[EL] my McCutcheon analysis

Wed Apr 2 11:26:21 PDT 2014

A reader on the list asked to clarify the point I was making about
*McConnell*. I will add it, here, for the benefit of the list (or lack
thereof):

This is the point I am making -- and I regret I'll have to make it in broad
strokes here.

What OFA 2.0 is doing is not prevented by statute -- a perfect threading of
the needle by counsel to OFA.

But if OFA were to be captured by statute, I believe any such statute would
run up against a wall of precedent that protects issue advocacy -- even
issue advocacy operations Established,F,M or C by officeholders -- as OFA
is. (There is one other "wall" I am forgetting as I type this. My
apologies).

So the legality of OFA -- and the constitutional thicket that would arise
with any statute that would capture OFA's activities -- casts new and
needed light on the decade-old opinion in *McConnell*.

It is my strong suspicion that a healthy review of OFA, and the statutes
needed to restrict OFA -- just as those activities WOULD be restricted had
Pres. Obama chosen to run the same issue-oriented operation through the
soft-money-banned party committee DNC -- demonstrates that McConnell is
very likely an outlier.

*Constitutionally, it shouldn't matter if an officeholder E, F, M or Cs an
issue advocacy operation. *

(Personnel changes on the Court can occur. Hot issues can remain dormant.
That said, it is worth researching this construct to understand what would
happen to *McConnell* if a brief challenging what is, in essence, the
party-committee issue-advocacy funding-ban explained in detail the OFA
operation).

On Wed, Apr 2, 2014 at 1:37 PM, Steve Hoersting <hoersting at gmail.com> wrote:

> Rick,
>
> Respectfully, nothing better demonstrates why *McConnell's*political-party-committee soft-money ban must be reversed like President
> Obama's relationship to Organizing for Action.
>
> Really, if restricting monies for issue ads is justified by the
> officeholder's close and unique relationship to the entity raising the
> money and running the issue ads, as was the justification for stifling
> party committee issue advocacy in *McConnell, *well ....
>
> As I have been saying since OFA 2.0 came on the scene: Issue advocacy is
> now dead in America... or *McConnell v. FEC* is an openly exposed outlier.
>
> Forgive me for adding: I hope my dog whistle isn't too shrill -- as if a
> dog whistle were needed.
>
> Not to worry, Rick: What you're losing, for the time being, in campaign
> finance restrictions, you're gaining in voting "reform".
>
> Steve
>
>
>
>
>
>
>
>
>
> On Wed, Apr 2, 2014 at 1:23 PM, Rick Hasen <rhasen at law.uci.edu> wrote:
>
>>    <http://electionlawblog.org/>
>>       "Die Another Day: The Supreme Court takes a big step closer to
>> gutting the last bits of campaign finance reform."<http://electionlawblog.org/?p=59864>
>>  Posted on April 2, 2014 10:20 am <http://electionlawblog.org/?p=59864> by
>> Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> I have written this piece<http://www.slate.com/articles/news_and_politics/jurisprudence/2014/04/the_subtle_awfulness_of_the_mccutcheon_v_fec_campaign_finance_decision_the.html>for *Slate
>> *on today's stealthily audacious opinion
>> <http://www.supremecourt.gov/opinions/13pdf/12-536_e1pf.pdf>in
>> *McCutcheon*.  A snippet:
>>
>> But this is nevertheless a subtly awful decision. It is true that Roberts
>> sidestepped today the question of whether to apply "strict scrutiny" of
>> contribution limits in another case; he did not need to take that dramatic
>> (and high-profile) step to do a whole lot of damage to campaign finance
>> law. Instead, he did three things which now set the course toward even more
>> campaign finance challenges under the First Amendment and more deregulation.
>>
>>   First, as I feared, he has incorporated the very stingy definition of
>> corruption used in *Citizens United* spending limit cases into the
>> contribution area. This matters because the court has recognized *only*the interest in preventing corruption and the appearance of corruption as a
>> permissible reason for upholding campaign finance limits. (Equality, for
>> example, is a forbidden interest under the First Amendment). By requiring
>> that any campaign finance laws be deemed necessary to prevent quid pro quo
>> corruption, akin to bribery, many more campaign laws could fall in the near
>> future, including those base $2,600 limits. While Roberts goes out of his
>> way to say that those base limits were not challenged today, he does not do
>> anything to affirm that those limits are safe. In fact, he expressly says
>> those limits don't prevent corruption, but are "prophylaxis"--and that
>> itself could provide a basis for striking it down.
>>
>> Second, Roberts makes that laxer level of scrutiny applicable to review
>> of contribution limits somewhat stricter. *Buckley* established that
>> contribution limits get judged under something called "exacting scrutiny,"
>> which in practice in the past has led the court to uphold a large number of
>> contribution limits based upon very little evidence of corruption. Today
>> Roberts tightens that standard, requiring more evidence (to be judged
>> against the new strict "corruption" definition). He had no need, then, to
>> adopt "strict scrutiny" for contribution limits. Why write an opinion that
>> dramatically adopts strict scrutiny when one can accomplish nearly the same
>> thing by quietly changing the meaning of the "exacting scrutiny," which
>> applies to contribution limits?
>>
>>  Third and most dramatically, the court seems to open the door for a
>> future challenge to what remains of the McCain-Feingold law: the ban on
>> large, "soft money" contributions collected by political parties. These
>> contributions were banned because it had become clear that political
>> parties were becoming conduits for access between elected officials and big
>> donors. Today Roberts rejects ingratiation and access as a problem, and
>> says that this funnel of significant money to parties could serve the
>> purpose of strengthening political parties and thus be a good thing. He
>> writes: "When donors furnish widely distributed support within all
>> applicable base limits, all members of the party or supporters of the cause
>> may benefit, and the leaders of the party or cause may feel particular
>> gratitude. That grati-tude stems from the basic nature of the party system,
>> in which party members join together to further common political beliefs,
>> and citizens can choose to support a party because they share some, most,
>> or all of those beliefs. ... To recast such shared interest, standing alone,
>> as an opportunity for *quid pro quo *corruption would dramatically
>> expand government regulation of the politi-cal process."
>>
>>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D59864&title=%E2%80%9CDie%20Another%20Day%3A%20The%20Supreme%20Court%20takes%20a%20big%20step%20closer%20to%20gutting%20the%20last%20bits%20of%20campaign%20finance%20reform.%E2%80%9D&description=>
>>    Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
>> Court <http://electionlawblog.org/?cat=29>
>>
>> --
>> Rick Hasen
>> Chancellor's Professor of Law and Political Science
>> UC Irvine School of Law
>> 401 E. Peltason Dr., Suite 1000
>> Irvine, CA 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
>>
>>
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>>
>
>
>
> --
> Stephen M. Hoersting
>

-- 
Stephen M. Hoersting
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