[EL] Civic Courage, Indeed

[Steve Hoersting]

That, I grant you, is the risk in reconsidering the distinction and
collapsing it. Kagan and a future crew can one day criminalize both, more
easily, and probably under a Teachout/Lessig interest in ferreting out a
*new* order of corruption - despite the language and history of the First
Amendment.

But I think you know when most say reconsider the distinction they mean
removing in-kind contributions as a lever for dawn raids on political
participants.

Best,
Steve

Sent from my phone.
 On Nov 19, 2013 10:28 PM, "Trevor Potter" <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>> 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>> 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>] 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>
> 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>
> 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>>
> 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>> 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>> 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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> Steve Hoersting
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