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

[Smith, Brad]

Several thoughts on Robert's post:

1. Robert, as a local office holder with a spouse who has been a candidate for local office, I am very much aware of state and local elections.

2. I actually agree with Robert (and I note Mark Scarberry) that "pay to play" can be a bigger issue locally.

3. I don't think Robert really would challenge my initial assertion, which is that "the vast majority of campaign contributors have no corrupt intentions, and in fact never even seek a meeting with an officeholder." A quick perusal of any state of local disclosure database will disabuse anyone of that notion.

4. Robert changed my assertion, to address "large contributions," (emphasis added), and then asserts that "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)." That's a category that pretty much covers the entire population of the United States, even without depending on how one defines "special benefits." But limiting ourselves to those seeking government contracts and regulatory approvals, not even a significant fraction, let alone "most" large contributions come from such sources.

5. However, assuming, as I have already ceded, that "pay to play" is more likely a problem at state and local levels, and even if one were to accept the wild assertion that "most large contribut[ors]" seek meetings with officeholders and "special benefits" from government, none of this challenges my basic point, which is that contribution limits do, almost by definition, inhibit a great deal of non-corrupting activity.

6. Robert's focus on local elections, I think, strengthens my point - which, for those who have long sense lost track in this meandering debate, is that reform organizations might be able to find common ground if they'd focus more directly on the specific problems of corruption rather than broad prophylactic schemes aimed at altering the system. Why does it strengthen my point? Because campaign finance reform organizations have devoted substantially more effort to the federal level than to state and especially local practices. Further, when they have gone local, the programs are generally modeled after federal level initiatives.

7. Further, relatively little effort has gone into non-campaign finance mechanisms aimed at fighting corruption, such bidding processes, contract review, tougher enforcement of bribery laws, open meetings, and such.

For what its worth, I believe that the focus on campaign finance distracts from efforts to expose and fight actual, real corruption. Indeed, the first thing many a typical politician does, when caught in such corruption, is propose campaign finance reform.


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: Robert Wechsler [catbird at pipeline.com]
Sent: Friday, July 04, 2014 7:12 AM
To: Smith, Brad
Cc: law-election at uci.edu
Subject: Re: [EL] WARNING: SNARK AHEAD RE: Supreme Court and campaign finance

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<mailto:law-election-bounces at department-lists.uci.edu> [law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] on behalf of Joe Birkenstock [birkenstock at sandlerreiff.com<mailto:birkenstock at sandlerreiff.com>]
Sent: Thursday, July 03, 2014 10:38 AM
To: larrylevine at earthlink.net<mailto:larrylevine at earthlink.net>; 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

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



_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu<mailto:Law-election at department-lists.uci.edu>
http://department-lists.uci.edu/mailman/listinfo/law-election

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20140706/3e8de226/attachment.html>