[EL] Dick Morris's foreign money claims

Mon Oct 15 10:15:18 PDT 2012

Thanks Steve - helpfully, the FEC posts its materiality thresholds from
2009-10 here: http://www.fec.gov/pdf/Audit_Procedures.pdf.

Not so helpfully, at page 5 those procedures confirm that a matter will
be addressed with respect to prohibited contributions if: 

* the dollar value of the apparent prohibited contributions is greater
than [REDACTED] of the total reported amount of contributions from
individuals (as reported on Line 11(a)(iii) of the Detailed Summary Page
of FEC Form 3)

AND

* the dollar value of the apparent prohibited contributions exceeds
[REDACTED].

So while I presume neither one of us knows the actual figures behind
those redactions (I sure don't, but I'd love to), it does appear that
(1) at least as of two years ago, the relevant materiality threshold
involved both a proportional test and an absolute dollar test; and that
(2) those foreign contribution issues, if any, that were identified in
the audit of the 2008 Obama campaign fell below either or both of those
tests.

OTOH, the same document also explains that: 

Any matter, whether or not it meets the materiality threshold for
inclusion in the interim

audit report or referral to the Office of General Counsel, can still be
referred to OGC if the

auditor suspects there is a Knowing and Willful Violation of the Act (2
U.S.c. 437g (a)(5)

and (d)).

(Emphasis added.)  So if there had been a reasonable suspicion that the
Obama campaign was knowingly participating in a scheme to raise foreign
money through unitemized credit card contributions, Audit could have -
and in my experience, undoubtedly would have - referred that issue for
further enforcement attention regardless of the proportion or absolute
amount of money involved.  

So especially on that basis, I just don't see the double standard - but
I do recognize that "failure to condemn [manufactured outrage du jour]"
is a time-honored and perfectly valid political tactic and I wish you
well with it.

Best,

Joe

From: Steve Hoersting [mailto:hoersting at gmail.com] 
Sent: Monday, October 15, 2012 12:30 PM
To: Joseph Birkenstock
Cc: law-election at uci.edu
Subject: Re: [EL] Dick Morris's foreign money claims

Joe,

I really don't know much about how to beef up audits or about the
findings in 2008. But among the few things I know are these:

There is such a thing as a materiality threshold in pursuing repayment
or denoting problems in a Presidential campaign audit.  What amount
constitutes a "material" violation on $.75B in overall activity?  $2M?
$3M? More?

There is much to be pursued by journalists and reformers in the
allegations as they stand now: the reported profile of the owner of the
website, the site's reported target audience, that the site redirects to
the donate page of an authorized committee.

That these questions aren't being pursued by journalists or reformers
vigorously, let alone at all -- how to put it? -- "meets the materiality
threshold" for double standards?

Steve

On Mon, Oct 15, 2012 at 11:02 AM, Joseph Birkenstock
<jbirkenstock at capdale.com> wrote:

Steve - serious question: if foreign credit card contributions to the
Obama campaign really are a serious problem, why weren't any violations
identifed in the FEC's audit of the 2008 campaign?  (Rick links below to
his blog post on the subject from April of this year, and - as I'm sure
you already know - the report itself is available here:
http://www.fec.gov/audits/2008/Obama_for_America/FinalAuditReportoftheCo
mmission1206263.pdf.)

We know the auditors saw much more detailed information about Obama's
unitemized contributions than is available to the public via FEC reports
- so are you suggesting that there's more to these allegations now than
there was the last time we saw this movie?  (And if so, what is it?)

Or are you suggesting that the FEC's audit process needs to be beefed
up? (And if so, how?)

________________________________
Joseph M. Birkenstock, Esq.
Caplin & Drysdale, Chtd.
One Thomas Circle, NW
Washington, DC 20005
(202) 862-7836 <tel:%28202%29%20862-7836> 
www.capdale.com/jbirkenstock
*also admitted to practice in CA

________________________________

From: law-election-bounces at department-lists.uci.edu on behalf of Steve
Hoersting
Sent: Mon 10/15/2012 10:46 AM

To: law-election at uci.edu
Subject: [EL] Dick Morris's foreign money claims

Rick,

1. Are you calling for enhanced disclosure of contributions to
authorized committees? -- because that is the allegation here. My memory
is you're for enhanced disclosure of social welfare organizations and
for removing the regulation at issue in Van Hollen v. FEC.

2. Things are evolving quickly. Is the GAI report evolving as quickly?
Are you or others at, say, Politico, interested at all in the fact that
the website Obama.com -- purportedly owned by a third-party and
distributed throughout the world -- goes straight to the DONATE page at
Obama Victory?

3. So, there is no "journalist[ic]" interest in "sensationalism," eh?
Sticking to campaign finance and not Lindsay Lohan, I saw Palin's
campaign-wardrobe budget lead the news for a full weekend one year. I
saw sensationalism drive the news cycle for three days in October 2010:
"The Chamber is using foreign money."

I think someone needs to yawn, grab another mug of coffee and get about
the business of exposing Morris and Breitbart for the hacks they really
are.  Easy enough to do, I'm sure...

...and so much more in keeping with the mission of the reform
organizations and the bent of the nation's editorial boards.

All the best,

Steve

On Mon, Oct 15, 2012 at 10:24 AM, Rick Hasen <rhasen at law.uci.edu> wrote:

        Steve,
        Three things.
        1. I hope you will join me in supporting enhanced disclosure
laws to ensure that foreign money is not secretly flowing into our
elections.

        2. I believe the reason you don't see a lot of discussion of
this on the editorial pages is that there's really nothing new in the
GAI report.  Here's what I wrote about it in a recent Slate column
<http://www.slate.com/articles/news_and_politics/politics/2012/10/will_r
epublicans_accept_if_barack_obama_defeats_mitt_romney_.html> :

                This week features what conservative
<http://www.powerlineblog.com/archives/2012/10/dubious-donations-peter-s
chweizer-speaks.php>  blogs are touting
<http://hotair.com/archives/2012/10/08/obama-bundler-tied-to-chinese-gov
ernment/>  as an "explosive" new report
<http://campaignfundingrisks.com/wp-content/themes/cfr/images/AmericaThe
Vulnerable.pdf>  suggesting that the Obama campaign is illegally
accepting massive foreign contributions via credit card. The so-called
proof comes from a number of foreign visits to the Obama campaign
website, the lack of any federal requirement to publicly disclose
contributions from individuals who give less than $200 overall, and the
Obama campaign's supposed failure to use credit card verification tools
to make sure the contributions are coming from inside the United States.

                Never mind that the Obama campaign has denied similar
reports in the past and has confirmed
<http://electionlawblog.org/?p=33935>  it does use the verification
tools; that an extensive Federal Election Commission audit of the 2008
Obama campaign found no evidence <http://electionlawblog.org/?p=33193>
of illegal foreign contributions; that foreign visits to the website
does not mean that foreign contributions are being made; and that U.S.
citizens (including those in the military) living abroad have the right
to contribute to federal campaigns. The claims are a way to delegitimize
the Obama campaign, even as Republican leaders in Congress stymie
efforts to fix our broken disclosure laws
<http://www.slate.com/articles/news_and_politics/jurisprudence/2012/07/c
ampaign_finance_after_citizens_united_is_worse_than_watergate_.html>
and argue for less disclosure of campaign finance information.

        3. Dick Morris lacks fundamental credibility with journalists
and others.  So his sensationalism won't bring attention to an important
issue.  In fact, it will convince journalists to ignore the issue.
        Rick

        On 10/15/12 7:14 AM, Steve Hoersting wrote:

http://www.dickmorris.com/is-obama-running-on-foreign-money-dick-morris-
tv-video-alert/

                We often argue about corruption -- what makes up
corruption, what kinds of corruption matter, and which do not.

                Given Judge Kavanaugh's discussion in Bluman, I get the
feeling that this matter -- yet to be proved or discredited in any news
outlet I follow -- would far outrank unlimited IEs by the local Right to
Life, the US Chamber or even the dreaded Kochs.

                If we do not see meaningful discussion of this issue
here and in the editorial pages, will it be fair to conclude, as many
have surmised, that campaign-finance purists are campaign-finance
instrumentalists or partisans?

                Or is the relative silence just more evidence that
retribution, or the prospect of it, is real?

                --
                Stephen M. Hoersting

                _______________________________________________
                Law-election mailing list
                Law-election at department-lists.uci.edu

http://department-lists.uci.edu/mailman/listinfo/law-election

        --
        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 <http://electionlawblog.org/>

        Now available: The Voting Wars: http://amzn.to/y22ZTv

--
Stephen M. Hoersting

--
Stephen M. Hoersting

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