[EL] Business Week story about DreamWorks marketing team assisting Messina (Pres. Obama's campaign manager)
Rick Hasen
rhasen at law.uci.edu
Thu Jun 14 12:27:46 PDT 2012
Absolutely. And I agree we have no idea what happened here and that
the issue of coercion is always going to be a factual question.
On 6/14/2012 12:25 PM, Joe La Rue wrote:
> Rick clarified the question, and it is exactly what I suggested it
> is. 11 CFR 114.9 describes when corporate facilities may be used for
> volunteer campaign activity by corporate employees, but it also says
> that the safe harbor is violated if the employees perform their
> "volunteer" services to a candidate or campaign because they were
> "under coercion". 11 CFR 114.9(a)(2)(ii)(C). So the question is, were
> the DreamWorks employees told by their employer to meet with Obama's
> campaign officials? If so, I think that would be an illegal
> contribution. (By the way, I'm not saying that's what happened here --
> I don't think you can really tell from the article what, exactly,
> occurred).
> Rick, please correct me if I'm wrong, but you would agree that, if a
> corporate employer told corporate employees to provide free services
> to a candidate, that would be an illegal in-kind contribution, would
> you not?
>
> 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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>
>
> On Thu, Jun 14, 2012 at 11:59 AM, Rick Hasen <rhasen at law.uci.edu
> <mailto:rhasen at law.uci.edu>> wrote:
>
> From the FEC's brochure on volunteer activity:
> http://www.fec.gov/pages/brochures/volact.shtml#corporate
>
> *I work in a corporate office. Can I conduct campaign-related
> volunteer work while at the office?*
>
> In general, if an individual provides services to a campaign
> during paid working hours, the employer is making a contribution.
> 11 CFR 100.54
> <http://edocket.access.gpo.gov/cfr_2011/janqtr/11cfr100.54.htm>.
> However, if you are an employee, stockholder or member of a
> corporation or labor organization you may use the organization’s
> facilities during paid working hours. For example, an employee
> could use the office phone to make calls pertaining to political
> volunteer work, but the activity must not interfere with the
> employee’s work or the organization’s normal activity.
>
> In order for the activity not to be counted as a contribution, the
> Commission suggests limiting the activity to "incidental use" of
> the corporate facilities. Incidental use is considered to be one
> hour a week or four hours a month. 11 CFR 114.9(a)(1) and (b)(1)
> <http://edocket.access.gpo.gov/cfr_2011/janqtr/11cfr114.9.htm>.
> If the activity exceeds incidental use or the individual uses the
> organization’s equipment to produce campaign materials, the
> individual must reimburse the organization within a commercially
> reasonable time. The reimbursement is considered a contribution
> from the individual to the political committee and must be
> reported. 11 CFR 114.9(a)(2), (b)(2) and (c)
> <http://edocket.access.gpo.gov/cfr_2011/janqtr/11cfr114.9.htm>.
>
> *Can I conduct volunteer Internet activity from my corporate office?*
>
> Yes, an individual can conduct volunteer Internet activity at work
> as long as the individual complies with the employer’s rules for
> personal use of computers and Internet access. This kind of
> activity can include anything from forwarding political emails to
> signing up to work at a candidate fundraiser. The individual must
> complete the normal amount of work for which the individual is
> paid and the activity must not increase the overhead or operating
> costs of the organization. In addition, the Internet activity
> cannot be coerced or conditioned upon being used for particular
> candidates. 11 CFR 100.94
> <http://edocket.access.gpo.gov/cfr_2011/janqtr/11cfr100.94.htm>,
> 114.9(a)(2)(ii) and (b)(2)(ii)
> <http://edocket.access.gpo.gov/cfr_2011/janqtr/11cfr114.9.htm>.
>
>
> On 6/14/2012 10:44 AM, Scarberry, Mark wrote:
>>
>> Joe,
>>
>> On your first point, all I can say is “duh.” Of course Citizens
>> United didn’t affect contribution rules; I try to make that point
>> whenever I can, so I don’t know how I could have made that mistake!
>>
>> For the rest of it, thanks for confirming what I thought was the
>> case, that if the marketing team provided services at the
>> direction of their corporate boss, then that would be considered
>> a corporate contribution.
>>
>> Thanks!
>>
>> Mark
>>
>> Mark S. Scarberry
>>
>> Professor of Law
>>
>> Pepperdine Univ. School of Law
>>
>> *From:*Joe La Rue [mailto:joseph.e.larue at gmail.com]
>> *Sent:* Thursday, June 14, 2012 10:33 AM
>> *To:* Scarberry, Mark
>> *Cc:* law-election at uci.edu <mailto:law-election at uci.edu>
>> *Subject:* Re: [EL] Business Week story about DreamWorks
>> marketing team assisting Messina (Pres. Obama's campaign manager)
>>
>> Mark,
>>
>> Even /post Citizens United/, corporations are prohibited from
>> making contributions to candidates, whether direct or in-kind.
>> /Citizens /did nothing to change that. A corporation may,
>> however, offer its services to a candidate so long as the
>> candidate pays the fair market value for the services. Employees
>> and officers of corporations are free to make contributions /up
>> to the contribution limits/, of course. But under current federal
>> law the corporation itself may not make contributions.
>>
>> So this article really raises only four questions. First, did
>> Spielberg offer advice in his private capacity or as an extension
>> of DreamWorks? (I think it would be hard to argue that he's an
>> extension of a corporation; therefore, I think his advice has to
>> be considered private). Second, does advice from one person to
>> another, offered in a private conversation, count as a
>> contribution, such that a monetary value must be attached to it
>> to determine whether one has given 'too much advice' and violated
>> the applicable contribution limit? (I don't know the answer to
>> this, not having researched it; but, I find it difficult to
>> conceive that private advice would be counted as a contribution).
>> Third, did the DreamWorks employees offer advice as private
>> individuals, or was it offered within the scope of their
>> employment? This is, I think, the key question: for, if they
>> acted within the scope of their DreamWork employment because a
>> DreamWork executive told them to do so, then this seems to be an
>> illegal in-kind contribution.
>>
>> Finally, here's another key question: why is it Democrats are so
>> worried that corporate money is going to go to SuperPACs
>> supporting Romney? Obama did quite well with donations from
>> corporate executives in 2008. Might it be because Democrats
>> realize that Obama's policies have been bad for business? And, if
>> Obama's policies are bad for business, aren't they also, by
>> extension, likely bad for job creation?
>>
>> 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>
>>
>>
>>
>> CONFIDENTIALITY NOTICE: This e-mail message, including any
>> attachments, is for the sole use of the intended recipient(s) and
>> may contain confidential and privileged information or otherwise
>> be protected by law. Any unauthorized review, use, disclosure or
>> distribution is prohibited. If you are not the intended
>> recipient, please contact the sender by reply e-mail and destroy
>> all copies of the original message.
>>
>>
>>
>> On Thu, Jun 14, 2012 at 10:14 AM, Scarberry, Mark
>> <Mark.Scarberry at pepperdine.edu
>> <mailto:Mark.Scarberry at pepperdine.edu>> wrote:
>>
>> From Business Week
>> (http://www.businessweek.com/printer/articles/30696-obamas-ceo-jim-messina-has-a-president-to-sell):
>>
>> “At DreamWorks Studios, Steven Spielberg spent three hours
>> explaining how to capture an audience’s attention and offered a
>> number of ideas that will be rolled out before Election Day. An
>> early example of Spielberg’s influence is RomneyEconomics.com, a
>> website designed by the Obama team to tell the story—a horror
>> story, by their reckoning—of Mitt Romney’s career at Bain
>> Capital. Afterward, Spielberg insisted that Messina sit down with
>> the DreamWorks marketing team. Hollywood movie studios are
>> expert, as presidential campaigns also must be, at spending huge
>> sums over a few weeks to reach and motivate millions of Americans.”
>>
>> Pre-Citizens United, would free consulting from a corporation’s
>> marketing team, at the CEO’s direction, be an illegal corporate
>> contribution? I’m not that familiar with rules about in-kind
>> contributions. Spielberg as an individual surely had the right to
>> provide free advice to Messina, without it being counted against
>> contribution limits, right? I suppose the members of the
>> DreamWorks marketing team might have volunteered as individuals,
>> rather than as a corporation’s employees, to provide these
>> consulting services, but the story suggests that they did so at
>> Spielberg’s direction.
>>
>> Mark S. Scarberry
>>
>> Professor of Law
>>
>> Pepperdine Univ. School of Law
>>
>>
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> --
> 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
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>
--
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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