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

Tue Aug 6 05:19:21 PDT 2013

So is getting a picture ID, but that has not stopped the same people from  
screaming about the terrible burden of getting one, which is also easier 
that  setting up and administering a PAC.  Jim Bopp

In a message dated 8/5/2013 1:43:12 P.M. Eastern Daylight Time,  
jbirkenstock at capdale.com writes:

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_ 
(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:(202)%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-analys
is-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-analys
is-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-kevi
n-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:(215)%20864-8002)  (w)
_(215) 701-2321_ (tel:(215)%20701-2321)  (f)
_(267) 242-5014_ (tel:(267)%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_2
d25e012-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://electionlawblog.org/?p=53956&title=“
Citizens%20United%20poised%20to%20destroy%20judicial%20impartiality”&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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