[EL] Civic Courage, Indeed

[Smith, Brad]

I wasn't demonizing Robert, I was being descriptive. I think generally your post below explains why I think I was being descriptive.


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: Robert Wechsler [catbird at pipeline.com]
Sent: Saturday, November 23, 2013 7:22 AM
To: Smith, Brad
Cc: law-election at uci.edu
Subject: Re: [EL] Civic Courage, Indeed

the reform community doesn't bring anything to the table. Each battle they lose in court seems to be nothing but an excuse to seek other, new ways to regulate, intimidate, or otherwise silence speakers. Each battle they lose in the legislatures is merely a temporary setback to their next effort. Even many of the purest reformers will happily ally themselves with any corrupt politician who clearly does simply want to suppress his opposition. They call their opposition "ideologues," but there is one constant in their view - an ideological commitment that things must be regulated.

Demonizing is not a way to seek compromise and deal effectively with corruption. As a proud member of the reform community, I have worked hard to seek new ways to get more speakers, and I have succeeded. While Administrator of the New Haven Democracy Fund, a public campaign financing program, and since I left, both the number of candidates and the number of contributors grew. People who had never thought of making a campaign contribution got involved and made their voices heard.

Public campaign financing isn't even regulation - it's voluntary. And yet you and your crowd have done what you can to undermine it. We had to change our program to meet the new restrictions on the speech, both of candidates and of contributors, that were imposed by the Supreme Court at your behest. The result was that insider candidates chose not to participate in the program. The program has still been successful, but your efforts undermined speech, and enabled a situation where contractors and developers (who don't give to outsider candidates) gave larger contributions and not only helped incumbents and their successors to win elections, but also continued a pay-to-play environment in the city.

So don't be such a holier-than-thou demonizer. You are part of the problem, even with respect to what you say you are fighting for. And most of us reformers support a solution that does not involve regulation, intimidation, or the silencing of anyone.

It's sad that, to justify what you do and the problems you create, you have to demonize others. It's sort of like war, isn't it?

Rob Wechsler
City Ethics

On 11/22/2013 11:37 PM, Smith, Brad wrote:
"The CCP crowd sees the spending as pure and spontaneous expressions of political views."

I would not agree with either of the first two adjectives in that sentence. I don't think most of us think these views are always pure, and rarely are they spontaneous.

"Those who worry about corruption"  … include me and my guess is most of us in the "CCP crowd" (and thank you for the endorsement). The question is the degree of worry, especially when placed against other values and issues, and further, the extent to which efforts to end "corruption" are themselves a source of corruption in the process.

"People give or spend because someone asks them to." Of course they do. I'd be shocked if there were disagreement here.

"That's [preventing corruption] 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." Of course it is almost always the stated objective, and often even the actual objective. Nevertheless, and even in the latter case, it does restrict certain people's speech.

"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." This statement is, I think, factually very wrong. Charity Navigator, for example, considers fundraising expenses of just 10-15% to be very good for a charitable enterprise. It cost money to raise money, and to convince people that a cause is worthwhile.

"But in all but a handful of states, voters and legislators have democratically decided that contribution limits at some level are appropriate,…" I think many people feel that the constitution correctly places limits on what democratically elected governments can do.

"and the Court has agreed." And those people are trying to persuade the Court that it got it wrong.

"Without coordination rules, those limits are meaningless, and it seems entirely reasonable that prosecutors should enforce those laws."

I think the objection is that the cost of enforcing those laws - even if they are legitimate - is high, and often not taken into account. Coordination investigations probably offer the greatest possibility in the campaign finance world for abuse of prosecutorial power, and as such they also destroy confidence in government by creating - dare we say it - an appearance of corruption. Even when investigations are properly motivated, they have the potential to particularly suppress lawful speech more than other campaign finance investigations. It is perfectly legitimate to suggest that these are high costs that ought not be ignored. Moreover, it is perfectly predictable that almost every high-profile coordination investigation will raise suspicions of corrupt behavior by prosecutors and complainants. That is why I'm not hearing people say the coordination laws should not be enforced - rather, I am hearing them say that either a) they should not exist, because the benefits are not worth the costs; or b) they should narrowly circumscribed, because otherwise the benefits are not worth the costs.

Mark essentially argues "it's the law, and it should be enforced." This is not a convincing argument to those who think it should not be the law, and use examples of enforcement to illustrate why it should not be the law.

The Constitution plainly circumscribes the extent to which government can regulate speech. Some may be more absolutist on that than others, but I don't think anyone on this list would disagree with that basic proposition. The Court has long held that political speech is at the core of the First Amendment. I think most people would agree, in theory if not always in deed, with that statement. It is entirely reasonable, then, that many people will seek to circumscribe the authority of government to regulate political speech generally, and given the particularly intrusive nature of coordination investigations, and their particular capacity for political and prosecutorial abuse, to limit the reach of such laws, and to point out possible abuses of the law by political partisans and zealous prosecutors, politicians, and bureaucrats.

I have written that the court is incorrect in allowing contribution limits. But I have also written that the dichotomy between contributions and expenditures is not non-sensical, and given that one rarely wins complete and lasting victories in politics, I could live with a compromised world. Reporters used to like to ask me if it would bother me if Bill Gates gave a candidate a million dollars. My answer was always, "no, but if that were the rule this wouldn't have become my life's work."

Unfortunately, I have seen little indication that the "reform" community is prepared to live with me in a world compromised to both of us. As Mark well knows, because he helped, that community spent hundreds of millions trying to upset the Buckley status quo. It did not seem to occur to them that "Buckley's rotten tree" (to use Burt Neuborne's old phrase), when pushed, might fall in a different direction than they planned. So long as there is a constant effort to expand the reach of campaign finance regulation, there will be pushback, and that pushback is not illegitimate simply because it argues, at times, for changing the law, or because it points out potential abuses of the law.

Courts, by their nature, can rarely broker a halfway position (Buckley was a valiant effort). I think Mark Scarberry reflects the views of a lot of people on the pro-speech side of the debate when he wrote in this thread:

"I’m not happy that people with money get to have such a disproportionate impact on elections. … [But] With media of all kinds that have tremendous power to affect public opinion, with incumbency providing such an advantage (including by way of a President’s ability to use incumbency to speak in an almost unlimited way to the public and to manipulate information), and with the inevitability that regulation will be used to protect incumbents and others who already have power, I have to come down on the anti-regulation/pro-free speech side."

When I read that, I hear a guy who would be prepared to compromise, and I think he speaks for many. Within the scholarly community, there is room for compromise. A growing number of pro-reform scholars, for example, agree that there should be significantly higher disclosure thresholds, higher contribution limits (often significantly higher), and greater sensitivity to speech concerns. But the reform community doesn't bring anything to the table. Each battle they lose in court seems to be nothing but an excuse to seek other, new ways to regulate, intimidate, or otherwise silence speakers. Each battle they lose in the legislatures is merely a temporary setback to their next effort. Even many of the purest reformers will happily ally themselves with any corrupt politician who clearly does simply want to suppress his opposition. They call their opposition "ideologues," but there is one constant in their view - an ideological commitment that things must be regulated. It seems that reformers today, as they have for 40 years, see themselves as just one FEC commissioner, one Supreme Court justice, one scandal away from that total political victory.  That community, however, has lost a lot of ground in the past decade. I suspect that it will soon lose more, unless it can change and come more seriously to grips with the arguments of its tormenters.



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<mailto:law-election-bounces at department-lists.uci.edu> [law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] on behalf of Mark Schmitt [schmitt.mark at gmail.com<mailto:schmitt.mark at gmail.com>]
Sent: Friday, November 22, 2013 10:04 PM
To: law-election at uci.edu<mailto:law-election at uci.edu>
Subject: Re: [EL] Civic Courage, Indeed

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<tel:202%2F246-2350>
gchat or Skype: schmitt.mark
twitter: mschmitt9


On Thu, Nov 21, 2013 at 8:35 AM, Sean Parnell <sean at impactpolicymanagement.com<mailto: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<tel:571-289-1374> (c)
sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>

From: Robert Wechsler [mailto:catbird at pipeline.com<mailto:catbird at pipeline.com>]
Sent: Thursday, November 21, 2013 8:01 AM
To: Scarberry, Mark; sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>
Cc: law-election at uci.edu<mailto: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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