[EL] Citizens United Pushback

Sun Feb 26 07:17:31 PST 2012

Not to be too picky, but the DISCLOSE Act that was defeated in 2010 would have attempted to outlaw speech that was legal before Citizens United. So I'm not sure you can view it as a serious effort, rather than a partisan and probably unconstitutional one. (I have several theories of statutory interpretation, by the way, that I wish Courts would adopt. One is that any legislation is intended to do the opposite of what its title implies. Another is that any statute named for a person (e.g. Megan's Law") is presumptively unconstitutional. A third is that any statute with a gimmicky title developed to create an acronym is unconstitutional. Adoption of these canons would save the courts a great deal of work, and I believe the American public a great deal of bad legislation.)

Anyway, leaving aside the constitutional and other infirmities of the original DISCLOSE Act, which we were assured was "just disclosure" even though now it is implicitly admitted it was not "just disclosure," I'm not certain what it is that we seek to "fix."

If the goal is, as it seems to be, to reduce spending by increasing the administrative cost of record keeping, providing a government created list to facilitate private harassment, or raising the specter of government harassment, I think that that is an improper goal.

If the goal is to provide more information to voters by undercutting the hard won constitutional right to keep membership and donor lists of private organizations private, I think we should proceed with much greater caution. Do we really seek to throw away Talley v. California, NAACP v. Alabama, and Bates v. Arkansas so cavalierly? How great a problem is it, really, that we don't know "who is behind" Planned Parenthood or the NAACP? (Something we didn't hear many complaints about when the NAACP was running ads in 2000 suggesting that George W. Bush bore some responsibility for the death of a black man dragged to his end behind a pickup truck). Is there really much reason to believe that such information would be useful to voters? It seems to me the empirical answer is no, there is not, and in fact there is data that suggests such information is not likely to be used by voters. Is there any evidence that the knowledge of the names of individual donors to Super PACs, which are clearly disclosed, really have been helpful to voters? And is it really helpful to voters to have 10 percent or more of every ad used up by some guy saying "I'm Joe Blow, the CEO of this group, and I approved this message."?

If the goal is to have the candidate campaigns be more important in the overall picture, couldn't that more easily be done, without raising any First Amendment objections, by raising contribution limits substantially?

If the goal is to prevent evil foreigners from participating, isn't that already illegal (except where it's not already and never has been illegal, such as 100% owned U.S. subsidiaries of foreign corporations which have always been able not merely to make expenditures, but to contribute directly to candidates through PACs; or lawful permanent resident aliens, who have always been able to spend unlimited amounts; or U.S. media outlets with foreign ownership, such as the New York Times (partly owned by Carlos Slim) who can spend as much as they like)?

If the purpose is to make sure shareholders are "protected," why do shareholders always vote down these proposals? Why is openly stated purpose to make corporate political spending less effective? Isn't there something a bit disconcerting about demanding mandatory disclosure, using that disclosure to organize boycotts and protests, and then saying that corporations shouldn't make expenditures lest is lead some person - why, not us! - to organize boycotts and protests? And why did this issue of shareholder protection never surface when corporations - without shareholder votes - were making large contributions to the Brennan Center for Justice, the Reform Institute, and other vehicles of the campaign finance reform community?

In short, is the system really "a mess" in any meaningful way beyond merely calling it as a mess?

We can make some tweaks and clarifications, to be sure.

For example, while Trevor has gone on national TV and claimed that you can establish a shell corporation for the purpose of making donations to a Super PAC, I'm of the opinion that such would be an illegal contribution in the name of another. I suppose if the law isn't clear enough on that, we could make that clear.

If the goal is more timely disclosure, given that the earliest primaries now occur much earlier than when the law was written, Congress or perhaps the FEC could amend the disclosure statutes and regulations so that the first Super PAC disclosure date would fall earlier than January 31 of the election year.

If we're concerned that Super PACs are too powerful vis a vis candidates and party committees, we could, at a bare, most reasonable minimum, raise contribution limits for traditional PACs, parties, and candidate committees to account for inflation since the law was enacted 38 years ago.

But note that none of these sensible, modest efforts are under consideration in the reform community, which is fixated instead on burdening speakers with added legal requirements. The measures that are proposed are proposed for the openly stated purpose of deterring speech.

Why is that?

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Fault
   Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
614.236.6317
http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Trevor Potter [tpotter at capdale.com]
Sent: Sunday, February 26, 2012 9:11 AM
To: Mark Rush; Scarberry, Mark; law-election at uci.edu
Subject: Re: [EL] Citizens United Pushback

Well, "Congress" did "chose not to" only in the sense that a majority of both Chambers voted in favor of the Disclose Act , as provided for in the Constitution, but were unable to bring the bill to a final vote in the Senate due to a "fillibuster" by 41 Republican Snators, preventing the 59 Democratic Senators from passing the House-approved bill. So one might more accurately say it was the fault of only a certain sub-set of our elected leaders....

________________________________

From: law-election-bounces at department-lists.uci.edu on behalf of Mark Rush
Sent: Sat 2/25/2012 8:51 PM
To: Scarberry, Mark; law-election at uci.edu
Subject: Re: [EL] Citizens United Pushback

All,

Blaming the court is easy. Congress could have repaired CU. Remember
all the post CU noise from Schumer et al? But Congress chose not to.

This mess is. The fault of our elected officials.

On 2/26/12, Scarberry, Mark <Mark.Scarberry at pepperdine.edu> wrote:
> Pardon me, but Buckley gives rich people the ability to spend unlimited
> funds independently, right? It gave them the megaphone, or, more accurately,
> refused to let Congress take away the megaphone they already had.
>
> Why blame C.U.?
>
> Buckley may have been wrongly decided, but that's where we have to go, I
> think. Actually, in my view the relevant part of Buckley was correctly
> decided under the Constitution as it exists. I will listen (though with a
> very, very skeptical ear) to arguments that the Constitution should be
> amended.
>
> Mark
>
> Mark S. Scarberry
> Pepperdine Univ. School of Law
> Malibu, CA 90263
> (310)506-4667
>
> From: law-election-bounces at department-lists.uci.edu
> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Smith,
> Brad
> Sent: Saturday, February 25, 2012 3:33 PM
> To: Salvador Peralta; law-election at uci.edu
> Subject: Re: [EL] Citizens United Pushback
>
> No, Sal, that's not why.
>
>
> Bradley A. Smith
>
> Josiah H. Blackmore II/Shirley M. Nault
>
> Professor of Law
>
> Capital University Law School
>
> 303 E. Broad St.
>
> Columbus, OH 43215
>
> 614.236.6317
>
> http://law.capital.edu/faculty/bios/bsmith.aspx
>
> ________________________________
> From: Salvador Peralta [oregon.properties at yahoo.com]
> Sent: Saturday, February 25, 2012 6:24 PM
> To: Smith, Brad; law-election at uci.edu
> Subject: Re: [EL] Citizens United Pushback
> I got a tickle out of Brad's remarks bemoaning how "tendentious" things are
> on the issue of campaign finance reform while simultaneously using words
> like "xenophobic", "hysteria", "race-baiting" to characterize the people
> that disagree with him.
>
> I can't help but wonder whether Mr Smith is tossing around terms like
> "xenophobe" and "race-baiting" because doing so is easier than addressing
> concerns about the gaping holes the C.U. decision leaves open for allowing
> foreign individuals and entities that hold controlling interests in domestic
> corporations to play a determinative role in federal elections.
>
> C.U. has not given greater rise to more voices in our federal elections. At
> best, it has given a bigger megaphone to billionaires and made candidates
> far more beholden to far fewer people.
>
>

--
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Mark Rush
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