[EL] smith on cu

Fri Apr 3 17:55:15 PDT 2015

Speaking of gratitude, how is favorite charity gratitude different from 
all other gratitude?

My city councilmember’s Facebook feed had pictures of him being 
“roasted” (in a Venice Beach lifeguard outfit) as the guest of honor at 
a diabetes charity event.Other officeholders were in attendance.I 
thought it was all in good fun until ... one of the pictures showed 
Airbnb atop a prominently-displayed list of “Fat Cats” who had donated 
for the event.

The councilmember, I’m told, has been very critical of Airbnb.The 
charity apparently means something to the councilmember.It certainly 
showed him a good time and gave him a great deal of exposure, akin to 
the kind he’d get from a campaign event.

I worry now that his stance on Airbnb may soften.

Is there a constitutional route to regulation that might address such 
concern?I’m not sure that ingratiation can’t be corrupting.Here the 
ingratiating behavior involved a donation, partly to “honor” an elected 
official, helping the official raise money for something.

As long as 501(c)(4)’s are in the crosshairs of political reform, should 
501(c)(3)’s be targeted too?

- dah

p.s. Re Justin’s thoughts below, involving /Caperton/, I wouldn’t be 
surprised if courts (judges) treat judicial elections differently than 
other elections.Judges, even elected judges, are supposed to be 
impartial arbiters (and like to see themselves as such).Regulation may 
be needed to make judicial recusal rules effective.(Legislators are 
supposed to be zealous advocates as representatives.Executive 
officeholders are supposed to be decision-makers with discretion to 
please voters.Actual bias for or against competing interests is expected 
in those branches.)

On 4/3/2015 11:40 AM, Justin Levitt wrote:
> 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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-- 
David A. Holtzman, M.P.H., J.D.
david at holtzmanlaw.com

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