[EL] 7th circuit john doe opinon
JBoppjr at aol.com
JBoppjr at aol.com
Mon Jul 20 14:22:12 PDT 2015
Regarding this:
Dark money is money intended to influence an election that runs through
groups that don't have to disclose their donors.
Many of the groups that are labeled with this in fact do have to report
their donors. If they do federal independent expenditures or electioneering
communications, and similar communications under many state laws, they have
to report their donors. For an IE, if the donor gave for that purpose
and, for an EC, every donor over $1,000 from the account used for the EC. So
donors for these political purposes are reported.
Despite this, reform still falsely claim that they do not have to report
their donors.
While it is the reformers that got these laws passed, they are ignoring
them to grossly inflate their numbers and to gin up scary headlines. Jim Bopp
In a message dated 7/19/2015 3:26:32 P.M. Eastern Daylight Time,
schmitt.mark at gmail.com writes:
Sorry, are you arguing that "anti-concept" really is a term from
epistemology (that is, mainstream philosophy) and not from Objectivism? You're wrong
about that (google the phrase), and if you want to make an argument based
on Ayn Rand, you should be clear about it. (One wouldn't make an argument
based on Marx and pretend that it's based on "economics" more generally.)
As for your questions, all the terms are easily defined. Dark money is
money intended to influence an election that runs through groups that don't
have to disclose their donors. Soft money is generally money run through
parties or party-affiliated committees that isn't subject to hard-money limits.
Polarization simply refers to the measure of the ideological distance
between parties in Congress and most legislatures. On the first and third,
there are surely some disputes about how to measure the phenomena, but those
disputes don't invalidate the concepts.
You're right that none of the concepts are trump cards. But is your quote,
"an individual's right to speak is a fine idea, but what about the
national threat lurking in polarization?!" anything that anyone has ever actually
said?
Mark Schmitt
Director, _Political Reform Program_
(http://www.newamerica.org/political-reform/) , _New America_ (http://www.newamerica.org/)
_202/246-2350_ (tel:202/246-2350)
gchat or Skype: schmitt.mark
twitter: _ at mschmitt9 _ (https://twitter.com/@mschmitt9)
On Sun, Jul 19, 2015 at 2:43 PM, Steve Hoersting <_hoersting at gmail.com_
(mailto:hoersting at gmail.com) > wrote:
Hey, something is thinking....
And not a moment too soon?
By the way, Mark, I looked in all the 20th Century Automobile catalogues
on my bookshelf ... and couldn't find Tesla anywhere.
You're welcome to argue a Tesla's a "car" if you want to. But, until we
all agree it's a car, don't call a Tesla something it's not.
To what does "dark money" refer in reality?
Notice, I started with the easiest one -- as did you.
Let's dig deeper. To what does "soft money" refer, in reality? What is
the outer or upper imit of the concept "soft money"?
Still with me? Try this one?
To what does "polarization" refer?
Answer: anything one needs it to.
"Polarization" is an anti-concept. It is not a concept. It's definition is
infinitely elastic, which is to say NOT defined.
And that explains its utility to those who deploy it.
I said this was worthy work for academics....
It is most decidedly not, by the way, irrelevant nor unimportant.
It explains how the *war* is being waged. And why the good guys are
losing.
All the best, Mark, as always,
Steve
On Jul 19, 2015 2:27 PM, "Mark Schmitt" <_schmitt.mark at gmail.com_
(mailto:schmitt.mark at gmail.com) > wrote:
Steve, you write, "'Dark money' is what is known in epistemology as an
anti-concept."
The term "anti-concept" is not employed in epistemology, but comes from
Ayn Rand. "Anti-concept" can't be found in any of the dictionaries of
philosophy on my bookshelves or online.
You might consider the term "dark money," and the others you mention, too
pejorative or loaded. But it is a term with a clear and specific meaning,
same for the other two.
Needless to say, you're welcome to make Randian or Objectivist arguments.
But don't pretend they're something else.
Mark Schmitt
Director, _Political Reform Program_
(http://www.newamerica.org/political-reform/) , _New America_ (http://www.newamerica.org/)
_202/246-2350_ (tel:202/246-2350)
gchat or Skype: schmitt.mark
twitter: _ at mschmitt9 _ (https://twitter.com/@mschmitt9)
On Sat, Jul 18, 2015 at 6:56 PM, Steve Hoersting <_hoersting at gmail.com_
(mailto:hoersting at gmail.com) > wrote:
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_
(mailto: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_ (mailto:Holman at aol.com)
-----Original Message-----
From: Ilya Shapiro <_IShapiro at cato.org_ (mailto:IShapiro at cato.org) >
To: 'Eric J Segall' <_esegall at gsu.edu_ (mailto:esegall at gsu.edu) >; Smith,
Brad <_BSmith at law.capital.edu_ (mailto:BSmith at law.capital.edu) >; Rick
Hasen <_rhasen at law.uci.edu_ (mailto:rhasen at law.uci.edu) >; law-election at UCI.edu
<_law-election at uci.edu_ (mailto: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/autom
atics-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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