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

Sun Jul 6 13:37:31 PDT 2014

City council candidates usually are perceived to be “pro-developer” or “anti-developer” at the time they file. Surely, in cities where development is an issue candidates will be forced to take positions on these issues and the sources of their contributions will become known. Same can be said of other issues: pro or anti union, open space protections, crime, etc. In addition voter turnouts tend to be smaller in municipal races with the result being a more informed electorate to discern the differences between candidates. Awarding of contracts most frequently is based on competitive bidding and recommendations come from departments in the administrative branch. Where final approval is required by a legislative body, there is the press and public interest groups to keep an eye on whether the “lowest competitive bid” standard is being violated frequently. And union contracts are produced by collective bargaining in which the elected officials usually are not directly involved. Certainly, nothing is perfect. But neither are things so far off the rails as to justify rampant violations of free political speech and redress. And on those occasions when they go off the rails there numbers of safeguards. Furthermore, contribution limits tend to work a disproportionate hardship on those attempting to finance campaigns in opposition to incumbents – in other words redress a grievance through free political speech.

I know I run the risk of being called naïve again for this position. But after 44 years of political consulting and a dozen years as a political reporter, I’ll take that risk.

Larry

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Scarberry, Mark
Sent: Sunday, July 06, 2014 12:50 PM
To: law-election at uci.edu
Subject: Re: [EL] WARNING: SNARK AHEAD RE: Supreme Court and campaign finance

I usually agree with Jim and Larry, and usually am on the "free speech" side rather than the "reform" side on these issues. I do wonder though whether local officials who have great latitude in awarding contracts and benefits (generally on non-ideological grounds) may reward contributors in ways that state and federal level elected officials would find it hard to do. 

Perhaps public employee union contributions raise similar issues at the state and federal level, and perhaps elected officials at those levels have a lot of influence on awarding of contracts (beyond members of congress bringing the pork home for their home states). So perhaps the issues are not easily distinguishable based on these levels.

Mark

Mark S. Scarberry

Pepperdine University School of Law

Sent from my Verizon Wireless 4G LTE Smartphone

-------- Original message --------

From: Larry Levine 

Date:07/06/2014 10:36 AM (GMT-08:00) 

To: JBoppjr at aol.com, catbird at pipeline.com, BSmith at law.capital.edu 

Cc: law-election at uci.edu 

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

I’ve been preaching this message to reformers and reporters for decades. People who opposed the war in Vietnam gave to anti-war candidates, not pro-war candidates; people who support reproductive choice give to one set of candidates; anti-choice advocates give to different candidates. All this is why I believe contribution limits are an abridgment of the right of redress. When is free speech more necessary than in pursuit of redress. If my government is trying to break the union movement and I am pro-labor I should be permitted to contribute to pro-labor candidates in unlimited amounts. The notion that I would give to an anti-labor candidate to change his or her vote is foolish. Were I to do so with the express agreement that the vote would change, that would be bribery and we have laws to cover that. 

Larry

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of JBoppjr at aol.com
Sent: Sunday, July 06, 2014 7:22 AM
To: catbird at pipeline.com; BSmith at law.capital.edu
Cc: law-election at uci.edu
Subject: Re: [EL] WARNING: SNARK AHEAD RE: Supreme Court and campaign finance

Regarding:

It's interesting how easily and unquestioningly some people say that "the vast majority of campaign contributors have no corrupt intentions," when in the vast majority of elections — that is, local elections — most large contributions come from "restricted sources," that is, those regulated by, employed by, or seeking special benefits from the government (directly or for their clients). 

As has been explained, there are two strategies for contributing, (1) find someone who agrees with you and then contribute to him or her to help get him or her get elected, or (2) find someone who opposes your views or is indifferent and then contribute to her to change her mind.  Strategy (2) is rare because it is so dumb.  What are the chances of changing someone's mind with a contribution, particularly one limited by contribution limits? If that happens, what are the chances of the politician staying bought?  

Strategy (1) is way more successful.

This is so for anyone wanting benefits from government, including those wanting "special benefits." Lets say someone wants an increase in food stamp allowances. It is much smarter to contribute to a liberal Democrat than to a conservative Republican. And it does not matter if it is a "special benefit," whatever that is.  Let's say one wants increased public employee union pensions and health care benefits. Well find a politician who thinks that is good public policy, ie, your average union official or everyday liberal Democrat, and contribute to him or her and you actually have a chance that the politician might support that public policy in office.  

"Pay to play" is Strategy (2) and I can only hope that all the liberals and progressives actually employ this strategy.  I have a nice long list of conservative Republicans for them to "pay to play."  

However, we know they don't, so what does that say about the validity of their argument?. Jim Bopp

In a message dated 7/5/2014 6:18:23 P.M. Eastern Daylight Time, catbird at pipeline.com writes:

It's interesting how easily and unquestioningly some people say that "the vast majority of campaign contributors have no corrupt intentions," when in the vast majority of elections — that is, local elections — most large contributions come from "restricted sources," that is, those regulated by, employed by, or seeking special benefits from the government (directly or for their clients). In local elections, there is little ideology and lots of pay to play, expected contributions from employees and appointed officials, and the desire to preserve access and influence in order to keep, get, or prevent very specific things, such as contracts, permits, grants, and regulations. The vast majority of these contributors meet with officeholders.

The world does not consist of the federal government. In the world where I work, you cannot get elected without money from restricted sources unless you are independently wealthy or participate in a public campaign financing program. Are elected local and state officials decent and honorable people stuck in a situation of legal, institutional corruption? No one can know an individual's character, but we can know the laws they pass and fail to pass.

We also cannot know how many decent, honorable people choose not to run because of what they would have to do to run a winning campaign.

Robert Wechsler
City Ethics <http://www.cityethics.org/> 

On 7/3/2014 6:11 PM, Smith, Brad wrote:

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>
Reply-To: "larrylevine at earthlink.net" <larrylevine at earthlink.net>
Date: Thursday, July 3, 2014 at 10:16 AM
To: Joe Birkenstock <birkenstock at sandlerreiff.com>, Jim Bopp <jboppjr at aol.com>
Cc: "law-election at uci.edu" <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] On Behalf Of Joe Birkenstock
Sent: Thursday, July 03, 2014 6:52 AM
To: JBoppjr at aol.com
Cc: 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" <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 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" <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 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>
Date: Thursday, July 3, 2014 at 8:18 AM
To: Trevor Potter <tpotter at capdale.com>
Cc: "law-election at uci.edu" <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 writes:

right to buy and sell meetings with government officials 

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