[EL] Truth to power?
Frank Askin
faskin at kinoy.rutgers.edu
Wed Feb 22 12:57:18 PST 2012
They are both trying to please Adelson in order to gain access to the
money he has pledged to influence the outcome of the race - he has said
that might be as much as $100 million. Would they really have the same
position on Israel and Iran if they were not competing for Adelson's
support? That is unclear, but there is much evidence that Gingrich
substantially changed his position on the Middle East situation once he
began hanging out with Adelson and seeking his backing. Romney now
appears to be bending over backwards to demonstrate he is equally
supportive of Adelson's policies.
Prof. Frank Askin
Distinguished Professor of Law and Director
Constitutional Litigation Clinic
Rutgers Law School/Newark
(973) 353-5687>>> <JBoppjr at aol.com> 2/22/2012 3:51 PM >>>
If a candidate saying that he or she agrees with a donor's position on
an
issue is corruption then democracy itself is inherently corrupt. I
know
some think this. Do you? Jim Bopp
In a message dated 2/22/2012 3:12:13 P.M. Eastern Standard Time,
faskin at kinoy.rutgers.edu writes:
How much more evidence of corruption (and its appearance) do we need
than Gingrich and Romney both trying to prove to Sheldon Adelson that
they are each more supportive of the Israeli government than the
other
and more prepared to bomb Iran? FRANK
Prof. Frank Askin
Distinguished Professor of Law and Director
Constitutional Litigation Clinic
Rutgers Law School/Newark
(973) 353-5687>>> Joe La Rue <joseph.e.larue at gmail.com> 2/22/2012
2:55
PM >>>
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
> 130 Wildwood Parkway, Suite 108, PMB 304
> Birmingham AL 35209
> 205-320-2882 (voice & fax)
> still at votelaw.com
> www.votelaw.com/blog
> www.edwardstill.com
> www.linkedin.com/in/edwardstill
> <http://www.linkedin.com/in/edwardstill>
>
>
> 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-contrib
utions-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=z1Sh
eldon
Adelson says he feels so strongly he might spend $100 million.
>>>
http://www.forbes.com/sites/stevenbertoni/2012/02/21/billionaire-sheldon-ade
lson-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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