[EL] "Exhibit A"

Fri Apr 13 16:37:28 PDT 2012

On Fri, Apr 13, 2012 at 7:14 PM, Rick Hasen <rhasen at law.uci.edu> wrote:

>  Unfortunately, I believe you are incorrect on the facts.
> 1. On whether c4 spending will be on electioneering communications or
> express advocacy,  I'm afraid c4 spending is coming to dominate spending on
> electioneering communications and we've now seen independent expenditures
> coming from these groups too.
>

Even if it is, we can agree it will not be coordinated, or, if coordinated,
covered by law.  Despite theories to the contrary -- some of them yours --
that eliminates the anti-corruption concern.  Gratitude for uncoordinated
speech is not enough to constitute corruption.

>From CRP data on my slides<http://www.slideshare.net/hasenr/hasen-stanfordpacs2>
> :
>
> [image: 501]
>
> [image: 501-2]
>
>
> 2. The coordination rules don't prevent corruption.
>

Yes, they do, as matter of law.  This is bedrock caselaw.

> First, if Fatcat X (or CEO of Corporation Y) lets Senator Z know of the
> contribution, the potential for corruption is there without violating the
> coordination rules.
>

Independent ads anger as much as ingratiate.  And if I may borrow an analog
from contract law: Past consideration is no consideration.  Any recently
re-elected Senator -- Z or otherwise -- would scoff at so obvious a
gambit.  And I'm betting your nightmare scenario is covered under Title 18
if the Senator were influenced to take official action on such a donor
statement.

> Second, the lack of disclosure makes it more likely that Fatcat X will in
> fact engage in corrupt activity if the relationship is never disclosed
> thanks to disclosure laws.
>

"Fat Cat X," under your nomenclature, is a *private* citizen.  He has no
power.  It is not the actions of private citizens the Courts have been
writing about in the dozens of cases since *Buckley.*

>
> 3. We are not in an era yet, and we may never be, where big money fails to
> matter.  For the reasons Justin gave, the public should know who is
> ultimately behind political and campaign messages.
>

I hope private sector money always matters in our elections.  The day it *
doesn't* is the day we are in trouble.  Either because, on that day, the
people will be sovereign no longer... or because our free press will be
captured government or so saturated with subsidies as to be effectively
captured.

Good weekend,

Steve

>
>
> On 4/13/12 3:48 PM, Steve Hoersting wrote:
>
> C4 spending will not likely be electioneering communications or express
> advocacy.  Even if it is, we can agree it will not be coordinated, or, if
> coordinated, covered by law.  Despite theories to the contrary -- some of
> them yours -- that eliminates the anti-corruption concern.  Gratitude for
> uncoordinated speech is not enough to constitute corruption... And were it
> enough it would surely prove too much: Bye, bye Oprah endorsements.
>
> The informational interest, too, is supposed to limit disclosure to
> electoral speech, which, again, may not be present in the Crossroads C4
> ads.  In any event, the informational interest is justified despite its
> burden on speech to place candidates in the political spectrum on bases
> over and above party labels and platform positions.  The more the internet
> grows the more this benefit wanes.
>
> Disclosure is a public good, while speaking and associating through c4s
> are fundamental rights -- growing more important to popular sovereignty all
> the time, as allies of yours cite the political process as the *only* and
> best constitutional check against excessive economic restrictions.
>
> As to policing of the contribution limits, this speech will not be an
> in-kind contribution.  There will be no coordination here, as I mention
> above.  If to the contrary, the law covers it.  As to foreign funds...
> you've made my point.
>
> Let us be clear: As we move from phone mobs to flashmobs, and from
> capitalism to crony capitalism, the costs of increased disclosure for
> independent, non-corrupting speech are increasing exponentially.  The
> benefits of such disclosure -- on the terms the Court has approved -- are
> flat to fading.
>
> All the best, guys,
>
> Steve
>
>
>
> On Fri, Apr 13, 2012 at 6:20 PM, Rick Hasen <rhasen at law.uci.edu> wrote:
>
>>  Justin may have his own answer.  Here's mine<http://www.slate.com/articles/news_and_politics/politics/2010/10/show_me_the_donors.html>:
>> " First, disclosure laws *can prevent corruption* and the appearance of
>> corruption. Having no more paper bags of cash makes it harder to bribe a
>> member of Congress. Second, disclosure laws provide *valuable information
>> * to voters.  A busy public relies on disclosure information more than
>> ever. This was apparent when California voters recently turned down a
>> ballot proposition which would have benefited Pacific Gas and Electric.
>> PG&E provided almost all of the $46 million<http://articles.sfgate.com/2010-06-09/news/21902416_1_choice-aggregation-pg-e-public-power>to the "Yes on 16" campaign, compared with very little spent opposing the
>> measure. Thanks to California's disclosure laws<http://electionlawblog.org/archives/016482.html>,
>> PG&E's name appeared<http://www.youtube.com/watch?v=fyEKT0ehcTE&feature=player_embedded>on every "Yes on 16" ad and the measure narrowly went down to defeat.
>> Third, disclosure laws *help**enforce other campaign finance laws*.
>> Worried about foreign money in elections? Disclosure tells you how much is
>> coming in."
>>
>> So if we are worried about possible foreign money coming into the system,
>> or worried that someone is seeking to curry favor with a politician by
>> making a large contribution to a sympathetic c4 which will benefit him, or
>> we want to give voters MORE information to know how they should judge an ad
>> from a group they perhaps never heard of (not everyone will know what "GPS"
>> is), then disclosure makes a lot of sense.
>>
>>
>> On 4/13/12 3:05 PM, Steve Hoersting wrote:
>>
>> Yes, it is too bad, Justin.  For I presume you won't know what to make or
>> think of Crossroads' ads without this crucial information.
>>
>> Or, is the purpose of disclosure something else entirely?
>>
>> Steve Hoersting
>>
>> On Fri, Apr 13, 2012 at 5:21 PM, Justin Levitt <levittj at lls.edu> wrote:
>>
>>>  I look forward to James O'Keefe's new hidden-camera video, showing his
>>> shell corporation receiving its $10 million check from the North Korean
>>> government, and writing its $10 million check to Crossroads GPS.  He could
>>> even show a sinister hand walking just up to the brink of depositing the
>>> envelope in the mail to Crossroads.
>>>
>>> What was the phrase<http://department-lists.uci.edu/pipermail/law-election/2012-April/003087.html>?
>>> "How simple, how hard to catch and how easy to prevent<http://electionlawblog.org/archives/017415.html>
>>> ."
>>>
>>> Justin
>>>
>>>
>>>
>>> On 4/13/2012 2:05 PM, Rick Hasen wrote:
>>>
>>>  Exhibit A on Why We Need to Fix Campaign Finance Disclosure Law<http://electionlawblog.org/?p=32965>
>>> Posted on April 13, 2012 2:04 pm <http://electionlawblog.org/?p=32965>
>>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>>
>>> Crossroads GPS gets an anonymous $10 million donation<http://www.washingtonpost.com/politics/mystery-donor-gives-10-million-to-crossroads-gps-group-to-run-anti-obama-ads/2012/04/13/gIQAzdtdFT_story.html>(possibly from a corporation) to run political ads.  Thanks to holes
>>> in our disclosure laws <http://electionlawblog.org/?p=32374>the
>>> identity may never be revealed to the public.
>>>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D32965&title=Exhibit%20A%20on%20Why%20We%20Need%20to%20Fix%20Campaign%20Finance%20Disclosure%20Law&description=>
>>>   Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
>>> Off
>>>
>>>
>>> --
>>> Justin Levitt
>>> Associate Professor of Law
>>> Loyola Law School | Los Angeles
>>> 919 Albany St.
>>> Los Angeles, CA  90015213-736-7417justin.levitt at lls.edussrn.com/author=698321
>>>
>>>
>>> _______________________________________________
>>> Law-election mailing list
>>> Law-election at department-lists.uci.edu
>>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>>
>>
>>
>>
>> --
>> Stephen M. Hoersting
>>
>>
>>
>> _______________________________________________
>> Law-election mailing listLaw-election at department-lists.uci.eduhttp://department-lists.uci.edu/mailman/listinfo/law-election
>>
>>
>>   --
>> Rick Hasen
>> Chancellor's 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
>> http://law.uci.edu/faculty/page1_r_hasen.html
>> http://electionlawblog.org
>>
>
>
>
> --
> Stephen M. Hoersting
>
>
> --
> Rick Hasen
> Chancellor's 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
> http://law.uci.edu/faculty/page1_r_hasen.html
> http://electionlawblog.org
>

-- 
Stephen M. Hoersting
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