[EL] Pro-Romney Super PAC Fined $50K for 2012 Activities,

[Robbin Stewart]

Paul,

 Thanks for your thoughtful and detailed reply. However after re-reading
those three pages of Buckley, what they speak to is coordinated
 expenditures, when what I was talking about was an uncoordinated
independent expenditure, which those three pages argue is speech protected
by the First Amendment. Your cite, as I read it, comes closer to supporting
my position than yours. As Steven points out, the litigation costs would be
likely in excess of the 50K, but I'm assuming either that there's some way
to recover legal fees (1983 and 1985 don't apply because it's federal
rather than state?) or that some of the players have pockets deep enough to
fund such projects and would see it as advantageous to do so.

I assume from your response that the issue of uncoordinated republication
has not been litigated. When your organization files complaints such as the
ROF case, you give those folks standing and motive to bring such a case.
It's up to you guys to weigh what tactics you want to pursue, perhaps
subject to some ethical constraints. But the $50,000 figure looks more
reasonable when a possible outcome is no fine at all,and getting the
regulation declared void, and possibly seeking damages from the people who
tried to enforce the regulation if my hunch is right that the regulation s
void under the First Amendment. All I have is a hunch; I can't point to any
controlling authority that says I'm right.
But I think it's at least an open issue,and the parties probably took that
into account in reaching the $50K figure.


On Sun, Dec 13, 2015 at 8:08 PM, Paul Ryan <PRyan at campaignlegalcenter.org>
wrote:

> Robbin,
>
>
>
> The Supreme Court’s rationale in *Buckley* that expenditures made
> “totally independently” of candidates do not pose a sufficiently serious
> threat of corruption to justify the FECA independent expenditure limit
> rested significantly on the Court’s belief that “such independent
> expenditures may well provide little assistance to the candidate's campaign
> and indeed may prove counterproductive.”  By contrast, the Court viewed
> favorably the fact that FECA treats payments by someone other than the
> candidate for the candidate’s “media advertisements or for other portions
> of the candidate's campaign activities” as in-kind contributions, because
> such payments “might well have virtually the same value to the candidate as
> a contribution and would pose similar dangers of abuse.”  *Buckley*, 424
> US at 46-47.  The SCOTUS cited and quoted from this passage in *Citizens
> United*.
>
>
>
> The FEC’s regulation treating payments for republication of candidate
> materials as in-kind contributions rests on this sound foundation.  Paying
> to distribute a TV ad created by a candidate—or to distribute yard signs,
> as in your hypo—has clear and definite value to a candidate, and is of
> great “assistance” to the candidate, as evidenced by the fact that the
> candidate produced the materials in the first place.  There is no risk that
> such payments would be “counterproductive” to the candidate.
>
>
>
> Restore Our Future spent more than $5 million to air a “media
> advertisement” created by Mitt Romney’s political committee.  ROF engaged
> in precisely the type of payment that the *Buckley* Court assured us
> would be treated as an in-kind contribution—*not* an independent
> expenditure.
>
>
>
> Happy holidays. Best,
>
>
>
> Paul Seamus Ryan
>
> Deputy Executive Director
>
> The Campaign Legal Center
>
> Ph. (202) 736-2200
>
> Mobile Ph. (202) 262-7315
>
> http://www.campaignlegalcenter.org/
>
> Twitter @ThePaulSRyan
>
>
>
> *From:* law-election-bounces at department-lists.uci.edu [mailto:
> law-election-bounces at department-lists.uci.edu] *On Behalf Of *Robbin
> Stewart
> *Sent:* Saturday, December 12, 2015 12:28 AM
> *Cc:* law-election at UCI.edu
> *Subject:* [EL] Pro-Romney Super PAC Fined $50K for 2012 Activities,
>
>
>
> Offhand to me when an independent expenditure group picks up a "Vote For
> Smith" sign and has their printer run off 1000 more, or a million more such
> signs, that looks like an independent expenditure protected by the First
> Amendment, rather than a prohibited contribution.
>
>
>
> This case settled with a plea bargain and there's no discussion of First
> Amendment implications of the rule. But maybe this is something that's
> already well settled. Has this issue been litigated?
>
>
>
>
>
> *Pro-Romney Super PAC Fined $50K for 2012 Activities*
> <http://electionlawblog.org/?p=78286>
>
> Posted on December 11, 2015 3:01 pm <http://electionlawblog.org/?p=78286>
>  by *Rick Hasen* <http://electionlawblog.org/?author=3>
>
> Release
> <http://www.campaignlegalcenter.org/news/press-releases/clc-complaint-leads-fine-romney-super-pac-s-illegal-spending-2012>
> :
>
> *Today, the Campaign Legal Center (CLC) received notification that the
> Federal Election Commission (FEC) has fined pro-Mitt Romney Super PAC
> Restore Our Future (ROF) $50,000 for illegally spending millions of dollars
> airing an advertisement in 2012 that was originally produced and aired by
> the 2008 Romney presidential campaign.  ROF treasurer Charles S. Spies
> signed a conciliation agreement on behalf of ROF, agreeing to pay a civil
> penalty of $50,000.*
>
> Just wait till 2020 for the 2016 fines!
>
>
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