[EL] smith on cu

Larry Levine larrylevine at earthlink.net
Fri Apr 3 17:17:54 PDT 2015 

"Scant evidence"? Are they kidding. Candidates go through all sorts of
contortions to curry favor with and avoid antagonizing those who regularly
do IEs. IEs are driving the process and every candidate knows the name of
every entity that has money in every IE. As a consultant who does candidate
campaigns and IE campaigns, I believe IEs are the most evil thing that has
entered the political arena and they are the direct result of contribution
limits. 
Larry

-----Original Message-----
From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Smith,
Brad
Sent: Friday, April 03, 2015 9:42 AM
To: Rick Hasen
Cc: law-election at UCI.edu
Subject: Re: [EL] smith on cu

See, this is what I mean. I've

Bradley Smith got a couple hundred pages, plus thousands more in other
writings. Rick takes 5 words and thinks he's nailed my philosophy. 

By the way, if look at the part if CU that Rick quotes, what does the Court
say? It says that there is "scant evidence" that IEs create undue gratitude,
and that in any case, that is not sufficient to justify regulation. Which
was my point. 

When I teach I try to point out to my students that they must try to
understand what the Court is doing as the Court understands it. Otherwise,
they will fail to understand what is going on and fail to make arguments
that persuade the court. 

When you look at what the court is doing, I think my quote is a pretty good
50 word summary of what the court is doing, and I'm disappointed that ricks
response was to impugn my intellectual integrity.

Sent from my iPhone

On Apr 3, 2015, at 12:14 PM, "Rick Hasen" <rhasen at law.uci.edu> wrote:

> 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-Lo
oms-Over-Menendez-Indictment> reports for NLJ.
>>> 
>>> 
>>> 
>>> [Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectio
>>> nlawblog.org%2F%3Fp%3D71516&title=%E2%80%9CTed%20Stevens%20Case%20Lo
>>> oms%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-ear
>>> ly-fund-raising-means-and-doesnt.html?ref=politics&abt=0002&abg=1>
>>> 
>>> [Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectio
>>> nlawblog.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%2Felectio
>>> nlawblog.org%2F%3Fp%3D71512&title=%E2%80%9CInterim%20Report%20on%20V
>>> oting%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.ht
ml> NYT letter to the editor.
>>> 
>>> [Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectio
>>> nlawblog.org%2F%3Fp%3D71510&title=%E2%80%9CA%20Skewed%20Electoral%20
>>> Field%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-coordinati
on-rules/> on Brickner on Gilbert.
>>> 
>>> [Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectio
>>> nlawblog.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-indictme
nt-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&inv
ol=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%2Felectio
>>> nlawblog.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-criticis
m-of-online-voter-registration-angers-elections-officials/2223877> from FL.
>>> 
>>> [Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectio
>>> nlawblog.org%2F%3Fp%3D71504&title=%E2%80%9CGov.%20Scott%E2%80%99s%20
>>> criticism%20of%20online%20voter%20registration%20angers%20counties%E
>>> 2%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-exp
oses-supreme-court-naivete> for TNR.
>>> 
>>> [Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectio
>>> nlawblog.org%2F%3Fp%3D71502&title=%E2%80%9CThe%20Menendez%20Case%20P
>>> roves%20the%20Supreme%20Court%20Was%20Naive%20About%20Campaign%20Fin
>>> ance%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-menend
>>> ez-indictment-points-to-corrupting-potential-of-super-pacs.html?hp&a
>>> ction=click&pgtype=Homepage&module=second-column-region&region=top-n
>>> ews&WT.nav=top-news&_r=0>
>>> 
>>> [Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectio
>>> nlawblog.org%2F%3Fp%3D71500&title=%E2%80%9CRobert%20Menendez%20Indic
>>> tment%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%2Felectio
>>> nlawblog.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&descri
>>> ption=> 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-s
olve-the-dark-money-problem/> at Reuters.
>>> 
>>> [Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectio
>>> nlawblog.org%2F%3Fp%3D71496&title=%E2%80%9CDon%E2%80%99t%20like%20%E
>>> 2%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%2Felectio
>>> nlawblog.org%2F%3Fp%3D71494&title=%E2%80%9CA%20compromise%20in%20Con
>>> necticut%3B%20Registrars%20and%20Merrill%20reach%20consensus%20on%20
>>> reform%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/than
>>> ks-to-obama-the-new-world-of-campaign-finance-is-unlimited-and-undis
>>> closed?cmpid=BBD040215&utm_source=Sailthru&utm_medium=email&utm_term
>>> =The%20Brief&utm_campaign=Politics%20Newsletter%20-%20April%202%2C%2
>>> 02015>
>>> 
>>> [Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectio
>>> nlawblog.org%2F%3Fp%3D71492&title=%E2%80%9CThanks%20to%20Obama%2C%20
>>> the%20New%20World%20of%20Campaign%20Finance%20Is%20Unlimited%20and%2
>>> 0Undisclosed%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-cand
>>> idate-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%2Felectio
>>> nlawblog.org%2F%3Fp%3D71490&title=%E2%80%9CDelaying%20your%20candida
>>> cy%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%2Felectio
>>> nlawblog.org%2F%3Fp%3D71488&title=%E2%80%9CAmerica%E2%80%99s%20%E2%8
>>> 0%98Menendez%E2%80%99%20problem%3A%20How%20big%20money%20poisons%20p
>>> olitics%20%E2%80%94%20and%20how%20it%20can%20be%20fixed%E2%80%9D&des
>>> cription=> 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%2Felectio
>>> nlawblog.org%2F%3Fp%3D71486&title=%E2%80%9CSenator%20Robert%20Menend
>>> ez%20%E2%80%94%20possibly%20corrupt%2C%20definitely%20bad%20at%20usi
>>> ng%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/
>>> http://electionlawblog.org
>>> <share_save_171_16.png>
>>> _______________________________________________
>>> Law-election mailing list
>>> Law-election at department-lists.uci.edu
>>> http://department-lists.uci.edu/mailman/listinfo/law-election
> 
> --
> 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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