[EL] Truth to power?

Wed Feb 22 10:45:08 PST 2012

Isn't the proper question whether there is "appearance of corruption" when
a donor gives to a Super PAC?

Edward Still
Edward Still Law Firm LLC
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On Wed, Feb 22, 2012 at 12:17 PM, <JBoppjr at aol.com> wrote:

> **
> 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> 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-are-the-power-players-in-the-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
>> 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=z1Sheldon 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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