[EL] WARNING: SNARK AHEAD RE: Supreme Court and campaign finance

Tue Jul 1 09:33:05 PDT 2014

Interesting theory, but how do you explain the fact that Congress passed
BCRA after three consecutive cycles of incumbent reelection rates of 96% or
higher?

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

On Mon, Jun 30, 2014 at 8:21 PM, Smith, Brad <BSmith at law.capital.edu> wrote:

>  My general view is that all campaign finance systems will eventually
> come to benefit incumbents. This isn't necessarily due to nefarious purpose
> or intent (though it can be and sometimes is). Rather, if the system
> benefits incumbents, it won't be seen as a problem. Even if pressure grows
> for "reform," incumbents won't see as the problem those elements (or at
> least most such elements) that benefit incumbents. If the system is working
> against incumbents, however, those incumbents will see that as a problem
> and move to change the system.
>
>  *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 <614.236.6317>*
>
> *http://law.capital.edu/faculty/bios/bsmith.aspx
> <http://law.capital.edu/faculty/bios/bsmith.aspx>*
>   ------------------------------
> *From:* law-election-bounces at department-lists.uci.edu [
> law-election-bounces at department-lists.uci.edu] on behalf of ReThink Media
> [tyler at rethinkmedia.org]
> *Sent:* Monday, June 30, 2014 7:56 PM
> *To:* Sean Parnell
> *Cc:* law-election at UCI.edu
> *Subject:* Re: [EL] WARNING: SNARK AHEAD RE: Supreme Court and campaign
> finance
>
>   I didn't mean to imply that this is necessarily the **real** reason
> Republicans oppose the amendment but rather to show Mr. Bopps argument is
> easily turned on its head.
>
> --
> Tyler Creighton
> *tyler at rethinkmedia.org <tyler at rethinkmedia.org>*
>
>  *Sent from my phone*
>
> On Jun 30, 2014, at 7:24 PM, "Sean Parnell" <
> sean at impactpolicymanagement.com> wrote:
>
>   All I can say is that if I possessed the type of mindreading abilities
> displayed here on the matter of why Republicans **really** oppose a
> Constitutional amendment giving Congress the powers sought by Mr.
> Creighton, I wouldn’t be typing out e-mails to the election law listserve,
> I’d be sitting at a poker table in Vegas.
>
>
>
> Best,
>
>
>
> Sean Parnell
>
> President
>
> Impact Policy Management, LLC
>
> 6411 Caleb Court
>
> Alexandria, VA  22315
>
> 571-289-1374 (c)
>
> sean at impactpolicymanagement.com
>
>
>
> *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 *Tyler
> Creighton
> *Sent:* Monday, June 30, 2014 6:31 PM
> *To:* law-election at UCI.edu
> *Subject:* Re: [EL] Supreme Court and campaign finance
>
>
>
> The "campaign finance is incumbency protection" argument is a tired trope
> that doesn't hold water. The argument implies that Congressional inaction
> to regulate campaign finance is as much an incumbency protection racket as
> Congressional action to do the same. In other words not writing any rules
> is in fact writing the rules. Republicans in Congress refuse to support a
> constitutional amendment empowering Congress to place contribution limits
> on independent expenditure groups because they wish to preserve a leg up
> over challengers who cannot attract large sums of IEs. Republicans in
> Congress refuse to support a constitutional amendment empowering Congress
> to re-enforce aggregate contribution limits because incumbents can join
> together to solicit multi-million dollar contributions to JFCs.
>
>
>
> Moreover, the argument is completely divorced from hard data and the
> reality of modern day fundraising. The data shows us that incumbents are
> disproportionately advantaged in raising large sums of money with higher
> contribution limits. Incumbents have ready made fundraising networks and
> connections to industry and lobbyists who are willing to write checks and
> host fundraisers. Of the top 20 State Assembly fundraisers in 2012 in
> Texas
> <http://www.followthemoney.org/database/StateGlance/state_candidates.phtml?s=TX&y=2012&f=H>,
> a state with no individual contribution limit to candidates, 14 were
> incumbents while a mere 4 were challengers and 2 were for open seats. A
> challenger doesn't crack the top 7. Only one true challenger is in the
> top 20 list
> <http://www.followthemoney.org/database/StateGlance/state_candidates.phtml?s=TX&y=2012&f=S>
> for State Senate candidates. A much more exhaustive look at contribution
> limits
> <http://www.brennancenter.org/sites/default/files/legacy/publications/Electoral.Competition.pdf> and
> electoral competition by the Brennan Center (itself supported by this GMU
> research <http://brennan.3cdn.net/82542437c8f479e0e9_3em6iyowv.pdf>)
> substantiates this quick glance at the data in Texas.
>
>
>
> One can certainly envision a contribution limit sufficiently low as to
> advantage incumbents over challengers, but high contribution limits is the
> other side of the same coin. If your goal is electoral competition, public
> financing of elections, as demonstrated in Connecticut
> <http://www.demos.org/publication/fresh-start-impact-public-campaign-financing-connecticut>
> and elsewhere, should be your goal, not abolishment of all contribution
> caps.
>
>
>   *Tyler Creighton* | tyler at rethinkmedia.org  |  Media Associate
>
> ReThink Media <http://rethinkmedia.org> | (202) 449-6960 office | (925)
> 548-2189 <%28925%29%20548-2189> mobile
>
> @ReThinkDemocrcy <https://twitter.com/rethinkdemocrcy> | @ReThink_Media
> <https://twitter.com/rethink_media> | @TylerCreighton
> <http://www.twitter.com/tylercreighton>
>
>
>
> On Mon, Jun 30, 2014 at 3:46 PM, Rick Hasen <rhasen at law.uci.edu> wrote:
>
> If anyone responds to this, please use this (or another) subject line (and
> not ELB News and Commentary)
>
> On 6/30/14, 12:44 PM, JBoppjr at aol.com wrote:
>
>  Regarding this:
>
> *The Court has shown no such deference when it comes to the need for
> campaign finance regulation or to protect the voting rights of racial
> minorities and others. The Roberts Court has overturned or limited every
> campaign finance law it has examined (aside from disclosure laws). It has
> struck down a key provision of the Voting Rights Act. How much deference
> did Congress get in those cases? None.*
>
> *Well when is Congress wise and entitled to deference? When the Court
> agrees with Congress’s approach. Let’s call that “faux deference,” to go
> with the “f**aux-nanimity*
> <http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2014/scotus_roundup/scotus_end_of_term_massachusetts_abortion_clinic_buffer_zone_law_goes_down.html>*”
> of the rest of the term.*
>
> Rather than deference, a much better argument could be made for scepticism
> when it comes to Congress writing campaign finance laws.  After all, with
> campaign finance laws, members of Congress are writing the rules for their
> own election specifically and when citizens can criticize them
> generally. There are no subjects that they are more intensely
> self-interested.
>
> Ironically, "reformers" should know this.  Some of them believe that
> members of Congress thirst so strongly for campaign contributions that they
> would sell their votes for just a few hundred dollars.  If this is true,
> then surely they would write campaign finance laws to benefit themselves.
> Jim Bopp
>
> In a message dated 6/30/2014 1:05:54 P.M. Eastern Daylight Time,
> rhasen at law.uci.edu writes:
>
> #HobbyLobby: When is Congress “Wise?” When the Court Agrees with
> Congress’s Wisdom <http://electionlawblog.org/?p=62877>
>
> Posted on June 30, 2014 8:50 am <http://electionlawblog.org/?p=62877> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Near the end of Justice Alito’s majority opinion in the Hobby Lobby
> <http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf> case today,
> he writes that it is not the Court’s job to question the “wisdom” of
> Congress in using the compelling interest test in RFRA, but the Court
> applies that RFRA test strongly, and in a way which shows the Court
> apparently giving great deference to Congress’s judgment about how to
> balance the government’s interest in generally applicable laws with the
> accommodations of religious freedoms. It reminded me of Justice Scalia’s
> pleas in Windsor
> <http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf>last term for
> deference to Congress on the need for the Defense of Marriage Act.
>
> The Court has shown no such deference when it comes to the need for
> campaign finance regulation or to protect the voting rights of racial
> minorities and others. The Roberts Court has overturned or limited every
> campaign finance law it has examined (aside from disclosure laws). It has
> struck down a key provision of the Voting Rights Act. How much deference
> did Congress get in those cases? None.
>
> Well when is Congress wise and entitled to deference? When the Court
> agrees with Congress’s approach. Let’s call that “faux deference,” to go
> with the “faux-nanimity
> <http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2014/scotus_roundup/scotus_end_of_term_massachusetts_abortion_clinic_buffer_zone_law_goes_down.html>”
> of the rest of the term.
>
>
>
>  --
>
> 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 - office
>
> 949.824.0495 - fax
>
> rhasen at law.uci.edu
>
> http://www.law.uci.edu/faculty/full-time/hasen/
>
> http://electionlawblog.org
>
>
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