[EL] WARNING: SNARK AHEAD RE: Supreme Court and campaign finance
JBoppjr at aol.com
JBoppjr at aol.com
Tue Jul 8 11:55:17 PDT 2014
Regarding Brad's point:
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.
I think there is an answer to both of these:
(1) Broad prophylactic schemes
The reason "reformers" seek broad prophylactic schemes, rather than target
specific problems of corruption, is that their aim is to alter the system
by generally reducing overall campaign spending and, to get incumbents to
support their schemes, to thereby limit criticism of public officials. They
have to talk about corruption only because (1) the courts have made them do
it to get their stuff upheld and (2) it fits with the public's general
cynicism about politicians. They aren't about making minor adjustments that
might prevent any real corruption.
(2) More effort on federal level
Here, follow the money. All the current "reform" groups were created by the
Pew Foundations and its wealthy foundation allies, ie Democracy 21,
Campaign Legal Center, Brennan Center, to do federal campaign finance reform.
The big money is not interested in little fish.
Jim Bopp
In a message dated 7/8/2014 1:53:27 P.M. Eastern Daylight Time,
BSmith at law.capital.edu writes:
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
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