[EL] Real Truth About Obama & Jim Bopp
JBoppjr at aol.com
JBoppjr at aol.com
Wed Jun 13 06:14:43 PDT 2012
Of course, low contribution limits are the root cause of much of
independent spending. Many people and groups want to spend much more to help
candidates, would like to give them to candidates, but cannot because of low
contribution limits.
When I say low contribution limits, I am referring to the current
$2500 per election. But "reformers" have wanted to make them much lower, like
Vermont's $400 per election cycle for Governor, that was struck down 6 to 3
in Randall. Yes we got Breyer's vote too. Fortunately, Randall has set a
floor.
But I just don't understand why people complain about independent
spending, complain about how this marginalizes candidates, complain about how
much time it takes candidate's to fundraise and then like low contribution
limits that cause all this. And don't tell me it is to prevent quid-pro-quo
corruption. You cannot even buy a Democrat congressman for $2,500. The
anecdotal evidence is $99,000 in cold hard cash (Jefferson). For a
Republican, it is $140,000 (Cunningham).
If we had more reasonable contribution limits, more money would flow
to candidates and our system would be more transparent, more accountable and
more efficient.
And about the fact that there have been few cases since Randall, the
reasons are (1) the steam went out of the campaign to lower contribution
limits because of Randall, (2) some states have raised their limits, as the
feds did, and (3) it is way easier to turn to independent spending than bring
a law suit, if you have the resources to put it together. So just like
all of the "reforms," persons of average means are stuck with low
contribution limits and successful groups, that are a vehicle for people of average
means but are the ones under attack by the "reformers," and rich people can
get around them. Jim Bopp
In a message dated 6/12/2012 9:24:20 P.M. Eastern Daylight Time,
BSmith at law.capital.edu writes:
I think Randall has not been used more because of the dynamics of
litigation. If a state passes a new, low limit – like in Randall itself, or in NYC
per Joe’s case, it is not that hard for a donor to argue that the limit is
too low. The result of striking down such a limit is a return to the old
limit, so it becomes pretty clear what the plaintiff wants. But suppose the
plaintiff wants to argue that a state’s long existing limit is too low.
Unless the plaintiff seeks to challenge Buckley on contribution limits
generally – which of course is a Buckley challenge, not a Randall case – the
plaintiff has to essentially ask the Court to strike all limits in the state, or
ask the court to set a limit. Since the former makes the case – again – a
Buckley challenge, at least in appearance, courts will be reluctant to
take that step. But nor do courts want to themselves determine an appropriate
limit. They are not cut out institutionally for it. So Randall challenges
don’t look appealing.
Further, with Emily’s List, SpeechNow.org, and Carey making it so much
easier to do independent spending, donors who want to do more have less reason
to challenge a low contribution limit. At this point, contribution limits
are much less a problem for free speech than many other rules.
That said, Randall is barely six years old. It lays out a very important
marker. I suspect it’s day will come.
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
Professor of Law
Capital University Law School
303 East Broad Street
Columbus, OH 43215
(614) 236-6317
_bsmith at law.capital.edu_ (mailto:bsmith at law.capital.edu)
_http://www.law.capital.edu/faculty/bios/bsmith.asp_
(http://www.law.capital.edu/faculty/bios/bsmith.asp)
From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Joe La Rue
Sent: Tuesday, June 12, 2012 6:15 PM
To: Rick Hasen
Cc: law-election at uci.edu
Subject: Re: [EL] Real Truth About Obama & Jim Bopp
Rick,
You are right: there have been no decisions since Randall striking limits
as "too low," though a couple have struck contribution bans (the Second
Circuit Green Party decision and the Colorado Supreme Court Dallman decision
come to mind, and there may be others). However, Jim and I have put to the
Supreme Court the question whether NYC's special, low contribution limits
for those with "business-dealings" with the City are unconstitutional where
(1) they are below the level at issue in Randall; (2) the City has
manifested its judgment that contributions up to much higher, Regular Limits are
not corrupting; and (3) there has not been any record evidence of
quid-pro-quo corruption in NYC since the Regular Limits were instituted in 1988. The
case is set for conference on June 21 and I'm hopeful the Court will take
it.
But, as of right now, to my knowledge you're right: Randall is in a class
by itself.
Joe
___________________
Joseph E. La Rue
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On Tue, Jun 12, 2012 at 3:03 PM, Rick Hasen <_rhasen at law.uci.edu_
(mailto:rhasen at law.uci.edu) > wrote:
I meant no disrespect to Jim at all. As I wrote last week on the
listserv, he's an excellent lawyer, and the reason he is losing all these cases is
because of the strength of the arguments on the other side.
Randall itself is kind of interesting----as you know, when you and I
litigated on both sides of the San Diego Thalheimer litigation, it does not
appear that there is a single case since Randall in which a court has struck
down a campaign contribution limit as too low. Or at least I could not find
or recall one. Are there any? Many?
But there is no question Jim has had a profound impact on campaign finance
law in this country.
On 6/12/12 2:59 PM, Joe La Rue wrote:
Rick,
You wrote, "The courts, especially since Citizens United blew away
campaign finance limits, seem much more apt to uphold broad disclosure rules."
You're right that courts are upholding "broad disclosure rules," including
some instances where unconstitutional PAC-style registration and reporting
burdens have simply been re-branded "disclosure" by Government and then
upheld by the courts. But Citizens did not "blow away campaign finance limits."
Individuals were always free to spend as much as they wanted independently
of candidates. All Citizens did was recognize that prior precedent required
that right be extended to all who want to speak independently of
candidates, including labor unions (and you thought I was going to say
"corporations").
As for Jim Bopp, I've worked with him and know him as an attorney pretty
well. He's got the tenacity of a bulldog and the patience of Job. Remember,
as various progressives warned us, he's got a TEN!!! YEAR!!! PLAN!!!
(Horror of Horrors!), and we're barely two years into it.
_http://www.commoncause.org/atf/cf/%7BFB3C17E2-CDD1-4DF6-92BE-BD4429893665%7D/Boppreport.pdf_
(http://www.commoncause.org/atf/cf/{FB3C17E2-CDD1-4DF6-92BE-BD4429893665}/Bopprepor
t.pdf) ;
_http://www.brennancenter.org/blog/archives/doe_v._reed_bopp_v._scalia_
(http://www.brennancenter.org/blog/archives/doe_v._reed_bopp_v._scalia) . Once upon a time, everyone thought no contribution limit could be
too low, and then came Randall v. Sorrell. And of course, once upon a time
everyone thought Government could ban every communication that mentioned a
candidate during the electioneering communication blackout period, and then
came Wisconsin Right to Life. I won't be at all surprised when the Court
grants cert to one of Jim's cases and clarifies it meant what it said about
the Major Purpose Test.
Joe
___________________
Joseph E. La Rue
cell: _480.272.2715_ (tel:480.272.2715)
email: _joseph.e.larue at gmail.com_ (mailto:joseph.e.larue at gmail.com)
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--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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