[EL] Question re: Pildes, Hasen and Dorf on Edwards

[Michael Malbin]

I see than I sent my original post to the wrong UCI email address.  Hope
this works.

On Sun, Jun 5, 2011 at 7:13 PM, Michael Malbin <mmalbin at cfinst.org> wrote:

> Rick, Rick, and others:
>
> Could the lawyers give some help to this non-lawyer?
>
> It seems to me that Mike Dorf is relying in the language in FECA, which
> defines a CONTRIBUTION AS "any gift, subscription, loan, advance, or deposit
> of money or anything of value made by any person for the purpose of
> influencing any election for Federal office."
>
> As we all know, Buckley said that this same phrasing in FECA's next section
> (defining EXPENDITURES) posed constitutional questions of vagueness. As I
> read the famous footnote in Buckley, the concern about vagueness was pegged
> particularly to the problem of chilling speech, and we all also know that
> Buckley saw an expenditure as more direct form of speech than a
> contribution.
>
> So here is my question.  Rick Pildes seems to be arguing for the importance
> of bright lines in criminal law, but the concern for bright lines clearly
> does not apply with the same force to all criminal law (e.g. RICO).  So
> either the courts have spoken on FECA's definition of contribution in some
> case I ought to read but haven't, or Rick Pildes is assuming the expenditure
> strictures should apply equally to the definition of contributions.
>
> I believe there is a good case to be made here.  Clearly, it would be
> strange to have the same phrase read differently within the same statute.
>
> In addition, Pildes' argument has a fair amount of tax law scholarship
> going for it.  After all, doesn't the same phrase ("for the purpose of
> influencing the outcome of an election") also appear in the tax code, and
> don't most scholars argue that the government has broader scope to use fuzzy
> definitions ("facts and circumstances") in the tax code, because a fuzzy
> definition -- even though it might effect speech -- only involves the
> application of a tax break, as opposed to a criminal penalty?
>
> Having said all of this on Pildes sides of the debate, it seems to me that
> his claim that the law compels a bright line for what is a contribution is a
> claim that requires more argument.  And if the law does not compel a bright
> line, then you get to the dispute between Hasen and Dorf.
>
> So comments, clarifications and expansions would be most welcome.
>
> Thanks,
>
> Michael Malbin
>
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> Michael J. Malbin
> Executive Director
> Campaign Finance Institute
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