[EL] Civic Courage, Indeed

Wed Nov 20 12:17:24 PST 2013

Regarding:

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

Unfortunately, as Wechsler amply demonstrates, some people do not care  
about First Amendment protections of political speech.  

Just because a person has "family relationships, business relatinships  
(sic), and superior-subordinate relationships" does not mean that the person  
coordinates their political activity with a candidate.  Only if the  specific 
political activity involved is in fact coordinated does  the First 
Amendment permit the activity to be limited by being deemed  an in-kind 
contribution.  Without this specific coordination it is in fact  independent.

Because of the draconian penalties involved, in my experience, those with  
"family relationships, business relatinships (sic), and superior-subordinate 
 relationships" are the least likely to risk the penalties by crossing the  
line, because the last thing they want to do is get a candidate they like 
in  trouble. 

However, since I have not represented Wechsler, I don't know what he  
thinks about those that he has "family relationships, business relatinships  
(sic), and superior-subordinate relationships" with and, therefore,  the 
illegalities he would be willing to risk.  Jim  Bopp

In a message dated 11/20/2013 12:30:19 P.M. Eastern Standard Time,  
catbird at pipeline.com writes:

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_ (mip://0905e1e0/www.cityethics.org) 

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