[EL] more news 6/6/11
Sean Parnell
sparnell at campaignfreedom.org
Tue Jun 7 07:36:42 PDT 2011
I generally think the government's case here is a stretch, but I do want to
throw one monkey wrench into the "obviously these weren't campaign
contributions" meme. It appears that one test of this is whether or not, in
the absence of a campaign, these gifts/contributions would have been made by
Ms. Mellon and Mr. Baron. Is it at all relevant that Edwards is himself a
very wealthy man, and would presumably have had little trouble coming up
with the cash needed to take care of Ms. Hunter? It's one thing for someone
of modest means to go to friends and say 'Hey, I'm in a jam and need some
money,' but Edwards didn't need the money from Mellon and Baron because he
didn't have it, he needed it because - well, why?
An easy answer, of course, is that he didn't want his wife to see the funds
leaving their account. Plausible enough. But if it turns out that he had
access to funds that Elizabeth didn't necessarily see the account details in
the normal course of matters, but the transactions would be seen when
Edwards released financial records as part of his campaign - well, at that
point, doesn't the purpose of Mellon and Baron's gift/contribution become to
aid the campaign by ensuring the affair isn't revealed through Edwards'
release of financial records? Does that potentially make them campaign
contributions?
Don't know the answer (I've always been better at asking annoying
questions), but this might be the argument that the government thinks it can
make, and as much as I think the charges are weak, I do find the above to be
a plausible argument.
Sean Parnell
President
Center for Competitive Politics
http://www.campaignfreedom.org
http://www.twitter.com/seanparnellccp
124 S. West Street, #201
Alexandria, VA 22310
(703) 894-6800 phone
(703) 894-6813 direct
(703) 894-6811 fax
From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of
Guy-Uriel Charles
Sent: Tuesday, June 07, 2011 10:20 AM
To: rhasen at law.uci.edu; law-election at uci.edu
Subject: Re: [EL] more news 6/6/11
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?
<http://electionlawblog.org/?p=18806>
Posted on <http://electionlawblog.org/?p=18806> June 6, 2011 by Rick Hasen
<http://electionlawblog.org/?author=3>
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
<http://www.politico.com/news/stories/0511/55734_Page2.html> 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 <http://www.supremecourt.gov/opinions/10pdf/10-6.pdf>
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 <http://www.slate.com/id/2296188/> 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 <http://electionlawblog.org/?p=18735> 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
<http://www.dorfonlaw.org/2011/06/strong-case-against-john-edwards.html>
said the money from Baron and Mellon had to be a contribution, arguing from
the statutory definition <http://codes.lp.findlaw.com/uscode/2/14/I/431> 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,
<http://codes.lp.findlaw.com/uscode/2/14/I/439a> ? and as Ben Smith notes
that did create something of a Catch-22
<http://www.politico.com/blogs/bensmith/0611/The_Edwards_Catch22.html?showal
l> 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
<http://www.gpo.gov/fdsys/pkg/CFR-2011-title11-vol1/xml/CFR-2011-title11-vol
1.xml#seqnum113.1> 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
<http://www.wral.com/asset/news/local/wral_investigates/2011/06/03/9679542/J
ohn_Edwards.PDF> .
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.
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%
3Fp%3D18806&title=More%20on%20the%20John%20Edwards%20Case%3A%20Experts%2C%20
Objective%20Facts%2C%20Subjective%20Motivations%2C%20Dorf%2C%20Pildes%2C%20a
nd%20%E2%80%9CWillful%20Blindness%E2%80%9D&description=> Error! Filename not
specified.
Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off
?Federal Officeholder and Candidate Fundraising for Super PACs Clearly
Illegal: Campaign Legal Center and Democracy 21 Submit Comments to FEC?
<http://electionlawblog.org/?p=18802>
Posted on <http://electionlawblog.org/?p=18802> June 6, 2011 by Rick Hasen
<http://electionlawblog.org/?author=3>
See here. <http://bit.ly/mUlYUP>
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%
3Fp%3D18802&title=%E2%80%9CFederal%20Officeholder%20and%20Candidate%20Fundra
ising%20for%20Super%20PACs%20Clearly%20Illegal%3A%20Campaign%20Legal%20Cente
r%20and%20Democracy%2021%20Submit%20Comments%20to%20FEC%E2%80%9> Error!
Filename not specified.
Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off
?Wasserman Schultz retracts Jim Crow analogy?
<http://electionlawblog.org/?p=18799>
Posted on <http://electionlawblog.org/?p=18799> June 6, 2011 by Rick Hasen
<http://electionlawblog.org/?author=3>
Things heat up
<http://www.politico.com/blogs/bensmith/0611/Wasserman_Schultz_retracts_Jim_
Crow_analogy.html?showall> again in Fla.
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%
3Fp%3D18799&title=%E2%80%9CWasserman%20Schultz%20retracts%20Jim%20Crow%20ana
logy%E2%80%9D&description=> Error! Filename not specified.
Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off
?Litigating: Federal Government Edition?
<http://electionlawblog.org/?p=18796>
Posted on <http://electionlawblog.org/?p=18796> June 6, 2011 by Rick Hasen
<http://electionlawblog.org/?author=3>
Allison Hayward muses
<http://campaignfreedom.org/blog/detail/litigating-federal-government-editio
n> on Danielczyk and Edwards.
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%
3Fp%3D18796&title=%E2%80%9CLitigating%3A%20Federal%20Government%20Edition%E2
%80%9D&description=> Error! Filename not specified.
Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off
?Feature: Disputed Election Fueled Prof. Hasen?s Specialty?
<http://electionlawblog.org/?p=18793>
Posted on <http://electionlawblog.org/?p=18793> June 6, 2011 by Rick Hasen
<http://electionlawblog.org/?author=3>
This item <http://law.uci.edu/faculty/feature_r_hasen.html> now appears on
the UC Irvine School of Law website.
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%
3Fp%3D18793&title=%E2%80%9CFeature%3A%20Disputed%20Election%20Fueled%20Prof.
%20Hasen%E2%80%99s%20Specialty%E2%80%9D&description=> Error! Filename not
specified.
Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off
?Loyola Law School Professor Justin Levitt Launches Redistricting Website?
<http://electionlawblog.org/?p=18790>
Posted on <http://electionlawblog.org/?p=18790> June 6, 2011 by Rick Hasen
<http://electionlawblog.org/?author=3>
See this press release
<http://www.lls.edu/media/press-releases/documents/Levitt_Redistricting_0606
11a.pdf> explaining Justin Levitt?s All About Redistricting website, which
I raved about <http://electionlawblog.org/?p=18775> earlier today.
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%
3Fp%3D18790&title=%E2%80%9CLoyola%20Law%20School%20Professor%20Justin%20Levi
tt%20Launches%20Redistricting%20Website%E2%80%9D&description=> Error!
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Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off
?Public Campaign Financing Law: Protecting Against Excessive Cost?
<http://electionlawblog.org/?p=18787>
Posted on <http://electionlawblog.org/?p=18787> June 6, 2011 by Rick Hasen
<http://electionlawblog.org/?author=3>
Laurence Laufer has written this analysis
<http://www.law.com/jsp/nylj/PubArticleNY.jsp?id=1202495939977&Public_Campai
gn_Financing_Law_Protecting_Against_Excessive_Cost&slreturn=1&hbxlogin=1>
for the New York Law Journal.
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%
3Fp%3D18787&title=%E2%80%9CPublic%20Campaign%20Financing%20Law%3A%20Protecti
ng%20Against%20Excessive%20Cost%E2%80%9D&description=> Error! Filename not
specified.
Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off
John Edwards Still Has An Active Campaign Committee
<http://electionlawblog.org/?p=18784>
Posted on <http://electionlawblog.org/?p=18784> June 6, 2011 by Rick Hasen
<http://electionlawblog.org/?author=3>
Center for Responsive Politics
<http://www.opensecrets.org/news/2011/06/ceo-6-6-2011.html> :
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!
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%
3Fp%3D18784&title=John%20Edwards%20Still%20Has%20An%20Active%20Campaign%20Co
mmittee&description=> Error! Filename not specified.
Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off
?Voting Rights Groups Sue Georgia for Neglecting Voting Rights of Low-Income
Residents? <http://electionlawblog.org/?p=18781>
Posted on <http://electionlawblog.org/?p=18781> June 6, 2011 by Rick Hasen
<http://electionlawblog.org/?author=3>
See this press release
<http://projectvote.org/newsreleases/657-voting-rights-groups-sue-georgia-fo
r-neglecting-voting-rights-of-low-income-residents.html> .
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%
3Fp%3D18781&title=%E2%80%9CVoting%20Rights%20Groups%20Sue%20Georgia%20for%20
Neglecting%20Voting%20Rights%20of%20Low-Income%20Residents%E2%80%9D&descript
ion=> Error! Filename not specified.
Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off
?Sidebar Publishes Response to ?Judicial Elections as Popular
Constitutionalism? <http://electionlawblog.org/?p=18777> & a Reply to that
Response?
Posted on <http://electionlawblog.org/?p=18777> June 6, 2011 by Rick Hasen
<http://electionlawblog.org/?author=3>
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
<http://www.concurringopinions.com/archives/2011/06/sidebar-publishes-respon
se-to-judicial-elections-as-popular-constitutionalism-a-reply-to-that-respon
se.html> :
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
<http://www.columbialawreview.org/assets/pdfs/110/8/Pozen.pdf> , 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?
<http://www.columbialawreview.org/articles/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
<http://www.columbialawreview.org/articles/what-happened-in-iowa> 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.
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%
3Fp%3D18777&title=%E2%80%9CSidebar%20Publishes%20Response%20to%20%E2%80%9CJu
dicial%20Elections%20as%20Popular%20Constitutionalism%E2%80%9D%20%26%20a%20R
eply%20to%20that%20Response%E2%80%9D&description=> Error! Filename not
specified.
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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
949.824.0495 - fax
rhasen at law.uci.edu
http://law.uci.edu/faculty/page1_r_hasen.html
William H. Hannon Distinguished Professor of Law
Loyola Law School
http://electionlawblog.org
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