[EL] 7th circuit john doe opinon
Steve Hoersting
hoersting at gmail.com
Sat Jul 18 16:46:25 PDT 2015
Fair enough, Craig. And it was direct to allies of mine ... more than to
allies of yours.
But, if you find you have a few minutes, give it some thought.
All the best,
Steve
On Jul 18, 2015 7:39 PM, "Craig Holman" <holman at aol.com> wrote:
> 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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