[EL] Truth to power?

Wed Feb 22 09:54:30 PST 2012

I actually don't mean to rehash the "crabbed" v. "non-crabbed" view of
corruption debate, and I certainly don't expect to change anyone's mind
on that question in the context of this listserv.  

However, I do think one reason the Court should consider "re"-plowing
the ground under the corruptive potential of independent expenditures is
so they can plow it at least once on an evidentiary record suitable to
the basis of their holding.  For example, just yesterday Forbes magazine
quoted Sheldon Adelson saying, in the context of his and his wife's
contributions to Winning Our Future, "They [referring to critics of his
and his family's contributions] like to trash other people. It's unfair
that I've been treated unfair-but it doesn't stop me. I might give $10
million or $100 million to Gingrich."
http://www.forbes.com/sites/stevenbertoni/2012/02/21/billionaire-sheldon
-adelson-says-he-might-give-100m-to-newt-gingrich-or-other-republican/
(emphasis added).

Seems to me like that last part could be probative on the question of
whether donors understand their contributions to functionally
single-candidate IE efforts as contributions to the candidate in
question (thereby raising much the same quid-pro-quo concerns
acknowledged as valid bases for dollar limits in both cases Jim cites
below), as independent funding of groups that advocate for candidates
independently (thereby raising the informational interests acknowledged
as valid bases for triggering disclosure in both cases Jim cites below,
and in CU itself), or as activity so attenuated from candidates as to
not even provide a basis for compelled public disclosure of the funding,
and Jim and others have argued both in CU itself and in a variety of
other IE cases around the country.  

From: Jeff Hauser [mailto:jeffhauser at gmail.com] 
Sent: Wednesday, February 22, 2012 12:06 PM
To: JBoppjr at aol.com
Cc: Joseph Birkenstock; BZall at aol.com; law-election at uci.edu
Subject: Re: [EL] Truth to power?

Jim assumes that the set of all actual coordination/actual quid pro quos
is identical to that which could be proven beyond a reasonable doubt in
a criminal setting, or under some other high evidentiary bar setting.

Once we acknowledge that not all actual coordination is knowable by
third parties, including the government, this analysis falls apart.

On Wed, Feb 22, 2012 at 11:59 AM, <JBoppjr at aol.com> wrote:

The Court has repeatedly said, since Buckley in 1976, including in
McConnell, that independent spending does not give rise to the
corruption concern that has justified contribution limits -- ie the
danger of a quid-pro-quo exchange.  Since the spender and candidate do
not discuss the independent expenditure, or it would be coordinated, a
quid-pro-quo agreement is factually impossible. So "reformers" want to
expand the definition of corruption to include gratitude --tat the
candidate is grateful for the independent spending and will then change
his positions to benefit the independent spender.  Or the candidate
might give the spender "access," by meeting and talking to the spender
about his or her concerns.  So as long as the Court is not willing to
expand the definition of corruption to include "gratitude" or
preferential "access," and they have said repeatedly that they are not,
then no corruption facts exist to be proved. There was nothing new in
the decision of CU to this debate, other than to repeat again their
position and to say that they continue to adhere to this view.

Of course, the real danger of corruption here is that the Court will
bend to the popular clammer that CU was wrong and should be changed.
This is a serious attack on the independence of the Court that would
undermine the Court's legitimacy if they just flip-flopped on this, as
the reformers are demanding.  And since these issues have been debated
ad nauseum and decided by the Court repeatedly, why should the Court
majority entertain yet another re-run? They don't agree with the
reformer's position on this, because the Court majority believes that
their position is required by the First Amendment, as have numerous
Supreme Court majorities in the past 35 years. The reformers don't like
it now and didn't like it then.  This is not a reason to replow this
heavy replowed ground once again.  Jim

In a message dated 2/22/2012 11:35:28 A.M. Eastern Standard Time,
jbirkenstock at capdale.com writes:

	Well, Barnaby, at the risk of inviting anyone to draw a weapon
(en sixte or otherwise) and flick it upward at Justice Scalia while he
sonorously chants "Rule 47 applies to a pretrial motion...," allow me to
retort.  (Partially agree, actually, and partially retort.)

	We agree that Ginsberg and Breyer aren't on especially strong
ground to advance that claim that *corporate* IE's as such are
themselves the root of much current concern about superPACs, but I think
that illustrates the overreach of CU as much as it illustrates
Ginsberg's and Breyer's imprecision.  Kennedy's opinion didn't permit
video-on-demand distribution of a corporate-funded 90 minute campaign ad
on the basis that VOD is basically a private communication, or that the
movie as a whole wasn't express advocacy, or that CU was a really
engaging in a media function by creating and distributing its film, or
any other narrower basis more appropriate to the case as litigated.  

	Instead, the CU majority held - in the absence of any actual
record suitable to this kind of facial evaluation - that there are no
applications of 441b sufficient to justify the constitutionality of the
statute.  Regardless of the potential variations in "corporate"
expenditures you address below: regardless of whether a corporation
provided the money, or spent it, or both; and regardless of whether any
corporation in that chain is a business corporation or an advocacy
organization.  

	And, more to my point, regardless of whether the "independence"
of the IE is of the "CU's movie about Hillary variety" or the
"functionally single-candidate committee singled out for direct
fundraising help by the benefitting candidate" variety.  It's true that
441b equally prohibited all of the above with respect to corporations,
but in facially invalidating the statute without a record (or even much
briefing) about whether a connected PAC is a "separate entity," for
example, or whether "the advent of the Internet" would somehow actually
"provide shareholders and citizens with the information needed to hold
corporations and elected officials accountable for their positions and
supporters," the CU court didn't just allow Citizens United to
distribute its movie, it broadly concluded that independent expenditures
by anyone simply pose no risk of regulable corruption.  Ever, in any
circumstance.

	So a complaint that Ginsberg and Breyer too quickly blur the
distinctions between the "corporateness" of particular IE's on the one
hand and the validity of anyone's concerns about whether "independent"
expenditures give rise to corruption or the appearance of corruption
more generally is fair enough, but I still think it's an equally fair
complaint against the opinion that opened the door to all of it.  

	Best,
	Joe

	P.S.  And sorry if I got lost anywhere in that recap at the top
of this email, we Padawan learners tend to mix up the FRCP and the
FRCrimP when confronted with too much sonorous chanting.  

	________________________________

	From: BZall at aol.com [mailto:BZall at aol.com]
	Sent: Wed 2/22/2012 8:53 AM
	To: Joseph Birkenstock
	Cc: law-election at uci.edu
	Subject: Re: [EL] Truth to power?

	[nods] Indeed. The litigator's eternal dilemma. And in response,
a merciful Lady Justice, having peeped under her blindfold to see the
anguish of those proposing issue resolution not tied to "obvious" facts,
grimaced, raised her right hand, with her sword en sixte, and flicked it
upward, drawing forth what we all know today as . . . Rule 12(b)(1).
Inculcated in generations of DoJ padawan learners in the creche,
surrounded by the ghosts of Swierkiewicz and his eternal enemy Sorema
N.A., sonorously chanting "12(b)(1), . . . 12(b)(1) . . . 12(b)(1)," the
cadaverous DoJedi Masters lean in to fiercely hiss "END this!" (And I
speak as one who has stood at the podium as Justice Scalia (one of MY
votes!) turns to his colleagues and says: "he wants to be here, but I
don't think he has a right to be here.")  

	Still, . . . a real teachable moment here, and I'm not referring
to the also-correct issue of facial challenges requiring an explanation
for every constitutional use. Examine for a moment the purpose and
undoubtedly-unintended effect of the rule requiring a factual basis in
the context of the Montana concurrence. The facts in Western Tradition
as laid out relate to corporations, as does the Montana Supreme Court
challenge to Citizens United. Indeed, that was the constant attack on CU
at the beginning, a reprise of Austin's anti-distortion rationale just
struck down. And that is unquestionably what JBG means. 

	Yet, as today's front page story in the Washington Post
demonstrates, the "huge money" is not coming from corporations. The
corporate funding "unleashed" by CU amounts to only 23% of superPAC
funding.
<http://www.washingtonpost.com/politics/super-pac-donors-revealed-who-ar
e-the-power-players-in-the-gop-primary/2012/02/21/gIQAPU3BSR_story.html?
hpid=z1>
http://www.washingtonpost.com/politics/corporations-are-sending-more-con
tributions-to-super-pacs/2012/02/02/gIQAL4dYlQ_story.html 
	Most of the "huge" money is coming from individuals.
http://www.washingtonpost.com/politics/super-pac-donors-revealed-who-are
-the-power-players-in-the-gop-primary/2012/02/21/gIQAPU3BSR_story.html?h
pid=z1 Sheldon Adelson says he feels so strongly he might spend $100
million.
http://www.forbes.com/sites/stevenbertoni/2012/02/21/billionaire-sheldon
-adelson-says-he-might-give-100m-to-newt-gingrich-or-other-republican/
And, as has been discussed here, those individuals were free to spend
before CU. 

	So let's take JBG at her words: 

	Montana's experience, and experience elsewhere since this
Court's decision in Citizens United v. Federal Election Comm'n, 558 U.
S. ___ (2010), make it exceedingly difficult to maintain that
independent expenditures by corporations "do not give rise to corruption
or the appearance of corruption." Id., at ___ (slip op., at 42). A
petition for certiorari will give the Court an opportunity to consider
whether, in light of the huge sums currently deployed to buy candidates'
allegiance, Citizens United should continue to hold sway. 

	Lady Justice's wisdom in requiring facts to illuminate the real
issues presented may be a dilemma, but it is probably one that betters
Justice. Justices Ginsburg and Breyer believe that the "huge sums" are
"deployed" "by corporations" when they are actually given by
individuals. I believe that it is wrong to claim that CU "held" that
corporations are people. Whatever your position on that, two Justices
have now endorsed the concept in reverse. They are not saying that
corporations are people; they are saying that people are corporations. 

	Barnaby Zall
	Of Counsel
	Weinberg, Jacobs & Tolani, LLP
	Please note our new address:
	10411 Motor City Dr., Suite 500
	Bethesda, MD 20817
	301-231-6943 (direct dial)
	www.wjlaw.com <http://www.wj/> 
	bzall at aol.com

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	In a message dated 2/21/2012 6:59:51 P.M. Eastern Standard Time,
jbirkenstock at capdale.com writes:

	    True enough Barnaby, good point.  I had the impression that
DOJ would have much preferred the Court to similarly require a factual
record suitable to a facial challenge to 441b, once the Court
un-stipulated that issue in CU itself, but I also think I see the
reasoning behind idea that the Supreme Court isn't precluded from
revisiting an issue "passed upon" by a lower court if the Supremes feel
that issue is the one that should properly decide the case.  

	    But that said, I just think that state of affairs poses an
excruciating problem for government lawyers - do they have to develop
(and convince a district court judge to allow them to develop) a factual
record sufficient to answer every conceivable constitutional argument in
every case, even where the defendant/other litigant is willing to
stipulate those issues away?  Just seems like they're damned if they do
and damned if they don't.

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