[EL] Truth to power?
JBoppjr at aol.com
JBoppjr at aol.com
Wed Feb 22 10:17:19 PST 2012
What is the evidence of any quid-pro-quo exchange between a donor to a
super PAC and a candidate? Jim Bopp
In a message dated 2/22/2012 12:05:46 P.M. Eastern Standard Time,
jeffhauser at gmail.com writes:
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_
(mailto: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_ (mailto: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) [mailto:_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_ (mailto: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-are-the-power-players-in-the
-gop-primary/2012/02/21/gIQAPU3BSR_story.html?hpid=z1_
(http://www.washingtonpost.com/politics/super-pac-donors-revealed-who-are-the-power-players-in-th
e-gop-primary/2012/02/21/gIQAPU3BSR_story.html?hpid=z1) >
_http://www.washingtonpost.com/politics/corporations-are-sending-more-contributions-to-super-
pacs/2012/02/02/gIQAL4dYlQ_story.html_
(http://www.washingtonpost.com/politics/corporations-are-sending-more-contributions-to-super-pacs/2012/02/02/gIQA
L4dYlQ_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?hpid=z1_
(http://www.washingtonpost.com/politics/super-pac-donors-revealed-who-are-the-power-players-in-the
-gop-primary/2012/02/21/gIQAPU3BSR_story.html?hpid=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/_
(http://www.forbes.com/sites/stevenbertoni/2012/02/21/billionaire-sheldon-adelson-says-he-might-give-100m-t
o-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
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>
_bzall at aol.com_ (mailto: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_ (mailto: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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