[EL] Civic Courage, Indeed

Sat Nov 23 11:55:22 PST 2013

And you realize (as I think you do by your use of the past tense) that you
are describing a feature of *some *public financing systems, such as
Arizona's, that was thrown out by the Court. It is unnecessary -- the
Arizona system has survived without it, and many better-designed
public-financing systems, such as New York City's, do just fine without it,
encouraging candidates like Lhota to seek small donors rather than operate
through non-independent outside groups.

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

On Sat, Nov 23, 2013 at 1:43 PM, Benjamin Barr <benjamin.barr at gmail.com>wrote:

> Rob,
>
> You do realize that public financing systems employed coercive elements to
> punish the speech of those not participating and boost the speech of those
> cozy with the state, right?  I doubt any of us in the free speech movement
> have Justice Kennedy on speed dial or control the Court to make it rule in
> "our behest."  But when public finance systems bully independents and those
> who would prefer not to participate, their coercive effects have been
> rightfully stricken.
>
> Effecting public financing, shiny transparency, and happy disclosure isn't
> a walk in the park.  It's pre-dawn raids, silencing those of modest means
> but deep convictions, and the instillation of speech police in our
> republic.
>
> I utterly don't understand this statement "most of us reformers support a
> solution that does not involve regulation, intimidation, or the silencing
> of anyone."  Then why is the perpetual hobby of the reform lobby found in
> passing new regulations and asking for enhanced enforcement of the law?  If
> you support a solution that does not require the use of force in the law to
> silence some and encourage others, I applaud your efforts.
>
> Forward,
>
> Benjamin Barr
> Counsel to Project Veritas, the Wyoming Liberty Group, and speech
> instigators nationwide
>
>
>
> On Sat, Nov 23, 2013 at 5:22 AM, Robert Wechsler <catbird at pipeline.com>wrote:
>
>>  *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 <614.236.6317>*
>>
>> *http://law.capital.edu/faculty/bios/bsmith.aspx
>> <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
>> 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
>>>
>>> _______________________________________________
>>> Law-election mailing list
>>> Law-election at department-lists.uci.edu
>>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>>
>>
>>
>>
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