[EL] "Citizens United poised to destroy judicial impartiality"
Steve Klein
stephen.klein.esq at gmail.com
Mon Aug 5 10:58:15 PDT 2013
Joe,
I think it's worth considering that it's not just each step of PAC (etc.)
compliance that burdens political speech, but the fact that one wrong move
can result in civil penalties. The alternative between paying attorney
and/or accountant fees for compliance versus risking penalties when one
tries it with no expertise does not strike me as friendly toward grassroots
participation.
Unlike paying the power bill, this is political speech we're talking about.
It should be just as easy to engage than to actually vote in a federal
election.
Steve
On Mon, Aug 5, 2013 at 11:37 AM, Joseph Birkenstock <
jbirkenstock at capdale.com> wrote:
> 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
> 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-analysis-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 <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<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-analysis-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 (w)
> (215) 701-2321 (f)
> (267) 242-5014 (c)****
>
> adam at boninlaw.com****
>
> http://www.boninlaw.com****
>
> ****
>
> *From:* law-election-bounces at department-lists.uci.edu [
> mailto:law-election-bounces at department-lists.uci.edu<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-001a4bcf887a.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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