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

[Smith, Brad]

As I read this thread, a few thoughts occur to me:

1. Chief Justice Roberts made a very good point in the McCutcheon decision, when he pointed out that contribution limits are themselves a "prophylactic." That is to say, the vast majority of campaign contributors have no corrupt intentions, and in fact never even seek a meeting with an officeholder. They merely want what they consider to be good policy and good government. Similarly, the substantial majority of officeholders are not corrupt, but  decent, honorable men and women trying to do a very difficult job. Thus, contribution limits inherently infringe on a great deal of political activity - speech activity - that is outside the scope of "corruption" as, I think, most Americans think of "corruption," and as the Supreme Court defines it for purposes of a compelling government interest that might overcome First Amendment rights.

2. The reform movement has not pursued narrowly targeted approaches aimed at specific, actual corruption with much vigor. Yes, virtually all reformers I know dislike Leadership PACs, but they have devoted, on the whole, little effort to reforming them. They have done very little to revise "personal use" laws (I believe I can say that during my time on the FEC, I was the toughest commissioner on the question of personal use). They have paid little attention to the types of events that Joe writes about below (But ask Bob Ney if there are limits). They have not put a major emphasis on limiting direct promises of access for contributions. Lobbying abuses, including lobbying by immediate family members, have always been a secondary target. Again, I emphasize that of course reformers have bemoaned abuses in these areas, but they have not been a major point of the reform lobby's legislative efforts. Those efforts have been reserved for much broader, "prophylactic" measures that necessarily limit a great deal of First Amendment activity that is not corrupting, and that have created an ever more complex set of rules that have, themselves, distorted the process. (As Larry notes, there was a time, before contribution limits, when massive IE campaigns were unheard of, to give just one example). Even the 1990s law that finally prohibited officeholders from converting campaign funds to personal funds on retirement was not led by the reform community, but by talk radio hosts, term limit enthusiasts, and other tea party precursors upset about perceived congressional abuses in the late '80s and early '90s that included the House banking scandal and more.

3. I suspect there would be room for cooperation and broad consensus on some of these narrow corruption issues, if reformers were prepared to drop their more utopian ideas and blunderbuss measures and place their focus here.





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 [law-election-bounces at department-lists.uci.edu] on behalf of Joe Birkenstock [birkenstock at sandlerreiff.com]
Sent: Thursday, July 03, 2014 10:38 AM
To: larrylevine at earthlink.net; JBoppjr at aol.com
Cc: law-election at uci.edu
Subject: Re: [EL] WARNING: SNARK AHEAD RE: Supreme Court and campaign finance

Fair question Larry, but it’s the “stays with” that really illustrates my point.  What does that mean when that money replaces money spent on skiing?

My real point with all this: Jim & his clients are litigating away/have litigated away the administrative rules that used to draw these kinds of lines.  What’s left are a set of criminal laws that Jim says he supports (his words: selling access “should be” illegal) but which exist primarily in the eye of the beholder.

Ask Scott Walker (or Don Seigelman) whether we’re better off using criminal laws to police officeholder self-dealing than we were when these were issues addressed first and foremost with fines and conciliation agreements.

Sent from my iPhone


From: Larry Levine <larrylevine at earthlink.net<mailto:larrylevine at earthlink.net>>
Reply-To: "larrylevine at earthlink.net<mailto:larrylevine at earthlink.net>" <larrylevine at earthlink.net<mailto:larrylevine at earthlink.net>>
Date: Thursday, July 3, 2014 at 10:16 AM
To: Joe Birkenstock <birkenstock at sandlerreiff.com<mailto:birkenstock at sandlerreiff.com>>, Jim Bopp <jboppjr at aol.com<mailto:jboppjr at aol.com>>
Cc: "law-election at uci.edu<mailto:law-election at uci.edu>" <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: RE: [EL] WARNING: SNARK AHEAD RE: Supreme Court and campaign finance

And what if the money stays with the campaign committee for communications with voters and eliminates the cause for independent expenditures?
Larry

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 Joe Birkenstock
Sent: Thursday, July 03, 2014 6:52 AM
To: JBoppjr at aol.com<mailto:JBoppjr at aol.com>
Cc: law-election at uci.edu<mailto:law-election at uci.edu>
Subject: Re: [EL] WARNING: SNARK AHEAD RE: Supreme Court and campaign finance

"Who gets the $100k?" That's a good question, isn't it?

In practice it goes back to the campaign committee that paid for the weekend. So if you accept that money is fungible it seems as true to say the weekend attendees get it - at least get the benefit of it (including the senator).

Sent from my iPhone

On Jul 3, 2014, at 9:47 AM, "JBoppjr at aol.com<mailto:JBoppjr at aol.com>" <JBoppjr at aol.com<mailto:JBoppjr at aol.com>> wrote:
As Trevor's "example" demonstrates, there is a lot of sloppy, vague and broad language used by "reformers" here.  So, as to Joe's hypo, who get the $100K -- assuming it does not violate any contribution limits?  Jim

In a message dated 7/3/2014 9:40:23 A.M. Eastern Daylight Time, birkenstock at sandlerreiff.com<mailto:birkenstock at sandlerreiff.com> writes:
Sure does. What if a US senator (also a public official) raises the same $100k from the same sources for a private ski weekend in Aspen all paid by campaign funds. Still a bribe?

Sent from my iPhone

On Jul 3, 2014, at 9:34 AM, "JBoppjr at aol.com<mailto:JBoppjr at aol.com>" <JBoppjr at aol.com<mailto:JBoppjr at aol.com>> wrote:
Can the Director of the IRS -- a government official -- charge and pocket $100,000 for a meeting with him at IRS headquarters?  Sounds like a bribe to me  Jim Bopp

In a message dated 7/3/2014 9:30:42 A.M. Eastern Daylight Time, birkenstock at sandlerreiff.com<mailto:birkenstock at sandlerreiff.com> writes:
Now *this* is an interesting way to start a long holiday weekend.  Serious question: this is "already illegal" under what law?

___________________________________
Joseph M. Birkenstock
Sandler Reiff Lamb Rosenstein & Birkenstock, P.C.
1025 Vermont Avenue, NW, Suite 300
Washington, DC 20005
202.479.1111
*also admitted to practice in CA


From: Jim Bopp <jboppjr at aol.com<mailto:jboppjr at aol.com>>
Date: Thursday, July 3, 2014 at 8:18 AM
To: Trevor Potter <tpotter at capdale.com<mailto:tpotter at capdale.com>>
Cc: "law-election at uci.edu<mailto:law-election at uci.edu>" <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: Re: [EL] WARNING: SNARK AHEAD RE: Supreme Court and campaign finance

Trevor, you are so silly.  This is already illegal and should be.  Jim

In a message dated 7/2/2014 7:37:19 P.M. Eastern Daylight Time, tpotter at capdale.com<mailto:tpotter at capdale.com> writes:
right to buy and sell meetings with government officials
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