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

Tue Jul 1 16:20:16 PDT 2014

I understand your point, I'm just not conceding your premise.

On Tuesday, July 1, 2014, Smith, Brad <BSmith at law.capital.edu> wrote:

>  Like I say, I think you are missing my point.
>
> Bradley Smith
> Sent from my iPhone
>
> On Jul 1, 2014, at 6:10 PM, "Josh Orton" <orton at progressivesunited.org
> <javascript:_e(%7B%7D,'cvml','orton at progressivesunited.org');>> wrote:
>
>   I'm comfortable saying that I understood your point. But unless you
> suggest replacing the FEC with an independent executive branch agency with
> actual power, then the proper way to prevent the corruption of government
> is legislative. There are big conflicts, certainly - just as there were
> after Watergate. And just as there are, too varying degrees, with all other
> legislative proposals. To say that members of Congress are unqualified to
> prevent their own corruption is to argue that there is no way to prevent
> corruption at all - or, more cynically, to argue ideologically that
> corruption is not something that should be prevented at all.
>
>  I agree that the spenders of soft money would not have agreed that their
> spending was corrupting. There is, of course, no gambling going on in this
> establishment. But it's not possible to deny that soft money was given with
> the expectation of legislative action. Elected officials testified to that
> under oath.
>
>  So again, if you see large-scale corruption as a legitimate function of
> our government, then it's hard to fathom that anyone would want to prevent
> it.
>
>
>
>
>
> On Tue, Jul 1, 2014 at 4:30 PM, Smith, Brad <BSmith at law.capital.edu
> <javascript:_e(%7B%7D,'cvml','BSmith at law.capital.edu');>> wrote:
>
>>  You seem to have missed my point. Of course many people thought that
>> McCain-Feingold was fighting corruption, and that soft money was somehow
>> uniquely corrupting. But officeholders are far more likely to see something
>> that threatens them - in this case "soft money" - as corrupting than
>> something that doesn't threaten them - say, leadership Pacs.
>>
>>  As I noted, quite specifically, these perceptions will exist apart from
>> the officeholder's stated or self-perceived motivation. While there are
>> some officeholders who will act directly to silence their opposition, for
>> that reason alone, most will not. But they will see things that jeopardize
>> their re-election, or make their life more difficult, as problems. So they
>> will see "soft money" and "outside spending" as big problems. Most people
>> who were spending soft money, though, weren't trying to "corrupt" anyone,
>> they were trying to influence who was elected in order to see what they
>> believed was good government put into action. I suspect most spenders of
>> soft money would not agree with the assertion that they were corrupt or
>> corrupting, or that soft money was a "problem." I have little doubt that
>> Russ Feingold didn't think to himself - "we need this to silence certain
>> voices and make my life easier." But simply cannot be a disapassionate
>> observer.
>>
>>  Of course, everyone has interests and experiences that shape their
>> views. But campaign finance is one area where legislators have the most
>> direct conflict of interest, much more than they will something like
>> spending on foreign aid, capital gains tax rates, or health insurance
>> policy. So your third paragraph below totally misses the mark, failing
>> completely to understand the point I am trying to make.
>>
>>
>>  *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:* Josh Orton [orton at progressivesunited.org
>> <javascript:_e(%7B%7D,'cvml','orton at progressivesunited.org');>]
>> *Sent:* Tuesday, July 01, 2014 5:11 PM
>> *To:* Smith, Brad
>> *Cc:* law-election at uci.edu
>> <javascript:_e(%7B%7D,'cvml','law-election at uci.edu');>
>>
>> *Subject:* Re: [EL] WARNING: SNARK AHEAD RE: Supreme Court and campaign
>> finance
>>
>>    The problem with soft money was corruption. It could not have been
>> clearer, unless you see corruption as a legitimate function of democracy,
>> which is actually not that rare a viewpoint.
>>
>> But sure, for those whose livelihood is election dependent, it was all
>> about who it would/would not benefit financially. But I'm not sure McCain
>> cared about that part, and I know that wasn't Russ's motivation.
>>
>> Did both Democrats and Republican support/oppose BCRA for political
>> reasons? I'm sure, just like every other piece of legislation that's ever
>> been proposed. But it's just bogus to backfill the motives of the authors,
>> unless you'd agree that conservatives cheered CU because it allows them to
>> corrupt our government more efficiently.
>>
>> "Politicians, even more than most people, I think, tend to conflate their
>> interests with the interests of the nation." We agree.
>>
>>
>> On Tue, Jul 1, 2014 at 3:47 PM, Smith, Brad <BSmith at law.capital.edu
>> <javascript:_e(%7B%7D,'cvml','BSmith at law.capital.edu');>> wrote:
>>
>>>  Incumbent re-election rates are always high.
>>>
>>>  If you look at McCain-Feingold, the major desire was to stop party
>>> soft money (a major source of funding for challengers; and the elimination
>>> of which strengthened the position of individual incumbent officeholders as
>>> party fundraisers), and to cut back on non-party soft money (the
>>> McCain-Feingold record is replete with members railing against negative ads
>>> that attacked them, funded by non-party soft money; negative ads tend to be
>>> more necessary/effective for challengers). Once it had taken up the bill,
>>> Congress quickly added the "millionaire's amendment" aimed at insulating
>>> themselves from self-funded challengers (incumbents rarely self fund). The
>>> party soft money ban also dramatically reduced any threat of a new third
>>> party (a la the Reform Party) from happening again.
>>>
>>>  Conversely, there was little interest in eliminating leadership PACs,
>>> for example. Challengers don't have leadership Pacs.
>>>
>>>  A phenomenon  that doesn't cut directly for incumbency per se but is
>>> similar is that reforms will tend to be enacted to benefit a party. Again,
>>> it's not necessarily bad motive, it's is just that a party will notice what
>>> is hurting it. John Samples argues in The Fallacy of Campaign Finance
>>> Reform that McCain-Feingold was perceived to benefit the Democratic Party*;
>>> this required attracting just enough Republican votes to pass the
>>> legislation, which were found among weak Republican incumbents. All of this
>>> is not to say that there are not many idealistic supporters of "reform" -
>>> in fact, part of my point is that almost everyone can convince themselves
>>> that the reforms they favor are idealistic, objectively beneficial to
>>> broader society.
>>>
>>>  *It was also intended to benefit the Democratic Party - not
>>> necessarily in the sense that members said "let's pass a bill that helps us
>>> and hurts them," but in the sense, again, that Democrats naturally saw
>>> elements of the system that worked against them as being, in their minds,
>>> objectively bad, and certain elements of reform that worked for them as
>>> being, in their minds, objectively good. Politicians, even more than most
>>> people, I think, tend to conflate their interests with the interests of the
>>> nation.
>>>
>>>  *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
>>> <javascript:_e(%7B%7D,'cvml','law-election-bounces at department-lists.uci.edu');>
>>> [law-election-bounces at department-lists.uci.edu
>>> <javascript:_e(%7B%7D,'cvml','law-election-bounces at department-lists.uci.edu');>]
>>> on behalf of Mark Schmitt [schmitt.mark at gmail.com
>>> <javascript:_e(%7B%7D,'cvml','schmitt.mark at gmail.com');>]
>>> *Sent:* Tuesday, July 01, 2014 12:33 PM
>>> *To:* law-election at UCI.edu
>>> <javascript:_e(%7B%7D,'cvml','law-election at UCI.edu');>
>>>
>>> *Subject:* Re: [EL] WARNING: SNARK AHEAD RE: Supreme Court and campaign
>>> finance
>>>
>>>    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
>>> <javascript:_e(%7B%7D,'cvml','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
>>>> <javascript:_e(%7B%7D,'cvml','law-election-bounces at department-lists.uci.edu');>
>>>> [law-election-bounces at department-lists.uci.edu
>>>> <javascript:_e(%7B%7D,'cvml','law-election-bounces at department-lists.uci.edu');>]
>>>> on behalf of ReThink Media [tyler at rethinkmedia.org
>>>> <javascript:_e(%7B%7D,'cvml','tyler at rethinkmedia.org');>]
>>>> *Sent:* Monday, June 30, 2014 7:56 PM
>>>> *To:* Sean Parnell
>>>> *Cc:* law-election at UCI.edu
>>>> <javascript:_e(%7B%7D,'cvml','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
>>>> <javascript:_e(%7B%7D,'cvml','tyler at rethinkmedia.org');>*
>>>>
>>>>  *Sent from my phone*
>>>>
>>>> On Jun 30, 2014, at 7:24 PM, "Sean Parnell" <
>>>> sean at impactpolicymanagement.com
>>>> <javascript:_e(%7B%7D,'cvml','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
>>>> <javascript:_e(%7B%7D,'cvml','sean at impactpolicymanagement.com');>
>>>>
>>>>
>>>>
>>>> *From:* law-election-bounces at department-lists.uci.edu
>>>> <javascript:_e(%7B%7D,'cvml','law-election-bounces at department-lists.uci.edu');>
>>>> [mailto:law-election-bounces at department-lists.uci.edu
>>>> <javascript:_e(%7B%7D,'cvml','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
>>>> <javascript:_e(%7B%7D,'cvml','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
>>>> <javascript:_e(%7B%7D,'cvml','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
>>>> <javascript:_e(%7B%7D,'cvml','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
>>>> <javascript:_e(%7B%7D,'cvml','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 <javascript:_e(%7B%7D,'cvml','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 <javascript:_e(%7B%7D,'cvml','rhasen at law.uci.edu');>
>>>>
>>>> http://www.law.uci.edu/faculty/full-time/hasen/
>>>>
>>>> http://electionlawblog.org
>>>>
>>>>
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>>>>
>>>>
>>>>
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>>>
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>>
>>
>
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