[EL] McCutcheon transcript -- Definition of Audacity

Tue Oct 8 17:58:24 PDT 2013

Sort of the mirror image of the anti-circumvention argument, one might say - we'll get the court to accept an infringement of 1st Amendment rights, and use that infringement to argue that still more infringements are required to prevent "circumvention" of the original infringement. 

But actually, even that's not right. As Steve Hoersting says, it's really just a consistent position - "gratitude" isn't enough to justify the infringement. This isn't an inconsistency or bootstrapping - it's just a consistent application of a principle that some people disagree with.

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 Rick Hasen [rhasen at law.uci.edu]
Sent: Tuesday, October 08, 2013 8:08 PM
To: Marty Lederman
Cc: law-election at UCI.edu
Subject: Re: [EL] McCutcheon transcript -- Definition of Audacity

I should add that this is the whole bootstrapping argument of the anti-regulation crowd.  Make a hole in the law, and then argue that with the hole, no further regulation makes any sense.

On 10/8/13 5:05 PM, Marty Lederman wrote:
Please let me know if I'm misreading this, but doesn't Justice Scalia, joined by Justice Kennedy, spend page after page chiding the SG that the contribution limits can't possibly serve an anti-corruption interest because they'll simply cause wealthy individuals to funnel their dollars into independent expenditures (and PAC expenditures), for which officeholders will be even more grateful, thereby increasing the risk and degree of corruption?

Finally, after exhibiting admirable patience, SG Verrilli said:  "Well, Justice Scalia, I'm not here to debate the question of whether the Court's jurisprudence is correct with respect to the risks of corruption from independent expenditures."  And then when Justice Kennedy expressed dissatisfaction with that answer, Justice Kagan quipped:  "I suppose that if this Court is having second thoughts about its rulings that independent expenditures are not corrupting, we could change that part of the law."

I don't know how it played in the courtroom . . . but on the page, it sure comes off as the ultimate in chutzpah.

On Tue, Oct 8, 2013 at 1:34 PM, Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:
Read the Transcript in McCutcheon Oral Argument at Supreme Court<http://electionlawblog.org/?p=55810>
Posted on October 8, 2013 10:33 am<http://electionlawblog.org/?p=55810> by Rick Hasen<http://electionlawblog.org/?author=3>

Here<http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-536_21o2.pdf>.

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Rick Hasen
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