[EL] WRtL, CU, and Speech Now -- Which are the source(s) of the current corporate spending practices?
Rick Hasen
rhasen at law.uci.edu
Mon Jul 9 12:35:36 PDT 2012
As I've mentioned before on this point, I disagree on whether it would
be an "easy case", especially given McConnell fn. 48. But there's no
way to resolve this question.
On 7/9/2012 12:32 PM, Smith, Brad wrote:
> But that would also be to reverse Buckley. If CU had simply followed
> Austin, holding that corporations received different treatment, then
> SpeechNow would stand.
>
> SpeechNow was going to win either way. There was no way that case lost
> at the DC Circuit, en banc. The reason we brought SpeechNow (filed
> before CU) was because it was an easy case based on Buckley.
>
> /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:* law-election-bounces at department-lists.uci.edu
> [law-election-bounces at department-lists.uci.edu] on behalf of Rick
> Hasen [rhasen at law.uci.edu]
> *Sent:* Monday, July 09, 2012 3:26 PM
> *To:* Marty Lederman
> *Cc:* law-election at uci.edu
> *Subject:* Re: [EL] WRtL, CU, and Speech Now -- Which are the
> source(s) of the current corporate spending practices?
>
> I think I counted 9 times (I'd have to go back and recheck) how many
> times the DC Circuit said that the Speechnow result flows from CU. If
> CU were reversed, on the theory that independent spending could
> corrupt or create the appearance of corruption, there would be a
> strong argument to reverse the results in Speechnow as well.
>
>
> On 7/9/2012 12:21 PM, Marty Lederman wrote:
>> Making even further sense, now, thanks!
>>
>> If I understand you, then, post-WRtL but pre-CU, corporations could
>> use treasury $$ to pay for non-express advocacy in their own name --
>> but they were reluctant to do that, because of disclosure
>> requirements. The better option was to contribute treasury funds to
>> 527s or to (c)(4)s -- but that option was fraught with peril, not
>> because of the Austin rule, but because of the uncertainty occasioned
>> by CalMed and those footnotes in McConnell that appeared to bless the
>> limits on contributions to expenditure-only PACs. That uncertainty,
>> however, cast a shadow not only on such contributions of treasury
>> funds, but also on contributions from a corporate PAC, right?
>>
>> On this theory, if I'm not mistaken, it was not so much CU that led
>> to the flood of corporate treasury spending as much as it was the
>> one-two punch of WRtL followed by SpeechNow, et al.
>>
>> Now, one could argue that without the rhetorical flourishes and broad
>> pronouncements in CU, the courts of appeals would have been reluctant
>> to rule as they did in SpeechNow, et al. But that's a more complex,
>> more speculative account, isn't it?
>>
>> Let me ask the question this way:
>>
>> If the Court were to overrule CU tomorrow, but did nothing to affect
>> WRtL and SpeechNow, then, absent further legislative action, wouldn't
>> the current floodgates for expenditure of corporate and union
>> treasury funds remain just as wide as they are now, given that
>> virtually all advocacy is nonexpress advocacy?
>>
>> On Mon, Jul 9, 2012 at 3:07 PM, Rick Hasen <rhasen at law.uci.edu
>> <mailto:rhasen at law.uci.edu>> wrote:
>>
>> If a corporation gave money to a c4, and that c4 (or 527) had the
>> major purpose of influencing federal elections (and therefore
>> should have registered as a political committee), then the
>> contribution to the c4 (or 527) would be an illegal corporate
>> contribution to a PAC. So it was fraught with legal uncertainty.
>>
>> As I point out here
>> <http://www.slate.com/articles/news_and_politics/politics/2012/03/the_supreme_court_s_citizens_united_decision_has_led_to_an_explosion_of_campaign_spending_.html>,
>> the same was true of individual contributions above $5,000 to
>> 527s before the CU blessing:
>>
>> It is true that before /Citizens United/ people could spend
>> unlimited sums on independent advertising directly supporting
>> or opposing candidates. But that money had to be spent by the
>> individual directly. It could not be given to a political
>> action committee, which had an individual contribution cap of
>> $5,000 and could not take corporate or union funding. In many
>> cases, wealthy individuals did not want to spend their own
>> money on advertising, which would say “Paid for by Sheldon
>> Adelson” or “Paid for by George Soros,” so fewer of these ads
>> were made. The only way to avoid having your name plastered
>> across every ad was to give to the 527s, which claimed they
>> could take unlimited money from individuals (including,
>> sometimes, corporate and labor union money) on grounds that
>> they were not PACs under the FEC’s definition of PACs. These
>> organizations were somewhat successful, but a legal cloud
>> always hung over them. During the 2008 Democratic primary
>> season, Bob Bauer, candidate Obama’s lawyer, barged in on a
>> pro-Hillary Clinton conference call
>> <http://electionlawblog.org/archives/010292.html> to say that
>> people giving to 527s to support Clinton could face criminal
>> liability.
>>
>> After /Citizens United/, the courts (most importantly in
>> /Speechnow.org v. FEC
>> <http://scholar.google.com/scholar_case?case=7706190082269594272&hl=en&as_sdt=2&as_vis=1&oi=scholarr>/)
>> and the FEC provided a green light for super PACs to collect
>> unlimited sums from individuals, labor unions, and
>> corporations for unlimited independent spending. The theory
>> was that, per /Citizens United/, if independent spending
>> cannot corrupt, then contributions to fund independent
>> spending cannot corrupt either. (I am quitecritical
>> <http://www.cnn.com/2012/01/09/opinion/hasen-super-pacs/index.html?eref=rss_topstories&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A%20rss%2Fcnn_topstories%20%28RSS%3A%20Top%20Stories%29>
>> of this theory about corruption
>> <http://www.slate.com/articles/news_and_politics/politics/2012/02/justice_ruth_bader_ginsburg_is_ready_to_speak_out_on_the_danger_of_super_pacs_.html>,
>> but that’s besides the point here.) So what was once of
>> questionable legality before the court’s decision was fully
>> blessed after /Citizens United/.
>>
>>
>> On 7/9/2012 12:01 PM, Marty Lederman wrote:
>>> I see. I think. Is this right?: Because WRtL was nominally
>>> only a statutory construction decision, then in the period
>>> between WRtL and CU, if a corporation wanted to spend treasury
>>> funds for /non-/express advocacy -- the only kind of advocacy
>>> anyone actually wants to use these days -- it could freely do so
>>> in its own name, or by funding a (c)(4) not registered with the
>>> FEC. But it could not, pre-CU, achieve the same thing by
>>> funding an FEC-registered committee (which it might prefer to do
>>> . . . why? less disclosure than w/r/t committees that are not
>>> FEC-registered?).
>>>
>>> If this is correct -- and please forgive me if I still have it
>>> wrong -- then the "floodgate" CU opened, over and above what was
>>> permitted by WRTL, was to allow treasury funds to be used to
>>> fund /FEC-registered/ PACs. And this, in turn, dramatically
>>> increased the amount of such funds that were expended --
>>> presumably because corporations were reluctant to fund ads when
>>> only the first two options were available post-WRtL. If that's
>>> the case, why was the addition of this third option such a
>>> sea-change?
>>>
>>>
>>> On Mon, Jul 9, 2012 at 2:49 PM, Rick Hasen <rhasen at law.uci.edu
>>> <mailto:rhasen at law.uci.edu>> wrote:
>>>
>>> If I understand correctly, everything done by a Super PAC
>>> (and other political committees registered with the FEC)
>>> counts as an IE. When done by a c4 and other outside groups
>>> not registered with the FEC, it is not an IE without express
>>> advocacy.
>>>
>>>
>>> On 7/9/2012 11:46 AM, Marty Lederman wrote:
>>>> Whoa! If I'm reading those charts correctly (and I might
>>>> not be), the vast majority of such spending has been on
>>>> independent expenditures, not electioneering
>>>> communications! And yet in all this time, I don't think
>>>> I've seen a /single /ad that uses the magic words, i.e.,
>>>> that could not have been characterized as an electioneering
>>>> communication subject to WRtL. Is this simply a matter of
>>>> self-chosen nomenclature, i.e., calling ECs "independent
>>>> expenditures" (perhaps for disclosure reasons)? Or have I
>>>> simply missed a huge outpouring of "magic words" ads that
>>>> corporations and unions were just chomping at the bit to
>>>> subsidize with treasury funds, even post-WRtL, that have
>>>> now been unleashed by virtue of CU?
>>>>
>>>> On Mon, Jul 9, 2012 at 2:14 PM, Rick Hasen
>>>> <rhasen at law.uci.edu <mailto:rhasen at law.uci.edu>> wrote:
>>>>
>>>> There was an uptick even before the change in the
>>>> disclosure rules from van Hollen. Here's a chart from
>>>> CRP data of outside spending on IEs over time:
>>>>
>>>>
>>>>
>>>>
>>>> Now here's the same chart, adding ECs on top of the IEs
>>>> in the translucent color---very little additional:
>>>>
>>>>
>>>>
>>>> On 7/9/2012 11:09 AM, Marty Lederman wrote:
>>>>> Thanks, Rick. My assumption, however, is that all or
>>>>> virtually all of the spending in question has /not/
>>>>> been used for advertising in the form of "magic
>>>>> words." Accordingly, that spending could have been
>>>>> used after WRtL, even if CU had come out the other
>>>>> way, right? And if I understand your post correctly,
>>>>> to the extent there has been an uptick in "magic
>>>>> words" independent expenditures, it might well be
>>>>> because they are subject to lesser disclosure rules
>>>>> than ECs, and not to CU.
>>>>>
>>>>> Is this correct?
>>>>>
>>>>> On Mon, Jul 9, 2012 at 1:59 PM, Rick Hasen
>>>>> <rhasen at law.uci.edu <mailto:rhasen at law.uci.edu>> wrote:
>>>>>
>>>>> I think the answer to this is complicated by the
>>>>> fact that there is now a fuller disclosure regime
>>>>> for electioneering communications than for
>>>>> independent expenditures (an ironic result of the
>>>>> van Hollen decision). But given the close timing
>>>>> of the two cases I don't think there's any way to
>>>>> tease out what kind of spending WRTL II would have
>>>>> unleashed without CU. You can see from the chart I
>>>>> sent around earlier that ECs were way up in 2008
>>>>> compared to 2004 (that is, in the period between
>>>>> WRTL and CU) but that ECs/IEs are way up over 2008
>>>>> as well.
>>>>>
>>>>>
>>>>> On 7/9/2012 10:55 AM, Marty Lederman wrote:
>>>>>> If I may repeat a question I've asked before (to
>>>>>> which I have yet to see any answer -- perhaps I'm
>>>>>> the only one who's interested!):
>>>>>>
>>>>>> To the extent spending has materially increased
>>>>>> or changed in nature in these past two or so
>>>>>> election cycles, how much of the change can be
>>>>>> chalked up to Wisconsin Right to Life rather than
>>>>>> to CU?
>>>>>>
>>>>>> That is to say: Is an appreciable amount of the
>>>>>> spending about which you're all debating being
>>>>>> expended for "magic words" advertising, or could
>>>>>> all or almost all of it have been spent after
>>>>>> WRtL, even if CU had come out the other way?
>>>>>>
>>>>>> Thanks in advance.
>>>>>>
>>>>>>
>>>>
>>>
>>> --
>>> Rick Hasen
>>> Chancellor's Professor of Law and Political Science
>>> UC Irvine School of Law
>>> 401 E. Peltason Dr., Suite 1000
>>> Irvine, CA 92697-8000
>>> 949.824.3072 <tel:949.824.3072> - office
>>> 949.824.0495 <tel:949.824.0495> - fax
>>> rhasen at law.uci.edu <mailto:rhasen at law.uci.edu>
>>> http://law.uci.edu/faculty/page1_r_hasen.html
>>> http://electionlawblog.org
>>> Pre-order The Voting Wars:http://amzn.to/y22ZTv
>>> www.thevotingwars.com <http://www.thevotingwars.com>
>>>
>>>
>>>
>>>
>>
>> --
>> Rick Hasen
>> Chancellor's Professor of Law and Political Science
>> UC Irvine School of Law
>> 401 E. Peltason Dr., Suite 1000
>> Irvine, CA 92697-8000
>> 949.824.3072 <tel:949.824.3072> - office
>> 949.824.0495 <tel:949.824.0495> - fax
>> rhasen at law.uci.edu <mailto:rhasen at law.uci.edu>
>> http://law.uci.edu/faculty/page1_r_hasen.html
>> http://electionlawblog.org
>> Pre-order The Voting Wars:http://amzn.to/y22ZTv
>> www.thevotingwars.com <http://www.thevotingwars.com>
>>
>>
>>
>>
>
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000
> 949.824.3072 - office
> 949.824.0495 - fax
> rhasen at law.uci.edu
> http://law.uci.edu/faculty/page1_r_hasen.html
> http://electionlawblog.org
> Pre-order The Voting Wars:http://amzn.to/y22ZTv
> www.thevotingwars.com
>
>
--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org
Pre-order The Voting Wars: http://amzn.to/y22ZTv
www.thevotingwars.com
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