[EL] "Citizens United poised to destroy judicial impartiality"
Benjamin Barr
benjamin.barr at gmail.com
Mon Aug 5 11:12:25 PDT 2013
What's more, last I checked the electric company didn't:
- Examine whether your little greenhouse might constitute the
"functional equivalent" of electricity and turn your "major purpose" into
electricity production;
- Change its billing practices on a month-to-month or
customer-to-customer basis based on factors like "proximity of customer to
the electron's nexus";
- Demand that you hire scores of attorneys and accountants to figure out
obscure electricity pricing practices known only by a few dozen members of
a select cartel;
- Use the coercive power of the state to launch civil or criminal
investigations;
- Haul you before it for investigatory purposes with few basic
constitutional rights recognized;
- Or otherwise set up convoluted barriers to exercising a fundamental
liberty.
Forward,
Ben
On Mon, Aug 5, 2013 at 1:58 PM, Steve Klein <stephen.klein.esq at gmail.com>wrote:
> 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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> Steve Klein
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> Wyoming Liberty Group
> www.wyliberty.org
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> **Licensed to practice law in Illinois. Counsel to the Wyoming Liberty
> Group pursuant to Rule 5.5(d) of the Wyoming Rules of Professional Conduct.
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