[EL] Civic Courage, Indeed

Wed Nov 20 11:47:21 PST 2013

This expansive view of "coordination" and "appearance of corruption" misunderstands the concept of "appearance of corruption" as used in Buckley and later Supreme Court cases.

The "appearance" factor is the appearance of quid pro quo bargaining, just as the problem with contributions is not some "appearance" but the actual opportunity for quid pro quo bargaining that comes from the solicitation and the response.

Buckley allows the legislature to limit bribery-like exchanges that do not meet the definition of bribery, either because the underlying activity is otherwise protected First Amendment activity or because the exchange does not inure to the personal benefit of the officeholder in a manner that would satisfy bribery statutes. The "appearance of corruption" very clearly applies to the appearance of quid pro quo bargaining and exchange, and "appearance" is not some vague sense of the public that officeholders might be beholden, but the actual opportunity for exchange that, for evidentiary reasons (including that any benefit to the officeholder does not consist of personal material gain), would typically be very difficult to prove.

While it is true that a system that allows limits on contributions but not on expenditures will often seek to assure that expenditures are independent (though this is not the case in several countries that do limit contributions but not expenditures), the danger is that, at Robert points out, "The public can never *know* whether an "independent" expenditure group is truly independent of a candidate committee." Nor, of course, can authorities, without long, intrusive investigations. Moreover, because politics necessarily involves both the candidate and supportive independent spenders working for the same (or very similar) ends; and because a candidate is likely to have considerable interaction with those who support his politics, election, and legislative positions and efforts, it is almost always possible to at least plausibly claim "coordination." But "independent" does not mean "disinterested," "ineffective," or "unconcerned." This is Bill's point - I think. Efforts to define independent in such a way lead to the suppression of speech that the Court rejected.

On those lines, Steve's point (I think) is that "coordinated" cannot be used to swallow up the idea of "independent," and that this can be done through enforcement as well as definition. Steve is arguing, based on experience both representing clients and from experience within the FEC, that in many if not most (if not the vast majority) of cases in which a party might seek to make independent expenditures, he will have enough contacts with the candidate, in some way, shape, or form, to plausibly raise an inference of "coordination." This is, it appears, the standard Robert and Trevor actually want - allowing "appearance" to overcome reality. Indeed, a spender need not even have contacts with the candidate to create an "appearance" issue using that broad definition - mere similarity in message and sympathy in intent might raise that inference.

This means political prosecutions are easy to disguise as legal prosecutions. Quid pro quo exchanges can damage public perception of government. So can the appearance of such exchanges. Political prosecutions can also damage public perception of government. So can the appearance of political prosecutions. The "appearance of political prosecution," as we have recently seen, is very damaging to government credibility.

Steve is arguing (again, my interpretation) that the cost of aggressive (or even not very aggressive) legal action against independent expenditures is not worth the benefit. As Robert says, without prosecuting coordination a contribution limit is not very effective. Thus, concludes Steve, let's abolish the contribution limits, too. (Of course, Steve would add other issues with contribution limits, thus also affecting his broader cost/benefit analysis of contribution limits). Robert simply wants to go in the other direction, it appears - he would effectively eviscerate independent spending by defining "coordination" to include almost any "interested" spending, thus more or less abolishing the ability to spend independently (this also appears to be Trevor's position). Robert suggests various stopping points but these would still not stop the investigatory process, and moreover, they run counter to the idea of "coordination" and "appearance of corruption" accepted by Buckley. To take one of Robert's examples, there is no particular reason to believe that if my stepson works for Candidate X that any spending I do cannot be independent. The loss of independence comes from my bargaining with the candidate. The "appearance of corruption" also comes from my contact with the candidate - not my relation to my stepson.

The challenge for Buckley's independent spending vs. contribution/coordinated expenditure dichotomy, then, is to make the former effective while not allowing claims of the latter to eviscerate it. Both Steve and Robert argue that that circle cannot be squared.

As a normative matter, I agree with Steve. But as a matter of what Buckley holds, both positions would require a major change in the Buckley framework. Steve's has the benefit of plainly stating a desire to overrule Buckley on the point. Robert and Trevor claim that their position is harmonious with Buckley (which I suppose could also be called a "benefit"), but it is not - it too calls for overruling Buckley (or vastly reinterpreting Buckley's language from the original).

I explore these issues in depth in "Super PACs and the Role of Coordination in Campaign Finance Law," 49 Willamette L. Rev. 603 (2013). An earlier draft is available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2334499.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Robert Wechsler [catbird at pipeline.com]
Sent: Wednesday, November 20, 2013 12:29 PM
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<https://webmail.capital.edu/owa/UrlBlockedError.aspx>

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