[EL] my McCutcheon analysis

Wed Apr 2 11:28:55 PDT 2014

And I see the added material was cut in half by ellipses -- at least on my
email server. The rest is there.

On Wed, Apr 2, 2014 at 2:26 PM, Steve Hoersting <hoersting at gmail.com> wrote:

> 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
>>>
>>>
>>> _______________________________________________
>>> Law-election mailing list
>>> Law-election at department-lists.uci.edu
>>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>>
>>
>>
>>
>> --
>> Stephen M. Hoersting
>>
>
>
>
> --
> Stephen M. Hoersting
>

-- 
Stephen M. Hoersting
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