[EL] Civic Courage, Indeed
Robert Wechsler
catbird at pipeline.com
Sun Nov 24 06:12:09 PST 2013
The New Haven Democracy Fund does not discriminate in any way among
major parties, minor parties, and independents.
Rob
On 11/23/2013 1:14 PM, Richard Winger wrote:
> I don't know how the New Haven public financing system works, but the
> Connecticut system for public funding for state office promotes a form
> of corruption. It provides that the nominees of parties that got 20%
> for Governor in the last election are entitled to full public funding
> (if they raise a fairly modest number of small contributions), but an
> independent candidate, or the nominee of a new party, cannot get any
> public funding unless the candidate not only gets the contributions,
> but also submits a petition signed by 10% of the last vote cast. And
> to get full public funding, the candidate must submit a petition
> signed by 20% of the last vote cast. Former Governor Lowell Weicker
> testified that if this system had been in place in 1990, when he was
> elected as a new party nominee, he could not have won. The corruption
> engendered by Connecticut public funding is that candidates who would
> rather run as independent, or as nominees of a new or minor party, are
> coerced into running as Democratic or Republican nominees.
>
> Richard Winger
> 415-922-9779
> PO Box 470296, San Francisco Ca 94147
>
> ------------------------------------------------------------------------
> *From:* Michael P McDonald <mmcdon at gmu.edu>
> *To:* "law-election at uci.edu" <law-election at uci.edu>
> *Sent:* Saturday, November 23, 2013 10:01 AM
> *Subject:* Re: [EL] Civic Courage, Indeed
>
> Sometimes how people talk past one another illuminates the real issue
> at stake.
>
> Rob is talking about a public financing system to increase the speech
> of small donors, presumably through a contribution matching system.
>
> Larry is talking about raising campaign contribution restrictions to
> increase the speech of large donors.
>
> I would be interested to see if Rob's assertion is true that there is
> a tradeoff between small and large donors; that is, when public
> financing systems were changed to allow candidates to pursue more
> large donor contributions, the number of small donors decreased. If
> that can be established, the Supreme Court might take a different
> position if the Justices perceived a trade-off between the speech of
> small and large donors. The result might also be further
> experimentation with hybrid public financing systems with the goal to
> encourage both large and small donations.
>
> Maybe I am more sympathetic to Rob's position, but I see his comment
> as pleading with those who think only in terms of campaign
> contribution limits as restricting speech to join in encouraging
> speech of all citizens, not just the wealthiest among us. If one
> really cares about speech, isn't that the compromise point in this debate?
>
> ============
> Dr. Michael P. McDonald
> Associate Professor
> George Mason University
> 4400 University Drive - 3F4
> Fairfax, VA 22030-4444
>
> phone: 703-993-4191 (office)
> e-mail: mmcdon at gmu.edu <mailto:mmcdon at gmu.edu>
> web: http://elections.gmu.edu <http://elections.gmu.edu/>
> twitter: @ElectProject
>
> 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
> <mailto:law-election-bounces at department-lists.uci.edu>] On Behalf Of
> Larry Levine
> Sent: Saturday, November 23, 2013 12:26 PM
> To: 'Robert Wechsler'; 'Smith, Brad'
> Cc: law-election at uci.edu <mailto:law-election at uci.edu>
> Subject: Re: [EL] Civic Courage, Indeed
>
> 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 figh 20;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>
> [mailto: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 <mailto: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 communit 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 lay 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."
> &nb >
> 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.<
> ize:10.0pt;font-family:"Tahoma","sans-serif"'>
>
> "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 o
> ctive. 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.
> &nb >
> "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
> la er 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 argumen hould 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
> pacity 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 w yle='font-size:10.0pt;font-family:"Tahoma","sans-serif"'>
>
> 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 affec cumbency 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 (oft 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 serious ments 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 i 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. B ons
> 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
> andidate'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
> 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 class=MsoNormal
> style='mso-margin-top-alt:auto;mso-margin-bottom-alt:auto'>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 yo s 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 independ ily 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 sen , 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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