[EL] Why campaign spending is protected - in action

[Smith, Brad]

Assuming you are right on the second point (and you are obviously wrong in some cases), why can't it be both?


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 Fredric Woocher [fwoocher at strumwooch.com]
Sent: Saturday, October 10, 2015 10:44 PM
To: Scarberry, Mark
Cc: law-election at UCI.edu
Subject: Re: [EL] Why campaign spending is protected - in action

Yes, the money was pooled to be used for "speech," but if you think that speech is really the donor's speech, not that of the candidate through the surrogate of that candidate's SuperPac, you are kidding yourself, or trying to kid the rest of us.

Fredric Woocher
Strumwasser & Woocher LLP

Sent from my iPhone

On Oct 10, 2015, at 6:11 PM, Scarberry, Mark <Mark.Scarberry at pepperdine.edu<mailto:Mark.Scarberry at pepperdine.edu>> wrote:

I think Brad's point is that the money was pooled and spent to put forward the message that the spenders/contributors wanted to put forward. If the spending was done independently of the candidates and their committees, then this arguably falls on the spending side of Buckley, not the contribution side.

I assume these were "contributions" to the independent (or formally "independent") committees that ran the ads. If a rich person like one of these had simply produced the ads and bought the airtime, we wouldn't likely call that a contribution but rather an instance of spending. If the committee is seen as a conduit, and as a pooling device, perhaps the events are better described as the spending of money to put forward speech than as the contribution of money.

I don't know whether this is a point that we would expect the NYT to recognize in such an article. It would be helpful to the public discourse, particularly with respect to Citizens United, if the press could note that there is a difference between contributions to candidates and the spending of money for speech purposes, at least for First Amendment purposes under the Court's decisions.

I will say that I don't like rich people having so much influence; but the cure -- government regulation of the amount of money that can be spent to put forward a message -- may be worse than the disease. (Power of all kinds is dangerous, to state the obvious.)

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

On Oct 10, 2015, at 5:48 PM, "Rick Hasen" <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:

What?

Rick Hasen

Sent from my iPhone. Please excuse typos.

On Oct 10, 2015, at 5:45 PM, Smith, Brad <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>> wrote:

No contributions directly to candidates or parties, which is what we normally mean by contributions. See Buckley, SpeechNow.org<http://speechnow.org>

Sent from my iPhone

On Oct 10, 2015, at 6:38 PM, Marty Lederman <lederman.marty at gmail.com<mailto:lederman.marty at gmail.com>> wrote:

"the article is about spending, not contributions."

Which article were you reading?  The one I read does not say a single word about any ads run by these families, or any speech they have engaged in.  But it does say the folllowing:

Just 158 families, along with companies they own or control, contributed $176 million in the first phase of the campaign, a New York Times investigation found. Not since before Watergate have so few people and businesses provided so much early money in a campaign, most of it through channels legalized by the Supreme Court’s Citizens United decision five years ago.

These donors’ fortunes reflect the shifting composition of the country’s economic elite.

But regardless of industry, the families investing the most in presidential politics overwhelmingly lean right, contributing tens of millions of dollars to support Republican candidates who have pledged to pare regulations; cut taxes on income, capital gains and inheritances; and shrink entitlement programs. While such measures would help protect their own wealth, the donors describe their embrace of them more broadly, as the surest means of promoting economic growth and preserving a system that would allow others to prosper, too.

Doug Deason, a Dallas investor whose family put $5 million behind Gov. Rick Perry of Texas

In marshaling their financial resources chiefly behind Republican candidates, the donors are also serving as a kind of financial check on demographic forces that have been nudging the electorate toward support for the Democratic Party and its economic policies.

Republicans are far outpacing Democrats in exploiting the world of “super PACs,” which, unlike candidates’ own campaigns, can raise unlimited sums from any donor, and which have so far amassed the bulk of the money in the election.

The 158 families each contributed $250,000 or more in the campaign through June 30, according to the most recent available Federal Election Commission filings and other data, while an additional 200 families gave more than $100,000. Together, the two groups contributed well over half the money in the presidential election -- the vast majority of it supporting Republicans.

Like most of the ultrawealthy, the new donor elite is deeply private. Very few of those contacted were willing to speak about their contributions or their political views. Many donations were made from business addresses or post office boxes, or wound through limited liability corporations or trusts

Hildebrand Family
Donated $250,000

[etc.]

More than 50 members of these families have made the Forbes 400 list of the country’s top billionaires, marking a scale of wealth against which even a million-dollar political contribution can seem relatively small. The Chicago hedge fund billionaire Kenneth C. Griffin, for example, earns about $68.5 million a month after taxes, according to court filings made by his wife in their divorce. He has given a total of $300,000 to groups backing Republican presidential candidates.

The three families who have provided the largest donations in the campaign to date — the Wilks family of Texas, which made billions providing trucks and equipment in the shale fields; the Mercers of New York, headed by the hedge fund investor Robert Mercer; and Toby Neugebauer, a Texas-born private equity investor . . .

Another group of the families, including the hedge fund investor George Soros and his son Jonathan, have ties to the Democracy Alliance, a network of liberal donors who have pushed Democrats to move aggressively on climate change legislation and progressive taxation. Those donors, many of them from Hollywood or Wall Street, have put millions of dollars behind Hillary Rodham Clinton.

Mr. Pickens, who has donated $125,000 to groups supporting Mr. Bush or Carly Fiorina.



On Sat, Oct 10, 2015 at 6:25 PM, Smith, Brad <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>> wrote:
Well, first, the article is about spending, not contributions.

Second, if the 158 have views representative of Americans, then what is the problem? If they do not, and we still think their spending is a problem that should be limited, isn't that a desire to silence those individuals?

My hat is off to you, Marty, if you're prepared to silence those you agree with to the same extent as those you disagree with, even if it means much more influence for those you disagree with. If so, you are a small minority in the reform community, and I thank you for it.


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<tel:614.236.6317>

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: Marty Lederman [lederman.marty at gmail.com<mailto:lederman.marty at gmail.com>]
Sent: Saturday, October 10, 2015 6:20 PM

To: Smith, Brad
Cc: Rick Hasen; law-election at UCI.edu<mailto:law-election at uci.edu>
Subject: Re: [EL] Why campaign spending is protected - in action

"If we think they have different views than others, isn't that pretty much a confession that we're concerned about what they're expressing?"

uh, no.

Again, they ain't "expressing" anything; and my sympathies for regulating contribution limits would be exactly the same regardless of their viewpoints, since their viewpoints have nothing to do with it.

On Sat, Oct 10, 2015 at 6:17 PM, Smith, Brad <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>> wrote:
I'll admit to being at something of a loss here. If we believe that old white rich guys have the same views as everyone else, why does it matter if they are spending a lot?

If we think they have different views than others, isn't that pretty much a confession that we're concerned about what they're expressing?

Unless, of course, I've misunderstood and Trevor and Marty oppose limits on spending.


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<tel:614.236.6317>

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: Marty Lederman [lederman.marty at gmail.com<mailto:lederman.marty at gmail.com>]
Sent: Saturday, October 10, 2015 5:47 PM
To: Smith, Brad
Cc: Rick Hasen; law-election at UCI.edu<mailto:law-election at uci.edu>
Subject: Re: [EL] Why campaign spending is protected - in action

Really, Brad -- we know that you are not that disingenuous, so don't pretend that you are.  ;-)

Perhaps I just need to spend more time watching tv, but I'm fairly sure I've never heard any members of approximately 149 out of these 158 families "express their opinions" on any issue of public policy, including the effects of regulation on business, as to which they are said to have so much valuable expertise.  If they'd have spent that $176 million expressing such opinions, I, for one, would hardly begrudge them.  But for some reason I suspect that ads to the effect of "Hi, we're Trevor D. Rees-Jones, Ronald Cameron and Farris Wilks, and we'd like to explain to you why regulations are so onerous to the fracking and agribusiness industries" . . . would not, in their view, be a very efficient use of their riches.

The idea that legislators who would impose contribution limits are engaged in some sort of modern-day effort to "silence views one doesn't agree with," akin to Abrams, Schenck or Brandenburg, is laughable.

Don't get me wrong -- I think there are plenty of worthwhile arguments why particular contribution limits are, or are not, a good idea.  (Cf. the Rick/Bob Bauer back-and-forth earlier this week.)  But viewpoint suppression?  Please.


On Sat, Oct 10, 2015 at 4:10 PM, Smith, Brad <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>> wrote:
>From NYT:

"In marshaling their financial resources chiefly behind Republican candidates, the donors are also serving as a kind of financial check on demographic forces that have been nudging the electorate toward support for the Democratic Party and its economic policies."

And on the media, such as the New York Times, that provide millions in in-kind contributions to the Democratic Party and its economic (and campaign finance) policies.

They are overwhelmingly white, rich, older and male,

They are also more likely to have made their money in the private sector, more likely to work in the private sector, less likely to work in academia, Hollywood, or the press. They are more likely to have management experience, more likely to understand the impact of regulation on business, and more likely to have thought seriously about policy than the public at large.

And in the end, they voice their opinions, and voters decide how to vote.

No matter how you slice it, in the end campaign finance always comes down to the same thing-- a desire to silence views one doesn't agree with.

Here the idea is that we should silence the views of rich old white guys - at least the conservative (on economic policy) ones.

Wah!


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<tel:614.236.6317>

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] on behalf of Rick Hasen [rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>]
Sent: Saturday, October 10, 2015 2:58 PM
To: law-election at UCI.edu<mailto:law-election at uci.edu>
Subject: [EL] ELB News and Commentary 10/10/15

Breaking News: Automatic Voter Registration Coming to CA<http://electionlawblog.org/?p=76585>
Posted on October 10, 2015 11:55 am<http://electionlawblog.org/?p=76585> by Rick Hasen<http://electionlawblog.org/?author=3>

So tweets<https://twitter.com/melmason/status/652919923337920513> LAT’s Melanie Mason that Gov Brown has signed the bill automatically registering eligible CA voters from DMV offices (unless voters object). (More details on the new law.<http://www.projectvote.org/news/governor-brown-signs-padilla-bill-to-expand-voter-registration/>)

More on this later. This is a huge deal.

<share_save_171_16.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D76585&title=Breaking%20News%3A%20Automatic%20Voter%20Registration%20Coming%20to%20CA&description=>
Posted in Uncategorized<http://electionlawblog.org/?cat=1>
Nick Confessore’s Deep Dive into America’s Plutocracy<http://electionlawblog.org/?p=76583>
Posted on October 10, 2015 11:50 am<http://electionlawblog.org/?p=76583> by Rick Hasen<http://electionlawblog.org/?author=3>

Drop everything and read this<http://www.nytimes.com/interactive/2015/10/11/us/politics/2016-presidential-election-super-pac-donors.html?_r=0> (online, because the graphics are fantastic):

Just 158 families have provided nearly half of the early money for efforts to capture the White House….

They are overwhelmingly white, rich, older and male, in a nation that is being remade by the young, by women, and by black and brown voters. Across a sprawling country, they reside in an archipelago of wealth, exclusive neighborhoods dotting a handful of cities and towns. And in an economy that has minted billionaires in a dizzying array of industries, most made their fortunes in just two: finance and energy.

Now they are deploying their vast wealth in the political arena, providing almost half of all the seed money raised to support Democratic and Republican presidential candidates. Just 158 families<http://www.nytimes.com/2015/10/11/us/politics/wealthy-families-presidential-candidates.html>, along with companies they own or control, contributed $176 million in the first phase of the campaign, a New York Times investigation found. Not since before Watergate have so few people and businesses provided so much early money in a campaign, most of it through channels legalized by the Supreme Court’s Citizens United decision five years ago….

But regardless of industry, the families investing the most in presidential politics overwhelmingly lean right, contributing tens of millions of dollars to support Republican candidates who have pledged to pare regulations; cut taxes on income, capital gains and inheritances; and shrink entitlements. While such measures would help protect their own wealth, the donors describe their embrace of them more broadly, as the surest means of promoting economic growth and preserving a system that would allow others to prosper, too….

In marshaling their financial resources chiefly behind Republican candidates, the donors are also serving as a kind of financial check on demographic forces that have been nudging the electorate toward support for the Democratic Party and its economic policies. Two-thirds of Americans support higher taxes on those earning $1 million or more a year, according to a June New York Times/CBS News poll, while six in 10 favor more government intervention to reduce the gap between the rich and the poor. According to the Pew Research Center, nearly seven in 10 favor preserving Social Security and Medicare benefits as they are.

This is exactly the problem I talk about which needs to be fixed in my upcoming Plutocrats Unitedbook.<http://www.amazon.com/Plutocrats-United-Campaign-Distortion-Elections/dp/0300212453/ref=la_B0089NJCR2_1_7?s=books&ie=UTF8&qid=1430416698&sr=1-7>

<share_save_171_16.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D76583&title=Nick%20Confessore%E2%80%99s%20Deep%20Dive%20into%20America%E2%80%99s%20Plutocracy&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, Plutocrats United<http://electionlawblog.org/?cat=104>
“Menendez appeals judge’s ruling in corruption case”<http://electionlawblog.org/?p=76581>
Posted on October 9, 2015 3:32 pm<http://electionlawblog.org/?p=76581> by Rick Hasen<http://electionlawblog.org/?author=3>

Jonathan Salant <http://www.nj.com/politics/index.ssf/2015/10/menendez_files_appeal_of_judges_ruling_in_corrupti.html> for NJ.com<http://nj.com>:

Lawyers for U.S. Sen. Robert Menendez on Friday asked an appeals court to throw out an indictment <http://www.nj.com/politics/index.ssf/2015/04/sen_bob_menendez_indicted_on_federal_corruption_ch.html> charging him with intervening with federal agencies in exchange for gifts and campaign contributions.

Menendez’s lawyers appealed to the Third Circuit U.S. Court of Appeals a decision by U.S. District Judge William H. Walls on Sept. 28 to let the trial proceed<http://www.nj.com/politics/index.ssf/2015/09/judge_refuses_to_throw_out_menendez_indictment.html> against the Democratic senator and his friend and campaign donor, Dr. Salomon Melgen, a West Palm Beach, Fla., ophthalmologist.

<share_save_171_16.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D76581&title=%E2%80%9CMenendez%20appeals%20judge%E2%80%99s%20ruling%20in%20corruption%20case%E2%80%9D&description=>
Posted in bribery<http://electionlawblog.org/?cat=54>, campaign finance<http://electionlawblog.org/?cat=10>, chicanery<http://electionlawblog.org/?cat=12>
“Racially Polarized Voting”<http://electionlawblog.org/?p=76579>
Posted on October 9, 2015 2:46 pm<http://electionlawblog.org/?p=76579> by Rick Hasen<http://electionlawblog.org/?author=3>

Chris Elmendorf, Kevin Quinn and Marisa Abrajano have posted this draft<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2668889> on SSRN (forthcoming, University of Chicago Law Review).  Here is the abstract:

Whether voting is racially polarized has for the last generation been the linchpin question in vote dilution cases under the core, nationally applicable provision of the Voting Rights Act. The polarization test is supposed to be clear-cut (“manageable”), diagnostic of liability, and free of strong racial assumptions. Using evidence from a random sample of vote dilution cases, we argue that these objectives have not been realized in practice, and, further, that they cannot be realized under current conditions. The roots of the problem are twofold: (1) the widely shared belief that polarization determinations should be grounded on votes cast in actual elections, and (2) normative disagreement, often covert, about the meaning of racial vote dilution. We argue that the principal normative theories of vote dilution have conflicting implications for the racial polarization test. We also show that votes are only contingently related to the political preferences that the polarization inquiry is supposed to reveal, and, further, that the estimation of candidates’ vote shares by racial group from ballots cast in actual elections depends on racial homogeneity assumptions similar to those the Supreme Court has disavowed. Our analysis casts serious doubt on the notion — promoted in dicta by the Supreme Court and supported by prominent commentators — that courts should establish bright-line, vote-share cutoffs for “legally significant” racial polarization. The courts would do better to screen vote dilution claims using evidence of preference polarization derived from surveys, or non-preference evidence of minority political incorporation.

Looking forward to reading this!

<share_save_171_16.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D76579&title=%E2%80%9CRacially%20Polarized%20Voting%E2%80%9D&description=>
Posted in Voting Rights Act<http://electionlawblog.org/?cat=15>


--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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