[EL] "Citizens United poised to destroy judicial impartiality"

Mon Aug 5 10:37:20 PDT 2013

True story: I had a law school roommate (great guy, this was our third
year of law school and we're all still close friends to this day) who
came to me and our other roommate one time to complain that we had
unfairly divided up the household chores.  Roommate A felt overburdened,
he explained, because in addition to doing a full share of
kitchen-cleaning and trash-taking-out and so forth, he was also
responsible for "paying the power bill."

Roommate C & I looked at each other kind of quizzically at this point,
since we divided up all the utilities three ways and we each paid a
third.  So Roommate A went on to explain that while we did all in fact
pay the same share in dollars, only he was responsible for (and I'm
pretty sure I can recall this quote verbatim): "Picking up the checks,
stuffing the envelope, putting a stamp on the envelope, putting it in
the mail, etc."  

We all had a lot of fun with that "etc." in particular over the years,
since regardless of the serious threats Roommate A faced from paper cuts
and the like in steps one through three, we're all pretty sure that
there's actually nothing else involved in paying the power bill once
you've put it in the mail.  And in sum, no matter how you count the
steps, physically paying the power bill is in fact pretty trivially
easy.  

Even easier than running a PAC.

Best,

Joe

From: Benjamin Barr [mailto:benjamin.barr at gmail.com] 
Sent: Monday, August 05, 2013 1:27 PM
To: Joseph Birkenstock
Cc: Brad Smith; Jim Bopp; Salvador Peralta; law-election at uci.edu;
joseph.e.larue at gmail.com; adam at boninlaw.com
Subject: Re: [EL] "Citizens United poised to destroy judicial
impartiality"

On that point, MCFL lists some 23 burdens related to PAC status. CU
eliminates two (corporate prohibition and solicitation). Speechnow
removes one more ($5000 limit). I still count twenty burdens (perpetual
reporting, accounting and banking methods, detailed disbursements in 12
categories, and so on). Seems like an effective speech gag for most
Americans of moderate means. 

And then again , CU actually says that even if PACs somehow resolved the
corporate ban issue , they're still burdensome as a matter of law
because they're so difficult to set up and administer. Doesn't seem like
there's much wiggle room around that. 

Forward,

Ben

Sent by my Android device. Please excuse any typographical errors.

On Aug 5, 2013 1:13 PM, "Joseph Birkenstock" <jbirkenstock at capdale.com>
wrote:

On the point about the ease of pursing the PAC option: I think it's
worth bearing in mind how much those burdens have changed in recent
years.  Before Speechnow v. FEC (i.e., under the law at the time
Citizens United was litigated), becoming a federal PAC meant complying
with a $5,000 per calendar year limit on each individual's
contributions, and sharing that side of each donor's biennial aggregate
limit with every other federal PAC & party committee.  In many states
and localities, even IE-only PACs still face at least stated
interpretations from regulators that their donors are still subject to
respective state or local PAC contribution limits.

I don't disagree that opponents of campaign finance regulation continue
to greatly overstate the burdens of creating a PAC (especially, as Adam
also points out, compared to the burdens of creating a corporation), but
too many proponents of campaign finance regulation greatly understated
those burdens for a long time too.

Best,

Joe

________________________________
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
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of
Salvador Peralta
Sent: Monday, August 05, 2013 1:01 PM
To: JBoppjr at aol.com; adam at boninlaw.com; joseph.e.larue at gmail.com
Cc: law-election at uci.edu; BSmith at law.capital.edu
Subject: Re: [EL] "Citizens United poised to destroy judicial
impartiality"

As Adam points out, Jim's argument about the "difficulties in setting up
a pac" relative to a corporation is questionable at best.  In practical
terms, the main reason to use a corporation rather than a pac is to
avoid disclosure of the actual funding sources, not because PAC's are
particularly difficult to set up.

Regarding Jim's false assertion that most reformers want people of
"average means" to spend zero on Independent Expenditures..."  It's a
strange argument, given the fact that Jim has the distinction of doing
more than just about anyone in our nation's history to ensure that, as a
percentage of total spending, people of average means have much less of
an ability to influence elections through financial contributions
(through IE's or anything else).

In 2012, as a percentage of total super pac spending, the amount spent
by people of limited means (read:  Anyone who can't afford to spend at
least $1,000) is well nigh to zero.  

The data may not track exactly to "people of ordinary means", but as the
link I sent earlier in the week shows, 98% of the money spent on Super
Pac IE's in 2012 came from the approximately 2,800 donors who spent more
than $10,000 and 60% came from donors who spent at least $1,000,000.  

http://www.demos.org/publication/election-spending-2012-post-election-an
alysis-federal-election-commission-data?key=0

Out to protect the "little guy" indeed.  

Best regards,

Sal Peralta

________________________________

From: "JBoppjr at aol.com" <JBoppjr at aol.com>
To: adam at boninlaw.com; oregon.properties at yahoo.com;
joseph.e.larue at gmail.com 
Cc: law-election at uci.edu; BSmith at law.capital.edu 
Sent: Monday, August 5, 2013 4:30 AM
Subject: Re: [EL] "Citizens United poised to destroy judicial
impartiality"

If the reformers had their way, it would be zero.  Jim Bopp

In a message dated 8/4/2013 8:50:20 A.M. Eastern Daylight Time,
adam at boninlaw.com writes:

	Which is all interesting analysis if the corporation already
exists, but not if it doesn't - a PAC doesn't require by-laws or
articles of incorporation; it doesn't have to publish its existence in
classified ads in newspapers of sufficient circulation; its tax
obligations are much easier to deal with; it does not have to have a
board of directors required to meet regularly and take minutes; etc.  

	Exactly what percentage of independent expenditures during the
2012 election were funded by "people of average means"?

	From: JBoppjr at aol.com [mailto:JBoppjr at aol.com] 
	Sent: Sunday, August 04, 2013 8:41 AM
	To: adam at boninlaw.com; oregon.properties at yahoo.com;
joseph.e.larue at gmail.com
	Cc: law-election at uci.edu; BSmith at law.capital.edu
	Subject: Re: [EL] "Citizens United poised to destroy judicial
impartiality"

	Requiring political speech to be done through a PAC creates, as
the Court in Citizens United explained, a substantial burden on speech.
As a result, there are only a few thousand corporate PACs but millions
of corporations.  Only the most wealthy and sophisticated corporations
have the wherewithall to and interest in negotiating these burdens, so
again the PAC requirement favors the wealthy and disenfranchises the
rest of us.  Jim Bopp 

	In a message dated 8/4/2013 8:24:12 A.M. Eastern Daylight Time,
adam at boninlaw.com writes:

		Fine, I'll bite: what about PACs?  If we're only talking
about people of average means, and not the 0.26% of citizens who've
given more than $200 to a congressional candidate (or 0.05% who've given
a maximum contribution), why weren't PACs already a sufficient answer to
the problem you claim existed? 

		From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of
JBoppjr at aol.com
		Sent: Sunday, August 04, 2013 7:41 AM
		To: oregon.properties at yahoo.com;
joseph.e.larue at gmail.com
		Cc: law-election at uci.edu; BSmith at law.capital.edu
		Subject: Re: [EL] "Citizens United poised to destroy
judicial impartiality"

		    Mr. Oregon.Properties, rather than accuse Joe of
being disingenuous, try for a second to substantively address his point.

		    I summarize: Rich people can spend their own money
but people of average means need to pool their resources to compete.
They do so in labor unions and corporations.  So when you limit labor
unions and corporations, you are targeting the only vehicle that people
of average means have, and not the wealthy, who can always spend their
own money without limitation.  

		    No wonder George Soros and the wealthiest
foundations fund the "reform" industry.  Jim Bopp

		In a message dated 8/4/2013 3:08:43 A.M. Eastern
Daylight Time, oregon.properties at yahoo.com writes:

			Joe - Do you have to practice in front of a
mirror to keep a straight face when you say things like that?  

http://www.demos.org/publication/election-spending-2012-post-election-an
alysis-federal-election-commission-data?key=0

			Sent from my iPhone

			On Aug 3, 2013, at 4:47 PM, Joe La Rue
<joseph.e.larue at gmail.com> wrote:

				The point of CU was to give people of
modest means like me the opportunity to join with other people of modest
means and compete with the George Soroses of the world. I can't compete
with him otherwise. Remember he can spend as much of his own money as he
wants. The only chance a little guy like me has is to associate with
other people and pool our money. CU was not about benefiting the
powerful. It was about the right to freely associate and do as an
association what rich people like George Soros can do by themselves.

				On Aug 3, 2013, at 7:15 PM, Sal Peralta
<oregon.properties at yahoo.com> wrote:

				I have not seen anyone suggest that
legislating the content or number of add is appropriate -- though many
swing state voters might appreciate it.  It seems to me that the nut of
the judge's argument takes aim at the legal fiction that IE's supporting
a candidate or tearing down their opponent cannot lead to undue
influence.  But I guess giving more influence to the powerful was also
"sort of the point" of CU.

				Sent from my iPad

				On Aug 3, 2013, at 9:56 AM, Sal Peralta
<oregon.properties at yahoo.com> wrote:

http://mediaproject.wesleyan.edu/2012/05/02/jump-in-negativity/

				Sent from my iPhone

				On Aug 3, 2013, at 9:46 AM, "Smith,
Brad" <BSmith at law.capital.edu> wrote:

				Isn't the better comparison a negative
"issue ad" to a negative "express advocacy" ad, and a positive to a
positive? 

				Is there any evidence that a higher
percentage of ads post-CU are negative, or if so, that this is because
of CU?

				To the extent we simply see more ads,
well, that was sort of the point of CU and SpeechNow. If one is arguing
that we should try to legislate fewer ads, doesn't that reveal that the
real purpose is directly to limit the quantity of speech?

				And again, none of this accounts for the
fact that in a majority of states, pre-CU, corporations could pay for
express ads, so to bring it back to my original post, I remain baffled
why so many predictions of CU are made with no recognition for what the
law, and was the results were, pre-CU.

				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: Trevor Potter
[tpotter at capdale.com]
				Sent: Saturday, August 03, 2013 3:10 PM
				To: Adam Bonin
				Cc: Smith, Brad; law-election at UCI.edu
				Subject: Re: [EL] "Citizens United
poised to destroy judicial impartiality"

				Of course, political consultants will
tell us that a "thank you" "issue ad" is not as effective as a full-
throated negative express advocacy commercial-- which is no doubt why we
see more of the latter post- Citizens United in states that prohibited
corporate funded IEs-- like Montana.

				Trevor Potter

				Sent from my iPhone

				On Aug 3, 2013, at 12:38 PM, "Adam
Bonin" <adam at boninlaw.com> wrote:

				Perhaps my favorite such example: $1.2M
in corporate-funded ads aired in the final week of Pennsylvania's 2007
election cycle encouraging voters to "thank" Judge Maureen Lally-Green,
who happened to be on the ballot for the Supreme Court. (Pre-CU, and PA
did not allow corporate contributions or independent expenditures at the
time.)  Not only did efforts to enjoin the ads fail (because the ads
contained no express advocacy), but the Commonwealth was ordered to
reimburse the sponsor for its legal fees, and the sponsor was not
required to register as a political committee.

http://www.youtube.com/watch?v=bnifj2A7Has 

http://articles.philly.com/2008-05-07/news/24989915_1_corbett-spokesman-
kevin-harley-ads-political-expenditures 

				Adam C. Bonin
				The Law Office of Adam C. Bonin
				1900 Market Street, 4th Floor
				Philadelphia, PA 19103
				(215) 864-8002
<tel:%28215%29%20864-8002>  (w)
				(215) 701-2321
<tel:%28215%29%20701-2321>  (f)
				(267) 242-5014
<tel:%28267%29%20242-5014>  (c)

				adam at boninlaw.com

				http://www.boninlaw.com
<http://www.boninlaw.com/> 

				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, August 03, 2013 2:19 PM
				To: law-election at UCI.edu
				Subject: Re: [EL] "Citizens United
poised to destroy judicial impartiality"

				What I always find odd when I read such
commentary as that of Justice Nelson (1st item below) is the sense that
this is somehow new. Is Justice Nelson unaware that prior to 2010 a
majority of states, many of which have an elected judiciary, allowed
unlimited corporate expenditures? That even in other states and
federally, corporations could fund "issue ads," in some states right up
until the election, in a few only more than some days out?  

				I can understand arguments against
Citizens United, and why people disagree with the decision, but I am
constantly baffled by what seems to be the sheer unwillingness to
consider the probable consequences of Citizens United in light of the
law prior to 2010.

				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: Saturday, August 03, 2013 1:56 PM
				To: law-election at UCI.edu
				Subject: [EL] ELB News and Commentary
8/3/13

				"Citizens United poised to destroy
judicial impartiality" <http://electionlawblog.org/?p=53956>  

				Posted on August 3, 2013 10:50 am
<http://electionlawblog.org/?p=53956>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

				Former Montana Supreme Court Justice
James C. Nelson, Supreme  who dissented (and was ultimately vindicated)
by the United States Supreme Court in ATP v. Bullock, has written this
oped f
<http://missoulian.com/news/opinion/columnists/citizens-united-poised-to
-destroy-judicial-impartiality/article_2d25e012-fab8-11e2-833b-001a4bcf8
87a.html> or the Missoulian.

				[A}ccording to the Supreme Court, while
contributions directly to a candidate breed corruption, corporate
expenditures on behalf of a candidate do not have any such corruptive
effect.

				For those living in a parallel universe
that nuance may make sense, but, in reality it is a dichotomy grounded
in utter fiction. Worse, this canard presents a clear and present danger
for the majority of states, like Montana, where voters elect their
judges and justices. Citizens United applies to judicial elections, too.
Make no mistake; its effects will dominate judicial elections.

				<image001.png>
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D53956&title=%E2%80%9CCitizens%20United%20poised%20to%20destroy
%20judicial%20impartiality%E2%80%9D&description=> 

				Posted in campaign finance
<http://electionlawblog.org/?cat=10> , judicial elections
<http://electionlawblog.org/?cat=19>  | Comments Off 

				"D.C. group not happy with how Indiana
handling complaint" <http://electionlawblog.org/?p=53953>  

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