[EL] dark money defined

Mon Jul 20 12:48:15 PDT 2015

Thankfully, First Amendment considerations often flout regulatory ones,
whether they be confusion or harm (dilution) considerations.  That's doubly
so here because political speech occupies a higher rung of First Amendment
protection than commercial speech usually found in related Trademark/IP
cases.  So, instead of being worried about ethereal "more abstract nature
of the things being protected," we place a fidelity in the freedoms secured
by the First Amendment, not the ghastly imagined harms conjured up about
how those freedoms might be exercised.  In sum, we're steadily moving out
of sham balancing tests and more favorably toward stricter protection for
civic engagement without having to ask how speech police, bureaucrats, or
judges might balance our individual right to speak against unfocused,
abstract concerns.

The fun corollaries here are found in many sets of historical examples of
well-intentioned reforms that fail to survive First Amendment scrutiny or
were narrowly construed to do so.  The Lanham Act, various torts, and
defamation are but a few examples of this natural trend.  Just the same, as
went the Dodo Bird, so too goes suppressive campaign finance reform.

Forward,

Benjamin Barr
General Counsel
Pillar of Law Institute

On Mon, Jul 20, 2015 at 12:32 PM, Sai . <sai at makeyourlaws.org> wrote:

> Lapp, as I understand it, is about likelihood of confusion as to the
> origin of a product (or communication). Actual evidence of
> confusion/harm is certainly one test, but it's a balancing test with
> several other factors.
>
> I'm not sure trademark type "harm" applies well in the political
> context, because of the more abstract nature of the things being
> protected (e.g. public trust in the fairness of elections and the
> non-bribedness of their politicians, vs financial harm to a commercial
> product).
>
> I think a more apt analogy is between the Lapp test and the rules
> about committee naming — 11 CFR 102.14, 52 USC 30102(e)(4, 5).
>
> FWIW, I'm working on a PFR to address this, hopefully in a well
> tailored way that will be amenable to groups on various sides of this
> — the current rules are both over and under inclusive. Anyone
> potentially interested in working together is welcome to contact me
> offlist.
>
> Sincerely,
> Sai
> President, Make Your Laws PAC/C4/C3
>
>
> On Mon, Jul 20, 2015 at 12:18 PM, Benjamin Barr <benjamin.barr at gmail.com>
> wrote:
> > What's particularly neat in the trademark/IP arena are the scores of
> cases striking down interference with expressive phrases where no actual
> harm can be demonstrated. Good point, Sai. So, enforcement is rare in areas
> that touch on the First Amendment. Thankfully, election law is slowly
> following this trend too.  It just has a crew of folks with particular
> vigor trying to keep its life support on.
> >
> > Forward,
> >
> > B
> >
> > Sent from my iPhone
> >
> >> On Jul 20, 2015, at 11:51 AM, Sai . <sai at makeyourlaws.org> wrote:
> >>
> >> No, the NYT editorial page is not included.
> >>
> >> https://www.law.cornell.edu/uscode/text/2/431#9_B_i
> >> https://www.law.cornell.edu/cfr/text/11/100.73
> >> https://www.law.cornell.edu/cfr/text/11/100.132
> >> http://www.fec.gov/pages/fecrecord/august2011/ao2011-11.shtml
> >>
> >> The statute exempts "any news story, commentary, or editorial
> >> distributed through the facilities of any broadcasting station,
> >> newspaper, magazine, or other periodical publication, unless such
> >> facilities are owned or controlled by any political party, political
> >> committee, or candidate".
> >>
> >>
> >> I would agree that's a gray area, though — with "native advertising"
> >> on the one side, and bloggers-are-journalists on the other.
> >>
> >> E.g. Obsidian Finance Group, LLC v. Cox, 740 F. 3d 1284, 1291 (9th Cir.
> 2014):
> >>
> >> "The protections of the First Amendment do not turn on whether the
> >> defendant was a trained journalist, formally affiliated with
> >> traditional news entities, engaged in conflict-of-interest disclosure,
> >> went beyond just assembling others' writings, or tried to get both
> >> sides of a story. As the Supreme Court has accurately warned, a First
> >> Amendment distinction between the institutional press and other
> >> speakers is unworkable: "With the advent of the Internet and the
> >> decline of print and broadcast media ... the line between the media
> >> and others who wish to comment on political and social issues becomes
> >> far more blurred." Citizens United, 558 U.S. at 352, 130 S.Ct. 876."
> >>
> >> (Incidentally, that case was argued for the defendant by Prof. Eugene
> Volokh:
> >> http://cdn.ca9.uscourts.gov/datastore/media/2013/11/06/12-35238.wma )
> >>
> >>
> >> FEC precedent turns on what extent the communicator is acting in a
> >> general press capacity vs just trying to influence an election. See
> >> e.g.  http://saos.fec.gov/aodocs/2005-16.pdf
> >>
> >> That's obviously not a purely bright line test — but neither is e.g.
> >> trademark infringement under Lapp. It seems at least somewhat
> >> workable.
> >>
> >> Sincerely,
> >> Sai
> >> President, Make Your Laws PAC/C4/C3
> >>
> >>
> >> On Mon, Jul 20, 2015 at 11:12 AM, Sean Parnell
> >> <sean at impactpolicymanagement.com> wrote:
> >>> So, the editorial page of the New York Times?
> >>>
> >>>
> >>>
> >>>
> >>>
> >>> Sean Parnell
> >>>
> >>> President, Impact Policy Management, LLC
> >>>
> >>> 571-289-1374 (c)
> >>>
> >>> sean at impactpolicymanagement.com
> >>>
> >>> Alexandria, Virginia
> >>>
> >>>
> >>>
> >>>
> >>>
> >>>
> >>>
> >>> From: law-election-bounces at department-lists.uci.edu
> >>> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of
> Adam
> >>> Bonin
> >>> Sent: Monday, July 20, 2015 10:41 AM
> >>> To: David Keating
> >>> Cc: law-election at uci.edu
> >>> Subject: Re: [EL] dark money defined
> >>>
> >>>
> >>>
> >>> If they are spending money to influence the outcome of an election,
> they
> >>> are.
> >>>
> >>>
> >>>
> >>> On Mon, Jul 20, 2015 at 10:26 AM, David Keating
> >>> <dkeating at campaignfreedom.org> wrote:
> >>>
> >>> So that I understand the definition, all groups that are not FEC
> political
> >>> committees, IRS-reporting 527s or state political committees are dark
> money
> >>> groups.  Public Citizen would be an example of a dark money group.
> >>>
> >>>
> >>>
> >>> Or is it like pornography and you know it when you see it?  But who
> decides
> >>> that?
> >>>
> >>>
> >>>
> >>> David
> >>>
> >>> _________________________________________________
> >>>
> >>> David Keating | President | Center for Competitive Politics
> >>>
> >>> 124 S. West Street, Suite 201 | Alexandria, VA 22314
> >>>
> >>> 703-894-6799 (direct) | 703-894-6800 | 703-894-6811 Fax
> >>>
> >>> www.campaignfreedom.org
> >>>
> >>>
> >>>
> >>> From: law-election-bounces at department-lists.uci.edu
> >>> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of
> Craig
> >>> Holman
> >>> Sent: Saturday, July 18, 2015 6:07 PM
> >>> To: law-election at uci.edu
> >>> Subject: Re: [EL] 7th circuit john doe opinon
> >>>
> >>>
> >>>
> >>> 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
> >>>
> >>> _______________________________________________
> >>>
> >>> Law-election mailing
> >>>
> >>> list
> >>>
> >>> Law-election at department-lists.uci.edu
> >>>
> >>> http://department-lists.uci.edu/mailman/listinfo/law-election
> >>>
> >>>
> >>> _______________________________________________
> >>> Law-election mailing list
> >>> Law-election at department-lists.uci.edu
> >>> http://department-lists.uci.edu/mailman/listinfo/law-election
> >>>
> >>>
> >>>
> >>>
> >>>
> >>> --
> >>>
> >>> Adam C. Bonin
> >>> The Law Office of Adam C. Bonin
> >>> 1900 Market Street, 4th Floor
> >>> Philadelphia, PA 19103
> >>> (215) 864-8002 (w)
> >>> (215) 701-2321 (f)
> >>> (267) 242-5014 (c)
> >>>
> >>> adam at boninlaw.com
> >>>
> >>> http://www.boninlaw.com
> >>>
> >>>
> >>> _______________________________________________
> >>> Law-election mailing list
> >>> Law-election at department-lists.uci.edu
> >>> http://department-lists.uci.edu/mailman/listinfo/law-election
> >> _______________________________________________
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>
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