[EL] Civic Courage, Indeed

[Larry Levine]

You sidestep the fact that limiting campaign contributions is limiting
speech. It may be justified legally by a higher purpose of fighting
corruption. But the end result is that it has limited speech and in turn has
restricted the right to redress. And by the way, contribution limits is the
father of independent expenditures, which the reform community seems to
hate. Simple fact: you will never get rid of the perception of corruption;
in the last 40 years we have passed all manner of restrictions and
regulations and the perception is worse than ever. There is an American
institution devoted to promulgating the perception of corruption. It's
comprised of comedians from Will Rogers to Jay Leno and given life by
"reformers" who see corruption everywhere and have made an industry of
fighting the perception. "Those who would sacrifice liberty for security
deserve neither." The same can be said of those who would sacrifice speech
in quest of the shadow of corruption.

Larry

 

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Robert
Wechsler
Sent: Saturday, November 23, 2013 4:22 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
[law-election-bounces at department-lists.uci.edu] on behalf of Mark Schmitt
[schmitt.mark at gmail.com]
Sent: Friday, November 22, 2013 10:04 PM
To: 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> 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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