[EL] "Illegal contributions" from Ami Bera's father

Wed May 11 16:30:12 PDT 2016

Dear Mark,

No, those of us professing a libertarian or speech matters perspective would not agree that gagging everyone is clean or fair. That's called over inclusiveness:  using far too blunt an instrument to achieve a stated goal. You might remember a case calling on the speech police to err on the side of freedom instead of censorship. Hate to disrupt the paranoid good government wagon, but corruption is not to be found behind every stone. When Congress acts to disrupt fundamental liberties, eg free association, I expect it to have good reason to do so. Prophylactic, imaginary fears just won't cut it. 

Forward,

Benjamin Barr

Sent from my iPhone

> On May 11, 2016, at 5:02 PM, Mark Schmitt <schmitt.mark at gmail.com> wrote:
> 
> I'm surprised that some of you who are on the more libertarian side of things would be comfortable with an agency selectively deciding which individuals' contributions might be likely to lead to corruption, and which would not. That's an awful lot of power to put in the hands of bureaucrats! 
> 
> If you accept that *some* large contributions from *some* donors might have a potential for corruption, then wouldn't the cleanest, fairest law be one that simply limits contributions, regardless of the identity and interests of the donor?  What if a donor says, "I just wanted to give that candidate lots of money because I thought he was really attractive." If that's really the motive for giving, there's probably less potential for corruption than if the donor says, "He's on the Financial Services Committee and I'm a banker." But I don't want some agency parsing that distinction.
> 
> Some of you may believe that there's no such thing as corruption or dependence corruption, and I've seen that argument. But if that's the case, then it doesn't matter that the donor is the candidate's father anyway. 
> 
> Mark Schmitt
> Director, Political Reform Program, New America
> 202/246-2350
> gchat or Skype: schmitt.mark
> twitter: @mschmitt9 
> 
>> On Wed, May 11, 2016 at 12:13 PM, Smith, Brad <BSmith at law.capital.edu> wrote:
>> Let’s try this link, then: http://www.myplainview.com/article_a9d1622d-8e2b-5cd4-b5a8-dc221c33a730.html
>> 
>>  
>> 
>> The answer to your question is, “yes, the FEC has the authority to investigate parental gifts” if it believes that those gifts are being used to fund political campaigns in amounts in excess of the contribution limits of the Federal Election Campaign Act.” We did this several times during my time on the FEC, including the case linked to above.
>> 
>>  
>> 
>> You are correct that Mr. Bera could have formed a single candidate super PAC and then spent to his heart’s content (or at least his bank account’s capacity) independently of his son and the compaign.  As Allen Dickerson points out, that he did not choose that option suggests that it may be a poor substitute for direct contributions. And of course, it still leaves us without an answer as to why the law should prohibit Bera from contributing directly to his son’s campaign, and why one wouldn’t think the Constitution should protect that right.
>> 
>>  
>> 
>> 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
>> 
>> http://www.law.capital.edu/faculty/bios/bsmith.asp
>> 
>>  
>> 
>> From: Gabriel Gopen [mailto:gabe.gopen at gmail.com] 
>> Sent: Wednesday, May 11, 2016 10:29 AM
>> To: Smith, Brad
>> Cc: David A. Holtzman; Election Law
>> 
>> 
>> Subject: Re: [EL] "Illegal contributions" from Ami Bera's father
>>  
>> 
>> Mr. Smith, your link was on 527s.  (Could be evergreen, FEC criticized for failure to act).
>> 
>>  
>> 
>> Without getting into a discussion about the rule governing intergenerational transfers of wealth, does the FEC have authority to investigate parental gifts?  Who would even know to rip them of as happened here?
>> 
>>  
>> 
>>  I suppose I could have said Bera Sr. could have set up a single candidate super Pac ("citizens for Elk Grove" Ceg) and  a 501(c)(4) ("Elk Grove social club" EGSC).  Then he could give unlimited contributions to EGSC, solicit unlimited contributions from relatives abroad for EGSC and dump it all into CEg to run ads in support of his son.  I'd go on but Mr. Potter did this bit on Colbert already.  
>> 
>>  
>> 
>> 
>> On May 11, 2016, at 9:57 AM, Smith, Brad <BSmith at law.capital.edu> wrote:
>> 
>> If, as suggested below, Bera gave his son gifts, and the son then spent his own money on the campaign, the FEC would still consider that an illegal contribution in the name of another. See e.g. http://articles.latimes.com/2003/jun/14/nation/na-fec14. Mr. Gopen's proposed solution might satisfy the tax man, but it would not satisfy the FEC.
>> 
>>  
>> 
>> Nor does this change the fact that if "supporting your own child's political ambitions is laudable," we really ought to question why it is illegal. Any other law Bera violated stems from that illegality when combined with his laudable goal. I doubt our democracy would be poorly served if the Constitution had been properly interpreted to protect Mr. Bera's right to support his son's campaign without restrictions on the amount.
>> 
>>  
>> 
>> 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 Gabriel Gopen [gabe.gopen at gmail.com]
>> Sent: Wednesday, May 11, 2016 9:35 AM
>> To: David A. Holtzman
>> Cc: Election Law
>> Subject: Re: [EL] "Illegal contributions" from Ami Bera's father
>> 
>> With the caveat that I did not see the original version of the article, Babual Bera's deceitful intent appears clear to me.  As a max donor, he knew precisely the legal limit he could give to his son.  He could also have given Ami cash gifts up to the limit of $14k ($28k if as a couple) per calendar year without a tax penalty. If he wanted to exceed that, he would have to pay the tax.  Instead, the senior Bera found 90 other individuals to give maximum contribution which he reimbursed.  To the public record, it looked as if candidate Bera had a wider array of supporters than he did.  
>> 
>> I agree that supporting your own child's political ambitions is laudable.  But unfortunately the method Babual Bera used to provide support was criminal.
>> 
>> 
>> On May 11, 2016, at 12:05 AM, David A. Holtzman <David at HoltzmanLaw.com> wrote:
>> 
>> Thomas, you may have seen an earlier version of the article.  Note:
>> "UPDATES
>>  . . .
>> 2:37 p.m.: This article was updated with a quote and additional information from the U.S. attorney."
>> Without that I might have been baffled too.
>> The illegality was money laundering and fraud.
>>   - dah
>> 
>> 
>> On 5/10/2016 7:05 PM, Thomas J. Cares wrote:
>> 
>> 'I have, in fact, done the crime': Rep. Ami Bera's father admits illegal campaign contributions
>> 
>> http://lat.ms/1sbbYts
>> 
>>  
>> 
>> I really would have thought constitutional rights to self fund would include the right of a very close relative, like a parent, to fund a campaign without restrictions. This feels very wrong. I don't see why such a restriction would survive any scrutiny - a large contribution from a parent is highly unlikely to create any conflict of interest that wouldn't already be there by virtue of them being your parent (especially if they are the kind of parent who would have made a large contribution, but for a law prohibiting it - (a parent who has surely otherwise been a supportive figure to the candidate)).
>> 
>>  
>> 
>> I am incredibly baffled by the contents of that LA Times story.
>> 
>>  
>> 
>> Also, I think it's kind of great if a candidate is so lucky to have a parent to fund them (I was a candidate once, but don't have parents with those kinds of resources). Much better for society to have candidates funded by parents than candidates funded by executives whose companies have business before Congress, albeit in smaller aggregated amounts. (Baffled).
>> 
>>  
>> 
>> Tom Cares
>> 
>> 
>> 
>> -- 
>> 
>> 
>> 
>> 
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>> -- 
>> David A. Holtzman, M.P.H., J.D.
>> david at holtzmanlaw.com
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