[EL] Civic Courage, Indeed

[Robert Wechsler]

An appearance standard need not be subjective, as you argue in the 
McCutcheon amicus brief. Responsible appearance standards are based on 
objective relationships, such as family relationships, business 
relatinships, and superior-subordinate relationships. These are very 
logical stopping points.

If, for example, I were to form an independent expenditure group that 
supported a campaign of the senator for whom my stepson works, it would, 
if this fact came out, appear that the group was not independent, even 
though in fact I have never met or communicated with the senator. It 
would be reasonable for the public to assume that I was not acting 
independently and that any funds I raised to support the senator were no 
different than the funds raised by the senator's campaign committee.

Do I have a First Amendment right to support the senator? Definitely. Do 
I have a First Amendment right to form a supposedly independent 
expenditure group to raise funds to support the senator, when I actually 
have a close family relationship to the senator's aide? No.

With rights come responsibilities. It is my responsibility to recognize 
that forming such a group would be seen as fraudulent and would 
therefore undermine trust in our political system. I wouldn't do such a 
thing nor argue for it to be done.

The same goes for my right to write in my government ethics blog about 
this senator. I have every right to do it. But because I have a 
conflict, because it would appear that I am biased, I shouldn't and I won't.

Unfortunately, many people do not consider appearances and do not think 
of their responsibilities, and their thoughtlessness undermines trust in 
our political system.

Rob Wechsler




On 11/20/2013 9:30 AM, Bill Maurer wrote:
>
> 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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