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

[Smith, Brad]

McConnell? What's this McConnell decision you speak of? ;-)


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 Paul Ryan [PRyan at campaignlegalcenter.org]
Sent: Tuesday, February 05, 2013 12:18 PM
To: Steve Hoersting; Rick Hasen
Cc: law-election at uci.edu
Subject: Re: [EL] OFA: A Shot Heard 'round the World?

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
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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<mailto: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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Stephen M. Hoersting
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