[EL] smith on cu

Fri Apr 3 10:06:21 PDT 2015

Taking a literal reading of the passage Rick quotes, the Court agreed there is some, though scant, evidence that independent expenditures ingratiate. But that evidence is irrelevant because ingratiation isn't corruption. Which is what Brad said. My guess is that Rick misread Brad as saying "corruption" when he said "gratitude."

A more interesting question: what is the relevance of the McConnell record to Citizens United? I take Rick as suggesting that (1) the McConnell record had insufficient evidence of true quid-pro-quo corruption, (2) Justice Kennedy relied upon that record to reaffirm Buckley's view of independent expenditures, but that (3) he would not have done so if presented with a record that *did* contain (sufficient) evidence of true quid-pro-quo corruption.

But another way of reading even this passage: (1) Buckley found, as a facial matter, that independent expenditures do not lead to, or create the appearance of, quid-pro-quo corruption, (2) McConnell disagreed on the basis of a particular record, (3) that record is irrelevant because Buckley's finding was a conclusion of law, not fact, as is apparent from Buckley itself and (4) Citizens United was, like Buckley, decided without the benefit of such a record because it is unnecessary.

Put differently: there's a tendency to cherry-pick quotes, of which Justice Kennedy serves up many, that are not central to the holding. I'm a litigator, so maybe I'm too close to such things, but it seems the presence or absence of a factual record, and whether a case is decided facially or as-applied, are better guides. The phrase "confirms Buckley's reasoning" simply begs the question: is Kennedy musing over McConnell or relying upon its record to reach the same conclusion Buckley found without one?

My thanks to anyone who made it through the above; it's almost as though one can't reduce hundreds of pages to a few choice soundbites.

________________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen [rhasen at law.uci.edu]
Sent: Friday, April 03, 2015 12:14 PM
To: Smith, Brad
Cc: law-election at UCI.edu
Subject: Re: [EL] smith on cu

I get an even greater kick of an argument against literalism in campaign
finance law interpretation when this critique comes from a person who
ends his book on campaign finance ("Unfree Speech") by reminding us that
the First
Amendment begins with “Congress shall make no law . . . ”

On 4/3/15 8:10 AM, Smith, Brad wrote:
> I get a kick out of the stubborn obtuseness and literalism of people who refuse to understand the court's decisions o. The court's terms.
>
> Bradley Smith
> Sent from my iPhone
>
> On Apr 3, 2015, at 10:51 AM, "Rick Hasen" <rhasen at law.uci.edu> wrote:
>
>> “Ted Stevens Case Looms Over Menendez Indictment”<http://electionlawblog.org/?p=71516>
>> Posted on April 3, 2015 7:49 am<http://electionlawblog.org/?p=71516> by Rick Hasen<http://electionlawblog.org/?author=3>
>>
>> Mike Sacks<http://www.nationallawjournal.com/id=1202722424024/Ted-Stevens-Case-Looms-Over-Menendez-Indictment> reports for NLJ.
>>
>>
>>
>> [Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D71516&title=%E2%80%9CTed%20Stevens%20Case%20Looms%20Over%20Menendez%20Indictment%E2%80%9D&description=>
>> Posted in chicanery<http://electionlawblog.org/?cat=12>, direct democracy<http://electionlawblog.org/?cat=62>
>> “In a Short Time, Ted Cruz Has Raised Big Money From Small Donors”<http://electionlawblog.org/?p=71514>
>> Posted on April 3, 2015 7:44 am<http://electionlawblog.org/?p=71514> by Rick Hasen<http://electionlawblog.org/?author=3>
>>
>> NYT’s The Upshot reports.<http://www.nytimes.com/2015/04/03/upshot/what-ted-cruzs-early-fund-raising-means-and-doesnt.html?ref=politics&abt=0002&abg=1>
>>
>> [Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D71514&title=%E2%80%9CIn%20a%20Short%20Time%2C%20Ted%20Cruz%20Has%20Raised%20Big%20Money%20From%20Small%20Donors%E2%80%9D&description=>
>> Posted in campaign finance<http://electionlawblog.org/?cat=10>
>> “Interim Report on Voting Equipment Performance, Usage & Certification”<http://electionlawblog.org/?p=71512>
>> Posted on April 3, 2015 7:33 am<http://electionlawblog.org/?p=71512> by Rick Hasen<http://electionlawblog.org/?author=3>
>>
>>  From Virginia<http://elections.virginia.gov/WebDocs/VotingEquipReport/1.pdf> (more here)<http://elections.virginia.gov/webdocs/VotingEquipReport/>.
>>
>> [Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D71512&title=%E2%80%9CInterim%20Report%20on%20Voting%20Equipment%20Performance%2C%20Usage%20%26%20Certification%E2%80%9D&description=>
>> Posted in election administration<http://electionlawblog.org/?cat=18>, voting technology<http://electionlawblog.org/?cat=40>
>> “A Skewed Electoral Field”<http://electionlawblog.org/?p=71510>
>> Posted on April 3, 2015 7:29 am<http://electionlawblog.org/?p=71510> by Rick Hasen<http://electionlawblog.org/?author=3>
>>
>> Rob Richie<http://www.nytimes.com/2015/04/03/opinion/a-skewed-electoral-field.html> NYT letter to the editor.
>>
>> [Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D71510&title=%E2%80%9CA%20Skewed%20Electoral%20Field%E2%80%9D&description=>
>> Posted in electoral college<http://electionlawblog.org/?cat=44>
>> “Fresh Questions About ‘Coordination’ Rules”<http://electionlawblog.org/?p=71508>
>> Posted on April 3, 2015 7:28 am<http://electionlawblog.org/?p=71508> by Rick Hasen<http://electionlawblog.org/?author=3>
>>
>> Bauer<http://www.moresoftmoneyhardlaw.com/2015/04/fresh-questions-coordination-rules/> on Brickner on Gilbert.
>>
>> [Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D71508&title=%E2%80%9CFresh%20Questions%20About%20%E2%80%98Coordination%E2%80%99%20Rules%E2%80%9D&description=>
>> Posted in campaign finance<http://electionlawblog.org/?cat=10>
>> #SCOTUS Didn’t Mean It When They Said It Dep’t<http://electionlawblog.org/?p=71506>
>> Posted on April 3, 2015 7:25 am<http://electionlawblog.org/?p=71506> by Rick Hasen<http://electionlawblog.org/?author=3>
>>
>> Brad Smith<http://www.nytimes.com/2015/04/03/us/politics/robert-menendez-indictment-points-to-corrupting-potential-of-super-pacs.html?hp&action=click&pgtype=Homepage&module=second-column-region&region=top-news&WT.nav=top-news&_r=1> trying to recast the holding of Citizens United in the NYT:
>>
>> “The court’s position is pretty simple, and it is not that independent expenditures can never create gratitude in an officeholder,” said Bradley A. Smith, a professor of law at Capital University Law School. “Rather it is that as a constitutional matter, they do not pose a threat of corruption sufficient to justify the invasions of First Amendment rights that the ‘reformers’ crave.”
>>
>> Here’s what the Court actually said in Citizens United<http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=08-205>:
>>
>> The McConnell record was “over 100,000 pages” long, McConnell I, 251 F. Supp. 2d, at 209, yet it “does not have any direct examples of votes being exchanged for . . . expenditures,” id., at 560 (opinion of Kollar-Kotelly, J.). This confirms Buckley‘s reasoning that independent expenditures do not lead to, or create the appearance of,quid pro quo corruption. In fact, there is only scant evidence that independent expenditures even ingratiate. See 251 F. Supp. 2d, at 555-557 (opinion of Kollar-Kotelly, J.). Ingratiation and access, in any event, are not corruption.
>>
>> I explain how the Court significantly narrowed the definition of corruption in Citizens United in my Michigan Law Review article, Citizens United and the Illusion of Coherence<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1620576>. It is a trend that was extended from expenditures to contributions in last year’s McCutcheon case.
>>
>>
>>
>> [Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D71506&title=%23SCOTUS%20Didn%E2%80%99t%20Mean%20It%20When%20They%20Said%20It%20Dep%E2%80%99t&description=>
>> Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>
>> “Gov. Scott’s criticism of online voter registration angers counties”<http://electionlawblog.org/?p=71504>
>> Posted on April 2, 2015 4:17 pm<http://electionlawblog.org/?p=71504> by Rick Hasen<http://electionlawblog.org/?author=3>
>>
>> News<http://www.tampabay.com/blogs/the-buzz-florida-politics/scotts-criticism-of-online-voter-registration-angers-elections-officials/2223877> from FL.
>>
>> [Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D71504&title=%E2%80%9CGov.%20Scott%E2%80%99s%20criticism%20of%20online%20voter%20registration%20angers%20counties%E2%80%9D&description=>
>> Posted in Uncategorized<http://electionlawblog.org/?cat=1>
>> “The Menendez Case Proves the Supreme Court Was Naive About Campaign Finance Laws”<http://electionlawblog.org/?p=71502>
>> Posted on April 2, 2015 4:10 pm<http://electionlawblog.org/?p=71502> by Rick Hasen<http://electionlawblog.org/?author=3>
>>
>> Christian Farias writes<http://www.newrepublic.com/article/121446/menedez-corruption-case-exposes-supreme-court-naivete> for TNR.
>>
>> [Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D71502&title=%E2%80%9CThe%20Menendez%20Case%20Proves%20the%20Supreme%20Court%20Was%20Naive%20About%20Campaign%20Finance%20Laws%E2%80%9D&description=>
>> Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>
>> “Robert Menendez Indictment Points to Corrupting Potential of Super PACs”<http://electionlawblog.org/?p=71500>
>> Posted on April 2, 2015 4:09 pm<http://electionlawblog.org/?p=71500> by Rick Hasen<http://electionlawblog.org/?author=3>
>>
>> NYT reports.<http://www.nytimes.com/2015/04/03/us/politics/robert-menendez-indictment-points-to-corrupting-potential-of-super-pacs.html?hp&action=click&pgtype=Homepage&module=second-column-region&region=top-news&WT.nav=top-news&_r=0>
>>
>> [Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D71500&title=%E2%80%9CRobert%20Menendez%20Indictment%20Points%20to%20Corrupting%20Potential%20of%20Super%20PACs%E2%80%9D&description=>
>> Posted in campaign finance<http://electionlawblog.org/?cat=10>
>> Michael Boos on @99Rise: “Do As I Say, Not As I Do”<http://electionlawblog.org/?p=71498>
>> Posted on April 2, 2015 4:07 pm<http://electionlawblog.org/?p=71498> by Rick Hasen<http://electionlawblog.org/?author=3>
>>
>> The following is a guest post from Michael Boos, Vice President and General Counsel of the group Citizens United:
>>
>> The group 99Rise made headlines earlier this week when several of its members disrupted proceedings at the U.S. Supreme Court in a protest over the Supreme Court’s recent campaign finance law rulings, including Citizens United v. FEC.  This wasn’t the first time, the group disrupted the Supreme Court.  Last year, several of its members, including co-founder Kai Newkirk, pulled off a similar stunt.  There’s even of videotape of Newkirk yelling: “Money is not speech.  Corporations are not people.”  99Rise’s anti-corporate theme appears throughout its promotional materials, including on its website, where it calls for a constitutional amendment to “ensure that neither private wealth nor corporate privilege could be used to exercise undue influence over elections and policy making.”
>>
>> While 99Rise and its spokespersons rail against corporations, nowhere on its website or in its promotional materials does the group or its leaders disclose a critical fact – 99Rise is the very embodiment of the corporate form that it so readily condemns.  According to filings with the California Secretary of State’s office, 99Rise is a consortium of two corporate entities – 99Rise National Support Center, which was incorporated on August 7, 2014, and 99Rise Action, which was incorporated on October 14, 2014.  And both corporate entities share the same registered agent – Noah Kai Newkirk – the anti-corporate protester who disrupted the Supreme Court.
>>
>> But there’s more.  99Rise solicits contributions on its website, where the contribution page tells would be contributors: “Contributions are tax-deductible.”  This, of course, implies the group is a California charity.  Nevertheless, according to the California Attorney General’s charities website, none of the 99Rise organizations are registered with that office to solicit contributions for charitable purposes
>>
>> 99Rise, a group that’s clearly the personification of “Do As I Say, Not As I Do.”
>>
>> Michael Boos
>>
>> Vice President & General Counsel
>>
>> Citizens United
>>
>>
>>
>> [Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D71498&title=Michael%20Boos%20on%20%4099Rise%3A%20%E2%80%9CDo%20As%20I%20Say%2C%20Not%20As%20I%20Do%E2%80%9D&description=>
>> Posted in campaign finance<http://electionlawblog.org/?cat=10>
>> “Don’t like ‘dark money’ in your politics? This guy could help stop it with a pen.”<http://electionlawblog.org/?p=71496>
>> Posted on April 2, 2015 10:05 am<http://electionlawblog.org/?p=71496> by Rick Hasen<http://electionlawblog.org/?author=3>
>>
>> Michael Keegan oped<http://blogs.reuters.com/great-debate/2015/04/01/how-obama-could-help-solve-the-dark-money-problem/> at Reuters.
>>
>> [Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D71496&title=%E2%80%9CDon%E2%80%99t%20like%20%E2%80%98dark%20money%E2%80%99%20in%20your%20politics%3F%20This%20guy%20could%20help%20stop%20it%20with%20a%20pen.%E2%80%9D&description=>
>> Posted in campaign finance<http://electionlawblog.org/?cat=10>
>> “A compromise in Connecticut; Registrars and Merrill reach consensus on reform legislation”<http://electionlawblog.org/?p=71494>
>> Posted on April 2, 2015 9:31 am<http://electionlawblog.org/?p=71494> by Rick Hasen<http://electionlawblog.org/?author=3>
>>
>> That’s the lead story in this week’s Electionline Weekly<http://www.electionline.org/index.php/electionline-weekly>.
>>
>> [Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D71494&title=%E2%80%9CA%20compromise%20in%20Connecticut%3B%20Registrars%20and%20Merrill%20reach%20consensus%20on%20reform%20legislation%E2%80%9D&description=>
>> Posted in election administration<http://electionlawblog.org/?cat=18>
>> “Thanks to Obama, the New World of Campaign Finance Is Unlimited and Undisclosed”<http://electionlawblog.org/?p=71492>
>> Posted on April 2, 2015 8:53 am<http://electionlawblog.org/?p=71492> by Rick Hasen<http://electionlawblog.org/?author=3>
>>
>> Bloomberg Politics.<http://www.bloomberg.com/politics/articles/2015-04-02/thanks-to-obama-the-new-world-of-campaign-finance-is-unlimited-and-undisclosed?cmpid=BBD040215&utm_source=Sailthru&utm_medium=email&utm_term=The%20Brief&utm_campaign=Politics%20Newsletter%20-%20April%202%2C%202015>
>>
>> [Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D71492&title=%E2%80%9CThanks%20to%20Obama%2C%20the%20New%20World%20of%20Campaign%20Finance%20Is%20Unlimited%20and%20Undisclosed%E2%80%9D&description=>
>> Posted in campaign finance<http://electionlawblog.org/?cat=10>
>> “Delaying your candidacy doesn’t mean you can avoid campaign finance rules”<http://electionlawblog.org/?p=71490>
>> Posted on April 2, 2015 8:53 am<http://electionlawblog.org/?p=71490> by Rick Hasen<http://electionlawblog.org/?author=3>
>>
>> FEC Chair Ann Ravel oped.<http://www.washingtonpost.com/opinions/if-it-walks-like-a-candidate-and-talks-like-a-candidate-/2015/03/31/87a91a14-d490-11e4-8fce-3941fc548f1c_story.html>
>>
>> [Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D71490&title=%E2%80%9CDelaying%20your%20candidacy%20doesn%E2%80%99t%20mean%20you%20can%20avoid%20campaign%20finance%20rules%E2%80%9D&description=>
>> Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>
>> “America’s ‘Menendez’ problem: How big money poisons politics — and how it can be fixed”<http://electionlawblog.org/?p=71488>
>> Posted on April 2, 2015 8:52 am<http://electionlawblog.org/?p=71488> by Rick Hasen<http://electionlawblog.org/?author=3>
>>
>> Stephen Spauling oped<http://www.salon.com/2015/04/02/americas_menendez_problem_how_big_money_poisons_politics_and_how_it_can_be_fixed/> in Salon.
>>
>> [Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D71488&title=%E2%80%9CAmerica%E2%80%99s%20%E2%80%98Menendez%E2%80%99%20problem%3A%20How%20big%20money%20poisons%20politics%20%E2%80%94%20and%20how%20it%20can%20be%20fixed%E2%80%9D&description=>
>> Posted in campaign finance<http://electionlawblog.org/?cat=10>
>> “Senator Robert Menendez — possibly corrupt, definitely bad at using AmEx reward points”<http://electionlawblog.org/?p=71486>
>> Posted on April 2, 2015 8:42 am<http://electionlawblog.org/?p=71486> by Rick Hasen<http://electionlawblog.org/?author=3>
>>
>> LOL.<http://www.vox.com/2015/4/2/8333447/menendez-amex>
>>
>> [Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D71486&title=%E2%80%9CSenator%20Robert%20Menendez%20%E2%80%94%20possibly%20corrupt%2C%20definitely%20bad%20at%20using%20AmEx%20reward%20points%E2%80%9D&description=>
>> Posted in chicanery<http://electionlawblog.org/?cat=12>
>>
>> --
>> Rick Hasen
>> Chancellor's Professor of Law and Political Science
>> UC Irvine School of Law
>> 401 E. Peltason Dr., Suite 1000
>> Irvine, CA 92697-8000
>> 949.824.3072 - office
>> 949.824.0495 - fax
>> rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
>> http://www.law.uci.edu/faculty/full-time/hasen/
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--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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