[EL] 7th circuit john doe opinon

Sat Jul 18 16:39:13 PDT 2015

I know there is usually not much gained in responding to responses on this listserv, and I usually do so refrain, 
but: "Say What!?"

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: Steve Hoersting <hoersting at gmail.com>
To: Craig Holman <holman at aol.com>
Cc: law-election <law-election at uci.edu>
Sent: Sat, Jul 18, 2015 6:56 pm
Subject: Re: [EL] 7th circuit john doe opinon

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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