[EL] "Illegal contributions" from Ami Bera's father
David A. Holtzman
David at HoltzmanLaw.com
Thu May 12 20:41:08 PDT 2016
I’ve been thinking about this subject off and on sinceTeresa Heinz
Kerry’s wealth wasn’t used to swift-kick the swift-boaters.(Which I
think would have been fair.)
Here’s my latest thought: Maybe if you’re contemplating expanding who
has the right to make unlimited campaign contributions, you should limit
the expansion to people who live with the candidate.
But we don’t want candidates to run boarding houses for big contributors
(do we?).So consider something from the ABA Model Code of Judicial
Conduct (it’s a definition of a term used in Rule 2.11 on disqualification):
““Member of a judge’s family residing in the judge’s household”**means
any relative of a judge by blood or marriage, or a person treated by a
judge as a member of the judge’s family, who resides in the judge’s
household.”
(The Wyoming definition Scott Blackburn quoted below includes “person
living in the individual’s household,” and the FEC definition David
Mason cited includes “[a] person who shares a residence with the
candidate.”)
Obviously, if someone’s regularly sleeping with a candidate, it’s
certainly going to be hard for the public to view any contribution by
that someone as a means of buying access to the candidate.The same could
probably be said for anyone who lives with a candidate and is treated by
the candidate as a member of the candidate’s family.
I agree with Kathay Feng that expanding the set of people who can make
unlimited contributions to candidates would open new routes for
problematic money flows to candidates.
But maybe that ABA definition could help address the concerns raised in
this thread.
Remember it’s the public’s viewpoint that’s of concern.Campaign finance
law regulates the appearance of (not necessarily the existence of)
corruption.That regulation protects the political establishment, which
shapes the law. The establishment might go along with labeling the
warm-and-fuzzy “home” a corruption-free zone, but it would be difficult
to push the zone beyond the property line.
- dah
p.s. I don’t think the father in the Bera case lived with the candidate son.
On 5/12/2016 9:06 AM, David Mason wrote:
> 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
> <mailto: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>
> [mailto: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
> <mailto:kfeng at commoncause.org>>; 'Thomas J. Cares'
> <Tom at tomcares.com <mailto:Tom at tomcares.com>>; 'Election Law'
> <law-election at uci.edu <mailto: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>
> [mailto: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
> <mailto:Tom at tomcares.com>>; Election Law <law-election at uci.edu
> <mailto: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
> <mailto: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 <tel:614.236.6317>/
>
> /http://law.capital.edu/faculty/bios/bsmith.aspx/
>
> ------------------------------------------------------------------------
>
> *From:*Larry Levine [larrylevine at earthlink.net
> <mailto:larrylevine at earthlink.net>]
> *Sent:* Wednesday, May 11, 2016 9:19 PM
> *To:* Smith, Brad; 'Trevor Potter'
> *Cc:* law-election at uci.edu <mailto: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>
> [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
> <mailto:tpotter at capdale.com>>
> *Cc:* law-election at uci.edu <mailto: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 <mailto: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
> <mailto:BSmith at law.capital.edu%3cmailto: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 <tel:%28614%29%20236-6317>
> bsmith at law.capital.edu<mailto:bsmith at law.capital.edu
> <mailto:bsmith at law.capital.edu%3cmailto: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
> <mailto:law-election at uci.edu%3cmailto: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 <tel:202%2F246-2350>
> 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
> <mailto:BSmith at law.capital.edu%3cmailto: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><tel:%28614%29%20236-6317>
> bsmith at law.capital.edu<mailto:bsmith at law.capital.edu
> <mailto:bsmith at law.capital.edu%3cmailto: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>
> <mailto: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
> <mailto:BSmith at law.capital.edu%3cmailto: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><tel: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
> <mailto:law-election-bounces at department-lists.uci.edu%3cmailto: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><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><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
> <mailto:David at HoltzmanLaw.com%3cmailto: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
> <mailto:Law-election at department-lists.uci.edu%3cmailto: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
> <mailto:david at holtzmanlaw.com%3cmailto: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
> <mailto:Law-election at department-lists.uci.edu%3cmailto: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
> <mailto:Law-election at department-lists.uci.edu%3cmailto: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
> <mailto:Law-election at department-lists.uci.edu%3cmailto:Law-election at department-lists.uci.edu>>
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
> <116051117315003337.png>
>
>
> _______________________________________________
> 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
>
>
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
--
David A. Holtzman, M.P.H., J.D.
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.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20160512/4340ca6f/attachment.html>
View list directory