[EL] Truth to power?

[Joe La Rue]

Actually, at this point, I think there would have to be evidence of
corruption. The Supreme Court has ruled as a matter of law that independent
expenditures do not give rise to corruption. Therefore, it seems to me, in
the absence of proof that the Court was wrong, there can be no apparent
corruption either. Thus, the question of whether there is apparent
corruption is an invalid question in the absence of proof that corruption
is possible. So I think Jim is right: if one wants to assert that Super
PACs give rise to the appearance of corruption, one has to first
demonstrate that corruption can occur by providing evidence that it is
occurring.


Joe
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On Wed, Feb 22, 2012 at 1:45 PM, Edward Still <still at votelaw.com> wrote:

> 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
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>>>
>>>
>>>
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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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