s assets and interests.  Campaigns routinely hire employees and retain vendors, however, and expose them to the campaign’s research, strategic, financial and operational information, without putting so much as a confidentiality agreement in place.

What could go wrong?  How about unlimited personal exposure on the part of the candidate for the committee’s debts and liabilities, for starters?  Karl Rove taught that lesson to, of all pupils, a former Attorney General of the United States, Dick Thornburgh, after Thornburg failed to incorporate his U.S. Senate campaign.  Still not convinced?  How about having your campaign account frozen by a federal bankruptcy court to satisfy the candidate’s personal and business obligations?  Georgia State Representative Jill Chambers learned that one the hard way after she, too, neglected to incorporate her campaign committee.  (An abominable decision by the bankruptcy court in that case, by the way.)  And then, of course, there are the embezzlement cases, in which campaign treasurers could be held personally liable by the FEC because of diversions of funds they had nothing to do with.

Personal relationships are foundational to politics.  Political candidates tend to surround themselves with people they know and trust.  Florida Congresswoman Corrine Brown probably trusted her fundraisers, too.  Then they sued her for $44,495.

Perhaps candidates who decline to incorporate their campaigns are looking to save a bit of time and money for another round of GOTV robocalls.  Perhaps campaigns that fail to use contracts don’t want to risk offending trusted advisers, vendors and consultants by making them sign a legal document.

Whatever the reason, it’s bad business practice. And in an age when the average House race costs $1.163 million and the average Senate race costs over $8 million, there’s a lot at stake.  So candidates, heed the old Russian proverb and “trust, but verify”:  incorporate your campaign committees; implement the FEC’s best practices and internal controls; and sign contracts with your employees, consultants and vendors.  Your campaign is, after all, a business—with a bank account, office space, employees, assets and liabilities—you should run it like one.

Copyright 2011 – Chris Ashby and Ashby Law PLLC – All Rights Reserved.