The Deference Due “Any Presidential Nominee”?

March 24, 2017
posted by Bob Bauer

Here is a striking sentence in the Washington Post editorial calling for Senate Democrats to refrain from filibustering the Gorsuch nomination:

We are likely to disagree with Mr. Gorsuch on a variety of major legal questions. This is different from saying he is unfit to serve. He deserves the deference due any presidential nominee.
The thought here is that “elections have consequences,” and presidents winning an election have a claim on some measure of deference to their nominees--all of them, including presidential nominees.

The problem is this: Judge Gorsuch is not just “any presidential nominee.” He is a nominee for the United State Supreme Court who could serve for four decades, or more, in this position of extraordinary power. It is possible to have the utmost regard for Judge Gorsuch or any Court nominee and question why, in the name of "deference," members of one party would readily yield on any such appointment to the president affiliated with the other.

Few would have guessed that the First Amendment and its application to campaigns would somehow become an issue in the judicial review of President Trump’s beleaguered travel ban. And yet that is what happened, as Judge Kozinski has put this question into play in a dissent from the Ninth Circuit’s denial of en banc rehearing.

Judge Kozinski argues that the courts are opening up a potentially disastrous conflict with the First Amendment, by allowing for judicial inquiry into discriminatory purpose in an officeholder’s (and associates’) comments on the campaign trail. In the defense of the travel ban, the Administration has insisted on its facial neutrality, arguing that religious animus played no role. But a District Court in Hawaii found that repeated references to a Muslim ban during the campaign belied this suggestion of a secular purpose and doomed the order on an Establishment Clause analysis.

Rick Hasen has published a piece in this issue in Slate, arguing that this dissent is "bad on the merits," and would immunize obviously discriminatory purpose revealed in flat-out appeals to racial bias on the campaign trail.   He gives the example of a candidate for county prosecutor who declares that African-Americans should be kept off juries. Would we believe that, as a matter of formal doctrine, courts should ignore this? Kozinski imagines that they should, Hasen argues that they shouldn’t. Perhaps the answer is that they just wouldn’t.

Law and Opinion in the de Blasio Investigation

March 17, 2017
posted by Bob Bauer

The de Blasio campaign finance investigation ended with explanations from federal and state authorities of their decision not to pursue charges. The Manhattan District Attorney Cyrus Vance, Jr. chose to give the lengthier account: ten pages of conclusions of law and facts in a letter to the State Board of Elections, which had referred the matter for investigation. Yet again in recent legal history, the prosecutor declines to prosecute but does not stop there, adding his disapproval of the conduct he would not indict.   He also suggests how the law could be improved so that it more directly, clearly prohibited the actions he does not approve of. The letter is something less than a model for productive prosecutorial encounters with the political process.

The District Attorney is passing on a case that involves a coordinated campaign of candidates, party leaders and party organizations to deliver support to targeted State Senate races. The question was whether party county committees became conduits for contributions to candidates that were larger in amount than what the candidates could accept directly. Donors were solicited for contributions to the parties, and the parties promptly provided the money to the campaigns for immediate use in paying their consultants. The coordinated campaign drew up plans for this arrangement with the county committees and submitted them to legal counsel for review. Counsel then approved of what the prosecutors refer to as an “end run” around the candidate contribution limits. The lawyer put his advice in writing and stayed in close contact with the client, providing “consistent advice” from planning to execution. The DA found no evidence of “bad faith” in the way the advice was sought or delivered.

Ethics Issues and Resolutions: The Conway Case

March 14, 2017
posted by Bob Bauer

Congress, the Office of Government Ethics, and the White House have been lobbing views back and forth on whether the White House is subject to executive branch-wide ethics standards. It all started with the White House Counsel’s response to Kellyanne Conway’s exhortation to the public to” go buy” Ivanka Trump-branded line of products.

This Administration’s complex--and in the perspective of critics, troubling--position on core ethics issues would seem to make it especially important for the resolution of a case like Conway’s to go smoothly. The President has to show that he can successfully deal with the conflicts presented by his and his family's business interests. He faces deep doubts about the structure set up for this purpose, which includes control of his interests put in the hands of his own children, one of whom recently declared that the Trump brand is “the hottest it has ever been.” Then there is the ambiguous if not dubious trail of statements from the Administration about how Mr. Trump understands ethical constraints. Early on, the President said he had been advised that he was free of any limits under federal conflict of interest regulation, while his Chief of State averred that every step would be taken to avoid any “undue influence” of business interests over the Administration’s policies and actions. And the President has not kept his executive duties apart from his commercial interests, just this last weekend holding meetings at the Trump National Golf Club in Virginia.

So all who are involved in settling or overseeing the conclusion to the Conway episode-- the White House, OGE and the Congress--have had special obligations to be clear about the issue and the reasons for the disposition. The public would then learn something about the ethics Standards and rules, about how the Administration will approach their interpretation and enforcement, and about whether there are holes to be filled or procedures to be tightened.

So how has it gone? Not especially well, except for the response from one senior Member of Congress, Elijah Cummings, who has raised the key questions that now have to be answered.

The FEC and the Draining of Swamps

March 9, 2017
posted by Bob Bauer

Former FEC Commissioner Ann Ravel left a lengthy note as she left town to explain how bad things had gotten at the FEC. Her agency would not help drain the swamp; a bloc of Commissioners had scuttled the agency’s mission to enforce campaign finance disclosure and limits. Republicans promptly disagreed. So the Democrats and Republicans, at odds over enforcement policy, also disagree about the extent and seriousness of their disagreements.

With the agency down to 5, and most of the Commissioners' terms having expired, the question is what happens post-Ravel. There has been talk that the Trump Administration may make a full round of nominations and look to reshape the agency. Speculations have included the possibility that the Administration would end the long-standing deference to the other party in the nomination of half of the Commission and perhaps stack the deck, maybe by putting Independents in place of the Democrats. The law limits parties to half the seats; it does not guarantee a party any of the seats.

This heavy-handed maneuver seems unlikely, especially if Senator McConnell has anything to say about it, which he does. He has seemed committed to the practice of giving each party a check on the other. And it is hardly clear why, if the FEC poses little threat to Republicans and their constituencies on the issues they most care about, McConnell and his colleagues would want to open up a fight on this distant front when other battles raging around them have a greater call on their time and attention.

The more interesting question is what role the FEC--campaign finance--plays in the swamp-draining Trump platform. The Ravel farewell report declares the “unlikelihood” that the FEC will help with the draining activity. The Administration might be inclined to agree.