Church Speech

February 6, 2017
posted by Bob Bauer

In a first step out on political reform (setting aside his executive order on lobbying), Donald Trump promised churches he would relieve them of the restrictions of the Johnson amendment on campaign activity. He didn't go into any detail.

But over time there have been different proposals for protecting religious institutions’ political speech. One of them is arguably sensible, while another, more aggressive reform of this nature is best avoided.

Attention began to turn more widely to this topic when in the Bush 43 years there was a suggestion that IRS was monitoring sermons and prepared to act against churches where it found campaign content in speech from the pulpit. A notorious case involved a sermon that was critical of the war in Iraq and included favorable comments about Democratic presidential nominee John Kerry and critical ones of his opponent George W. Bush. Nothing happened; the IRS backed off. But it remains the case that while the Service seems to have no particular appetite for regulatory action based on this kind of speech, it could, if it wished. And as the Bush/Kerry episode revealed, the issue can cut in either partisan or ideological direction.

That is one issue, and a reform has been advanced to address it. Its sole point would be to allow for speech in the ordinary course of communications by a religious institution. In 2013, an organization called the Commission on Accountability and Policy for Religious Organizations recommended that religious institutions be free to make communications "related to one or more political candidates or campaigns... made in the ordinary course of… regular and customary… exempt purposes," provided that the expenses incurred are de minimis. The exemption would apply specifically to sermons delivered "as part of a religious organization's regular and customary worship services."

The Supreme Court Confirmation Argument, and Limits

February 3, 2017
posted by Bob Bauer

Now with the Gorsuch nomination there is another round of largely fruitless argument about the standards that Senators should use in advising and consenting on Supreme Court nominations – – or whether they should simply refuse to consent at all. It goes like this: each party has an obligation to put up for a vote or even consent to the confirmation of a nominee whose views are “mainstream.” The only exception is an election year, or so now say the Republicans to defend their refusal to take up the Garland nomination. This alleged election-year proviso has turned into volleys of “you did it, too”/ “no I did not,” with the Republicans implausibly insisting that they only refused to consider Judge Garland because they were exquisitely sensitive to an election-year precedent they claim that Joe Biden established.

Other than in an election year, and when the qualifications of the nominee are unchallenged, the disagreement is then mostly redirected into one about what constitutes “mainstream.” Given the choice facing them, Senators are virtually compelled to split on this question. Because the true problem here, discussed only obliquely, is the extraordinary power and ambitions of the Court whose members may, and typically now do, serve for many decades. Elections must have consequences, as the saying goes, but it useful to retain some common sense grip on how far the point has to be taken. Each opposition party will be hard-pressed to accept that, with its generously provided "consent,"  a president can strive to recast the constitutional law of the land for the next generation and beyond. Acceptance may be harder if the opposition is smarting from a “stolen seat,” or if it is concerned that a nominee is too much of an ideologue, or if the Court's balance will be immediately "tilted," but it is enough that the appointment is for a lifetime.

It’s conceivable that there is someone somewhere available for nomination who both parties would believe to be reliably moderate in his or her views--a difference-splitter whose decisions would please progressives one day and conservatives the next. But neither party will most of the time be inclined to take the chance. The moderate today could turn out tomorrow to have preferences that run more consistently in one direction. It cannot be known for that matter whether in a decade or more the nominee’s jurisprudential disposition will shift or undergo major transformation.

To imagine that moderation suffices as a standard is also to ignore the probability that a president has campaigned on a promise to nominate a candidate with dependable jurisprudential or ideological commitments. The very reason that he or she is moved to make such a promise returns the argument to the fundamental issue: voters perceive that the Court has an outsized role in the resolution of major and highly contested issues--that it is activist on issues they care deeply about, whether or not the activism is inspired by originalism or belief in a living constitution. A president, but also political opponents, will balk at urging supporters to have faith in a nominee identified as moderate and just hope it turns out all right. There is no chance of persuading them to take Alexander Hamilton’s stated view of the Court’s “comparative weakness,” or to share in his confidence that impeachment would be available to correct a mistake.

The Attorney General is often said to be the Cabinet officer whose responsibilities require a special degree of independence from presidential control. This is not new ground. Even President Washington envisioned the chief legal officer of the executive branch as a "skilled neutral expositor of the law.” Frederick A.O Schwarz and Aziz Z. Huq, Unchecked and Unbalanced: Presidential Power in a Time of Terror 191 (2007). In more recent times, partly as a result of Bobby Kennedy’s service as Attorney General in his brother’s Administration, and then of the troubles that followed from Richard Nixon’s choice for that post of his law partner and campaign chair John Mitchell, the pressure on the AG to establish an acceptable level of independence within an Administration has intensified.

There remain practical and theoretical limits to that neutrality. The AG is answerable to the President and is required like other Cabinet officers to pay attention to presidential policy priorities. There are, however, careful judgments to be made: norms that survive in one form or another, from Administration to Administration, that help keep the federal law enforcement apparatus from being wholly annexed to the political purposes of the West Wing.

Whether these norms have been properly tended to and enforced is never going to be the subject of agreement. Each party out of power has reasons--and some times defensible reasons-- to question an Administration’s adherence to norms. This is healthy: it is one way that norms survive, because with whatever degree of sincerity, and whether on the offensive or in self-defense, everyone claims that they care about them. Norms depend vitally on the simple and repeated declaration that they exist and will be upheld. So it helps to reinforce, and enforce, the norms when Democrats complain about the deficient independence of a Republican AG, and Republicans take up the charge at the time of a Democratic Administration, and each stoutly stands behind the necessity of an appropriate measure of DOJ independence.

This all requires alertness to anything that could be new in an Administration’s articulation of the role of its AG. And what White House senior adviser Steve Bannon has had to say about the role of Senator Jeff Sessions appears to be new.

President Trump’s Voter Fraud “Investigation”

January 26, 2017
posted by Bob Bauer

President Trump has more detail to provide on what he means by a “major investigation” into voter fraud. Already, however, he has drawn sharp objections to his preoccupation with illegal voting, including from within his own party and the National Association of Secretaries of State, on the basis that there is no evidence to support his claim. His own press secretary seems to have retreated to the position that "he [the president] believes what he believes."

But it cannot be lost in this debate that the President is taking an extraordinary step with the contrivance of some sort of “investigation,” whatever the form takes. He is moving, openly and aggressively and within days of his inauguration, to use his public office to advance his personal political interests as a candidate for office. One such interest, apparently, is to contest the popular vote count of the 2016 general election--his election. The second, it is fair to assume, is to do everything necessary to establish the fraud he is convinced is rampant and push for measures he deems helpful to his next election campaign.

The first of these objectives is quirky. It is not the usual course of events that a candidate challenges the outcome of an election that he won. But it is still his own election and he intends now, as President, to put the 2016 popular vote margin in question for his own political benefit, to satisfy--as he sees it--a political need.

The second of these interests is his own reelection. Until we learn otherwise, Mr. Trump will be a candidate for re-election in 2020. Now, as president, he intends to order up some investigation with implications for this candidacy. Critical commentators have touched on this concern to some degree, warning that this investigation might be intended to feed into the broader GOP initiative on voter ID and other restrictions on the franchise. The investigation would serve to spur proposals for further additional restrictions that, while unwarranted as policy but designed to burden voters, could discourage or impede voting primarily in communities with high Democratic support. This is a possible, perhaps even a likely, outcome, and it both deeply objectionable and sure to spark a new round of voting rights litigation. But the context in which the President has raised the issue is not his party’s programmatic attention to voter fraud, but his election, the 2016 election, and his conviction that it cost him millions of votes.

The CREW “Emoluments” Suit and the Congress

January 24, 2017
posted by Bob Bauer

CREW and its distinguished legal team has produced a sharply turned-out complaint seeking a declaratory judgment and associated injunctive relief to redress their claim that President Trump is violating and will continue to violate the Emoluments Clause. It may face long odds: there is a challenging question of standing, and, spooked by the unprecedented nature of the intervention being requested, courts may be eager to seize on the standing issue as their way out. But if CREW is motivated to keep the pressure on the President, increasing the cost of his adoption of a controversial resolution of this issue, the complaint will have served at least that purpose.

There is some suggestion that CREW’s team may hope (and indeed have reason) to declare victory if awarded enough discovery to pry the President’s tax returns out of his hands. In announcing the suit, CREW’s Chair has stated that “President Trump is the first president in decades not to release his tax returns. Seventy five percent of Americans want to see the President’s tax returns and so do we. We will seek those in discovery in this case in order to establish the details of the emoluments clause violations here.” The open pursuit of that objective would not necessarily move a court in CREW’s direction. A court that is disinclined to jump into this battle may be similarly reluctant to be the chosen vehicle for setting the political conflict over the disclosure of the returns.

Then there is the other branch, Congress, which CREW repeatedly notes must consent under the Clause to the President’s acceptance of any “emolument.” This is an intriguing facet of the legal action. A court could give CREW what it is looking for: agreement that the President’s business interests constitute a channel for acceptance of emoluments, and forcing the Republican Congress to decide whether step in and, by consenting,” save Trump’s current plan for “separating” himself from those interests without surrendering them. Congress would then own that choice, and it would be a choice: sanction the business arrangements and the threat of conflicts, or sting the President by withholding its consent.

The majority in Congress would be unhappy with this possible outcome, but maybe more so with another. If a court dismisses the suit, and the dismissal is upheld on an appeal should one be filed, the Republicans can and surely will claim--as will the White House--that the President’s position has been vindicated. That would not necessarily be true, of course, if the court resolves the case against CREW on standing. Or even if the court, rejecting the CREW standing theory, hints in dicta at sympathy for the substantive constitutional claim. The Republican “message” would, predictably, be that the courts had settled the issue, and that Trump was in the clear. (And that would be still more the case if the court’s dicta express sympathy for defendant Trump’s position.)