[EL] Truth to power?
Soren Dayton
soren.dayton at gmail.com
Wed Feb 22 13:05:14 PST 2012
In 2007, Romney gave a really tough speech on Iran from Israel. You have to
try really hard to forget history to claim that Romney's position on Iran
is in any way a consequence of Adelson playing in the primary.
On Wed, Feb 22, 2012 at 3:57 PM, Frank Askin <faskin at kinoy.rutgers.edu>wrote:
> 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
> ___________________
> *Joseph E. La Rue, Esq.*
> cell: 513.509.6494
> email: joseph.e.larue at gmail.com
>
>
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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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