[EL] NY Times Editorials on Election Law

[Trevor Potter]

Yes, those interested in the fine distinctions between  "actual coordination"  and "illegal coordination" are referred to the Colbert Report's coverage of same in 2012...

Trevor Potter

From: Smith, Brad [mailto:BSmith at law.capital.edu]
Sent: Tuesday, February 18, 2014 10:52 AM
To: Trevor Potter; Allen Dickerson; Pildes, Rick; law-election at UCI.edu
Subject: RE: NY Times Editorials on Election Law


Actually, the Times does suggest it is illegal, writing, "If that's not coordination, it's hard to imagine what is. But that kind of thing goes on all the time because there's little enforcement of the rules by the toothless Federal Election Commission."



And of course the fact that some of these PACs are set up by former aides is not particularly helpful in understanding the legal issues involved, in other words, proving my point that the editorial seems not about enlightening what the law is, or even suggesting what it should be, but confusing the status of the law and suggesting that illegal activity is occurring.



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: Trevor Potter [tpotter at capdale.com]
Sent: Tuesday, February 18, 2014 10:44 AM
To: Smith, Brad; Allen Dickerson; Pildes, Rick; law-election at UCI.edu<mailto:law-election at UCI.edu>
Subject: RE: NY Times Editorials on Election Law
Of course, reporting and commenting on candidates' relationships with SuperPacs supporting those candidates is influenced by comments such as Mitt Romney's discussion in a 2012 press conference of "my SuperPac", and the fact that many of these Pacs are set up for long-time employees or political aides of these candidates (see Romney, Obama, Gingrich, McConnell...)

Brad will point out that none of the above is necessarily illegal-but the Times is not saying it is illegal-just wrong as a matter of policy


Trevor Potter

From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Smith, Brad
Sent: Tuesday, February 18, 2014 10:28 AM
To: Allen Dickerson; Pildes, Rick; law-election at UCI.edu<mailto:law-election at UCI.edu>
Subject: Re: [EL] NY Times Editorials on Election Law


Today's Times editorial provides well-"timed" fodder for this discussion.



It begins: "If you need something out of Washington and want to give a satchel of cash to a political candidate,... The thing to do is to give the money to the candidate's "super PAC, where no limits apply" ...



It goes on to refer to "Mitch McConnell's super PAC," Alison Lundergan Grimes's "own super PAC,"  "the super PAC of Senator David Vitter," and "Obama's super PAC in 2012."



Now I write op-eds, and I understand that in a few hundred words it is often very hard to capture nuance. I also know that what one writes will be misunderstood by many, and intentionally misunderstood or misquoted by some, and that this is pretty much true no matter how you write it. But the casual reader would certainly come away from this editorial thinking that you could give unlimited money directly to a candidate, and that candidates control these super PACs, even own them -- it's "Mitch McConnell's" or the super PAC "set up by Alison Lundergan Grimes."



Of course, that begs the question that the Times wants readers to believe: was the PAC actually "set up by" Ms. Grimes? Is it "Obama's"? Even if one thinks super PACs are terrible and a source of corruption that is as bad or worse as direct contributions to candidates, there is a huge difference (at least if one recognizes that others might disagree) between a super PAC set up to support a candidate, and one set up "by" a candidate.



The editorial does nothing, I think, to enlighten the intelligent lay-person (the Times' targeted readership, I think) about the actual issues pertaining to super PACs generally, candidate-specific super PACs in particular, or the legal concept of coordination - issues that certainly merit discussion. Instead, it simply makes the assertion (part of most every Times' editorial on the subject) that "there's little enforcement of the rules by the toothless Federal Election Commission." It goes on to conclude by again suggesting - as it does in the opening sentence - that the money goes directly to the candidate's campaign, writing "remember the Nixon campaign's safe<http://www.washingtonpost.com/wp-srv/national/longterm/watergate/articles/092972-1.htm> in 1972, so overstuffed with cash and checks that his buddies barely knew how to spend all the money? That's what these super PACs have become... ."



It would appear, from this editorial, that the Times is accusing Senators McConnell and Vitter, Secretary Grimes, and President Obama of violating the law. Maybe that is what the Times intends to do, but I suspect they would flinch from such a specific, potentially libelous accusation.



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<mailto:law-election-bounces at department-lists.uci.edu> [law-election-bounces at department-lists.uci.edu] on behalf of Allen Dickerson [adickerson at campaignfreedom.org]
Sent: Friday, February 14, 2014 1:11 PM
To: Pildes, Rick; law-election at UCI.edu<mailto:law-election at UCI.edu>
Subject: Re: [EL] NY Times Editorials on Election Law
Prof. Pildes,

In some ways election law presents a perfect test case: this is a highly-technical area of the law that elicits strong emotional reactions, is understood by very few, but upon which nearly everyone has (often loud) opinions. In the specific case of the Times, there have certainly been instances where the editorial page's writing has not reflected its budget.

A few very quick examples:

Conflating Super PACs and social welfare groups: http://www.nytimes.com/2012/11/27/opinion/when-super-pacs-become-lobbyists.html?_r=0.

In an editorial concerning McCutcheon, stating categorically that "Since [Buckley] the court has upheld every federal contribution limit that has come before it." Which is true, as far as it goes, but ignores state contribution limits, including Breyer's inconvenient opinion in Randall v. Sorrell, a fairly recent and significant case: http://www.nytimes.com/2013/10/08/opinion/politicians-for-sale.html.

Or its review of the district court's opinion in U.S. v. Danielczyk, which takes the court to task for disallowing a complete ban on corporate contributions, but fails to note that the nearly $200,000 in straw donations would have been illegal regardless, and that the court's opinion explicitly stated that corporations would still be subject to the federal limits (all of which might have undermined the sky-is-falling corruption rhetoric). http://www.nytimes.com/2011/05/29/opinion/29sun2.html?partner=rssnyt&emc=rss

And then there's the petty. A direct accusation that the FEC's 3-3 vote against finding reason to believe Crossroads GPS violated federal law was "further evidence of the power of machine politicians to mock election law as they raise and spend vast amounts of money to the tune of "Anything Goes." (I, for one, was not aware that FEC commissioners are "machine politicians.") http://www.nytimes.com/2014/01/20/opinion/dangerous-inaction-by-the-election-commission.html?ref=campaignfinance. Or a piece published August 29, 2011 ("'Independents' Candidates Really Love") that ended by stating that "[t]he Romney Super PAC has already been blessed with mystery million-dollar donations, including one via a dummy corporation that had to be hurriedly disclosed lest it violate the law. "No harm, no foul," Mr. Romney assured voters about the donation, sounding like a candidate for the F.E.C." (Again, an unfair dig at FEC commissioners who, agree or not, are generally considered to hold good-faith views. Oh, and that point about "mystery million-dollar donations" seems like the sort of thing one would back up, or at least explain, since "mystery donations" to Super PACs are illegal).

All this is disheartening. The national debate on these topics already generates more heat than light. And the Times reaches a readership that could be taught some of this topic's complexities. It's too bad that it has instead used its unique position in for this level of one-sided, and sometimes misleading, rhetoric.

Thanks for raising such an interesting and important question.

Allen

Allen Dickerson
Legal Director | Center for Competitive Politics
124 S. West Street | Suite 201 | Alexandria, VA 22314
O: 703.894.6800 | F: 703.894.6811
adickerson at campaignfreedom.org<mailto:adickerson at campaignfreedom.org>




From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Pildes, Rick
Sent: Friday, February 14, 2014 12:02 PM
To: law-election at UCI.edu<mailto:law-election at UCI.edu>
Subject: [EL] NY Times Editorials on Election Law

A bit earlier, I posted on the blog an excerpt from a long story<http://observer.com/2014/02/the-tyranny-and-lethargy-of-the-times-editorial-page/> the New York Observer published a week or so ago, which reported that NY Times staffers were deeply frustrated with the Board's editorials.  One staffer was quoted saying of the editorials:  "They're completely reflexively liberal, utterly predictable, usually poorly written and totally ineffectual."  Having just run across the story, I wanted to generate a discussion on the list serv about this subject when it comes to the NY Times editorials on election law.  I realized it would be better to keep that discussion internal to the listserv, so I am sending this to the listserv rather than on the blog itself.

A critique of the Observer story from the Washington Post can be found here. <http://www.washingtonpost.com/blogs/erik-wemple/wp/2014/02/05/17-problems-with-the-new-york-observers-hit-piece-on-the-new-york-times/>  Here's an excerpt from the Observer story:


IT'S WELL KNOWN AMONG THE SMALL WORLD of people who pay attention to such things that the liberal-leaning reporters at The Wall Street Journal resent the conservative-leaning editorial page of The Wall Street Journal. What's less well known-and about to break into the open, threatening the very fabric of the institution-is how deeply the liberal-leaning reporters at The New York Times resent the liberal-leaning editorial page of The New York Times.

The New York Observer has learned over the course of interviews with more than two-dozen current and former Times staffers that the situation has "reached the boiling point" in the words of one current Times reporter. Only two people interviewed for this story agreed to be identified, given the fears of retaliation by someone they criticize as petty and vindictive.

The blame here, in the eyes of most Times reporters to whom The Observer spoke, belongs to Andrew Rosenthal, who as editorial page editor leads both the paper's opinion pages and opinion postings online, as well as overseeing the editorial board and the letters, columnists and op-ed departments. Mr. Rosenthal is accused of both tyranny and pettiness, by the majority of the Times staffers interviewed for this story. And the growing dissatisfaction with Mr. Rosenthal stems from a commitment to excellence that has lifted the rest of the Times, which is viewed by every staffer The Observer spoke to as rapidly and dramatically improving.

"He runs the show and is lazy as all get-out," says a current Times writer, and one can almost hear the Times-ness in his controlled anger (who but a Timesman uses the phrase "as all get-out" these days?). Laziness and bossiness are unattractive qualities in any superior, but they seem particularly galling at a time when the Times continues to pare valued staffers via unending buyouts<http://observer.com/2013/01/after-the-deadline-at-the-new-york-times-the-economics-of-buyouts/>.

The Times declined to provide exact staffing<http://observer.com/2014/02/the-tyranny-and-lethargy-of-the-times-editorial-page/> numbers, but that too is a source of resentment. Said one staffer, "Andy's got 14 or 15 people plus a whole bevy of assistants working on these three unsigned editorials every day. They're completely reflexively liberal, utterly predictable, usually poorly written and totally ineffectual. I mean, just try and remember the last time that anybody was talking about one of those editorials. You know, I can think of one time recently, which is with the [Edward] Snowden stuff, but mostly nobody pays attention, and millions of dollars is being spent on that stuff."

Asked by The Observer for hard evidence supporting a loss of influence of the vaunted editorial page, the same Times staffer fired back, "You know, the editorials are never on the most emailed list; they're never on the most read list. People just are not paying attention, and they don't care. It's a waste of money."




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