[EL] OFA: A Shot Heard 'round the World?

Tue Feb 5 09:38:57 PST 2013

Paul, thanks for a thorough and thoughtful reply.

I don't believe the Court will, any longer, resolve the tension between OFA
and the party-committee soft money ban by indicating that Congress may ban
officeholder participation in unlimited and unrestricted funding for issue
advocacy.

To date, I only have my educated guess to fall back upon; as do you in the
opposite direction. One of us will be incorrect, of course, with the
passing of time; perhaps sooner rather than later if the Court takes up
these pending cases.

Best,

Steve

On Tue, Feb 5, 2013 at 12:18 PM, Paul Ryan <PRyan at campaignlegalcenter.org>wrote:

> Steve,****
>
> ** **
>
> You wrote: “I mean to suggest with this latest post the following: Because
> OFA unquestionably may proceed under the First Amendment . . . .”  I
> respectfully do question whether the First Amendment requires that a
> federal officeholder such as President Obama be permitted to raise
> unlimited funds for an organization such as OFA.****
>
> ** **
>
> Indeed, the Supreme Court stated in *McConnell* that funds being
> solicited by parties and candidates/officeholders may be limited
> “regardless of the ends to which those funds are ultimately put.”  With
> regard to candidates/officeholders, the Court explained: “No party
> seriously questions the constitutionality of §  323(e)'s general ban on
> donations of soft money made directly to federal candidates and
> officeholders, their agents, or entities established or controlled by
> them.  Even on the narrowest reading of *Buckley,* a regulation
> restricting donations to a federal candidate, *regardless of the ends to
> which those funds are ultimately put*, qualifies as a contribution limit
> subject to less rigorous scrutiny.  Such donations have only marginal
> speech and associational value, but at the same time pose a substantial
> threat of corruption.  By severing the most direct link between the
> soft-money donor and the federal candidate, §  323(e)'s ban on donations of
> soft money is closely drawn to prevent the corruption or the appearance of
> corruption of federal candidates and officeholders.”  540 U.S. at 182
> (emphasis added).****
>
> ** **
>
> With regard to parties, the Court explained: “Given this close connection
> and alignment of interests, large soft-money contributions to national
> parties are likely to create actual or apparent indebtedness on the part of
> federal officeholders, *regardless of how those funds are ultimately used*.”
> 540 U.S. at 155 (emphasis added).****
>
> ** **
>
> When it comes to OFA and the President, one question is whether there’s a
> statute that prohibits the planned activities.  BCRA’s soft money ban
> applies to funds raised or spent “in connection with an election” and OFA
> has indicated that it won’t be involved in elections.  Another question
> entirely is whether, consistent with the First Amendment, Congress may pass
> a law expanding the scope of the soft money ban to include funds raised for
> activities beyond elections.  You may think not, but the *McConnell*Court’s reasoning suggests such an expansion of the soft money ban may very
> well be constitutionally permissible.****
>
> ** **
>
> Best,****
>
> ** **
>
> Paul Seamus Ryan****
>
> Senior Counsel****
>
> The Campaign Legal Center****
>
> 215 E Street NE****
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>
> *From:* law-election-bounces at department-lists.uci.edu [mailto:
> law-election-bounces at department-lists.uci.edu] *On Behalf Of *Steve
> Hoersting
> *Sent:* Tuesday, February 05, 2013 11:14 AM
> *To:* Rick Hasen
> *Cc:* law-election at uci.edu
> *Subject:* Re: [EL] OFA: A Shot Heard 'round the World?****
>
> ** **
>
> I don't mean to suggest the Reformers have not criticized this
> development, Rick. They have, and have their kept their integrity on these
> issues. An earlier post of mine -- "Organizing for Action means its
> over..." -- was an Ode to Fred Wertheimer, of sorts; an olive branch in
> hopes of arriving at a common understanding.****
>
> ** **
>
> I mean to suggest with this latest post the following: Because OFA
> unquestionably may proceed under the First Amendment, all the while
> carrying the potential to offer policy favors to donors through its leader,
> President Obama, the *quid pro quo* formulation underpinning the party
> committee soft money ban in *McConnell*, as well as the *quid pro quo*formulation that limits contributions to candidates -- who, through
> election, may one day obtain the same power to grant policy favors as the
> President -- is now in real trouble. Or, ought to be, anyway.****
>
> ** **
>
> This dynamic is now plain as day: Nothing clarifies the jurisprudence in
> this area quite like the launch of OFA can.****
>
> ** **
>
> My hope that more people will write about it -- indeed, that they are
> polishing drafts as I type this response -- in addition to Fred and you is
> a measure of how profound an effect on jurisprudence I think the OFA
> development really is.****
>
> ** **
>
> All the best,****
>
> ** **
>
> Steve****
>
> ** **
>
> On Tue, Feb 5, 2013 at 10:51 AM, Rick Hasen <rhasen at law.uci.edu> wrote:***
> *
>
> Steve,
> Your piece seems to suggest that those supporting campaign finance reform
> have not criticized OFA and that the criticisms have gotten no support in
> the media.  I do not believe this is correct.  See, for example, the strong
> statement of Fred Wertheimer here:
>
> http://www.democracy21.org/index.asp?Type=B_PR&SEC=
> {91FCB139-CC82-4DDD-AE4E-3A81E6427C7F}&DE={DDF1330F-89EB-4A64-8CDC-DDF559325F4F}
>
> You can also see critical statements from Fred, Paul Ryan of the Campaign
> Legal Center, and from me in the recent Politico piece:
>
>
> http://dyn.politico.com/printstory.cfm?uuid=A842EE4B-ABD2-472F-84FE-88CC580A7480
>
> ****
>
> This is unprecedented as far as I know,” said Democracy 21’s Fred
> Wertheimer, a longtime advocate of tighter campaign finance laws. “It’s
> directly tied to the president and they have said the president could raise
> money for it. … It’s a vehicle for people looking to buy influence to
> provide direct financial benefits to support the president’s interests.”**
> **
>
> “It has all the earmarks of an institutionalized disaster,” Wertheimer
> said. “They ought to shut this down and they ought to shut it down quickly
> because, regardless of what their intentions were or are, this is nothing
> but trouble and will be extremely damaging to the administration and to the
> president over time.”****
>
> “The notion that Obama would be involved with OFA’s fundraising is very
> troubling and amounts largely to a retreat from the position President
> Obama has taken throughout the entirety of his public life. … to reduce the
> influence of money in politics,” said Paul Ryan of the Campaign Legal
> Center.****
>
> “Unless the group discloses in the same way disclosure is required of
> super PACs for purposes of federal election-related activity, it would not
> only be hypocritical of the president, it would be damaging,” said Rick
> Hasen, a professor of election law at the University of California-Irvine.
> ****
>
> ** **
>
> On 2/5/2013 6:46 AM, Steve Hoersting wrote:****
>
> As a matter of jurisprudence, the advent of Organizing for Action
> clarifies like nothing else can.
>
> http://rightsolutions.org/2013/02/05/ofa-a-shot-heard-round-the-world/
>
> --
> Stephen M. Hoersting
>
> ****
>
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> ** **
>
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000
> 949.824.3072 - office
> 949.824.0495 - fax
> rhasen at law.uci.edu
> http://law.uci.edu/faculty/page1_r_hasen.html
> http://electionlawblog.org****
>
>
>
> ****
>
> ** **
>
> --
> Stephen M. Hoersting****
>

-- 
Stephen M. Hoersting
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