[EL] dark money defined

Mon Jul 20 13:12:00 PDT 2015

To be clear, I believe that "exacting scrutiny" is appropriate for
political speech regulation. I also believe that it is entirely
possible to craft rules that survive that scrutiny. See e.g. Doe v
Reed, majority opinion (Roberts') & Scalia concurrence-in-judgment.

I mentioned Lapp not for standards of review or proof — obviously it's
much lower in trademark law than in political law — but just as an
analogy for what factors would be relevant to an inquiry about source
confusion (for the purposes of the statute & regs I cited, about
committee names, which are about reliably identifying the source of a
communication).

Sincerely,
Sai
President, Make Your Laws PAC/C4/C3

On Mon, Jul 20, 2015 at 3:48 PM, Benjamin Barr <benjamin.barr at gmail.com> wrote:
> 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
>> >> _______________________________________________
>> >> Law-election mailing list
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>
>