[EL] threshold for regulation

Mon Aug 5 13:00:03 PDT 2013

Joe has a good suggestion:  "In my view, spending a meaningful amount of money (let's call it greater than $10,000 per year) on politics should entail some responsibility to protect our system of democratic accountability from undue financial influence. "

$10,000, that's a good start.  It's $1,000 now and has been that way since I think 1974.  That is absurd.  No election will have undue influence from some group of people spending $1000.  In today's money that $1000 is worth nearly $5,000 today, not that $5,000 is the right number.  I think that is still too low.

Certainly spending even $10,000 is a pittance in a major state, or even a single district.  I'd make it $50,000 at least for a statewide race and at least $25,000 for a congressional race.

If it is less than that, let people speak and pool their money and not worry about filing all these reports.  Many who speak out for the first time have no clue it requires registration, reporting and a lawyer to help you figure out if you are conducting express advocacy or not.   Heck the FEC can't even agree on what is or is not express advocacy.

While they are at adjusting these too low amounts, they should change the $200 for public disclosure to $1000 to encourage small donors and raise the IE reporting triggers.  Why a 24 hour report needs to be filed for each $1000 IE is beyond me.  All that does is cause people to accidentally violate the law.

After fixing the many too low amounts, they should be indexed.

David
_________________________________________________
David Keating | President | Center for Competitive Politics
124 S. West Street, Suite 201 | Alexandria, VA 22314
703-894-6799 (direct) | 703-894-6800 | 703-894-6811 Fax
www.campaignfreedom.org

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Joseph Birkenstock
Sent: Monday, August 05, 2013 2:18 PM
To: Steve Klein
Cc: law-election at UCI.EDU; Salvador at department-lists.nacs.uci.edu
Subject: Re: [EL] "Citizens United poised to destroy judicial impartiality"

Interesting: so if I follow correctly, Steve, we should impose a photo ID requirement on starting a PAC, or on spending money on politics?  (Would the state supply those IDs, or would they be only for those with the time & availability to go obtain one from the DMV?)

But in a less glib response: I take your point, but our disagreement is certainly broader than how meaningfully we can or should burden the exercise of any of these rights.  In my view, spending a meaningful amount of money (let's call it greater than $10,000 per year) on politics should entail some responsibility to protect our system of democratic accountability from undue financial influence.  Clear lines are arbitrary, and general principles are vague, though, making any rules around those responsibilities increasingly easy to attack and hard to defend.

That said, I do worry that we're losing the baby with the bathwater here; and that the conservative attack on representative government is going to leave all of our lives more governed, not less, and by institutions with less accountability, not more.  Sure hope I'm wrong, though.

Best,
Joe

From: Steve Klein [mailto:stephen.klein.esq at gmail.com]
Sent: Monday, August 05, 2013 1:58 PM
To: Joseph Birkenstock
Cc: Benjamin Barr; Salvador at department-lists.nacs.uci.edu; law-election at uci.edu
Subject: Re: [EL] "Citizens United poised to destroy judicial impartiality"

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<mailto: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<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<mailto:law-election at uci.edu>; joseph.e.larue at gmail.com<mailto:joseph.e.larue at gmail.com>; adam at boninlaw.com<mailto: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<mailto: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<http://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> [mailto: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<mailto:JBoppjr at aol.com>; adam at boninlaw.com<mailto:adam at boninlaw.com>; joseph.e.larue at gmail.com<mailto:joseph.e.larue at gmail.com>
Cc: law-election at uci.edu<mailto:law-election at uci.edu>; BSmith at law.capital.edu<mailto: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<mailto:JBoppjr at aol.com>" <JBoppjr at aol.com<mailto:JBoppjr at aol.com>>
To: adam at boninlaw.com<mailto:adam at boninlaw.com>; oregon.properties at yahoo.com<mailto:oregon.properties at yahoo.com>; joseph.e.larue at gmail.com<mailto:joseph.e.larue at gmail.com>
Cc: law-election at uci.edu<mailto:law-election at uci.edu>; BSmith at law.capital.edu<mailto: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<mailto: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> [mailto:JBoppjr at aol.com]
Sent: Sunday, August 04, 2013 8:41 AM
To: adam at boninlaw.com<mailto:adam at boninlaw.com>; oregon.properties at yahoo.com<mailto:oregon.properties at yahoo.com>; joseph.e.larue at gmail.com<mailto:joseph.e.larue at gmail.com>
Cc: law-election at uci.edu<mailto:law-election at uci.edu>; BSmith at law.capital.edu<mailto: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<mailto: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> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of JBoppjr at aol.com<mailto:JBoppjr at aol.com>
Sent: Sunday, August 04, 2013 7:41 AM
To: oregon.properties at yahoo.com<mailto:oregon.properties at yahoo.com>; joseph.e.larue at gmail.com<mailto:joseph.e.larue at gmail.com>
Cc: law-election at uci.edu<mailto:law-election at uci.edu>; BSmith at law.capital.edu<mailto: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<mailto: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<mailto: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<mailto: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<mailto: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<mailto: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<tel:614.236.6317>
http://law.capital.edu/faculty/bios/bsmith.aspx
________________________________
From: Trevor Potter [tpotter at capdale.com<mailto:tpotter at capdale.com>]
Sent: Saturday, August 03, 2013 3:10 PM
To: Adam Bonin
Cc: Smith, Brad; law-election at UCI.edu<mailto: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<mailto: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<mailto: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> [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<mailto: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<tel:614.236.6317>
http://law.capital.edu/faculty/bios/bsmith.aspx
________________________________
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<mailto:law-election-bounces at department-lists.uci.edu>] on behalf of Rick Hasen [rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>]
Sent: Saturday, August 03, 2013 1:56 PM
To: law-election at UCI.edu<mailto: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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