[EL] Civic Courage, Indeed

[Mark Schmitt]

  I've never found "appearance of corruption" to be all that conceptually
useful, although it has the advantage of a long history in the legal
doctrine.

But it seems that every time one of these arguments disrupts this otherwise
placid list, we're really dealing with two totally different conceptions of
what happens when people make expenditures and/or contributions intended to
affect the outcome of an election: The CCP crowd sees the spending as pure
and spontaneous expressions of political views. Those who worry about
corruption tend to see *transactions*: People give or spend because someone
asks them to.  Anyone who supports contribution limits, even at a much
higher level than the current ones, implicitly accepts the basic notion
that if an elected official could ask a donor for $10 million, and get it,
the prospect of corruption is very high. But what if the transaction takes
the form of Bill Burton or Carl Forti making the ask on behalf of
Priorities USA or Restore Our Future? In the donor's eyes that's about as
close to an ask from Obama or Romney himself as you can get. Burton or
Forti's reputations and their histories with the candidate provide the
donor with reassurance that the "independent" message will at least not be
at cross-purposes to the campaign itself. With those two assurances, for
the donor, there's really no difference between that transaction and a
direct contribution to the campaign, other than the amount.

That's the justification for for coordination rules that identify certain
individuals who are unlikely to be or be seen as truly independent, not
that certain people's speech is restricted.

Obviously, there's a mix between contributions/spending that is a pure
expression of viewpoint and that which is the result of a transaction with
someone who hopes for access to power, and many transactions have a little
bit of both. But if it was all just donors expressing their views,
campaigns wouldn't have to spend 12% of their money and often more than
half of their candidate's time on fundraising.

I realize that some on this list would eliminate contribution limits
entirely, which would eliminate much of challenge of figuring it what
independent expenditures are not really independent. But in all but a
handful of states, voters and legislators have democratically decided that
contribution limits at some level are appropriate, and the Court has
agreed. Without coordination rules, those limits are meaningless, and it
seems entirely reasonable that prosecutors should enforce those laws.


 Mark Schmitt
202/246-2350
gchat or Skype: schmitt.mark
twitter: mschmitt9


On Thu, Nov 21, 2013 at 8:35 AM, Sean Parnell <
sean at impactpolicymanagement.com> wrote:

>  Thank you, Robert, for helping to fill in a few of the details on what
> I’m sure will be the ever-growing list of Americans who are prohibited from
> exercising their First Amendment rights based on appearances, or at least
> the appearances preferred (disfavored?) by the ‘reform’ community. I look
> forward to reading about more Americans who need to go on this list.
> Perhaps it could be cross-referenced with Santa’s naughty/nice list?
>
>
>
> Sean Parnell
>
> President
>
> Impact Policy Management, LLC
>
> 6411 Caleb Court
>
> Alexandria, VA  22315
>
> 571-289-1374 (c)
>
> sean at impactpolicymanagement.com
>
>
>
> *From:* Robert Wechsler [mailto:catbird at pipeline.com]
> *Sent:* Thursday, November 21, 2013 8:01 AM
> *To:* Scarberry, Mark; sean at impactpolicymanagement.com
> *Cc:* law-election at uci.edu
>
> *Subject:* Re: [EL] Civic Courage, Indeed
>
>
>
>
>  Dear Mark and Sean:
>
> I think it is too often forgotten that campaign finance is part of
> government ethics. Therefore, basic government ethics principles can seem
> foreign to the conversation.
>
> Both of you note that family members often don’t like each other’s
> politics. In fact, they often don't like each other, period. But that does
> not make them any less conflicted with respect to their candidate/official
> sibling. And the public, which does not know the details of any sibling
> relationship (see all of literature for the complexities involved), sees
> the same thing no matter what the relationship actually is. And they are
> right to. Equally, governments are right to create clear conflict rules,
> rather than basing them on a vague concept of appearance.
>
> I have never seen a conflict of interest provision that differentiates
> between siblings that like or agree with their siblings. This equal
> treatment of siblings, and others, is a basic government ethics principle.
> It should apply equally in campaign finance.
>
> Mark asks, "Would a family member be disqualified under this standard
> from organizing an independent group to oppose a family member’s election?" The
> family member would still be conflicted, but would coordination still be a
> concern?
> Well, it could be a fake supporter of an opponent. There are so many fakes
> in recent elections that this kind of fake would not be surprising.
> Considering how effective some outside independent groups have been at
> shooting those they support in the foot, I would argue that a coordinated
> opposing group would be a clever tactic.
>
> The other basic concept that seems to be missing here is power. Both of
> you seem to think that family relationships involve political ideas. No,
> family relationships tend to involve power. The Cheney sisters' public
> disagreement is atypical, as are Carville and Matlin.
>
> With respect to independent groups, the principal issue involving family
> members is not ideas. The principal issue is family members being seen as
> coordinating to help one member get elected, to get power.
>
> I don't share all the views of the senator my stepson works for, but I
> know that if I were to form a supposedly independent group that took sides
> in his next election, no one who knew about the relationship would believe
> there was no coordination. The First Amendment isn't all that relevant
> here. No one has a First Amendment right to insist he is not coordinating
> with his stepson when the public reasonably believes that he is
> coordinating. This is about fraud and making a mockery of rules that are
> intended to prevent corruption, not about a marketplace of ideas.
>
> Rob
>
>
> _______________________________________________
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>
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