[EL] 7th circuit john doe opinon

Sat Jul 18 15:56:51 PDT 2015

Wrong!

"Dark money" is what is known in epistemology as an anti-concept.

It literally has no meaning. But it's purpose and effect is to trump any
discussion or consideration of leaving some aspects of debate to anonymity.

Same with the anti-concept "soft-money," which is not a thing but rather
the inverse of a thing. Just as darkness is the absence of light, so 'soft
money' is the absence of regulation.

"Ban soft money," then, is a perpetual and recyclable call for a plan of
incremental and plenary governmental control over the processes of
information exchange.

And my personal favorite anti-concept is ... "polarization."

Yes, "polarization."

It means nothing -- or whatever its deployer needs it to mean (which is the
same thing).

Its purpose is to serve as a stand-in or scarecrow; to cast doubt on the
hallowed place concepts such as "free speech," "unhibited debate" or "the
First Amendment" would normally hold sway.

It is designed to work like so: "Sure, an individual's right to speak is a
fine idea, but what about the national threat lurking in polarization?!"

The mind is a conceptual entity. It deals in concepts.

Anti-concepts are deployed to take the place of true concepts, for
in-terrorem effect; to forestall any standing for, say, the separation of
campaign and state (a concept Brad Smith is busy resuscitating) for the
larger ghostly and 'ghastly' fear of "polarization," as Sunstein and, I
believe, Pildes have long been deploying.

Any academic unsure how to spend his or her next 3 years -- and who wants
to go toe-to-toe with the Big Dogs on an effort that matters and can make a
difference -- should demystify then denude the anti-concepts
"soft money," "dark money," and "polarization" for the epistemologic
assaults they are.
Anti-concepts are Kantian bunk.  They're Alinskyite bunk; "Pick it, isolate
it, freeze it." They are not concepts, they're tactics.

The three I listed deserve denuding.

Regrettably, I haven't the time.

Good weekend,

Steve Hoersting

Sent from my Phone.
 On Jul 18, 2015 6:07 PM, "Craig Holman" <holman at aol.com> wrote:

> Ilya:
>
>  The definition of "dark money" for groups is that we do not know about
> their expenditures; it is that the groups do not disclose the sources of
> the funds.
>
> Craig Holman, Ph.D.
> Government Affairs Lobbyist
> Public Citizen
> 215 Pennsylvania Avenue SE
> Washington, D.C. 20003
> T-(202) 454-5182
> C-(202) 905-7413
> F-(202) 547-7392
> Holman at aol.com
>
>
> -----Original Message-----
> From: Ilya Shapiro <IShapiro at cato.org>
> To: 'Eric J Segall' <esegall at gsu.edu>; Smith, Brad <BSmith at law.capital.edu>;
> Rick Hasen <rhasen at law.uci.edu>; law-election at UCI.edu <
> law-election at uci.edu>
> Sent: Sat, Jul 18, 2015 3:33 pm
> Subject: Re: [EL] 7th circuit john doe opinon
>
>   How are they “dark moneyed groups” if everyone knows who they are?
>
>  Ilya Shapiro
> Senior Fellow in Constitutional Studies,
> Editor-in-Chief of the *Cato Supreme Court Review*
> Cato Institute
> 1000 Massachusetts Ave. NW
> Washington, DC  20001
> tel. (202) 218-4600
> cel. (202) 577-1134
> fax. (202) 842-3490
> ishapiro at cato.org
> Bio/clips: http://www.cato.org/people/shapiro.html
> Twitter: www.twitter.com/ishapiro
> SSRN: http://ssrn.com/author=1382023
>
> *Cato Supreme Court Review*:  http://www.cato.org/supreme-court-review
>
> Watch our 2014 Constitution Day Conference - Supreme Court
> Review/Preview:  http://www.cato.org/events/13th-annual-constitution-day
>
> See me defend the right to keep and bear arms on the Colbert Report:
> http://www.colbertnation.com/the-colbert-report-videos/340923/july-08-2010/automatics-for-the-people---ilya-shapiro---jackie-hilly
>
>  *From:* law-election-bounces at department-lists.uci.edu [
> mailto:law-election-bounces at department-lists.uci.edu] *On Behalf Of *Eric
> J Segall
> *Sent:* Saturday, July 18, 2015 2:19 PM
> *To:* Smith, Brad; Rick Hasen; law-election at UCI.edu
> *Subject:* Re: [EL] 7th circuit john doe opinon
>
>  So, regardless of whether power (in the guise of enforcement of campaign
> finance laws) was abused in Wisconsin, and regardless of how much Walker
> himself was personally behind or not behind the various groups at issue,
> when well-funded and dark moneyed groups support judges with campaign money
> (and trips) and then those same judges don't recuse themselves in criminal
> investigations of those groups, we have a serious problem.
>
>
> http://talkingpointsmemo.com/cafe/the-inside-story-of-the-crony-court-that-deep-sixed-the-scott-walker-probe
>
> Best,
>
> Eric
>
>
>
>
>
>   ------------------------------
>   *From:* law-election-bounces at department-lists.uci.edu <
> law-election-bounces at department-lists.uci.edu> on behalf of Smith, Brad <
> BSmith at law.capital.edu>
> *Sent:* Thursday, July 16, 2015 3:37 PM
> *To:* Rick Hasen; law-election at UCI.edu
> *Subject:* Re: [EL] 7th circuit john doe opinon
>
>   Thank you. I rest that part of my case.
>
>  *Bradley A. Smith*
> *Josiah H. Blackmore II/Shirley M. Nault*
> *   Professor of Law*
> *Capital University Law School*
> *303 E. Broad St.*
> *Columbus, OH 43215*
> *614.236.6317*
> *http://law.capital.edu/faculty/bios/bsmith.aspx*
>    ------------------------------
>   *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:* Thursday, July 16, 2015 3:21 PM
> *To:* law-election at UCI.edu
> *Subject:* [EL] 7th circuit john doe opinon
>  Since it has been referenced today, here's last year's opinion and an
> excerpt (with my emphasis):
>
> http://electionlawblog.org/wp-content/uploads/7th-john-doe.pdf
>
> The Supreme Court has yet to determine what “coordination” means. Is the
> scope of permissible regulation limited to groups that advocate the
> election of particular candidates, or can government also regulate
> coordination of contributions and speech about political issues, when the
> speakers do not expressly advocate any person’s election? What if the
> speech implies, rather than expresses, a preference for a particular
> candidate’s election? If regulation of coordination about pure issue
> advocacy is permissible, how tight must the link be between the
> politician’s committee and the advocacy group? Uncertainty is a powerful
> reason to leave this litigation in state court, where it may meet its end
> as a matter of state law without any need to resolve these constitutional
> questions. The district court thought that the Supreme Court will overrule
> what remains of Buckley, as some Justices have pro- posed. See, e.g.,
> Colorado Republican Federal Campaign Committee v. FEC, 518 U.S. 604, 635–40
> (1996) (Thomas, J., dissenting in part). If the Constitution forbids all
> regulation of campaign contributions, there is no basis for regulating
> coordination either. After all, the rationale for regulating coordination
> has been to prevent evasion of contribution limits and ensure the public
> identification of persons who contribute to politicians’ war chests.
>
> * Yet although the Court’s views about the proper limits of
> campaign-finance regulation continue to change, see Citizens United
> (overruling part of McConnell) and McCutcheon v. FEC, 134 S. Ct. 1434
> (2014) (overruling a portion of Buckley that dealt with aggregate
> contribution limits across multiple candidates), it has yet to disapprove
> the portion of Buckley holding that some regulation of contributions to
> candidates is permissible. Justice Thomas wrote separately in McCutcheon,
> 134 S. Ct. at 1462–65 (concurring in the judgment), precisely because a
> majority was unwilling to revisit that aspect of Buckley. The district
> court’s belief that a majority of the Court eventually will see things
> Justice Thomas’s way may or may not prove correct, but as the Supreme
> Court’s doctrine stands it is not possible to treat as “bad faith” a
> criminal investigation that reflects Buckley’s interpretation of the First
> Amendment. Nor does it help plaintiffs to accuse defendants of
> “retaliation”. That just restates the point that campaign finance
> regulation concerns speech; it does not help to decide whether a particular
> kind of regulation is forbidden.* Cf. Fairley v. Andrews, 578 F.3d 518,
> 525 (7th Cir. 2009).
>
> What we have said shows not only that an injunction was an abuse of
> discretion but also that all defendants possess qualified immunity from
> liability in damages. Public officials Nos. 14-1822 et al. 11 can be held
> liable for violating clearly established law, but not for choosing sides on
> a debatable issue. See, e.g., Wilson v. Layne, 526 U.S. 603, 618 (1999)
> (“If judges … disagree on a constitutional question, it is unfair to
> subject police to money damages for picking the losing side of the
> controversy.”). The district court thought the law clearly established
> because, after all, the First Amendment has been with us since 1791. But
> the right question is what the Constitution means, concretely, applied to a
> dispute such as this. The Justices forbid the use of a high level of
> generality and insist that law is not “clearly established” until “existing
> precedent [has] placed the statutory or constitutional question beyond
> debate.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011). See also, e.g.,
> Plumhoff v. Rickard, 134 S. Ct. 2012 (2014); Wood v. Moss, 134 S. Ct. 2056
> (2014).
>
> Plaintiffs’ claim to constitutional protection for raising funds to engage
> in issue advocacy coordinated with a politician’s campaign committee has
> not been established “beyond debate.” To the contrary, there is a lively
> debate among judges and academic analysts. The Supreme Court regularly
> decides campaign-finance issues by closely divided votes. No opinion issued
> by the Supreme Court, or by any court of appeals, establishes (“clearly” or
> otherwise) that the First Amendment forbids regulation of coordination
> between campaign committees and issue-advocacy groups—let alone that the
> First Amendment forbids even an inquiry into that topic. The district court
> broke new ground. Its views may be vindicated, but until that day public
> officials enjoy the benefit of qualified immunity from liability in
> damages. This makes it unnecessary for us to consider whether any defendant
> also enjoys the benefit of absolute prosecutorial immunity, which depends
> on the capacities in which they may have acted at different times. See
> Buckley v. Fitzsimmons, 509 U.S. 259 (1993).
>
> --
>
> 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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