[EL] "Exhibit A"

Fri Apr 13 17:05:35 PDT 2012

What I am saying is that the informational interest justifying the public
disclosure of non-corrupting independent speech needs to be reexamined.

If an enforcement agency or any administration's Department of Justice
finds that a C4 coordinated its electioneering communications or express
advocacy with a candidate or party committee, that agency will have *no
trouble* subpoenaing the documents to determine precisely who put up the
money and the extent to which the funder was involved in securing the *quid
pro quo*.  So, how is this a basis for compelled disclosure to the general
public of funders of independent speech in every instance, on the front end?

It seems your answer is that of *Doe v. Reed*: We need the citizen
prosecutor, whatever the cost in chilled speech and association.

My reply is this: Your "citizen prosecutor" justification discounts the
costs and rising incidents of "citizen vigilantes."   To borrow and bend a
phrase, "I do have broader theories of [intimidation], and I hope that one
day the Supreme Court will return to them in the IE context[.]"

Steve

On Fri, Apr 13, 2012 at 7:45 PM, Rick Hasen <rhasen at law.uci.edu> wrote:

>  So we agree:
> 1. c4s are engaging in significant spending on electioneering
> communications and express advocacy
> 2. if donors to c4s engage in illegal coordination, extortion or bribery,
> the donors and/or the officeholders would be violating federal law.
>
> That alone is enough for me to conclude that disclosure of MAJOR donors to
> c4s and any other entity making significant ECs or IEs is necessary to
> ferret out potential corruption, because then journalists, opposing
> candidates, and the public can look for corrupt activity.  And by corrupt
> activity here, I am referring to quid pro quo corruption.
>
> I do have broader theories of corruption, and I hope that one day the
> Supreme Court will return to them in the IE context, but the argument above
> does not depend upon them.
>
> Rick
>
>
> On 4/13/12 4:37 PM, Steve Hoersting wrote:
>
>
>
> 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
>>>>
>>>>
>>>> _______________________________________________
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>>>> 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
>
>
> --
> 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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