[EL] smith on cu

[Justin Levitt]

There's a third option, entirely consonant with Brad's quote, that's a 
little different from both of Allen's possibilities:

(1) /Buckley /found, as a legal matter, that despite the potential for 
independent expenditures to create gratitude in an officeholder and 
therefore lead to, or create the appearance of, quid-pro-quo corruption, 
independent expenditures by individuals are too valuable, and a flat cap 
of $1,000 to poorly tailored, to support the law in question;
(2) /Caperton /confirms that independent expenditures may sometimes 
create gratitude in an officeholder and therefore lead to, or create the 
appearance of, quid-pro-quo corruption, and that forced recusal of 
judges is in certain circumstances sufficiently tailored to the 
perceived problem;
(3) /McConnell /finds that because corporation and union managers may 
create separate segregated funds to deliver political messages, the 
limited burden on the ability of the managers of a corporation or union 
to finance a message renders the electioneering communications provision 
sufficiently tailored to withstand a facial challenge, at least on the 
terms proposed by plaintiffs in that case; and
(4) /Citizens United/ disagrees about the nature of the burden and/or 
the value of the speech restricted and/or the record supporting the 
government interest.

It's true that Justice Kennedy _says_ in /Citizens United /that 
independent expenditures do not lead to or create the appearance of 
dollars exchanged for favors from an elected officeholder.  But as I've 
written <http://ssrn.com/abstract=2502655>, it's impossible to square 
that single quote with Justice Kennedy's assessment in /Caperton/ just 
one year earlier that independent expenditures at least in that case 
could create the appearance of dollars exchanged for favors from an 
elected officeholder.  When you look at Justice Kennedy's /Citizens 
United /discussion of his own opinion in /Caperton/, it looks a lot more 
like Brad's quote is spot-on in describing how Justice Kennedy, at 
least, thinks about the problem primarily as one of inappropriate remedy.

Justin

-- 
Justin Levitt
Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA  90015
213-736-7417
justin.levitt at lls.edu
ssrn.com/author=698321

On 4/3/2015 10:06 AM, Allen Dickerson wrote:
> 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.
>

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