[EL] Civic Courage, Indeed

[Bill Maurer]

Robert,

That's an interesting approach, but I don't see a logical stopping point.  While it would appear to leave independent expenditure/contribution distinction intact, in reality I think it would mean that almost all political speech would be treated as potentially corrupting and thus capable of being regulated and restricted by the government.  If the First Amendment is to be preserved, I think, the assumption should be the other way-political speech cannot be regulated or restricted unless the government can actually show that it is corrupting.

We made this point more thoroughly in our amicus brief in the McCutcheon case, which you may find interesting.  http://www.ij.org/images/pdf_folder/amicus_briefs/mccutcheon-amicus.pdf

Bill

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Robert Wechsler
Sent: Wednesday, November 20, 2013 4:14 AM
To: law-election at uci.edu
Subject: Re: [EL] Civic Courage, Indeed

One of the things I find missing in this discussion is the concept of appearance. The public can never know whether an "independent" expenditure group is truly independent of a candidate committee. The public can only go by how independent the group appears to be. Appearance is the only solid standard the public has.

If an "independent" expenditure group is run by members of a candidate's personal circle, then it will not appear independent. And therefore, there is an appearance that contributions to the expenditure group are no different than contributions to a candidate committee. Such contributions, then, may both appear and be corrupting every bit as much as contributions to a candidate committee.

Arguing that contributions to an "independent" expenditure group should be unlimited cannot be legitimate without an accompanying argument that the group must appear independent. Otherwise, from the public's point of view (which is what matters) it is effectively an argument that contributions to a candidate committee should be unlimited, and this has been rejected by the Supreme Court.

Robert Wechsler
Director of Research
City Ethics, Inc.
rwechsler at cityethics.org<mailto:rwechsler at cityethics.org>
203-230-2548
www.cityethics.org

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