[EL] Civic Courage, Indeed

Wed Nov 20 10:49:20 PST 2013

Robert,

I understand what you're saying now-that is a line, but one that would really effect a great deal of speech.  Moreover, I am not sure how regulations conditioning the amount of political activity in which one may participate based on consanguinity or other specific relationships would work without becoming as complex and specific as trusts and estates or Salic law.

I disagree, however, with your argument that any of what you identify as causing the appearance of connectivity would undermine trust in our political system.  There is no social science of which I am aware that demonstrates that restrictions on contributions promotes trust in our political system.  In fact, the only studies of which I am aware show the opposite.  So, it would seem that you are supporting restrictions to fight the appearance of corruption in order to create the appearance of trust.  That's way too many appearances to overcome "Congress shall make no law... abridging freedom of speech."

Bill

From: Robert Wechsler [mailto:catbird at pipeline.com]
Sent: Wednesday, November 20, 2013 9:30 AM
To: Bill Maurer
Cc: law-election at uci.edu
Subject: Re: [EL] Civic Courage, Indeed

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> [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<mailto: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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