[EL] Civic Courage, Indeed

Tue Nov 19 16:35:54 PST 2013

Trevor,

You have heard, I am sure, that some campaign-finance watchers think the
Court should reconsider the contribution/expenditure distinction? Yes? I
thought so.

With that background in mind, I am saying the following and little more:
The facts on the ground in Wisconsin -- and they're only sounding worse as
we read more -- show that now is as good a time as any for the Court to
reconsider the distinction. The question is with the Court in McCutcheon.
The Court should take it up. The dawn raids in Wisconsin (and Ken Gross's
recent citing of a criminal coordination prosecution out of DOJ; a new
development) only go to show why reconsideration is timely.

Best regards,

Steve

On Tue, Nov 19, 2013 at 12:08 PM, Trevor Potter <tpotter at capdale.com> wrote:

>  I have the sense that Steve is suggesting that the Supreme Court
> presented a poisoned chalice in Citizens United when it stated that because
> independent expenditures are independent of candidates and political
> parties, they  cannot corrupt , and therefore cannot be limited by the
> government (unless they are by sources we do not like in US elections, such
> as some foreigners) . The poisoning comes from the fact that the Court
> conditions this finding on the lack of coordination—going back to Buckley,
> the Court has variously referred to such expenditures as “wholly”,
> totally”, and “completely” independent of candidates and political parties.
> But as 2012 made clear, that is not how many such “independent expenditure”
> groups have actually operated in federal elections: they have been created
> by persons close to the candidates to be benefited, including previous
> employees and even family members; persons involved in the campaign have
> also been involved in the “independent expenditures” (as vendors and
> fundraisers);  the candidates have thanked donors for contributing to these
> efforts; and the candidates have met with the principal funders of these
> groups.
>
>
>
> It seems Steve ( and the Wall street Journal) believes that Wisconsin is
> investigating whether the “independent expenditures” in the Walker recall
> election were actually coordinated with the candidate or his agents (and
> therefore should have been restricted by state limits  enacted to prevent
> corruption). What is at play here is the suggestion that unlimited
>  independent expenditures should not be conditioned on actual independence,
> because that might undermine the ability to engage in such
> expenditures…even though the Supreme Court in Citizens United only allowed
> such expenditures (and the Circuit Court  in Speech Now only allowed the
> collection of unlimited funds for such expenditures) because it found as a
> matter of legal reasoning that the independence of such expenditures
> ensured they could not corrupt (a debatable proposition of its
> own)…bootstrapping, anyone?
>
>
>
> Trevor Potter
>
>
>
> *From:* law-election-bounces at department-lists.uci.edu [mailto:
> law-election-bounces at department-lists.uci.edu] *On Behalf Of *Mark Schmitt
> *Sent:* Tuesday, November 19, 2013 11:32 AM
>
> *To:* law-election at uci.edu
> *Subject:* Re: [EL] Civic Courage, Indeed
>
>
>
> Sorry, Steve, I have absolutely no idea what you're talking about. Maybe
> it will become clear later.
>
>
>
> Mark Schmitt
> 202/246-2350
> gchat or Skype: schmitt.mark
> twitter: mschmitt9
>
>
>
> On Mon, Nov 18, 2013 at 12:10 PM, Steve Hoersting <
> shoersting at campaignfreedom.org> wrote:
>
> Hello, Mark,
>
>
>
> There is every reason to believe the special prosecutor is probing 1)
> reporting violations for independent speech, or 2) coordination violations
> for political speech.
>
>
>
> If it is the pursuit of 1), this case presents good reasons for us each to
> reconsider the rationale, costs and benefits of the so-called
> "informational interest."
>
>
>
> If it is 2), it is a good time seriously to take-up the
> expenditure/contribution distinction, that is, the (independent)
> expenditure / (in-kind) contribution distinction. Criminal prosecution of
> coordination will swallow Citizens United, and there is every reason the
> Court should take up that question, now before them, in McCutcheon --
> there's an op-ed to be written there if anyone wants it. And don't think
> the overarching effect of criminal prosecution of independent speech hasn't
> crossed anyone's mind, perhaps even minds in Wisconsin.
>
>
>
> Odds are the prosecutor is probing speech crimes. If so, these facts are a
> good time to reconsider the interests furthered by speech restrictions: the
> informational interest certainly, and the quid-pro-quo interest
> short-of-bribery, if we are serious about free speech, a representative
> republic and popular sovereignty. (Why do I suspect I am merely begging
> other questions?)
>
>
>
> Here's what will be *oh so special* about this matter should events go
> fully in the direction they are headed: And I suspect many on the left will
> hoot with joy should it happen. I can envision, as I sit here, a new
> Democratic governor of Wisconsin, sometime in January 2015, saying into a
> microphone: "Hey, if the people want civil society and education vouchers,
> they'd better start winnin' some elections..." Perhaps even the special
> prosecutor will be on the stage.
>
>
>
> Do we really want to live in a world of rigged games?
>
>
>
> Some look at the Wisconsin scandal and gleefully see Republican v.
> Democrat, "finally the endgame!", and for all the marbles. They ought to
> look a little closer. Visible in the Wisconsin tactics is something that
> transcends party, whether we want to acknowledge it or not: a future
> Enlightenment v. a future Dark Ages.
>
>
>
> I'll let you, Mark, and the left in on a little secret. How this turns out
> isn't really up to the right anymore. Look at the playing field and the
> balance of power. The left has got to ask itself, what are its limits, and,
> if it finds any, to start slowing the train, little by little.
>
>
>
> All the best,
>
>
>
> Steve
>
>
>
>
>
>
>
> On Mon, Nov 18, 2013 at 10:33 AM, Mark Schmitt <schmitt.mark at gmail.com>
> wrote:
>
> OK, I'll bite. What does disclosure have to do with this story? It appears
> that a Wisconsin prosecutor has reason to think that some Wisconsin law was
> broken, and has subpoenaed a lot of information. That's what prosecutors do
> -- they subpoena information that otherwise would be private. And defense
> attorneys contest subpoenas, and hearings and sometimes trials or
> settlements ensue.
>
> Did these groups violate Wisconsin law? I don't know, and I don't think
> you know or the unnamed Wall Street Journal writer knows. There's no doubt
> that there's plenty of prosecutorial excess -- e.g., the Ted Stevens case
> -- but that's a very different issue than disclosure.
>
>
>
> On Sun, Nov 17, 2013 at 10:29 AM, Steve Hoersting <hoersting at gmail.com>
> wrote:
>
>
> http://online.wsj.com/news/articles/SB10001424052702304799404579155953286552832
>
>
>
> Can we yet stop calling it the "informational interest" in disclosure, and
> start calling it the "retributional interest," as is rightly deserved?
>
>
>
> And if ever there were reason to reconsider Buckley's in-kind contribution
> / independent expenditure line, this is it.
>
>
>
> Welcome to your brave new world, members of the left. May it never come
> back on you. (Though, if you've been reading the papers lately, and closely
> enough, you know it already has).
>
> --
> Stephen M. Hoersting
>
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
>
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
>
>
>
>
> --
> Steve Hoersting
> CENTER for COMPETITIVE POLITICS
> 124 S. West Street
> Suite 201
> Alexandria, Va. 22314
> (703) 894-6800
>
>
>
> - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
>
> To ensure compliance with requirements imposed by the IRS, we inform you
> that, unless specifically indicated otherwise, any tax advice contained in
> this communication (including any attachments) was not intended or written
> to be used, and cannot be used, for the purpose of (i) avoiding tax-related
> penalties under the Internal Revenue Code, or (ii) promoting, marketing, or
> recommending to another party any tax-related matter addressed herein.
>
>  This message is for the use of the intended recipient only. It is from a
> law firm and may contain information that is privileged and confidential.
> If you are not the intended recipient any disclosure, copying, future
> distribution, or use of this communication is prohibited. If you have
> received this communication in error, please advise us by return e-mail, or
> if you have received this communication by fax advise us by telephone and
> delete/destroy the document.
>
> --
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>

-- 
Stephen M. Hoersting
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20131119/d6418a25/attachment.html>