[EL] Slate column on soft money/more news
JBoppjr at aol.com
JBoppjr at aol.com
Wed Oct 26 05:52:40 PDT 2011
Thanks, Brad. Now I understand!
By the way, regarding this:
"All this is an "end run" of the limits (of course the "end run" is a
perfectly legal, appropriate play - it's not even a "trick" play, really, in
football, but it is used here to suggest at least clever trickery). (Question:
is a contribution of $5000 to a traditional PAC an "end run" of the $2400
limit on individual contributions? How about a $25,000 contribution to a
political party?)."
I have always called this exercising the residual freedoms left to us by
campaign finance laws. It is, of course, in violation of the "spirit" of
campaign finance laws, since it's spirit is to stamp out citizen spending on
campaigns. Jim Bopp
In a message dated 10/25/2011 11:53:00 P.M. Eastern Daylight Time,
BSmith at law.capital.edu writes:
Soft money, hard money, fully-regulated, not fully-regulated, it doesn't
affect the extent to which it is regulated. The problem is that such labels
often do more to obscure than to enlighten. For example, in the
pre-McCain-Feingold era, what some people meant by "soft money" was only money given
to political parties for use on things other than federal races. But others
used the term for any money that was not subject to federal contribution
and source limits, including money spent by independent 527 committees and
501(c)(4) organizations.
Today the growing confusion is over the horrific but apparently favored
term, "SuperPAC." Technically, a SuperPAC is subject to all the same
reporting requirements as a PAC; but many people casually apply the term to
501(c)(4) organizations as well, which aren't even PACs, let alone Super ones, and
then assert that they have no disclosure obligations. Thus, not
surprisingly, many members of the public, and many journalists entrusted with
reporting on money in politics, say things such as "... SuperPACs, which do not
have to disclose their donors... "
Other times, people who ought to know better will say things such as
"nobody knows who is paying for these ads," when of course the truth is that
every political ad states who paid for it - what people mean to say is that "I
don't know very much about the group paying for these ads - at least not
as much as I'd like to know and I think you ought to want to know." That is
not an insignificant difference.
Anyway, both sides use words and labels to their advantage, and that is
hardly shocking.
Rick's column that sparks this latest little semantic row is clearly
written as much to alarm the public as to enlighten it. After all, Rick is a
public intellectual, and this is an op-ed. Hence the invocation of undefined
"soft money." Does he mean to speak only of disclosed money given to
parties, as the term often meant in the past? No apparently not. In fact, he is
including money raised and spent by PACs and subject to the FEC's disclosure
regulations, which the term never previously meant, to my knowledge,
anyway. Like Trevor, he seems to mean any large contribution, at least if not
subject to a legal limit or source prohibition. Soft money, of course, is a
longtime boogerman in the "reform" lexicon. That's why it can be "blamed" on
Justice Kennedy (wait, there's blame? only if we assume that the term "soft
money" inherently connotes something bad), and why the reader learns of
"often secret contributions" (suggesting he's referring to 501(c)(4)
organizations which have more limited disclosure obligations - although never
entirely secret, since the (c)(4) has to disclose it's spending -but that wasn't
usually what "soft money" meant, historically - although sometimes it was
- and a (c)(4) is not technically a "SuperPAC."). Also, almost certainly
many readers will take away that these are "secret contributions" directly to
candidate campaigns, even if the article doesn't say that - see our Joe
Trotter's recent post:
_http://www.campaignfreedom.org/blog/detail/representation-thru-occupation-occupy-dc-and-the-harsh-reality-of-politics-in-america_
(http://www.campaignfreedom.org/blog/detail/representation-thru-occupation-o
ccupy-dc-and-the-harsh-reality-of-politics-in-america) .
All this is an "end run" of the limits (of course the "end run" is a
perfectly legal, appropriate play - it's not even a "trick" play, really, in
football, but it is used here to suggest at least clever trickery). (Question:
is a contribution of $5000 to a traditional PAC an "end run" of the $2400
limit on individual contributions? How about a $25,000 contribution to a
political party?). We're told about "unlimited sums," and though I guess
that's a fair enough description, even that phrase conjures up far more money
than is likely to be the reality - for example, some reformers (not Rick)
have suggested it could include the total of all assets or all profits of
U.S. corporations, a patently absurd notion. But campaign spending won't be
"unlimited" in this cycle, in fact we have pretty good predictions of what it
will be, and by comparison to many things that is a relatively small
amount. Meanwhile, the activities of independent groups are described as a
"shadow campaign" even though they are highly visible and the topic of many news
stories and op-eds.
But having alarmed (as many good op-eds will seek to do), the piece does
ultimately enlighten, setting forth the concerns of the reform community and
explaining in clear, concise prose some difficult legal doctrine. I'm not
sure that there is much to be gained by debating the semantics at the level
of "fully regulated" versus just "regulated." Just so long as it's not
called "unregulated money," which would be wrong by any definition.
I do think Rick gets one thing wrong, and that is thinking that Justice
Kennedy's statement was intended as an empirical statement rather than a
legal proposition based on some common-sense intuitions about the corrupting
influence of different types of political activity and the language,
structure, and purpose of the Constituion. (Kennedy's statement may also hinge on
the definition of "corruption," with Rick holding a different view than the
judge as to how one might define bribery (bad) vs. mere gratitude (the
lifeblood of politics).
It's sort of like saying all criminals are presumed innocent until proven
guilty - that's not a statement of fact and really would make no sense
considered as such: it is a legal proposition of constitutional law, and as
such we value it quite highly, seeing the benefits as worth of the costs. We
value the legal proposition even though in many cases it might be considered
an absurd counterfactual and a considerable hindrance to "fighting crime"
(a compelling government interest!). Indeed, Kennedy's statement is even a
bit (though less so) like Buckley's famous holding that the state has a
compelling interest in regulating campaign spending: that's a legal
proposition, not an empirical one. Given that reformers have devoted considerable
effort to trying to debunk or ignore the considerable evidence and
substantial majority of studies finding that monetary contributions are not so
influential as popular belief would have it, I'm not sure that they have the
high ground here.
Reformers should not find that a reason for despair - legal propositions
and understandings are subject to change. But I think history will judge
Justice Kennedy and the majority to have gotten it right.
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 on behalf of
JBoppjr at aol.com
Sent: Tue 10/25/2011 7:11 PM
To: tpotter at capdale.com
Cc: law-election at uci.edu
Subject: Re: [EL] Slate column on soft money/more news
Opps, so sorry for my comment, but (1) it was not my Advisory Opinion
request, but the Dems, and (2) super pacs are fully regulated by the feds, they
just do not have contribution limits under federal law, just like
exploratory and draft committees. The failure of federal law to impose a
contribution limit does not mean that they are not regulated by federal law. Jim
In a message dated 10/25/2011 6:59:42 P.M. Eastern Daylight Time,
tpotter at capdale.com writes:
We've been around this ring before-ad nauseum-in connection with Jim's
Advisory Opinion request last Summer, which made the same argument--and which
the FEC rejected. It is of course a misnomer to say that SuperPac funds
are "fully federally regulated" as they have no limitations as to size, and
allow sources of funds not otherwise permitted in federal elections.
Trevor Potter
Sent from my iPad
On Oct 25, 2011, at 5:34 PM, "_JBoppjr at aol.com_ (mailto:JBoppjr at aol.com) "
<_JBoppjr at aol.com_ (mailto:JBoppjr at aol.com) > wrote:
Is all money some one doesn't like "soft money?" Money contributed to
super PACs is fully federally regulated so it is, in the slang, "hard money."
Jim Bopp
In a message dated 10/25/2011 3:04:04 P.M. Eastern Daylight Time,
_rhasen at law.uci.edu_ (mailto:rhasen at law.uci.edu) writes:
_“Super-Soft Money: How Justice Kennedy paved the way for ‘SuperPACS’ and
the return of soft money’_ (http://electionlawblog.org/?p=24611)
Posted on _October 25, 2011 12:02 pm_
(http://electionlawblog.org/?p=24611) by _Rick Hasen_ (http://electionlawblog.org/?author=3)
I have written _this Jurisprudence essay_ (http://slate.me/sun4y6) for
Slate. It begins:
Soft money is coming back to national politics, and in a big way. And we
can blame it all on a single sentence in Justice Anthony Kennedy’s opinion
in 2010’s controversial _Citizens United_
(http://www.supremecourt.gov/opinions/09pdf/08-205.pdf) decision—a sentence that was unnecessary to resolve
the case.
In this election cycle, “_superPACs_
(http://www.csmonitor.com/USA/Elections/2011/1007/Election-101-Five-basics-about-super-PACs-and-2012-campaign-money
/What-is-a-super-PAC-and-how-is-it-different-from-an-ordinary-PAC) ” will
likely _replace_
(http://www.nytimes.com/2011/08/28/us/politics/28donate.html?ref=politics) political parties as a _conduit_
(http://www.propublica.org/blog/item/super-pacs-propublicas-guide-to-the-new-world-of-campaign-finance)
for large, often secret contributions, allowing an end run around the
$2,400 individual contribution limit and the bar on corporate and labor
contributions to federal candidates.
Another snippet:
Now _comes_ (http://electionlawblog.org/?p=24567) the most _audacious_
(http://www.rollcall.com/issues/57_43/Super-PACs-Multiply-Head-to-Hill-209545-1
.html?pos=olobh) argument in this series so far. If all PACs are
Super-PACs, then the rules for these PACs should also apply to “leadership PACs.”
Leadership PACs are political committees that sitting members of Congress
(and others) set up to allow them to make contributions to other candidates
and spend money to support their election. It is a way for a member of
Congress to build influence.
Sen. Mike Lee’s Leadership PAC, the Constitutional Conservatives Fund PAC,
_has just asked_ (http://saos.nictusa.com/aodocs/1188172.pdf) the Federal
Election Commission for permission to collect unlimited contributions from
corporations, labor unions, and wealthy individuals for independent
spending to elect other candidates. The SuperPAC’s lawyers argue that there’s no
danger of corrupting these other candidates, because its spending to help
them get elected will be independent of those candidates.
Even if we suspend disbelief and agree on this point, the request ignores
the greater danger: that the leader of the leadership PAC will become, or
appear, corrupt. Corporations or labor unions (acting through other
organizations to shield their identity from public view) could give unlimited sums
to an elected official’s leadership PAC, which could then be used for the
official to yield influence with others.
There’s nothing to stop someone like Senate Minority Leader Mitch
McConnell from effectively becoming the fundraising arm of the Republican Party,
funneling all the money through his leadership PAC. The McCain-Feingold law
barred political parties from collecting such unlimited “soft money”
contributions, and the Supreme Court in 2003 _upheld_
(http://www.law.cornell.edu/supct/html/02-1674.ZS.html) that limit on the grounds that such unlimited
fundraising by politicians could corrupt politicians or create the
appearance of corruption.
_<share_save_171_16.png>_
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=24611&title=“
Super-Soft%20Money:%20How%20Justice%20Kennedy%20paved%20the%20way%20for%20‘SuperPACS’
%20and%20the%20return%20of%20soft%20money’&description=)
Posted in _campaign finance_ (http://electionlawblog.org/?cat=10) |
Comments Off
_“State voter ID measure expected to see some changes in Senate”_
(http://electionlawblog.org/?p=24608)
Posted on _October 25, 2011 7:53 am_ (http://electionlawblog.org/?p=24608)
by _Rick Hasen_ (http://electionlawblog.org/?author=3)
_News_ (http://www.post-gazette.com/pg/11295/1184048-454-0.stm) from Pa.
_<share_save_171_16.png>_
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=24608&title=“
State%20voter%20ID%20measure%20expected%20to%20see%20some%20changes%20in%20Senate”&description=)
Posted in _election administration_ (http://electionlawblog.org/?cat=18)
, _voter id_ (http://electionlawblog.org/?cat=9) | Comments Off
_Give the People What They Want_ (http://electionlawblog.org/?p=24606)
Posted on _October 25, 2011 7:52 am_ (http://electionlawblog.org/?p=24606)
by _Rick Hasen_ (http://electionlawblog.org/?author=3)
Dean Logan _will try_
(http://www.governing.com/blogs/view/LAs-Elections-Overhaul-Could-Be-a-Model.html) in L.A. (h/t _The Kinks_
(http://www.amazon.com/Give-People-What-They-Want/dp/B00000IM7P) )
_<share_save_171_16.png>_
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=24606&title=Give%20the%20People%20What%20They%20Want&des
cription=)
Posted in _election administration_ (http://electionlawblog.org/?cat=18)
| Comments Off
--
Rick Hasen
Professor of Law and Political Science
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_
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