The Faculty Lounge

Call for Papers: Works-in-Progress on Methods of Inquiry on Defending Democracy

Posting on behalf of Prof John Linarelli ...

 

Call for Papers: Works-in-Progress on Methods of Inquiry on Defending Democracy

AALS 2024 Annual Meeting, January 3-6, 2024, Washington DC

Submission Deadline: August 3, 2023

The AALS Scholarship Section is very pleased to issue this call for papers for a Works in Progress session on "Methods of Inquiry on Defending Democracy" for the upcoming AALS 2024 Annual Meeting. This session aims to provide a platform for sharing ongoing research and scholarly work related to the study of democracy and its various aspects. Aligned with the mission of the Scholarship Section, we enthusiastically invite submissions from scholars, researchers, and practitioners interested in exploring innovative methodologies and approaches to investigating the defense of democracy. The Works in Progress session will provide an opportunity for authors to present and discuss their ongoing research. Each presenter will be allocated a specific time slot to share their work and receive feedback from fellow participants.

Topics of interest include, but are not limited to:

1. Qualitative and quantitative methods in the study of the legal institutions of democracy.
2. Comparative analyses of democratic processes.
3. Experimental designs and surveys in the study of legal institutions and behavior.
4. Case studies and historical analysis of law and democratic institutions.
5. Intersectional approaches to democracy and identity politics.
6. Methodological challenges in studying democracy in different contexts.

We welcome interdisciplinary submissions that focus on the intersections between law and political science, history, economics, psychology, sociology, anthropology, and related fields. Empirical, experimental, and theoretical contributions are encouraged.

Submission Guidelines:

• Abstracts should be a maximum of 300 words.
• Include the title of your work, name(s) of the author(s), institutional affiliation(s), and contact information.
• Please indicate whether your submission is at an early stage or near completion.
• One submission per person is permitted.
• Submissions should be sent to Professor John Linarelli, Chair, AALS Scholarship Section, [email protected].

Review Process: All submissions will undergo a peer review process to ensure the quality and relevance of the contributions. Accepted authors will be required to submit a draft paper by November 15, 2023. Discussants will be assigned to read and comment on each paper.

We look forward to your contributions and active participation in this stimulating event. Should you have any questions or require further information, please do not hesitate to contact us.

Call for Submissions for the Distinguished Scholarship Award in Election Law

In addition to the John Hart Ely Prize, the AALS Section on Election Law has established a second professional award this year: the Distinguished Scholarship Award in Election Law.

This prize will be awarded annually for “a single work that exemplifies excellence in the field and that is published within a given year.” The term “work” is defined broadly.  

Any scholarly work that has been published in 2019 or 2020 will be eligible for this year's award. If you have published an article, book, or other piece of scholarship and wish for it to be considered for this award, please let Gene Mazo, Chair of the Section on Election Law, know by Monday, December 7, 2020. You can write to him at [email protected].

Columbia’s Richard Briffault Wins John Hart Ely Prize in the Law of Democracy

This just in from Gene Mazo:

The AALS Section on Election Law has established a new lifetime achievement award: the John Hart Ely Prize in the Law of Democracy. This prize will henceforth be presented annually by the Section’s executive committee to a senior scholar for his or her "extraordinary lifetime contributions to election law or the law of democracy in the United States." The John Hart Ely Prize is intended to serve as the most prestigious award in the field of election law.

We are very pleased to announce that the inaugural winner of the John Hart Ely Prize is Professor Richard Briffault of Columbia Law School.

Professor Briffault has taught election law longer than any other active scholar in the American legal academy. He is the author of more than 75 law review articles, in the process profoundly influencing our understanding of public funding, campaign finance, state and local government law, and other topics in the law of democracy.

The John Hart Ely Prize will be presented to Professor Briffault at an AALS awards ceremony on Tuesday, January 5, 2021 at 1:15 p.m. If you will be attending AALS this year, please try to make it.

Congratulations to Richard!

Chester Arthur's Ghost

I have posted to SSRN my new article, which is titled "Chester Arthur's Ghost: A Cautionary Tale of Campaign Finance Reform." The Mercer University Law Review published it this spring as part of their annual symposium issue. Here is the abstract:

Chester Arthur may not be the first name that comes to mind when one thinks of major figures in the rise of campaign finance law. But despite his obscurity, he deserves to be ranked among the leading reformers in American history. As president, he signed into law a reform that cleared the way for the modern system of campaign finance to take root.

This article puts the current debate over money in politics in historical context by examining the first major campaign finance reform in American history. The 1883 Pendleton Act is remembered today for establishing a professional, non-partisan civil service. But equally important, it banned the use of political assessments (i.e. mandatory dues imposed on federal and state officeholders by the political parties) to fund federal election campaigns.

President Arthur played an important role in the Pendleton Act’s success. After signing the bill into law, he supported efforts to enforce the new rules and reform the major parties’ campaign finance practices. In the long run, Arthur and the reformers achieved their goal of ending the parties’ use of political assessments to fund campaigns. At the same time, however, the Pendleton Act shifted election financing from the political parties to corporate America and wealthy donors. Thus, instead of reducing the influence of money in politics, the Pendleton Act ushered in a new and even more controversial era in campaign finance law, one that continues to haunt our politics today.

The story of the Pendleton Act is thus of much more than just historical interest. It demonstrates how deeply rooted the problem of money in politics is in American history. Long before the Supreme Court heard cases like Buckley v. Valeo and Citizens United v. Federal Election Commission, money played a highly controversial role in American elections. As the story of the Pendleton Act demonstrates, campaign finance reforms have had unintended—and sometimes quite unwelcome—consequences from the very beginning.

Is Early Voting Overrated?

Early voting has become one of the most contentious issues in election law. At present 39 states permit voters to cast a ballot before Election Day, sometimes as early as 45 days beforehand. Proponents argue that early voting periods increase voter turnout and thus promote democracy. Critics contend early voting increases election costs and leads voters to cast ballots before they have all the relevant information about the candidates. 

Like virtually everything else in our politics today, the debate has given rise to an intense partisan and ideological divide. Democrats have pushed to expand early voting periods whereas Republicans have generally opposed such proposals. Wisconsin, in particular, is a flashpoint in the debate over early voting. In December the outgoing Republican legislature cut the state’s early voting period from 6 weeks down to 14 days, setting off a bitter public controversy. Earlier this month a federal judge blocked the reduction from going into effect.

For all the controversy it generates, does early voting actually increase turnout?

The answer is no. In an excellent new analysis of the issue on FiveThirtyEight, Nathaniel Rakich points out that academic and government studies of early voting have consistently found that it “doesn’t increase turnout — it just shifts when existing voters cast their ballots.” In fact, if anything, the evidence suggests that early voting drives down turnout. As Rakich explains:

“a more recent study by political scientists at the University of Wisconsin, Madison discovered that, when not accompanied by other reforms, early voting actually leads to lower turnout — perhaps because the social and campaign-driven pressure to vote is not as focused as it is when voting must all occur on a single day. Finally, the Government Accountability Office reviewed 20 early-voting studies in 2016 and found that most of them said that early in-person voting has either an insignificant or negative impact on turnout.”

Notwithstanding the turnout data, there is no doubt that voters appreciate the convenience of casting an early ballot. In the 2018 midterm elections an all-time record of 36 million people voted early (including me). But as Rakich argues, we should not oversell the benefits of early voting periods. The evidence indicates that they are modest at best.         

Justice Thomas and the New Senate

Yesterday’s midterm election results shifted the U.S. Senate’s ideological center to the right. Senate Republicans began the day clinging to a narrow 51-49 majority, but they have emerged from the midterms with a strong 53-seat majority. Consequently, President Trump no longer needs the support of Sen. Susan Collins or Sen. Lisa Murkowski—the two most moderate members of the Republican caucus—to secure the confirmation of his federal judicial appointments.

It will be interesting to see whether the expanded conservative majority in the Senate prompts Clarence Thomas to retire next summer after almost three decades on the Supreme Court. As measured by Martin-Quinn scores, Justice Thomas is by far the Court’s most conservative member. There is no doubt he would like to see an equally conservative justice succeed him. The GOP Senate victories give Thomas cause to at least consider the idea of stepping down before the 2020 presidential election, timing calculated to make certain a highly conservative justice could be confirmed to replace him. 

To be sure, there are compelling reasons why Thomas might choose to remain on the Court for years to come. Foremost among them is the fact that he loves his job. During a Federalist Society event in 2013, he observed:

“I never thought that I would treasure doing my job, and I’ve reached that point. Even the most boring cases to others are fascinating to me. . . . I’ve gotten to this point where it’s like the priesthood. This is what I’m called to do.”

Moreover, by Supreme Court standards, Justice Thomas is not even close to retirement age. The average retirement age for modern justices is 83 and rising. Thomas, in contrast, is only 70. His former colleague John Paul Stevens served until age 90 and his current colleague Ruth Bader Ginsburg is 85. As long as his health holds up, Thomas could still be an active justice 15 or even 20 years from now.

But if Thomas is not interested in serving into his 80s, then he has a decision to make. In 2020, Republicans will be defending 22 Senate seats but Democrats only 12; Republicans will also be defending more seats in 2022. There is no guarantee that the ideological make-up of the Senate in the 2020s will be as favorable to conservatives as the 2019 session. Likewise, in this era of razor-thin election margins, it is entirely possible Democrats will recapture the presidency at some point in the 2020s.

It is at least conceivable, therefore, that Justice Thomas may choose to retire a bit earlier than one would otherwise expect in order to ensure a like-minded conservative holds his seat for many decades to come. If Thomas does decide to step down next summer, Donald Trump will become the first president in 30 years to make 3 Supreme Court appointments. 

Howard Law Journal Symposium

I am excited to participate in an election law symposium at Howard University School of Law on Thursday. If you are in the Washington D.C. area, please join us. Professor Guy-Uriel Charles is giving the keynote address. Here are the details:

 

Fifteenth Annual Wiley A. Branton/Howard Law Journal Symposium

Howard University School of Law
2900 Van Ness Street Northwest
Washington, DC 20008

Moot Court Room | 9:00AM-5:00PM

The Howard Law Journal Presents the 15th annual Wiley A. Branton Symposium. For the past 14 years the Branton Symposium has been a way to commemorate Dean Branton's legacy. This year's theme is our ailing electoral process, where our esteemed panelists discuss the wider range of conduct that has affected our electoral process.

This Year's Symposium Is Entitled:

"We The People? Internal and External Challenges to
The American Electoral Process" 

Thursday, October 11, 2018 - From 9:00 AM to 5:00 PM

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General Outline of Symposium Day Program

8:00am – Continental Breakfast
9:30am – Program Begins - Introductions

PANELS

This year's Symposium will feature two panels. Below is a complete list of our distinguished panelists.

Trump, Roosevelt, and Secret Campaign Funds

In the 1904 presidential election, a number of major American corporations secretly contributed $1.5 million to Theodore Roosevelt’s reelection campaign. George Cortelyou, the GOP chairman and Roosevelt’s de facto campaign manager, aggressively solicited the corporate donations even as Roosevelt himself publicly denied that his campaign relied on corporate support. When the true story of Roosevelt’s campaign tactics began to emerge after the election, the president sanctimoniously reversed course, calling for a ban on corporate donations to federal election campaigns. In 1907 a reluctant Congress enacted the ban and it has remained in effect ever since.

On Tuesday we learned that Donald Trump’s 2016 presidential campaign likely violated the century-old prohibition on corporate campaign contributions. The facts as currently known, however, suggest the campaign’s real motivation had to do with preserving secrecy, not amassing corporate cash.

How the Gill Decision Raised the Stakes of the 2018 Elections

The outcome of the Supreme Court’s two major gerrymandering cases—Gill v. Whitford and Benisek v. Lamone—could hardly have been more anticlimactic from a legal perspective, and yet the significant political impact of the Court’s decision may be felt for years to come.

Like many others, I had hoped that the justices—particularly the swing justice, Anthony Kennedy—would use the unique opportunity before the Court to articulate a judicially-manageable standard for assessing the constitutionality of redistricting plans.

But that did not happen. Instead, the Supreme Court dodged the merits of both cases, invoking Article III standing grounds to remand the Wisconsin case (Gill) and procedural grounds to remand the Maryland case (Benisek).

Although Monday’s outcome might appear innocuous, a closer look suggests that opponents of partisan redistricting suffered a serious defeat. Accordingly, with gerrymandering still on the table as a legally permissible option for the 2021 redistricting process, the state elections in 2018 and 2020 are more important than ever. They will likely determine the contours of America’s legislative and congressional districts until the 2030s.

A Few Thoughts about the Husted Case

I just got back to the United States last night from the Netherlands, where I gave a paper at a fascinating international law conference (the topic of the conference was “Contingency in the Course of International Law”) at the University of Amsterdam. I will write about the conference, which I really enjoyed, in more detail later this week.

But in the meantime I have a few observations to make about the U.S. Supreme Court’s controversial ruling in Husted v. A. Philip Randolph Institute, which the Court handed down last week while I was in Europe. In a 5-4 decision, the Court’s conservative majority upheld a key provision in Ohio’s voter registration statute, which the plaintiffs allege has resulted in the purging of thousands of eligible voters from the state’s voting rolls in violation of the National Voter Registration Act of 1993 (as amended by the Help America Vote Act of 2002).

Even from my vantage point 3,000 miles away in Europe, it was clear the Husted decision was extremely unpopular with the mainstream media, the Democratic Party, and many voting rights advocates, who immediately accused the conservative justices of aiding and abetting voter disenfranchisement. For example, in an op-ed for The Hill newspaper, Democratic Congressman Tim Ryan wrote, “With this decision, Ohio Secretary of State John Husted and states across the country were given the all clear to silence American voters.” 

Although I agree with the critics that the Ohio registration statute is not good public policy, Justice Alito’s ruling was nevertheless quite reasonable in light of the NVRA’s statutory language. For better or worse, the controlling federal law gave the Supreme Court no choice but to uphold the Ohio statute. 

A few points strike me as particularly important about the ruling.

Money in Politics . . . in the 1700s

Noah Feldman’s superb new book, The Three Lives of James Madison: Genius, Partisan, President, is filled with fascinating insights relevant to contemporary American law and politics.

One anecdote particularly stood out for me, and it involves James Madison’s first effort to win elective office. The story of Madison’s inaugural political campaign illustrates that the problem of money in politics is not a new development. It dates to the very origins of our republic. 

A Bad Sign for Gerrymandering Opponents

Opponents of partisan redistricting have reason for concern this morning.

There is still no decision yet in the two major partisan gerrymandering cases before the U.S. Supreme Court: Gill v. Whitford, the Wisconsin case argued in October 2017, and Benisek v. Lamone, the Maryland case argued in March 2018. But we received a big clue yesterday when the Court announced its decision in Epic Systems Corp. v. Lewis, a case that has nothing to do with election law. 

Government by Millionaires

On Thursday the Federal Election Commission approved the request of Liuba Grechen Shirley, a New York congressional candidate and the mother of two young children, to use campaign funds to pay her childcare expenses. In approving Grechen Shirley’s request, the FEC reasoned that she incurred the expenses “as a direct result of campaign activity” and that the expenses “would not otherwise exist” but for her campaign. 

The FEC’s decision should be welcomed by anyone who would like to see more non-millionaires run for office. As Grechen Shirley explained in a Washington Post op-ed, “Having young children shouldn’t disqualify me, or any parent, from running for office, and neither should not being able to afford child care without an income.” 

The FEC’s sensible ruling comes at a time when wealth is increasingly a prerequisite for congressional service.

Planning for Election Emergencies

On November 6, 2018, tens of millions of Americans will go to polling places across the country to participate in federal and state elections. It is an exceptionally important election year. All 435 House seats and 35 Senate seats will be up for election, as well as 36 gubernatorial offices. In addition, control of 87 of the 99 state legislative chambers (and 82% of state legislative seats nationwide) will be determined on November 6, and many of the 6,066 legislators who win election this fall will be responsible for drawing new legislative and congressional district lines in 2021. Amid a deeply polarized political environment, the results on November 6 could shape the direction of the country for years to come.

In light of the stakes, one might assume that the states are well-prepared for any potential election disruptions, whether in the form of Russian hacking or natural disasters. But to a remarkable degree, that is simply not the case. 

The DNC lawsuit

On Friday the Democratic National Committee filed a lawsuit against the Trump campaign, Donald Trump Jr., Paul Manafort, Jared Kushner, the Russian Government, Julian Assange, and a host of other defendants for allegedly conspiring to disseminate the DNC’s stolen data during the 2016 election. The complaint is available here.

The DNC lawsuit has received sharp criticism from political analysts, Democratic operatives, and legal scholars. For example, CNN political commentator Gloria Borger called the lawsuit a political “stunt.” Former Obama campaign adviser David Axelrod complained that the lawsuit was “spectacularly ill-timed” and declared that “[e]veryone should chill out and let Mueller do his job.” Most important of all, Prof. Stephen Carter argued in an excellent Bloomberg column that the DNC lawsuit will likely be dismissed at the pleading stage.

Although I agree with Professor Carter that the complaint as it currently stands faces a serious risk of dismissal on Rule 12(b)(6) grounds, I nevertheless think the DNC lawsuit has more merit than is immediately obvious. If it survives the inevitable dismissal motions to come, the DNC’s civil action could serve as a critical insurance policy if President Trump fires the Special Counsel and pardons all current and potential defendants in the Russia probe.

Diversity and Inclusion in The March For Our Lives

This past weekend, hundreds of thousands of people participated in the March for Our Lives in Washington, DC, and demonstrations throughout the country.  One of the things that impressed me the most about the kids who spoke at the march in Washington was the spirit of diversity and empathy that infused the entire demonstration.  Real diversity requires not only the inclusion of people who are different, but also an acknowledgement of difference, an attempt to understand those differences, and empathy towards the experience of others.  Perhaps the most remarkable thing about the kids from the Marjory Stoneman Douglas school in Parkland, Florida is their willingness to reach out to kids who are different from themselves and include them in their cause.

The Parkland kids experienced an unspeakable tragedy when a lone gunman shot and killed 17 people; their classmates, friends and teachers.  At the March For Our Lives, they spoke about the horrors that they had experienced, and decried the lack of safety in schools throughout the country.  The most striking tribute was that of Emma Gonzalez, with her dramatic four minutes of silence.  Along with representatives from Newtown, Connecticut, the kids from Parkland spoke for the 187,000 children in our country who have been directly involved in mass shootings in schools. 

However, the Parkland kids were not the only speakers at the demonstration.  Shortly after the February 14 Parkland shooting, student leaders from Parkland traveled to Chicago to talk to other teenagers who have been traumatized by gun violence.  They learned about the millions of children, primarily children of color, who are threatened by gun violence every day of their lives.  Some of the people that they met also spoke to the crowd at the Washington march.  Speakers included kids from inner city neighborhoods including Chicago, South Central Los Angeles, Washington and Baltimore.  Those speakers represented the millions of people who have spent their entire lives in constant fear of gun violence in their neighborhoods, and the children who experience daily fear and trauma.

Almost all of the speakers had one thing in common; they had been directly affected by gun violence.  The speakers from Parkland and Newtown had been in school during a terrifying mass shooting.  All of them had directly experienced that trauma, and lost friends, family members and teachers.  The other speakers had also lost loved ones to gun violence.  Their brothers, sisters, and nephews had been gunned down on city streets.  Zion Kelly, from Washington, DC, told the crowd about losing his twin brother last fall when an armed robber shot and killed him.  Edna Chavez, from South Central Los Angeles, described watching her brother shot and killed on the streets of her neighborhood.  Chavez explained that gun violence was a normal part of her life, that she had learned to dodge bullets before she learned to read. 

All of the speakers at the march were 18 years old or under.  They emphasized their tragic commonality, but they also talked about the real differences in their lives.  Though they had tragedy in common, these kids came from different backgrounds and income levels.  The kids from the Marjory Stoneman Douglas school in Parkland, Florida are largely white and relatively affluent.   The other speakers were children of color who live in relatively poor neighborhoods that are plagued by crime and violence.  The speakers acknowledged their differences.  For example, Parkland student David Hogg admitted that his white privilege was one of the reasons that the Parkland kids have gotten so much national attention.  They have consciously used their notoriety to provide a platform for the other speakers who do not regularly grab headlines.  Those students added to the debate over how to address gun violence with their personal experiences.  For example, Edna Chavez explained why arming teachers is an inadequate solution for kids of color who are already being treated like criminals in school. 

In our increasingly diverse world, it is a challenge to communicate effectively people who are different from ourselves.  The teenagers at the March For Our Lives talked easily and openly about their differences, and more importantly, they listened.  In this movement marked by intersectionality, they are trying to come up with a solution to gun violence that is informed by all of their experiences.  Whatever happens with their campaign to end gun violence, the Parkland kids and their allies have taught all of us a lesson on how to be truly diverse, inclusive, and empathetic.  In the words of the band The Who, The Kids Are Alright.

The Devil is in the Details

A leading Democratic congressional candidate in a crucial swing district could see her campaign come to an abrupt end because of deficient paperwork. 

Yesterday, relying on a rarely invoked state law, the Iowa Democratic Party’s 3rd District Central Committee voted to try to add to the Democratic primary ballot Theresa Greenfield, a successful business executive with strong labor union support for her candidacy. The reason the committee had to vote to add her to the ballot is because of a colossal filing error: Greenfield failed to gather the 1,790 nomination signatures required by state law to appear on the June ballot.

The central committee’s decision to try to get her on the ballot anyway represents the opening volley in a rapidly escalating legal and political controversy. The first legal hearing comes later today when an administrative panel composed of Iowa’s attorney general, secretary of state, and state auditor must decide whether state law permits the Democrats to add Greenfield’s name to the primary ballot. The panel's ruling will turn on an arcane issue of state law, but it will have national implications. Iowa’s 3rd Congressional district is exactly the type of highly competitive district Democrats must win to capture a House majority in the November 6 midterm elections. Moreover, Greenfield is a strong and well-funded candidate who would pose a serious challenge to Congressman David Young, a genial but potentially vulnerable Republican incumbent in a deeply purple district.  

The 3rd District controversy illustrates a vital lesson for every law student: you must get the little things right before you can get the big things right. The Greenfield campaign’s failure to get the little things right threatens to make it harder for her party to retake the House in November.

Vladimir Putin, Election Security, and a Great PBS Documentary

As expected, Vladimir Putin secured a new 6-year term as president in Russia’s national election on Sunday. Also as expected, the circumstances of his victory fell short of basic democratic standards. In December the Russian government barred Alexei Navalny, Putin’s chief political opponent, from running for president. On election day, several episodes of blatant ballot stuffing were caught on camera and independent observers reported 1,500 cases of election violations across the country. 

But Putin may not even need to bother with elections in the future. Vladimir Zhirinovsky, a prominent Putin ally, declared that Sunday’s elections were “the last ones” Russia will ever hold. The Kremlin itself has signaled that Putin will henceforth assume a role beyond that of a mere elected official. This week the Russian television network RT—which the United States intelligence community describes as “Russia’s state-run propaganda machine”—began calling Putin “our leader,” the same title that Soviet dictator Joseph Stalin went by.  On election night, Putin would only promise that he would not be president when he turns 100, which is 35 years from now.

Putin’s long tenure in power affects far more than Russia. His profound animosity toward the West in general, and the United States in particular, means that he is going to be a part of our lives for a long time to come.

The Pennsylvania Gerrymandering Case

Although the national battle over partisan redistricting is far from over, defenders of gerrymandering suffered a big blow in Pennsylvania yesterday.

On Monday the United States Supreme Court denied a last-ditch effort by the GOP-controlled Pennsylvania legislature to protect its heavily-gerrymandered congressional map, which has been in place since 2011. By denying the legislature’s stay petition, the U.S. Supreme Court effectively upheld a ruling by the Pennsylvania supreme court last month that the 2011 map violated the Pennsylvania state constitution. For all practical purposes, therefore, the U.S. Supreme Court's decision means that November’s congressional elections in Pennsylvania will not be held under the 2011 map, but will instead be held under a new and much fairer map that the Pennsylvania supreme court crafted in February.  

There are three implications of yesterday’s decision that are particularly noteworthy.

A Tale of Two FEC Cases

There are two complaints pending before the Federal Election Commission that contain allegations of major campaign finance violations during the 2016 election. One of them has received wall-to-wall coverage in the national media, but the other has been unjustifiably ignored by most of the national press.

The first—and much more ballyhooed—case involves an alleged hush payment by the Trump campaign in the final days of the 2016 presidential election. In January Common Cause filed a complaint with the Justice Department and the Federal Election Commission asking them to investigate an alleged $130,000 payment by Essential Consultants LLC to an adult-film actress named Stephanie Clifford (a.k.a. “Stormy Daniels”) in October 2016. Common Cause alleges that there is “a reason to believe” that the payment to Clifford was in fact an unreported, in-kind contribution to Donald Trump’s presidential campaign.  According to the complaint, “[t]his payment of $130,000 was part of an agreement by which Ms. Clifford [a.k.a. Stormy Daniels] would be precluded from publicly discussing alleged sexual encounters between her and Mr. Trump.”