[EL] 7th circuit john doe opinon
Mark Schmitt
schmitt.mark at gmail.com
Mon Jul 20 14:55:42 PDT 2015
Sorry, I meant the term only in the much narrower sense of the ideological
distance between the parties in Congress and in state legislatures, as in
the VoteView data: http://www.voteview.com/political_polarization_2014.htm,
or Boris Shor's data on state legislatures:
http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/01/14/how-u-s-state-legislatures-are-polarized-and-getting-more-polarized-in-2-graphs/
The broader definition you're using certainly reflects real phenomena, but
does seem a lot harder to measure or be sure about.
Mark Schmitt
Director, Political Reform Program
<http://www.newamerica.org/political-reform/>, New America
<http://www.newamerica.org/>
202/246-2350
gchat or Skype: schmitt.mark
twitter: @mschmitt9 <https://twitter.com/@mschmitt9>
On Mon, Jul 20, 2015 at 5:40 PM, Sai . <sai at makeyourlaws.org> wrote:
> 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
> >> >>>>>
> >> >>>>>
> >> >>>>> _______________________________________________
> >> >>>>> 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
> >> >
> >> >
> >> > _______________________________________________
> >> > 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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