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

[Thomas J. Cares]

Much-or-all of this quibbling over family lines sounds sarcastic. One's
grandparents or any descendants thereof and any of their spouses sounds
like an extremely reasonable line - a natural law PAC if you will, with a
constitutional right to coordinate or donate to each other's campaigns
freely. I don't think it should be hard to recognize this constitutional
right of families to participate in politics without this restriction,
which doesn't appear to survive any scrutiny. Its purpose would appear
illegitimate - to deliberately suppress the disproportionate ability of an
affluent family to participate in politics - not to prevent corruption.
This would indeed feel like incumbent-favoritism. Of course incumbents can
raise money - even get it from their party or safe-seat colleagues en
masse, as well as special interests. To unseat an entrenched incumbent, you
might need a candidate supported by family wealth.

I feel like this is kind of how Citizens United happened. It was wrong for
the government to challenge that anti-Hillary film. Very wrong. Doing so
provoked the courts to gut all restrictions on IEs.

Prohibiting contributions from a father to a candidate is very wrong. It
feels like the kind of thing that could eventually provoke a court to void
all restrictions on campaign contributions.

Tom Cares

On Thursday, May 12, 2016, Smith, Brad <BSmith at law.capital.edu> wrote:

> Sure, parents, spouse and siblings is fine. Easy to understand.
> Personally, I'm fine with first cousins and aunts and uncles if you want. I
> really doubt there's much going to be much corruption there. But I can see
> a pretty good argument that allowing them to contribute would be more
> problematic. So again, let's just start with spouses and parents. Or just
> spouses. That seems reasonable, right? Does anyone really want to argue
> that "reasonable regulation" requires prohibiting spouses from contributing
> to their spouses? I'm getting curious about just what regulation is
> "unreasonable regulation."
>
> *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 <614.236.6317>*
>
> *http://law.capital.edu/faculty/bios/bsmith.aspx
> <http://law.capital.edu/faculty/bios/bsmith.aspx>*
> ------------------------------
> *From:* Larry Levine [larrylevine at earthlink.net]
> *Sent:* Wednesday, May 11, 2016 9:19 PM
> *To:* Smith, Brad; 'Trevor Potter'
> *Cc:* law-election at uci.edu
> *Subject:* RE: [EL] "Illegal contributions" from Ami Bera's father
>
> Parents, spouse and siblings? Step-parents, step children? First cousins?
> Aunts and uncles?
>
> Larry
>
>
>
> *From:* law-election-bounces at department-lists.uci.edu [mailto:
> law-election-bounces at department-lists.uci.edu] *On Behalf Of *Smith, Brad
> *Sent:* Wednesday, May 11, 2016 5:45 PM
> *To:* Trevor Potter <tpotter at capdale.com>
> *Cc:* law-election at uci.edu
> *Subject:* Re: [EL] "Illegal contributions" from Ami Bera's father
>
>
>
> I've suggested a statutory or constitutional line, not unfettered agency
> discretion.
>
>
>
> You ask where the line should be drawn. I think immediate family would
> work pretty well. Almost any of the lines you suggest, however, would be
> clear and more targeted at fighting corruption. So I don't see any of
> questions as posing a serious problem.  Limiting it to parents only would
> be an improvement, and should not be very controversial amongst those who
> favor "reasonable regulation."
>
> Sent from my iPhone
>
>
> On May 11, 2016, at 5:31 PM, Trevor Potter <tpotter at capdale.com> wrote:
>
> But the point Mark raises is really broader-where should the line be drawn
> to prevent corruption and the appearance of corruption? And should an
> enforcement agency have discretion in deciding the line on an ad hoc basis?
> Brad suggests that parents should be on the non- corrupt side of that
> line. How about siblings? Parents in law? Cousins? To what degree? Aunts,
> Uncles ? By blood or marriage or both?
>
> All of those are questions that will arise when drawing the line between
> contribution limits for the public and unlimited contributions for "
> family". And if the family member owns a large industrial corporation and
> the relative is running for Congress or the Presidency, then the corruption
> rationale may not be so clearly irrelevant....
>
> Trevor Potter
> Sent from my iPhone
>
> On May 11, 2016, at 5:17 PM, Smith, Brad <BSmith at law.capital.edu<
> mailto:BSmith at law.capital.edu>> wrote:
>
> No, I think a law that says parents aren’t likely to corrupt this kids is
> sensible, and doesn’t leave much discretion in the hands of bureaucrats.
> It’s not the agency we’re discussing, but the statute, and whether the
> constitution should protect that behavior.
>
> For what’s it worth, I would also be comfortable with a law saying if a
> donor says, "I just wanted to give that candidate lots of money because I
> thought he was really attractive," then the contribution is legal. But that
> seems like a very different discussion with lots more room for disagreement.
>
> 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<
> http://www.law.capital.edu/faculty/bios/bsmith.asp>
>
> From: Mark Schmitt [mailto:schmitt.mark at gmail.com]
> Sent: Wednesday, May 11, 2016 5:03 PM
> To: Smith, Brad; law-election at uci.edu<mailto:law-election at uci.edu>
> Subject: Re: [EL] "Illegal contributions" from Ami Bera's father
>
> 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<
> http://www.newamerica.org/political-reform/>, New America<
> http://www.newamerica.org/>
> 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<
> mailto:BSmith at law.capital.edu>> wrote:
> Let’s try this link, then:
> http://www.myplainview.com/article_a9d1622d-8e2b-5cd4-b5a8-dc221c33a730.html
> <
> 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<tel:%28614%29%20236-6317 <%28614%29%20236-6317>>
> bsmith at law.capital.edu<mailto:bsmith at law.capital.edu>
> http://www.law.capital.edu/faculty/bios/bsmith.asp<
> http://www.law.capital.edu/faculty/bios/bsmith.asp>
>
> From: Gabriel Gopen [mailto:gabe.gopen at gmail.com<
> 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<
> mailto: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.<
> 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<tel:614.236.6317 <614.236.6317>>
>
> http://law.capital.edu/faculty/bios/bsmith.aspx<
> 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
> Gabriel Gopen [gabe.gopen at gmail.com<mailto: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<
> mailto: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<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
>
>
> --
>
>
>
> _______________________________________________
>
> Law-election mailing list
>
> Law-election at department-lists.uci.edu<
> mailto:Law-election at department-lists.uci.edu>
>
> http://department-lists.uci.edu/mailman/listinfo/law-election<
> http://department-lists.uci.edu/mailman/listinfo/law-election>
>
> --
> David A. Holtzman, M.P.H., J.D.
> david at holtzmanlaw.com<mailto:david at holtzmanlaw.com>
>
> Notice: This email (including any files transmitted with it) may be
> confidential, for use only by intended recipients. If you are not an
> intended recipient or a person responsible for delivering this email to an
> intended recipient, be advised that you have received this email in error
> and that any use, dissemination, forwarding, printing or copying of this
> email is strictly prohibited. If you have received this email in error,
> please immediately notify the sender and discard all copies.
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu<
> mailto:Law-election at department-lists.uci.edu>
> http://department-lists.uci.edu/mailman/listinfo/law-election<
> http://department-lists.uci.edu/mailman/listinfo/law-election>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu<
> mailto:Law-election at department-lists.uci.edu>
> http://department-lists.uci.edu/mailman/listinfo/law-election<
> http://department-lists.uci.edu/mailman/listinfo/law-election>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu<
> mailto:Law-election at department-lists.uci.edu>
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
> <116051117315003337.png>
>
>
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20160512/4949d20e/attachment.html>