[EL] my McCutcheon analysis

Sat Apr 5 10:28:22 PDT 2014

I generally agree with Mark on this:

Recognizing  this, the next generation of campaign finance reform should 
focus less on trying  to limit spending, and more on empowering ordinary 
voters and candidates to be  heard in that “chain of communication,” by matching 
small contributions or  providing tax credits, as new legislation proposed 
by Rep. John Sarbanes  proposes.

I am not familiar with Rep Sarbanes bill but we had a tax credit in the  
1974 Post-Watergate amendments to the FECA -- 50% credit for the first $200  
given to any candidate, pac or political party.  I thought it was very  
beneficial to the system.  Oregon still has something like it for their  state 
elections. I wish we could restore it.  Jim Bopp

In a message dated 4/4/2014 2:45:53 P.M. Eastern Daylight Time,  
schmitt.mark at gmail.com writes:

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_ 
(mailto: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_ 
(mailto: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_ 
(mailto: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_ 
(mailto: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  gratitude 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 
political process.”

(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=59864&title=“
Die%20Another%20Day:%20The%20Supreme%20Court%20takes%20a%20big%20step%20closer%20to%20gutting%20the%20last%20bits%20of%20campaign%20finance%20re
form.”&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 92697-8000

_949.824.3072_ (tel:949.824.3072)  - office

_949.824.0495_ (tel:949.824.0495)  - fax

_rhasen at law.uci.edu_ (mailto:rhasen at law.uci.edu) 

http://www.law.uci.edu/faculty/full-time/hasen/

_http://electionlawblog.org_ (http://electionlawblog.org/) 

_______________________________________________
Law-election  mailing list
_Law-election at department-lists.uci.edu_ 
(mailto: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

_______________________________________________
Law-election  mailing list
_Law-election at department-lists.uci.edu_ 
(mailto:Law-election at department-lists.uci.edu) 
http://department-lists.uci.edu/mailman/listinfo/law-election

_______________________________________________
Law-election  mailing  list
Law-election at department-lists.uci.edu
http://department-lists.uci.edu/mailman/listinfo/law-election
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20140405/05c20802/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: share_save_171_16.png
Type: image/unknown
Size: 1504 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20140405/05c20802/attachment.bin>