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

Mon Aug 5 16:32:17 PDT 2013

Joe:

I truly don't understand what this has to do with Citizens United.  If you (or I) wanted to get together with a friend (or friends) of similarly modest means to try to influence an election, realistically our only choice would be to contribute to another entity (typically a PAC) that would pool the money of a whole lot more people to make an expenditure that could have some meaningful impact.  If that entity were an ideological nonprofit corporation such as one of the ones you mentioned in an earlier email, it was already exempt from the corporate restriction under MCFL.  I can understand that you don't like any regulation requiring the registration and filing of disclosure reports, but how exactly did Citizens United help you and your friend make your modest pooled expenditures that you could not have done before?  Were you planning on making a contribution to Exxon in order for you to participate in the political process?

Fredric D. Woocher
Strumwasser & Woocher LLP

Sent from my IPad

On Aug 5, 2013, at 1:11 PM, "Joe La Rue" <joseph.e.larue at gmail.com<mailto:joseph.e.larue at gmail.com>> wrote:

Laying aside the question regarding why an association of like-minded people should have to register with the government before they engage in political speech, setting up a PAC may or may not be difficult, depending on one's viewpoint. But maintaining the PAC is quite difficult. If you haven't had to jump through the PAC maintanence hoops, you should read pages 897 and 898 of the Citizens United opinion. There, Justice Kennedy explained some of what's involved, and why it is fairly called "burdensome and onerous."

This leads me to what I think is an important question: why should two people of average means who want to pool their money have to jump through those types of "burdesome and onerous" hoops just to be able to pay for a political advertisement, if they are not coordinating with a candidate? The net effect of those laws is to make it so that people like me cannot easily participate in the process. It may be that, as Sal claims, there aren't many people like me taking advantage of the freedom of speech the Citizens United Court recognized. I don't know; I haven't looked at the research. But at least now we can if we want to, and the ability to speak to large audiences about elections is no longer limited to the super wealthy. And that, in my mind, is a good thing.

Joe
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On Mon, Aug 5, 2013 at 10:01 AM, Salvador Peralta <oregon.properties at yahoo.com<mailto:oregon.properties at yahoo.com>> wrote:
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<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
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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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