[EL] Civic Courage, Indeed

Wed Nov 20 11:00:38 PST 2013

Husbands and wives have been known to disagree from time to time as well. If
Mary Matalin were an advisor to Crossroads GPS, would that entity be barred
from running any ads in races where her husband James Carville was
consuting?

Sean Parnell

President

Impact Policy Management, LLC

6411 Caleb Court

Alexandria, VA  22315

571-289-1374 (c)

sean at impactpolicymanagement.com

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of
Scarberry, Mark
Sent: Wednesday, November 20, 2013 1:58 PM
To: law-election at uci.edu
Subject: Re: [EL] Civic Courage, Indeed

Rob,

Family members often don't like each other's politics. Cf. the Cheney
sisters. Would a family member be disqualified under this standard from
organizing an independent group to oppose a family member's election? If
not, then don't we have an impermissible viewpoint based restriction on
speech? 

Mark

Mark S. Scarberry

Professor of Law

Pepperdine Univ. School of Law

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Bill
Maurer
Sent: Wednesday, November 20, 2013 10:49 AM
To: Robert Wechsler
Cc: law-election at uci.edu
Subject: Re: [EL] Civic Courage, Indeed

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] 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
203-230-2548
www.cityethics.org

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