[EL] Danielczyk
JBoppjr at aol.com
JBoppjr at aol.com
Wed Jun 8 11:34:34 PDT 2011
The Supreme Court in CU rejected the notion that there should be a
distinction between non-profits and for-profits re political speech. I think that
is the right result. It is true that before the Court would accept that
position, we sought an as applied exception for non-profits from both bans an
IE's, see MCFL, and contributions, see Beaumont, so that at least some
groups would have political rights. In both instances, the "reformers"
opposed. Now they wish for the good old days they fought against! LOL
On Rick's "conduit" point, there are two legitimate ways to deal with
this. First, is to count any earmarked contributions by X to Y for Z to be
a contribution to Z from X, not Y. That is how the FEC earmarking rules
work. Second, is the affiliation rules. If an entity is controlled by the
same group, then they are subject to the same aggregate contribution limit.
FEC rules on this also operate this way.
His real point is that X may make multiple contribution to different
entities that the person does not control, which are not controlled by the
same group of people and which are not earmarked to contribute to a certain
candidate, but then that all these contributions should be treated as a
contribution from X. The reason I understand is that these entities may all be
of one mind, ie conservative, and expected to contribute to Y.
This would be like UCI, who pays salaries to employees UCI does not
control, the employees don't control each other and the salary is not
earmarked as a contribution to a candidate, being treated as the contributor of
contributions from its employees. While it is true that they are all of like
mind -- all liberal Democrats, no doubt -- this is wrong. Each employee
still has his or her own mind and free will. And they are contributing their
own money -- even though it "came" from UCI (hey every one gets there
money from someone else, except the feds.). Each employee is still responsible
for his or her own contribution. Jim Bopp
In a message dated 6/8/2011 1:17:12 P.M. Eastern Daylight Time,
rhasen at law.uci.edu writes:
This looks exceedingly close to an admission that non-profit corporations
could be used as conduits to evade individual contribution limits. And
I'm less optimistic than Brad that for-profit corporations could not be used
for the same purpose. I also question the constitutionality of the PAC
and affiliation rules under the logic of Judge Cacheris's order.
Finally, I emphatically disagree with the notion that "American Democarcy
did pretty well right up through 1974." Watergate is a prime (but not
only) example of the abuses of a poorly-regulated campaign finance system.
On 6/8/2011 10:04 AM, Smith, Brad wrote:
In his first post, Rick writes:
"Why couldn’t I set up 50 ideological corporations now in Virginia along
the following lines? Contribute to these 50 ideological corporations
supporting progressive (or tea party) candidates. If you’ve maxed out on your
contributions to your favorite candidates, give the money to us, and we’ll
contribute it to the candidates directly on our list. This is our corporation’
s mission."
Now he writes:
"those groups which should be entitled to the most First Amendment
protections (even under Austin and before Citizens United, such groups could spend
their treasury funds independently on candidate campaigns) get the least
protection."
The first post provides a reason why the second post is not necessarily
true. For profit corporations are highly unlikely to be used to end run
individual contribution limits - but non-profit corporations would be better
vehicles for such a manuever.
Of course, all of this could be regulated, as are PACs now, through
affiliation rules. Or, we could recognize that American democracy did pretty well
right up through 1974, and simply do away with individual limits on
contributions, which would do away with Rick's feared scenario. But assuming
individual contribution limits stay in place, Rick himself, in his first post,
explained why it could make sense to limit Beaumont to non-profit
corporations.
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
(614) 236-6317
_http://www.law.capital.edu/Faculty/Bios/bsmith.asp_
(http://www.law.capital.edu/Faculty/Bios/bsmith.asp)
____________________________________
From: _law-election-bounces at department-lists.uci.edu_
(mailto:law-election-bounces at department-lists.uci.edu) on behalf of Rick Hasen
Sent: Wed 6/8/2011 10:44 AM
To: _law-election at uci.edu_ (mailto:law-election at uci.edu)
Subject: Re: [EL] Danielczyk
_The Perverse Holding of Danielczyk_ (http://electionlawblog.org/?p=18888)
Posted on _June 8, 2011_ (http://electionlawblog.org/?p=18888) by _Rick
Hasen_ (http://electionlawblog.org/?author=3)
In response to my query in _this post_
(http://electionlawblog.org/?p=18851) , a few readers have said that the opinion means it is unconstitutional
to limit the direct contributions of for-profit corporations to candidates,
but it remains constitutional under the controlling authority of Beaumont
to limit the direct contributions of ideological, non-profit corporations.
Of course, as my readers point out, if this is what it means, it is a
perverse holding: those groups which should be entitled to the most First
Amendment protections (even under Austin and before Citizens United, such groups
could spend their treasury funds independently on candidate campaigns) get
the least protection.
That’s another reason why the district court’s ruling should be _appealed
immediately_ (http://electionlawblog.org/?p=18859) .
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=18888&title=The%20Perverse%20Holding%20of%20Danielczyk&description=)
Posted in _Uncategorized_ (http://electionlawblog.org/?cat=1) | Comments
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On 6/7/2011 1:03 PM, Rick Hasen wrote:
_Breaking News: Judge in Va. Contributions Case Reaffirms Opinion Striking
Down Federal Campaign Contribution Limits Law (Danielczyk)_
(http://electionlawblog.org/?p=18848)
Posted on _June 7, 2011_ (http://electionlawblog.org/?p=18848) by _Rick
Hasen_ (http://electionlawblog.org/?author=3)
Via _Ken Vogel _ (https://twitter.com/#!/kenvogel/status/78182731254743040)
comes word of_ this order _
(http://www.politico.com/static/PPM170_cacherisupholds.html) from Judge Cacheris. This is not what I was _expecting_
(http://electionlawblog.org/?p=18521) . The Court has held unconstitutional a
100-year-old ban on direct corporate campaign contributions to candidates.
He has done so in direct contradiction to the Supreme Court’s holding in FEC
v. Beaumont, and in contradiction to rulings in the _Second Circuit_
(http://lawprofessors.typepad.com/files/green-party-2.pdf) , the _Eighth
Circuit,_ (http://www.ca8.uscourts.gov/opndir/11/05/103126P.pdf) and a _federal
district court_
(http://electionlawblog.org/archives/thalheimer-pi.pdfhttp://electionlawblog.org/archives/thalheimer-pi.pdf) in San Diego [that case is
on appeal, and I am defending San Diego's similar law in the Ninth Circuit.]
Judge Cacheris makes two arguments as to why he is not bound by FEC v.
Beaumont, in which the Supreme Court upheld the very same law.
1. He accepted the argument put forward in an amicus brief by the James
Madison Center that the holding in Beaumont applied only to non-profit
advocacy corporations, and not to for-profit companies. This argument is very
weak. In Beaumont, a nonprofit ideological corporation argued that even if
the statute could constitutionally be applied to for-profit corporations, it
could not constitutionally be applied to non-profit corporations. The
Court had already held in the case of Mass. Citizens for Life v. FEC that such
corporations could not be barred from making independent expenditures. In
Beaumont, the Court held that even such ideological MCFL corporations
could constitutionally be barred from making direct contributions to
candidates. Among other reasons, the law prevented such corporations from being
used as conduits to evade individual contribution limits. If such non-profit
corporations could constitutionally be barred from making contributions to
candidates, a fortiori for-profit corporations should be barred as well.
2. The judge accepted the second argument that Citizens United silently
overruled Beaumont. This too is a weak argument. I think that argument is
dead wrong, for reasons explained in great detail in Part I of _this brief_
(http://electionlawblog.org/archives/city-9th-reply.pdf) filed in the San
Diego case.
What should happen next? I’m not an expert on the ability of the
government to take an interlocutory appeal at this point in the criminal case, but
I would urge them if they could to take this directly to the 4th Circuit.
Otherwise, there will be great uncertainty going into the 2012 election
season about an important constitutional question.
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=18848&title=Breaking%20News:%20Judge%20in%20Va.%20Contributions%20Case%20Reaffirm
s%20Opinion%20Striking%20Down%20Federal%20Campaign%20Contribution%20Limits%2
0Law%20(Danielczyk)&description=)
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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_ (mailto:rhasen at law.uci.edu)
_http://law.uci.edu/faculty/page1_r_hasen.html_
(http://law.uci.edu/faculty/page1_r_hasen.html)
William H. Hannon Distinguished Professor of Law
Loyola Law School
_http://electionlawblog.org_ (http://electionlawblog.org/)
--
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_ (mailto:rhasen at law.uci.edu)
_http://law.uci.edu/faculty/page1_r_hasen.html_
(http://law.uci.edu/faculty/page1_r_hasen.html)
William H. Hannon Distinguished Professor of Law
Loyola Law School
_http://electionlawblog.org_ (http://electionlawblog.org/)
--
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_ (mailto:rhasen at law.uci.edu)
_http://law.uci.edu/faculty/page1_r_hasen.html_
(http://law.uci.edu/faculty/page1_r_hasen.html)
William H. Hannon Distinguished Professor of Law
Loyola Law School
_http://electionlawblog.org_ (http://electionlawblog.org/)
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