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

Thu May 12 09:06:10 PDT 2016

See also the FEC definition of members of a candidate's family at 11 CFR
113.1(g)(7)

On Thu, May 12, 2016 at 11:57 AM, Scott Blackburn <
sblackburn at campaignfreedom.org> wrote:

> This does not need to be a theoretical argument. Six states, to my
> knowledge, currently allow some form of unlimited familial contributions
> outside of contribution limits. These states (Illinois, Maryland, Michigan,
> North Carolina, South Dakota, and Wyoming) appear to be quite able to
> define family in a reasonable way that does not cascade into a slippery
> slope unlimited contributions for all. They also define it in a specific
> way that prevents regulatory agencies from abusing enforcement powers.
>
>
>
> In Maryland, the definition is limited to “spouse.” In Wyoming, it is
> “immediate family” defined as “a spouse, parent, sibling, child or other
> person living in the individual’s household.”
>
>
>
> Unless one argues that the statutes in these six states are leading to
>  greater corruption than in states without it, it appears that it was quite
> easy to draw a statutory line that allows greater freedom for familial
> giving without increasing corruption.
>
>
>
> *From:* law-election-bounces at department-lists.uci.edu [mailto:
> law-election-bounces at department-lists.uci.edu] *On Behalf Of *Larry Levine
> *Sent:* Thursday, May 12, 2016 11:23 AM
> *To:* 'Kathay Feng' <kfeng at commoncause.org>; 'Thomas J. Cares' <
> Tom at tomcares.com>; 'Election Law' <law-election at uci.edu>
> *Subject:* Re: [EL] "Illegal contributions" from Ami Bera's father
>
>
>
> I don’t see anyone proposing any such thing. A parent’s contribution to a
> campaign of a son or daughter is a far cry from the kind of sky-is-falling
> scenario you fear.
>
> Larry
>
>
>
> *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>] *On Behalf Of *Kathay
> Feng
> *Sent:* Thursday, May 12, 2016 5:26 AM
> *To:* Thomas J. Cares <Tom at tomcares.com>; Election Law <
> law-election at uci.edu>
> *Subject:* Re: [EL] "Illegal contributions" from Ami Bera's father
>
>
>
> I am sympathetic to the argument of a dad just wanting to help his son
> out. But I worry that once you open an exception for certain family
> members, it becomes an open invitation for interests to "hire" the spouse,
> subsidize the house sale of a relative, or cover the tuition of a son as a
> way of passing money to or currying favor with a candidate. Sadly, none of
> these examples are hypothetical. It may not be right that a few bad apples
> taint our concern about the appearance or existence of corruption of all,
> but it is the reality.
>
>
>
> ‎
>
> *From: *Thomas J. Cares
>
> *Sent: *Thursday, May 12, 2016 1:09 AM
>
> *To: *Election Law
>
> *Subject: *Re: [EL] "Illegal contributions" from Ami Bera's father
>
>
>
> 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
> <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 <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>
> <gabe.gopen at gmail.com%3cmailto:gabe.gopen at gmail.com%3e>]
> 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
> <law-election-bounces at department-lists.uci.edu>>] on behalf of Gabriel
> Gopen [gabe.gopen at gmail.com<mailto:gabe.gopen at gmail.com
> <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
>
>
> --
>
>
>
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