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

[Mark Schmitt]

Like several points in this thread, this is a plausible but completely
theoretical point that isn't based on any evidence and that doesn't stand
up to any kind of emprical test. If all campaign contributions are purely
expressions of ideological preference, then why...

-- Do House incumbents outraise challengers on average 6:1?

-- Do PACs invest almost 90% of their resources in incumbents? Even single
issue and ideological PACs put only 22% of their money behind challengers.

-- Do most big companies with a lot of engagement with government, like GE
or AT&T, tend to swing their giving based on who controls Congress, giving
more to Rs in the 2002-2006 cycles, back to Ds after 2006, then back to Rs
after 2010?

These donors are expressing a viewpoint, sure, but the viewpoint is
something like, "Sir, we know you'll be here next year, and we want to be
sure you know we're on your team." These donors aren't necessarily
employing Mr. Bopp's "strategy 2" of trying to flip legislators who are
opposed to their view. More often, they are just making sure that they have
some access, especially on issues where the legislator may not have a
strongly held view, may not have encountered the issue before, or the
answer isn't obvious. As for the argument that they "don't seek a meeting"
-- the fundraiser itself is the meeting! Money isn't just given -- almost
always, it's asked for, and given, in a conversation, in person or on the
phone. Lots of things happen in that conversation. This isn't complicated.

Also, by the way, the incumbent fundraising advantage is not a function of
contribution limits and would not go away if contribution limits were
raised or eliminated. By comparing states, Thomas Stratmann of George Mason
(a public-choice economist) has shown that low contribution limits reduce
incumbent advantage, while in states with very high contribution limits,
incumbents raise much more and are even more insulated from challenge. (
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1400788) I'm not in
favor of low contribution limits, because they push money outside of the
candidates and parties, but there's no evidence that very high contribution
limits or none at all would improve competitiveness.

I'd like to live in a world in which most donations represent the policy
viewpoints of individuals and most citizens were able to express their
views through contributions in a minimally meaningful way, if they chose
to. But let's use actual evidence to figure out how to get to that place.



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


On Sun, Jul 6, 2014 at 1:54 PM, mallamud <mallamud at camden.rutgers.edu>
wrote:

> A very cogent and good point, Larry.
>
>
> On 2014-07-06 13:35, Larry Levine wrote:
>
>> 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 [33] 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 [30]
>>>
>>>
>>> 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 [10]_
>>>>
>>>> -------------------------
>>>>
>>>> FROM: law-election-bounces at department-lists.uci.edu [11]
>>>> [law-election-bounces at department-lists.uci.edu [12]] on behalf of
>>>> Joe Birkenstock [birkenstock at sandlerreiff.com [13]]
>>>> SENT: Thursday, July 03, 2014 10:38 AM
>>>> TO: larrylevine at earthlink.net [14]; JBoppjr at aol.com [15]
>>>> CC: law-election at uci.edu [16]
>>>> 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 [17]>
>>>> REPLY-TO: "larrylevine at earthlink.net [18]"
>>>> <larrylevine at earthlink.net [19]>
>>>> DATE: Thursday, July 3, 2014 at 10:16 AM
>>>> TO: Joe Birkenstock <birkenstock at sandlerreiff.com [20]>, Jim Bopp
>>>> <jboppjr at aol.com [21]>
>>>> CC: "law-election at uci.edu [22]" <law-election at uci.edu [23]>
>>>> 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 [24]
>>>> [mailto:law-election-bounces at department-lists.uci.edu [25]] ON
>>>> BEHALF OF Joe Birkenstock
>>>> SENT: Thursday, July 03, 2014 6:52 AM
>>>> TO: JBoppjr at aol.com [26]
>>>> CC: law-election at uci.edu [27]
>>>> 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 [28]"
>>>> <JBoppjr at aol.com [29]> 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 [9] 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 [7]"
>>>>>> <JBoppjr at aol.com [8]> 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 [6] 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 [1]>
>>>>>>>> DATE: Thursday, July 3, 2014 at 8:18 AM
>>>>>>>> TO: Trevor Potter <tpotter at capdale.com [2]>
>>>>>>>> CC: "law-election at uci.edu [3]" <law-election at uci.edu [4]>
>>>>>>>> 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 [5] writes:
>>>>>>>>
>>>>>>>>  right to buy and sell meetings with government officials
>>>>>>>>>
>>>>>>>>
>>>> _______________________________________________
>>>>
>>>> Law-election mailing list
>>>>
>>>> Law-election at department-lists.uci.edu
>>>>
>>>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>>>
>>>
>>> _______________________________________________
>>> Law-election mailing list
>>> Law-election at department-lists.uci.edu [31]
>>> http://department-lists.uci.edu/mailman/listinfo/law-election [32]
>>>
>>
>>
>> Links:
>> ------
>> [1] mailto:jboppjr at aol.com
>> [2] mailto:tpotter at capdale.com
>> [3] mailto:law-election at uci.edu
>> [4] mailto:law-election at uci.edu
>> [5] mailto:tpotter at capdale.com
>> [6] mailto:birkenstock at sandlerreiff.com
>> [7] mailto:JBoppjr at aol.com
>> [8] mailto:JBoppjr at aol.com
>> [9] mailto:birkenstock at sandlerreiff.com
>> [10] http://law.capital.edu/faculty/bios/bsmith.aspx
>> [11] mailto:law-election-bounces at department-lists.uci.edu
>> [12] mailto:law-election-bounces at department-lists.uci.edu
>> [13] mailto:birkenstock at sandlerreiff.com
>> [14] mailto:larrylevine at earthlink.net
>> [15] mailto:JBoppjr at aol.com
>> [16] mailto:law-election at uci.edu
>> [17] mailto:larrylevine at earthlink.net
>> [18] mailto:larrylevine at earthlink.net
>> [19] mailto:larrylevine at earthlink.net
>> [20] mailto:birkenstock at sandlerreiff.com
>> [21] mailto:jboppjr at aol.com
>> [22] mailto:law-election at uci.edu
>> [23] mailto:law-election at uci.edu
>> [24] mailto:law-election-bounces at department-lists.uci.edu
>> [25] mailto:law-election-bounces at department-lists.uci.edu
>> [26] mailto:JBoppjr at aol.com
>> [27] mailto:law-election at uci.edu
>> [28] mailto:JBoppjr at aol.com
>> [29] mailto:JBoppjr at aol.com
>> [30] http://www.cityethics.org/
>> [31] mailto:Law-election at department-lists.uci.edu
>> [32] http://department-lists.uci.edu/mailman/listinfo/law-election
>> [33] mailto:catbird at pipeline.com
>>
>
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