[EL] Civic Courage, Indeed
JBoppjr at aol.com
JBoppjr at aol.com
Wed Nov 20 05:37:29 PST 2013
The problem with Orton's attack on the conservative victims of the John Doe
investigation in Wisc is that it is based on a phoney premise:
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.
The truth of the matter is that the John Doe investigation became public
much earlier, on Oct 21, in a leak to Daniel Bice of the MJ:
_Click here: Daniel Bice - Secret probe spreads to five Wisconsin
counties_
(http://www.jsonline.com/watchdog/noquarter/secret-probe-spreads-to-five-wisconsin-counties-b99124190z1-228569231.html)
A fair reading of this leak is that it came from the prosecutors, not the
victims of the subpoenas. Jim Bopp
In a message dated 11/19/2013 11:29:53 P.M. Eastern Standard Time,
orton at progressivesunited.org writes:
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:202/246-2350) <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)
<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/SB10001424052702304799404579155953286552
832
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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