I wrote the following piece for Just Security on the campaign finance issues raised by what is known about Russian activities in the 2016 election. It also appears below.

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Commentary on Russian intervention in the 2016 elections has included one confidently expressed and perhaps growing view: that there may be a scandal there, but no conceivable crime. It is claimed that the Trump campaign could wink and nod at Russian hacking, and derive the full benefit, but that without considerably more evidence of direct involvement, there is no role for criminal law enforcement. The matter is then left to Congress to consider whether new laws are needed, and the public, of course, will render its judgment in opinion polls and in elections still to come.

This view is flawed. It fails to consider the potential campaign finance violations, as suggested by the facts so far known, under existing law. These violations are criminally enforceable.

The Supreme Court and the Political Parties

May 23, 2017
posted by Bob Bauer

The Supreme Court has turned Jim Bopp away, denying his wish to have the parties relieved of core McCain-Feingold restrictions. There could be any number of explanations. The Court may have no appetite at the moment for a major campaign finance case. Or, having chipped away at McCain-Feingold, the Justices may not be inclined to demolish its centerpiece. After all, if the parties are hurting, then Congress, its membership filled with party members and candidates, is perfectly free to take stock of their needs and do away with a legal impediment if necessary.

There is one other possibility. If the Justices are concerned with the condition of parties, and they're relying on general commentary outside the court for their assessment, they would not have too much reason to worry. They would read that parties have found a way to adapt to McCain-Feingold. Various experts are telling them about energetic online fundraising and about more dramatic innovations, like the establishment of super PACs functioning as "shadow parties." On this account, the parties are not in crisis. They are thriving. The furniture is being rearranged and renovations are ever in progress, but the basic party structure remains healthy.

This is a paradox of the reform battles of recent years: how the erosion in the Buckley regulatory framework might persuade the Court to leave alone whatever is still standing. What really is the scale of the problem, they might ask? The prime actors of campaign finance have been busily working around the law. The reform community, partly stymied by the courts, has not been able to do much about it. The FEC has gone into hibernation, and it emerges only occasionally to exhibit paralysis. As a result, the prevailing view is that the parties may be restive under McCain-Feingold's strictures, and they are certainly disadvantaged in their competition with the "outside groups," but they are not on the verge of extinction. In fact, so it is believed, they're doing well enough, or at least better than expected.

My colleague Brian Svoboda, an expert in congressional ethics, has written an insightful commentary on how we might think about the ends and design of effective congressional ethics regulation. This is a complex and important question to which altogether too little attention has been devoted. Brian's extensive experience with these issues in private practice, coupled with his grasp on the broad policy and constitutional issues, enable him to effectively frame the issues for the discussion--and reforms-that are needed. He also tweets periodically on these issues at https://twitter.com/BrianSvoboda.

Brian's commentary follows:

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From an Essay on Impeachment, a Useful Perspective on Congressional Ethics

Greg Weiner cogently argues in The New York Times that we should view the impeachment process institutionally in light of its constitutional design. (Full disclosure: while I used to work with Weiner in the Senate, my views are meant neither to be his nor anyone else’s.) Weiner says that impeachment’s purpose is not retributive, but prophylactic and forward-looking. The process is meant to “protect the public against future acts of recklessness and abuse.” Impeachment serves as a safety valve in the overall constitutional machinery to keep the system functioning properly.

While the processes and standards are markedly different, Weiner’s argument is highly relevant to Congressional ethics enforcement also. Since the House last reformed the ethics process in 2008, creating the Office of Congressional Ethics as an independent investigative authority, there has been a conspicuous lack of reflection over what the purposes of ethics enforcement really are, and how those purposes are best served. Weiner’s institutional approach offers one good perspective for this sort of reflection.

The Political Parties and Their Problems

May 17, 2017
posted by Bob Bauer

The Supreme Court has refused to review a Ninth Circuit ruling denying political parties the right to exclude nonmembers from participation in their primaries. Hawaii law requires an open primary, and under the Ninth Circuit decision, parties would bear the burden of showing that this requirement severely burdens their rights of association. In other words when parties must open their candidate selection processes to non-members, the infringement of that associational right is not, apparently, self-evident.

The Ninth Circuit decided this incorrectly. It misconstrues the controlling Supreme Court authority, and it disregards its own entirely inconsistent decision in Washington State Democratic Party v. Reed. It is revealing that the Court's panel’s denial of that inconsistency is tucked into a disingenuous footnote. Democratic Party of Hawaii v. Nago, 833 F.3d 1119, 1124 n.4 (2016)

So it goes nowadays for the parties. It is a sign of the times. A political party has to prove that it is harmed if forced to give nonmembers a full share of the authority to determine its nominees.

In apparent haste, with not all its members appointed, the President issued the executive order establishing the Pence vote fraud Commission. The appointments still to come will add only marginally to an understanding of this Commission’s objectives. As the Order is written, and with the naming of Kansas Secretary of State Kobach as Vice Chair, those objectives are clear, and the outcome not hard to forecast. And yet there are extraordinary features to the Commission, none of them surprising, and none are the result of error or lack of foresight.

Begin with the leadership:

The Chair is the Vice President of the President who has announced that millions of illegal votes were cast in the last election, all against him (or for his opponent). Now Mr. Kobach, as Vice Chair, has joined the leadership ranks as a public supporter of the President’s claims.  He has said that the “White House has provided enormous evidence with respect to voter fraud.” This is untrue.   As for the problem of non-citizen voting, Kobach has asserted that there is a “lot of evidence” of it. This is also untrue. The larger point is that the Vice Chair of the Commission has reached these conclusions long ago, before a day of testimony or an hour of deliberation. What are the chances that this Commission will arrive at judgments contrary to the ones asserted so confidently by the President--and echoed by Mr. Kobach whose bid for national prominence rests on loudly ringing the alarm about voter fraud?

Now, onto the Commission's purposes: