[EL] Civic Courage, Indeed

Tue Nov 19 21:00:24 PST 2013

It seems to me that these two statements cannot go together:

"1. No one knows anything. The subpoenas did not allege specific wrongdoing. The only thing we know is that the currently known subpoenas target a bunch of conservative groups who played in the recall election and were willing to disclose that they received a subpoena. Anyone who pretends to know where this is going or what it's investigating is lying for their own benefit."

and

"the WSJ leak was a CYA move done to squeeze the prosecutor and sway state politics by pushing the false impression of a witch hunt."

Most obviously, how do you know that the impression of a "witch hunt" is "false," and how do you know that the leak was a "CYA move"?

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 Josh Orton [orton at progressivesunited.org]
Sent: Tuesday, November 19, 2013 11:27 PM
To: Trevor Potter
Cc: law-election at uci.edu
Subject: Re: [EL] Civic Courage, Indeed

As a Wisconsin resident, I offer a few points about this investigation:

1. No one knows anything. The subpoenas did not allege specific wrongdoing. The only thing we know is that the currently known subpoenas target a bunch of conservative groups who played in the recall election and were willing to disclose that they received a subpoena. Anyone who pretends to know where this is going or what it's investigating is lying for their own benefit.

2. The way this became public is dirty. One of the recipients of a subpoena improperly leaked it to the Wall Street Journal's editorial board (!), seeking favorable, ideological pre-spin in the form of baseless speculation about the purpose of the investigation, and a likewise baseless assertion about the prosecutor's motive. They got it, as the WSJ editorial likened the investigation to the IRS deal, and all but concluded that this is a free speech witch hunt. Then, given that the WSJ ed-board was the only entity with any information, other mainstream reporters had to report the editorial, which provided the false imprimatur of the WSJ's legit news side "as the Wall Street Journal reported...."

The reporters I've talked to cannot think of another instance where court documents were leaked to an ideologically biased ed board. And some were concerned, because no one knows the reporting standards of the WSJ ed board (are there any?).

3. Those leaking the subpoenas know that a prosecutor is restrained from talking about the substance or genesis of the investigation, leaving a vacuum which the head of the WI Club for Growth happily filled.

So the WSJ leak was a CYA move done to squeeze the prosecutor and sway state politics by pushing the false impression of a witch hunt. That the investigation is also used as an argument against coordination laws is just a freebie.

On Tue, Nov 19, 2013 at 10:28 PM, Trevor Potter <tpotter at capdale.com<mailto:tpotter at capdale.com>> wrote:
I quite agree with you that "independent " expenditures have the same potential to corrupt as contributions... something that some of the Justices appeared to appreciate in the McKutcheon argument...

Sent from my iPhone

On Nov 19, 2013, at 7:36 PM, "Steve Hoersting" <hoersting at gmail.com<mailto:hoersting at gmail.com><mailto:hoersting at gmail.com<mailto:hoersting at gmail.com>>> wrote:

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<mailto:tpotter at capdale.com><mailto:tpotter at capdale.com<mailto: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><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<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 Mark Schmitt
Sent: Tuesday, November 19, 2013 11:32 AM

To: law-election at uci.edu<mailto:law-election at uci.edu><mailto:law-election at uci.edu<mailto: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<tel:202%2F246-2350><tel:202%2F246-2350>
gchat or Skype: schmitt.mark
twitter: mschmitt9

On Mon, Nov 18, 2013 at 12:10 PM, Steve Hoersting <shoersting at campaignfreedom.org<mailto:shoersting at campaignfreedom.org><mailto:shoersting at campaignfreedom.org<mailto: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<mailto:schmitt.mark at gmail.com><mailto:schmitt.mark at gmail.com<mailto: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<mailto:hoersting at gmail.com><mailto:hoersting at gmail.com<mailto: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

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