[EL] more news 6/6/11
Guy-Uriel Charles
charles at law.duke.edu
Tue Jun 7 07:19:54 PDT 2011
Rick H:
I'm not sure about your example below. It seems to me to be easily distinguishable from the case at hand. In the example below you're trying to curry favor with the candidate. This seems closer to the quid pro quo context and seems easily within the purpose of the contribution limits. So, I don't think your example responds to Rick P's point. Consider this example: suppose Edwards wife, Elizabeth, was diagnosed with cancer and the diagnosis was not revealed to the public on the theory that the revelation would be damaging to the campaign. Suppose that Edwards received the same amount of money from the same sources to pay for an experimental cancer treatment in the hopes of a cure (or at least some good news) before the diagnosis was made public. Would those funds constitute a "contribution" for campaign finance purposes?
It seems to me that the fundamental question is the one raised by Rick P. and Michael Malbin. Is this construction, as an objective matter, as broad as prosecution believes? Just about everything that happens in a campaign can be said to have some influence on the campaign. If the prosecutors are right, it seems to me, then any money given to a candidate is a per se "contribution" because just about every activity will some some "influence" on the campaign. But this can't be right, can it? There has to be some limiting construction. The limiting construction can be some objective indicia of intent (for example the one suggested by Rick P, is this money that the campaign would have to spend anyway) or implied by Michel M. ("influence" might mean money used to expressly advocate in favor of the candidate or against his/her opponent).
Guy
>>> Rick Hasen 06/06/11 6:06 PM >>>
More on the John Edwards Case: Experts, Objective Facts, Subjective Motivations, Dorf, Pildes, and ?Willful Blindness? Posted on June 6, 2011 by Rick Hasen
I sometimes get calls from lawyers out of the blue who get involved in an election law case for the first time. They ask me if I?d be interested in serving as an expert witness in a case, and usually they want me to testify as to what the law is. In those circumstances, I typically explain that a judge is not going to want to hear from me as an ?expert? as to what the law is. It is the judge?s job to figure out the law. I sometimes end up helping out in these cases as co-counsel or a consultant, rather than as an election expert.
I was reflecting on that when I read the Politico piece noting that the prosecution in the Edwards case was shopping around for former FEC Commissioners to testify as experts in the Edwards prosecution that the money from Mellon and Baron to help Edwards hide his affair and child must have been treated under federal law as a campaign contribution.
That is, the ex-commissioners? job would not be to testify as to what the law is. It would be to testify that the law obviously applied under the facts of the Edwards case. Presumably this testimony would go to show either that Edwards knew he was taking illegal campaign contributions or that he was making himself ?willfully blind? to what was obvious to everyone. (An ELB reader pointed out to me that the Supreme Court?s decision last week in Global-Tech contains a strong endorsement of the idea of willful blindness as a substitute for specific intent on certain facts: ?The doctrine of willful blindness is well established in criminal law. Many criminal statutes require proof that a defendant acted knowingly or willfully, and courts applying the doctrine of willful blindness hold that defendants cannot escape the reach of these statutes by deliberately shielding themselves from clear evidence of critical facts that are strongly suggested by the circumstances.?)
As I noted in my Slate piece, it is quite damaging that former commissioner Sandstrom refused to sign on with the prosecution because the claim was too murky, and that former Commissioner Scott has signed on with the Edwards team to say that the law doesn?t cover this (and not only did not obviously cover these payments). This means it would be very hard for the prosecution to prove that Edwards had the requisite mental state (purpose, knowledge or willful blindness) to satisfy a criminal conviction. After all, if reasonable commissioners line up on the other side, how clear could the law be, and how could Edwards mental state be proven?
I take Rick Pildes to be arguing that we don?t even get to the question of subjective motivations because objectively speaking the law does not cover the Mellon/Barron payments as contributions. As I?ve thought about it more, I think the objective point is a really tough question.
Mike Dorf said the money from Baron and Mellon had to be a contribution, arguing from the statutory definition of contribution in part 8(a) of 2 U.S.C. s 431 ?it is nearly inconceivable that the money for hiding the Hunter affair was not ?for the purpose of influencing? the 2008 Presidential primary.? Mike says he doesn?t see any exception to the definition of contribution that seems to apply here, but admits he?s not an election law specialist and could be missing something.
Rick reaches the opposite conclusion about the meaning of the because ?the money involved here was not a substitute for money the campaign itself might otherwise have spent.? If the campaign could not have spent money on hiding his affair, Rick argues, then the money could not be a campaign contribution. Rick?s right that the campaign could not have paid the hush money because it would be a ?personal use,? and as Ben Smith notes that did create something of a Catch-22 for Edwards. But on reflection I?m not sure Rick?s right on this point. If I give a $1 million to a Senator I want to curry favor with, and I know she?s going to use it to buy a yacht, probably that prosecution is going to go forward without a problem for making an excessive contribution even though the campaign could not use campaign funds to buy a yacht.
But I think there?s another aspect of the campaign finance law that supports Rick?s second point: that the law is too vague to be applied for the first time in this way in a criminal case without violating Edwards? due process rights. The FEC regulation interpreting the personal use prohibition includes the following:
(6) Third party payments. Notwithstanding that the use of funds for a particular expense would be a personal use under this section, payment of that expense by any person other than the candidate or the campaign committee shall be a contribution under subpart B of part 100 to the candidate unless the payment would have been made irrespective of the candidacy.
This is the ?irrespective of the candidacy? language the government alluded to in the indictment.
If the objective question is whether these payments would have been made irrespective of the candidacy, who knows the answer to that. Dorf doesn?t believe it, but it seems more plausible to me. Perhaps they were thinking of helping Edwards? reputation generally, so that he could pursue his anti-poverty agenda.
But for the prosecution to succeed, it seems that answering the objective question is not enough. There remains the subjective question, which depends on Edwards state of mind. Did he think these funds were contributions, which would not have been given to him except for the fact that he was a candidate?
So we are back where we started: the law is murky and the facts are murky, and it is going to be very hard to prove in a criminal prosecution beyond a reasonable doubt that Edwards willfully violated clear law.
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?Federal Officeholder and Candidate Fundraising for Super PACs Clearly Illegal: Campaign Legal Center and Democracy 21 Submit Comments to FEC? Posted on June 6, 2011 by Rick Hasen
See here.
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?Wasserman Schultz retracts Jim Crow analogy? Posted on June 6, 2011 by Rick Hasen
Things heat up again in Fla.
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?Litigating: Federal Government Edition? Posted on June 6, 2011 by Rick Hasen
Allison Hayward muses on Danielczyk and Edwards.
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?Feature: Disputed Election Fueled Prof. Hasen?s Specialty? Posted on June 6, 2011 by Rick Hasen
This item now appears on the UC Irvine School of Law website.
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?Loyola Law School Professor Justin Levitt Launches Redistricting Website? Posted on June 6, 2011 by Rick Hasen
See this press release explaining Justin Levitt?s All About Redistricting website, which I raved about earlier today.
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?Public Campaign Financing Law: Protecting Against Excessive Cost? Posted on June 6, 2011 by Rick Hasen
Laurence Laufer has written this analysis for the New York Law Journal.
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John Edwards Still Has An Active Campaign Committee Posted on June 6, 2011 by Rick Hasen
Center for Responsive Politics:
Between January 2010 and March 31, the John Edwards for President Committee has spent $912,117, federal records indicate, with travel, consulting, office fees and salaries among the most common expenses. Edwards? committee reported having nearly $2.8 million left in its account through March.
And it has now moved to less frequent filing.
I?d like to have one of these. Mighty convenient if you don?t need to use the committee to run an actual campaign!
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?Voting Rights Groups Sue Georgia for Neglecting Voting Rights of Low-Income Residents? Posted on June 6, 2011 by Rick Hasen
See this press release.
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?Sidebar Publishes Response to ?Judicial Elections as Popular Constitutionalism? & a Reply to that Response? Posted on June 6, 2011 by Rick Hasen
I read the Pozen response in draft and highly recommend it. I have not had a chance to read the Devins/Mansker piece yet.
Via Concurring Opinions:
Columbia Law Review?s Sidebar is pleased to announce the publication of a response to David E. Pozen?s article, Judicial Elections as Popular Constitutionalism, by Professor Neal Devins of William & Mary Law School and Nicole Mansker and a reply to that response by the original author, David Pozen. In Judicial Elections as Popular Constitutionalism, Pozen conceptualizes judicial elections as vehicles of popular constitutionalism.
In their response, Do Judicial Elections Facilitate Popular Constitutionalism; Can They?, Professor Devins and Mansker, using the recent ouster of three supreme court justices who backed same-sex marriage in Iowa as an example, find judicial elections, as they exist today, unsatisfactory tools to facilitate the goals of popular constitutionalism, rather they suggest constitutional initiatives, referendums, and easy to amend constitutions as tools better suited to advance the goals of popular constitutionalism. Professor Devins and Mansker?s main critique of Pozen?s conceptualization centers around the facts that while judges do take into account public opinion, the advancement of constitutional dialogue does not play a role in that decision, the issues that trigger public opinion in judicial elections are rarely of a constitutional nature, the pervasive influence of business and out-of-state interests on judicial elections, and, most importantly, the lack of voter interest in either the state or federal constitutions.
In his reply to Professor Devins and Mansker in What Happened in Iowa?, Pozen argues that the recent Iowa ouster campaign corroborates, but also complicates, his theory that judicial elections serve as outlets for popular constitutionalism. Pozen acknowledges that many of the issues Devins and Mansker raise about judicial elections are impediments to the realization of popular constitutionalism. But, Pozen also argues that some of the very reasons that Devins and Mansker find judicial elections unfit to advance the goals of popular constitutionalism?the resulting politicization of the courts and the focus on single issues such as the constitutional status of same-sex marriage that was at issue in Iowa?are actually testaments to, rather than indictments of, the capacity of judicial elections to play this role. Pozen concludes his reply with a note on the prospects of judicial election reform.
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--
Rick Hasen
Visiting Professor
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
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rhasen at law.uci.edu
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William H. Hannon Distinguished Professor of Law
Loyola Law School
http://electionlawblog.org
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