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Thursday, December 13, 2018

my friend rick hasen's slate piece,
https://slate.com/human-interest/2018/12/ted-cruz-beard-is-good.html, oops wrong link,
https://slate.com/news-and-politics/2018/12/trump-obama-campaign-finance-crime-tweets.html
is troubling at some levels.

hasen is the dean of election law reporting. his blog is the best site i know for the latest happenings in the campaign finance wars, other than his twitter.
he advocates, among other things, that election administration should be carried out by neutral nonpartisan civil servants, a sort of deep state that is above the fray. [think brian kemp, kris kobach, or governor dan ryan, as to why that might be a good thing.]
as long as they are liberal democrats from harvard, yale, or berkeley. i'm reading between the lines there; he doesn't say that. nor is he literally a dean, he's a professor. 

if his slate piece, labeled as news, was to be taken as reporting, objective, neutral, nonpartisan, making claims of fact, he might be open to defamation claims, along the lines of peter thiel's takedown of gawker. after all, he tosses around terms like false, sham, illegal,
that could be labeled defamation per se or per quod.
such claims aren't easy to win, under the nyt v sullivan standards, involving as they do public figures and public concerns. a plaintiff would have to show deliberate falsity, or reckless disregard for the truth,
but they are easy to bring, given deep pockets. 

i think the better view is that this is an opinion piece, a zealous argument, not for a client, but for a worldview. it is one i don't happen to agree with; i'm on brad smith's side of the debate. hasen has a limited view of the first amendment. he prefers equality over freedom. sometimes that clouds his understanding of the distinction between what the law is, and what he wants it to be.
but it is a debate. the interplay between hasen's views and smith's makes for provocative, robust, discussion. 
by his own rules, hasen could do more to be transparent, and
make his advocacy more express. we are not yet ready for neutral nonpartisan election adminstrators. for every hasen, we need a balancing smith. that's how the fec is set up, with checks and balances some call deadlock.



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