[EL] Reconsidering Buckley... with OFA as the Looking Glass

[Steve Hoersting]

As many of you know, Organizing or Action (or OFA 2.0) is:

* a social welfare organization ... created for the purpose of transforming
the political topography of the United States
* to be run wholly independently of 2014's House and Senate candidates ...
while wholly controlled by the President of the United States
* to be run entirely uncoordinated with the three Democratic National party
committees ... by the head of the Democratic National Committee, President
Barack Obama.
* to achieve political aims ... using issue advocacy and unlimited
corporate money: *Politico* reports that Lockheed Martin, WalMart and Citi
are donors.

The arrival of Organizing for Action increases dramatically the timeliness
of any SCOTUS decision to reconsider *Buckley v. Valeo. *

The Court now has before it two cases that carry the possibility of
reviewing *Buckley*: *Danielcyzk* (the constitutionality of corporate
contributions, within limits, to political parties and candidates) and
*McCutcheon
*(the constitutionality of two separate aggregate contribution limits
placed on individuals. The aggregate limits are effectively an overall
limit on (LIMIT 1) the number parties and PACs that an individual, and
(LIMIT 2) candidates that an individual may associate with). (I am
co-counsel to Shaun McCutcheon).

With the advent of Organizing for Action, we are now Through the Looking
Glass on several key concepts that have underpinned *Buckley v. Valeo* and
its progeny for nearly forty years.

*The contribution/expenditure distinction. *Corporate donors will be giving
to Organizing for Action for issue advocacy. This is permissible under
campaign precedents because the funds given to Organizing for Action are
not "mere symbolic speech" given to 2014's Senate and House candidates to
foster speech of those candidates. Rather they are pooled speech of the
corporate speakers -- Lockheed, WalMart, and Citi -- to foster the messages
of Lockheed, WalMart and Citi. Yet no one really thinks the speech will be
anything more than the speech of the President, solicited against a
vigorous regulatory backdrop under extraordinary circumstances.

*The electoral advocacy/issue advocacy distinction. *Organizing for Action
will engage in issue advocacy -- *Call your Congressman...* -- with the
hope of "annihilating" the Republican Party (*see* The Hill) and restoring
Nancy Pelosi as Speaker.

*The controlled by a candidate or party committee/wholly controlled by an
outside organization distinction* The outside organization pooling funds to
run ads independent of (and uncoordinated with) the House and Senate
candidates in 2014... will be, effectively, the White House political team
in Organizing for Action. That the President happens to head the Democratic
Party doesn't matter under current precedent: The ads are not express
advocacy, even if they are reportable "electioneering communications" --
they do not trip the thresholds of "political committee" status at the FEC
or "primary purpose" at the IRS.

The question of whether the President, a federal official, "established,
financed, maintained or control[s]" Organizing for Action doesn't change
the fact that its communications are not "in connection with" federal
elections under current precedent.

*The appearance of corruption heuristic?* Well, use your imagination.

Is the High Court really going to uphold (or fail to hear) another
advantage for the possessors of America's fifty-one executive mansions --
unlimited corporate and individual money to advance political aims --
simply because the executive officials, themselves, will not face the
voters? And uphold it anti-*corruption* grounds? Isn't it time to stop the
slicing and dicing and restore the First Amendment?

On the other hand, if this isn't corruption, what is?

Whichever side you're on, if you understand the points I am making, I hope
you will build them into op-eds and place them in the near future -- *Wall
St. Journal* or* New York Times*; *National Review Online* or *The New
Republic*. The Court will decide whether to hear these two cases in early
February. If the op-eds are successful, you will have the opportunity to
make the Court aware of the OFA dynamic, and its importance, in
*amicus* briefs.
(I won't be making these points in op-eds).

I happen to believe there is a very narrow window for the Court to
reconsider *Buckley,* and current events make it is as timely as ever.
Whether you fancy yourself a follower of Thomas or Scalia, on the one hand,
or of Breyer and Kagan, on the other, reconsideration of *Buckley v.
Valeo*has never been riper.


-- 
Stephen M. Hoersting
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