[EL] 7th circuit john doe opinon

[Sai .]

My apologies for the misquote. Thank you for clarifying.

What do you mean re. "more polarized party structure"? I am a little
(though not very) familiar with European politics, but am not clear on
what you refer to here.


I understood Steve's "baseline" to refer to e.g. what would be the
platonic "conservative"/"liberal"/"libertarian"/"statist". These are
ideas that have, of course, drifted significantly over time and are
vastly different between countries. (I'm not sure they're even stable
eigenvectors; surely other cultures have had some other axis of
political belief entirely that they found as salient as e.g. our
"economic liberal/conservative" axis?)

I would agree that it's pretty hard to evaluate what amounts of
difference in political opinion are, over time. And also that it's
beside the point when discussing what we *currently* consider an
acceptable level.

For myself, something is excessively "polarized" when e.g.
* people aren't willing (or able?) to talk to / understand each other
within the other's framing (e.g. stereotypical pro-life vs pro-choice
proponents just talk past each other)
* the social pressure against changing one's mind on an issue is high
enough that it hardly ever happens
* judges and lawyers care more about policy outcome of a case than the
legal principles (e.g. can you name a major case whose policy outcome
you liked but was based on reasoning you reject, or vice versa?)

… etc. Basically, when it transitions from sincere and mind-changing
discussion into mischaracterization and cheering. That's a gray area
of course, but I hope this points at what I personally find troubling
that I'd call "too polarized".

(This list has had examples where it seems to be more about red team
vs blue team than about underlying principles, which I find
unfortunate.)

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


On Mon, Jul 20, 2015 at 5:11 PM, Mark Schmitt <schmitt.mark at gmail.com> wrote:
>>>And as Mark pointed out, "polarization" is simply "creating an
> unusually large distance in beliefs"<<
>
> I don't really want to pursue this further, but note that you're not quoting
> me when you say "unusually large distance." I don't think there's any
> "usual" or "unusual" level of party polarization. Along with many political
> scientists, I think the relatively smaller distance in ideology between the
> two parties for most of 2d half of the 20th Century was at least as
> "unusual," a historical accident traceable at least back to Reconstruction,
> and that ideologically well-defined parties are the norm in most countries
> and will be here. I believe we need to think about political institutions
> that can operate effectively given a more polarized party structure, but not
> that "reducing polarization" should be a major objective. Still, our
> political processes are constructed, I would try to avoid policies that
> clearly exacerbate polarization, or magnify differences beyond where public
> opinion is.
>
> Polarization is a clear concept, and measurable, but perhaps I agree with
> Steve that there's no "baseline" for a normal level of polarization that we
> should try to get back to. I don't see that as a major problem or reason to
> ignore the phenomenon, though.
>
>
>
> Mark Schmitt
> Director, Political Reform Program, New America
> 202/246-2350
> gchat or Skype: schmitt.mark
> twitter: @mschmitt9
>
> On Mon, Jul 20, 2015 at 12:23 PM, Sai . <sai at makeyourlaws.org> wrote:
>>
>> > You're on thin ice not because you concede there are problems with
>> > measurement. Rather because there is a built-in problem with establishing a
>> > baseline from which to measure!
>>
>> Why would something not having an objective "baseline" prevent or
>> cause an epistemological problem with measuring relative distances, or
>> relative relative distances (i.e. how far apart people are on issue X
>> vs on issue Y)?
>>
>> (To use a terribly geeky math / CS analogy…) You can do the latter
>> with machine learning that has no concept of "baselines" and just
>> extracts the eigenvectors of the n-space of political ideas.
>>
>> Gives you a perfectly reasonable way to measure *distance*, without
>> needing any "baseline".
>>
>> And as Mark pointed out, "polarization" is simply "creating an
>> unusually large distance in beliefs". (What is "unusually large" is
>> also handled by the eigenvector thing. :-P)
>>
>> Sincerely,
>> Sai
>> President, Make Your Laws PAC/C4/C3
>>
>>
>> On Sun, Jul 19, 2015 at 4:19 PM, Steve Hoersting <hoersting at gmail.com>
>> wrote:
>> > I am saying 'mainstream' explains the trouble the world is having.
>> > Anti-concept is epistemology just as F=ma is physics and "the world is
>> > flat"
>> > is topography. Validity does not determine the categorization.
>> >
>> > I obviously think the point made about anti-concepts is valid.
>> >
>> > As to arguments from Marx made under the banner economics, "ones," if
>> > you
>> > will, do it all the time. Or don't you read the leading editorials?
>> >
>> > When you noted the origin was Rand, I said, Hey, someone is doing some
>> > thinking; as in, Bravo for spotting the source!
>> >
>> > I have nothing to hide here. I encourage everyone to Google
>> > 'anti-concept.'
>> >
>> > Re: "dark money", I have this question: subjective intent to influence
>> > an
>> > election or intent objectively manifested? It matters. (Talk about
>> > limiting
>> > a concept!)
>> >
>> > But more to the crux of your definition, I have seen a lot of proposals
>> > to
>> > disclose corporate donations to think tanks. When I get more time I will
>> > double-check whether the advocates of such disclosure scrupulously
>> > eschew
>> > the term "dark money" -- since, by your definition, that's beyond
>> > elections.
>> > (Or is it!, shouts the "accountability" crowd.)
>> >
>> > Re: "soft money" and your easy limitation to party-committee activity:
>> > Were
>> > you not around during the Electioneering Communication funding source
>> > prohibiton debates? 'Cause that  was about soft money to the chattering
>> > class, no matter what BCRA says. It wasn't just about party committees.
>> >
>> > Re: "polarization," I think you know you're on thin ice with this one --
>> > and
>> > nice touch with the words "simply refers;" that was daring.
>> >
>> > You're on thin ice not because you concede there are problems with
>> > measurement. Rather because there is a built-in problem with
>> > establishing a
>> > baseline from which to measure! (Which, as I have said a few times now,
>> > is
>> > an in-terrorem feature to the chief "polarization"  advocates not a
>> > bug).
>> >
>> > As to your last, I wasn't quoting. I was providing mock dialogue to make
>> > a
>> > point.
>> >
>> > As to whether anyone has ever uttered that mock dialogue -- Speech
>> > rights
>> > are nice, but what about polarization!? -- I answer 'perhaps' or
>> > 'perhaps
>> > not.'
>> >
>> > But I can tell you this: The sentiment captures the entire throughline
>> > of
>> > the early chapters in Cass Sunstein's 2002 book Designing Democracy.
>> >
>> > I encourage people to read it...and then to Google Ayn Rand...on what is
>> > achieved by the deployment of "anti-concepts"...an epistemological term,
>> > by
>> > the way...coming to a bookshelf near you!
>> >
>> > Best,
>> >
>> > Steve
>> >
>> > On Jul 19, 2015 3:26 PM, "Mark Schmitt" <schmitt.mark at gmail.com> wrote:
>> >>
>> >> 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, New America
>> >> 202/246-2350
>> >> gchat or Skype: schmitt.mark
>> >> twitter: @mschmitt9
>> >>
>> >> On Sun, Jul 19, 2015 at 2:43 PM, Steve Hoersting <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>
>> >>> 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, New America
>> >>>> 202/246-2350
>> >>>> gchat or Skype: schmitt.mark
>> >>>> twitter: @mschmitt9
>> >>>>
>> >>>> On Sat, Jul 18, 2015 at 6:56 PM, Steve Hoersting
>> >>>> <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> 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
>> >>>>>>
>> >>>>>> _______________________________________________
>> >>>>>> 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
>> >>>>>
>> >>>>>
>> >>>>> _______________________________________________
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>> >>>>
>> >>>>
>> >>
>> >>
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