[EL] Super PACs and coordination

Thu Oct 24 07:34:05 PDT 2013

I appreciate Rick linking to my recent article on coordination, below http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2334499.  It is now in print at 49 Willamette L. Rev. 603.

This article was for a symposium last year at Willamette. I'd started to do just a quick piece on legal standards of coordination, but realized how very little academic commentary or judicial discussion of "coordination" there has been. But I think the more important part of this article is the discussion of Buckley's definition of corruption. Most commentary seems to talk merely about whether Buckley got it right or wrong, but again there is very little commentary, at least recent commentary, on exactly what Buckley "got" - that is, what Buckley means by coordination. I think this article is, if I may modestly say so, an important contribution to that discussion. I argue that Buckley and its legitimate progeny (i.e. excluding the overruled Austin decision) hold that officeholder gratitude and "influence" are insufficient to overcome First Amendment obstacles to speech regulation, and further, that political speech itself is never "corrupting" in the sense that would justify regulation. In reversing the Court of Appeals, Buckley notes that the giving and spending of money for campaigns is not "conduct" that can be regulated under the O'Brien standard, because it is conduct directly for the purpose of speaking. This has led most commentators to think of Buckley in the the context of what speech can be regulated. But the core to understanding Buckley's definition of corruption is to understand that it is not about speech at all, but about conduct - not the conduct of spending or contributing, but the conduct of trading.

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: Wednesday, October 23, 2013 12:09 AM
To: law-election at UCI.edu
Subject: [EL] ELB News and Commentary 10/23/13

“‘Super PACs’ and the Role of ‘Coordination’ in Campaign Finance Law”<http://electionlawblog.org/?p=56168>
Posted on October 22, 2013 7:42 am<http://electionlawblog.org/?p=56168> by Rick Hasen<http://electionlawblog.org/?author=3>

Brad Smith has posted this draft <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2334499> on SSRN (forthcoming Willamette Law Review).  Here is the abstract:

In Citizens United v. FEC (2010), the Supreme Court struck down a federal ban on independent expenditures in political campaigns by corporations. The Court held that independent spending could not create the type of “corruption” that the Court has recognized as a compelling government interest sufficient to overcome the intrusion of campaign finance laws on First Amendment activity. Two months later, in SpeechNow.org v. FEC, the U.S. Court of Appeals for the District of Columbia Circuit struck down limits on the size and sources of contributions to political committees that made no campaign contributions and operated independently of any candidate or political party. SpeechNow.org has generally been accepted and followed nationally, even in the states, leading to the creation of what are informally called “Super PACs.”

Both Super PACs and corporations must operate independently of candidates and parties to retain their exemption from the contribution limits and prohibitions of the Federal Election Campaign Act. Accordingly, renewed attention has focused on the concept of “coordination,” with many commentators arguing that Super PACs are illegally coordinating their activity with candidates and parties. Others have argued for new laws redefining coordination so as to bring much activity previously considered “independent” within the regulatory system.

These criticisms and proposals are largely based on an incorrect understanding of the concept of “corruption” adopted in the Court’s seminal decision of Buckley v. Valeo (1976) and followed in Citizens United and SpeechNow.org. Buckley denies that speech can be corrupting. Rather, corruption – at least corruption significant enough to overcome First Amendment obstacles – occurs not in spending money or in gaining influence from spending money, but in the explicit exchange of contributions for favors. Buckley, then, does not tolerate restrictions on speech, but rather restrictions on certain forms of conduct – the conduct of bargaining for legislative favors. It is this act – and not the spending or contribution – that creates the potential for corruption and so can be regulated.

This understanding protects political actors against free floating investigations by authorities, and also clarifies and demarcates the Court’s holding that in some circumstances, the “appearance of corruption” can justify limits on campaign contributions. It also clarifies the limits of future regulatory efforts, and in particular suggests that efforts to define “coordination” based on past affiliations or contacts cannot withstand constitutional scrutiny.

When Citizens United stressed that “independent” expenditures were constitutionally protected, it did not mean that the spender must be “disinterested in,” “ignorant of,” or “unconcerned with the result in” an election. Neither Buckley nor Citizens United permits efforts to maximize the value of expenditures to become a proxy for limiting the speakers’ right to speak. The decisions do not seek to broadly restrict political association or speech. To the contrary, they are based on the notion that in a democratic society, speech is inherently not corrupting, and that limits on association must be “narrowly tailored” to the very specific problem of quid pro quo bargaining of money for legislative favors.

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Posted in campaign finance<http://electionlawblog.org/?cat=10>
“Opinion Using ‘Disclosure’ to Silence Corporate America; The Soros-funded ‘CPA-Zicklin Index’ is merely a weapon against business.”<http://electionlawblog.org/?p=56166>
Posted on October 22, 2013 7:39 am<http://electionlawblog.org/?p=56166> by Rick Hasen<http://electionlawblog.org/?author=3>

Jonathan Macey WSJ oped<http://online.wsj.com/news/articles/SB10001424052702303442004579119580417319214> (and here<http://stream.wsj.com/story/latest-headlines/SS-2-63399/SS-2-359970/>).

[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D56166&title=%E2%80%9COpinion%20Using%20%E2%80%98Disclosure%E2%80%99%20to%20Silence%20Corporate%20America%3B%20The%20Soros-funded%20%E2%80%98CPA-Zicklin%20Index%E2%80%99%20is%20merely%20a%20weapon%20against%20business.%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>
“North Carolina Governor Previews Defense Of Voter ID Law”<http://electionlawblog.org/?p=56164>
Posted on October 22, 2013 7:37 am<http://electionlawblog.org/?p=56164> by Rick Hasen<http://electionlawblog.org/?author=3>

TPM reports<http://talkingpointsmemo.com/dc/nc-gov-s-voter-id-defense-does-not-address-criticism-but-law-likely-to-survive>.

You can find North Carolina’s answer in the NAACP case here [link fixed].<http://moritzlaw.osu.edu/electionlaw/litigation/documents/LOWVNCDfdntAnsw.pdf>  Apparently there is no separate motion to dismiss as I had understood and posted about yesterday.

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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>
“Secret probe spreads to five Wisconsin counties; Possible violations during recall elections among issues”<http://electionlawblog.org/?p=56162>
Posted on October 21, 2013 9:17 pm<http://electionlawblog.org/?p=56162> by Rick Hasen<http://electionlawblog.org/?author=3>

Dan Bice<http://www.jsonline.com/watchdog/noquarter/secret-probe-spreads-to-five-wisconsin-counties-b99124190z1-228569231.html>.

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Posted in chicanery<http://electionlawblog.org/?cat=12>, recall elections<http://electionlawblog.org/?cat=11>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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