[EL] my McCutcheon analysis

Fri Apr 4 11:37:59 PDT 2014

I don't always agree with you, Steve, but in this case I think you're quite
right. The distinction between issue ads and election ads, on which BCRA
and McConnell depended, seems less and less relevant. An AFP ad attacking
Obamacare, or an OFA ad on the minimum wage, might be as effective a means
of influencing the 2014 election as one that looks just like a campaign ad
-- which is why they're running them. That's because politics has changed.

I made that point in a TNR column that just went up:

http://www.newrepublic.com/article/117269/mccutcheon-ruling-politics-blew-campaign-finance-not-court

Mark Schmitt
202/246-2350
gchat or Skype: schmitt.mark
twitter: mschmitt9

On Wed, Apr 2, 2014 at 2:28 PM, Steve Hoersting <hoersting at gmail.com> wrote:

> 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
>>>>
>>>>
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>>>>
>>>
>>>
>>>
>>> --
>>> Stephen M. Hoersting
>>>
>>
>>
>>
>> --
>> Stephen M. Hoersting
>>
>
>
>
> --
> Stephen M. Hoersting
>
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