[EL] McCutcheon - reformers still wrong, hypos still crazy

[Smith, Brad]

“The Warnings About The Supreme Court’s Dangerous Campaign Finance Ruling Are Now Coming True”<http://electionlawblog.org/?p=76114>
Posted on September 22, 2015 7:45 am<http://electionlawblog.org/?p=76114> by Rick Hasen<http://electionlawblog.org/?author=3>

Paul Blumenthal<http://www.huffingtonpost.com/entry/joint-fundraising-committee-hillary-clinton_56006006e4b00310edf819c2> for HuffPo:

During courtroom debate over the McCutcheon decision, Solicitor General Donald Verrilli expressed concern that political parties could create joint fundraising committees to allow a single candidate to solicit a $1 million-plus contribution, which could be distributed to a collection of federal and state party committees. State parties could then transfer this money to other, more important state parties (for example, those in swing states) to benefit the candidate.

Justice Samuel Alito, without any apparent knowledge of similar prior arrangements by parties and candidates<http://www.huffingtonpost.com/2013/10/08/mccutcheon-v-fec-alito_n_4065441.html>, declared, “Now, how — how realistic is that? How realistic is it that all of the state party committees, for example, are going to get money and they’re all going to transfer it to one candidate?” Alito went on to call such situations “wild hypotheticals” that “certainly lack any empirical support.”

Chief Justice John Roberts also dismissed these concerns, among others raised by supporters of the aggregate limits, as “divorced from reality.”

However, Clinton’s campaign proved that Verrilli and other critics were right on September 16, when her campaign expanded the Hillary Victory Fund<http://docquery.fec.gov/cgi-bin/forms/C00586537/1024982/>, the super joint fundraising committee it created earlier this year with the Democratic National Committee, to include 33 state parties.

A maximum annual donation of $666,700 (totaling approximately $1.3 million in two years) will be split up among committees — with $2,700 going to the Clinton campaign, a maximum of $334,000 to the DNC and $10,000 to each state party committee. If Clinton wins her party’s nomination, those state party accounts could transfer funds she raises to the party accounts in swing states, enabling donors to exceed the $10,000 “base” contribution limit to an individual state party…

In exchange for their contributions, the new million-dollar donors sought by parties and presidential candidates will receive access to dinners, retreats, insider phone calls and opportunities to talk to top lawmakers and candidates.

This dynamic now mimics the soft money landscape Congress banned in 2002 and the Supreme Court upheld in 2003. In its 2003 McConnell v. FEC decision, the Supreme Court found that candidates’ practice of soliciting large contributions for their direct benefit raised concerns about both actual corruption and the appearance of corruption. In the court’s eyes, this justified new restrictions on campaign contributions and spending.

Yup.
-Er, uh, nope. The reason a donor can now write one check for $1 million, to be distributed among several committees, is that Congress dramatically increased the contribution limit, from $32,400 to  over $100,000 for each of the parties’ three national committees.   If Congress raised the contribution limit to $10 million, people could write checks for $10 million. Would that make the reformers’ McCutcheon argument correct? Uh, nope. Let’s remember what the reformers argued: Justice Breyer envisioned a joint fundraising committee(JFC) of 4000 PACs. The calm, collected Elena Kagan suggested merely 100. The Campaign Legal Center, in its amicus brief in McCutcheon, suggested a JFC of over 400 committees. The JFC at issue here consists of 33 committees.

There are lots of reasons not to be all jacked up about this in any case – many states have no contribution limits and do just fine; and assuming that contribution limits serve a valid purpose, even if delivered in one check, the funds in a JFC must be split up among many candidates and parties, so each recipient abides by the limits.

By leaving all that aside, one thing Hillary Clinton’s committee doesn’t do is validate the “wild hypotheticals” the reformers raised in McCutcheon.

Nope.

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
  Professor of Law
Capital University Law School
303 East Broad Street
Columbus, OH 43215
(614) 236-6317
bsmith at law.capital.edu<mailto:bsmith at law.capital.edu>
http://www.law.capital.edu/faculty/bios/bsmith.asp

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Tuesday, September 22, 2015 10:51 AM
To: law-election at uci.edu
Subject: [EL] ELB News and Commentary 9/22/15

“The Warnings About The Supreme Court’s Dangerous Campaign Finance Ruling Are Now Coming True”<http://electionlawblog.org/?p=76114>
Posted on September 22, 2015 7:45 am<http://electionlawblog.org/?p=76114> by Rick Hasen<http://electionlawblog.org/?author=3>

Paul Blumenthal<http://www.huffingtonpost.com/entry/joint-fundraising-committee-hillary-clinton_56006006e4b00310edf819c2> for HuffPo:

During courtroom debate over the McCutcheon decision, Solicitor General Donald Verrilli expressed concern that political parties could create joint fundraising committees to allow a single candidate to solicit a $1 million-plus contribution, which could be distributed to a collection of federal and state party committees. State parties could then transfer this money to other, more important state parties (for example, those in swing states) to benefit the candidate.

Justice Samuel Alito, without any apparent knowledge of similar prior arrangements by parties and candidates<http://www.huffingtonpost.com/2013/10/08/mccutcheon-v-fec-alito_n_4065441.html>, declared, “Now, how — how realistic is that? How realistic is it that all of the state party committees, for example, are going to get money and they’re all going to transfer it to one candidate?” Alito went on to call such situations “wild hypotheticals” that “certainly lack any empirical support.”

Chief Justice John Roberts also dismissed these concerns, among others raised by supporters of the aggregate limits, as “divorced from reality.”

However, Clinton’s campaign proved that Verrilli and other critics were right on September 16, when her campaign expanded the Hillary Victory Fund<http://docquery.fec.gov/cgi-bin/forms/C00586537/1024982/>, the super joint fundraising committee it created earlier this year with the Democratic National Committee, to include 33 state parties.

A maximum annual donation of $666,700 (totaling approximately $1.3 million in two years) will be split up among committees — with $2,700 going to the Clinton campaign, a maximum of $334,000 to the DNC and $10,000 to each state party committee. If Clinton wins her party’s nomination, those state party accounts could transfer funds she raises to the party accounts in swing states, enabling donors to exceed the $10,000 “base” contribution limit to an individual state party…

In exchange for their contributions, the new million-dollar donors sought by parties and presidential candidates will receive access to dinners, retreats, insider phone calls and opportunities to talk to top lawmakers and candidates.

This dynamic now mimics the soft money landscape Congress banned in 2002 and the Supreme Court upheld in 2003. In its 2003 McConnell v. FEC decision, the Supreme Court found that candidates’ practice of soliciting large contributions for their direct benefit raised concerns about both actual corruption and the appearance of corruption. In the court’s eyes, this justified new restrictions on campaign contributions and spending.

Yup.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
“New study shows potential impact of a small donor matching program on 2016 presidential race”<http://electionlawblog.org/?p=76112>
Posted on September 22, 2015 7:44 am<http://electionlawblog.org/?p=76112> by Rick Hasen<http://electionlawblog.org/?author=3>

Release<http://uspirgedfund.org/news/usp/new-study-shows-potential-impact-small-donor-matching-program-2016-presidential-race>:

Candidates in the 2016 presidential race would see a dramatic shift in their fundraising, and have a powerful incentive to focus more on small donors under a proposed small donor public financing system, according to a study released on Tuesday by the U.S. Public Interest Research Group Education Fund (U.S. PIRG). Using candidate filings with the Federal Election Commission (FEC) through July, “Boosting the Impact of Small Donors: How Matching Funds Would Reshape the 2016 Presidential Election”<http://uspirg.org/reports/usp/boosting-impact-small-donors?__utma=1.980955975.1442932997.1442932997.1442932997.1&__utmb=1.8.10.1442932997&__utmc=1&__utmx=-&__utmz=1.1442932997.1.1.utmcsr=%28direct%29%7Cutmccn=%28direct%29%7Cutmcmd=%28none%29&__utmv=-&__utmk=18184761>examines the impact of a program that matches small contributions with limited public funds for candidates who agree not to accept large donations.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
“What Happens To All That SuperPAC Money When A Candidate Drops Out”<http://electionlawblog.org/?p=76110>
Posted on September 22, 2015 7:43 am<http://electionlawblog.org/?p=76110> by Rick Hasen<http://electionlawblog.org/?author=3>

Peter Overby reports<http://www.npr.org/sections/itsallpolitics/2015/09/21/442277940/what-happens-to-all-that-superpac-money-when-a-candidate-drops-out> for NPR.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
“A few new faces — but not many — among megadonors to presidential super PACs”<http://electionlawblog.org/?p=76108>
Posted on September 22, 2015 7:42 am<http://electionlawblog.org/?p=76108> by Rick Hasen<http://electionlawblog.org/?author=3>

Center for Responsive Politic<http://www.opensecrets.org/news/2015/08/a-few-new-faces-but-not-many-among-megadonors-to-presidential-super-pacs/?utm_source=CRP+Mail+List&utm_campaign=052de71c8c-Fall_Labor_Day_2015_Appeal_9_22_2015&utm_medium=email&utm_term=0_9df8578d78-052de71c8c-206469445>s:

While there are no complete ingenues among the rosters of top donors to the super PACs, which filed their disclosure reports for the first half of the year this week, there are a few who previously haven’t given sums anything like those they are notching this year. They include the Texas-based Wilks family, four members of which gave $15 million to groups backing Sen. Ted Cruz<http://www.opensecrets.org/pres16/> (R-Texas); brothers Farris and Dan are religious conservatives who got rich in the fracking business. Another: Laura Perlmutter, who gave $2 million to a super PAC supporting Sen. Marco Rubio<http://www.opensecrets.org/pres16/> (R-Fla.).

The pure numbers are staggering: In the 2012 election cycle, all super PACs together had raised about $26 million by June 30 of the year before the vote; presidential super PACs were responsible for about $15.6 million. This time, the total comes to more than $258 million at the same point in time for presidential super PACs alone.

That’s about double the more than $130 million the presidential campaigns raised in the first six months of this year, setting up a new paradigm for campaign finance at the federal level. Jeb Bush<http://www.opensecrets.org/pres16/> and Hillary Clinton<http://www.opensecrets.org/pres16/>, with combined totals of $114 million and $71 million respectively, have settled themselves atop the all time list of presidential campaign-related fundraising in the first six months of the year before the election.

Several of the Republican efforts have been utterly dominated by outside groups raising unlimited amounts from individuals, corporations and other organizations. Seven Republican candidates reported larger fundraising totals for their supposedly unconnected super PACs than they disclosed for their campaigns, with the pro-Bush Right to Rise group pulling in nearly 10 times as much as the campaign itself.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
“Director’s Note: Expanded Opportunities on National Voter Registration Day”<http://electionlawblog.org/?p=76106>
Posted on September 22, 2015 7:40 am<http://electionlawblog.org/?p=76106> by Rick Hasen<http://electionlawblog.org/?author=3>

David Becker writes<http://www.pewtrusts.org/en/about/news-room/news/2015/09/22/directors-note-expanded-opportunities-on-national-voter-registration-day> for Pew.

MORE<http://editions.lib.umn.edu/electionacademy/2015/09/22/national-voter-registration-day-2015/> from Doug Chapin.
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Posted in election administration<http://electionlawblog.org/?cat=18>, voter registration<http://electionlawblog.org/?cat=37>
“How Automatic Voter Registration Can Transform American Politics”<http://electionlawblog.org/?p=76104>
Posted on September 22, 2015 7:38 am<http://electionlawblog.org/?p=76104> by Rick Hasen<http://electionlawblog.org/?author=3>

Ari Berman writes for The Nation.
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Posted in voter registration<http://electionlawblog.org/?cat=37>
“Scott Walker’s Demise Shows Limits of ‘Super PAC’ Money Model”<http://electionlawblog.org/?p=76102>
Posted on September 22, 2015 7:37 am<http://electionlawblog.org/?p=76102> by Rick Hasen<http://electionlawblog.org/?author=3>

Nick Confessore reports<http://www.nytimes.com/2015/09/23/us/politics/scott-walkers-demise-shows-limits-of-super-pac-money-model.html?smid=tw-share&_r=0> for the NYT.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
“Wisconsin Supreme Court Justice N. Patrick Crooks dies”<http://electionlawblog.org/?p=76100>
Posted on September 21, 2015 6:55 pm<http://electionlawblog.org/?p=76100> by Rick Hasen<http://electionlawblog.org/?author=3>

The Milwaukee Journal-Sentinel reports<http://www.jsonline.com/news/statepolitics/wisconsin-supreme-court-justice-n-patrick-crooks-dies-b99581412z1-328560641.html>. A centrist vote on a sharply divided partisan court.

Our condolences to his family.
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Posted in judicial elections<http://electionlawblog.org/?cat=19>
“New Report Released by National Commission on Voting Rights: More Work Needed to Improve Registration and Voting in the U.S.”<http://electionlawblog.org/?p=76098>
Posted on September 21, 2015 6:51 pm<http://electionlawblog.org/?p=76098> by Rick Hasen<http://electionlawblog.org/?author=3>

National Commission on Voting Rights<http://votingrightstoday.org/ncvr/resources/electionadmin>:

Based on the testimony provided by hundreds of witnesses at 25 state and regional National Commission on Voting Rights hearings convened in 2013 and 2014, this national report highlights the voices of people impacted by how elections are run in their communities—the successes as well as the challenges. The report stresses the need for state and local election administrators to increase efforts to improve the voter experience by removing obstacles to both registering and casting a ballot.

Some key findings from the report:
·         Voter Registration Needs to Be Easier: Expansive registration programs, such as online and same day voter registration, encourage participation in the electoral process while non-compliance with federal voter registration laws and rollbacks of state laws that make it easier to register, hurts voters.
·         Long Lines at the Polls Still a Possibility in 2016: Elections improve when election administrators plan early, develop creative strategies and use technology wisely to streamline the voting process for voters. Yet, many voters still face challenges on Election Day due to a variety of factors, including  insufficient poll worker training or understaffing at polling locations; excessively restrictive voter ID laws and/or cuts to laws that encourage participation; and shrinking budgets that restrict counties from upgrading old and malfunctioning voting equipment.
·         Voters with Disabilities, Students and People with Felony Convictions Face Voting Barriers: Voters with disabilities often arrive at polling locations to find that accessible voting equipment is not functioning properly or that poll workers do not know how to operate the machines.  Out-of-state college students have been denied regular ballots because their college addresses do not match their driver’s licenses.  Individuals convicted of a felony continue to face a maze of confusing rules and regulations around the restoration of their voting rights.
Download the Full Report<http://votingrightstoday.org/LiteratureRetrieve.aspx?ID=131092>


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Posted in voting<http://electionlawblog.org/?cat=31>, Voting Rights Act<http://electionlawblog.org/?cat=15>
“If you think super PACs have changed everything about the presidential primary, think again”<http://electionlawblog.org/?p=76096>
Posted on September 21, 2015 5:16 pm<http://electionlawblog.org/?p=76096> by Rick Hasen<http://electionlawblog.org/?author=3>

David Karol <http://www.washingtonpost.com/blogs/monkey-cage/wp/2015/09/21/if-you-think-super-pacs-have-changed-everything-about-the-presidential-primary-think-again/> for the Monkey Cage.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
“Brennan Center Publishes Campaign Finance Paper Largely Grounded in Reality”<http://electionlawblog.org/?p=76094>
Posted on September 21, 2015 5:15 pm<http://electionlawblog.org/?p=76094> by Rick Hasen<http://electionlawblog.org/?author=3>

Rare common ground <https://www.pillaroflaw.org/index.php/blog/entry/brennan-center-publishes-campaign-finance-paper-largely-grounded-in-reality> (for now).
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Posted in campaign finance<http://electionlawblog.org/?cat=10>
“Latest Voting Rights Institute to Train New Generation of Voting Rights Lawyers at Georgetown Law”<http://electionlawblog.org/?p=76084>
Posted on September 21, 2015 5:14 pm<http://electionlawblog.org/?p=76084> by Rick Hasen<http://electionlawblog.org/?author=3>

Announcement.<http://www.campaignlegalcenter.org/news/press-releases/latest-voting-rights-institute-train-new-generation-voting-rights-lawyers-0>
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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15>

--

Rick Hasen

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UC Irvine School of Law

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Irvine, CA 92697-8000

949.824.3072 - office

949.824.0495 - fax

rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>

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