[EL] Ned Foley's piece

Wed Oct 19 13:38:45 PDT 2016

I’m not really seeing a substantive difference, as I think “rigging” and “buying” largely act as synonyms in these discussions (at least to the voter who is not as steeped in the intricacies of these issues as those on this listserv) as both suggest that the outcome of an election is illegitimate. I agree with you 100% that Trump’s complaints have a jilted lover quality to them, so the impetus of his complaints is far different, and far more personal and visceral, than Sanders’. Nonetheless, I think the rhetoric does make Americans more cynical and, as much social research suggests, less (not more) likely to participate in political activities. They are also tend, I would think, to make voters more likely to reject as illegitimate the outcome of an overwhelmingly legitimate election. Both of these results are not good for the country.

Bill

From: John Farrell [mailto:jfarrell at mccandlishlawyers.com]
Sent: Wednesday, October 19, 2016 1:19 PM
To: Bill Maurer
Cc: Rick Hasen; Election Law Listserv
Subject: Re: [EL] Ned Foley's piece - false equivalency

I believe that Sen. Sauders syllogism is that when the super pac follows through on its threat and funds the primary challenger or general election opponent of the state or local official with sufficient resources to drown out the opposing message, the election is not decided on a contest of ideas but “bought” through the acquisition of  the bigger megaphone.

That the media is biased against the electoral loser was probably a complaint first voiced by an ancient Athenian.  Though they may have meant Medea.

The irony of Trump’s current complaint is that Trump"s primary opponents, and others, have said that his candidacy was only viable because of the billions of dollars of free media those same networks gave him to entice ratings from fans of the Apprentice.

It is reminiscent of the treatment of so many sports stars and other celebrities.  First, the idolatry; then the opprobrium.

Even still those two phenomenon are not equivalent.

John W. Farrell
Attorney at Law

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On Oct 19, 2016, at 3:52 PM, Bill Maurer <wmaurer at ij.org<mailto:wmaurer at ij.org>> wrote:

Thanks for the reply.

Your example is not “buying” an election, which is what Sanders consistently (almost daily) says. The example you give is one of his criticisms, but it’s not the same as his consistent suggestion that the outcome of an election would be different if the “millionaires and billionaires” did not engage in political activity.

If there’s a substantive difference between an election being “rigged” and an election being “bought,” I don’t see it. That’s my point. Your point is that money can influence political outcomes. That’s (sometimes) true. But that’s not the same as saying the political system is rigged and elections are bought. So, what is the difference between Sanders saying the Koch Brothers are buying elections and Trump saying CNN is rigging an election? I’m genuinely asking, as the only difference I see is that Trump actually identifies what election result he believes is illegitimate and Sanders never does.

Our initial disagreement may actually come from the fact that Trump, with his usual aversion to specifics, conflates both fraudulent voting and media influence into one big pie. Ned’s piece was about the argument that CNN is rigging the election by speaking too much and that that argument is not substantively different from the reformers’ argument that the Koch Brothers are rigging the election by speaking too much. That was my main point as well, but I added the voter fraud angle, which I agree is not equivalent to either criticism, as it is a totally different species altogether and has far less chance of influencing the outcome of a presidential election.

Bill

From: John Farrell [mailto:jfarrell at mccandlishlawyers.com]
Sent: Wednesday, October 19, 2016 12:33 PM
To: Bill Maurer
Cc: Rick Hasen; Election Law Listserv
Subject: Re: [EL] Ned Foley's piece

The public record is replete with instances of state and local legislators changing positions at the mere threat of a super pac funding a primary challenger or general election opponent and swamping the incumbent’s ability to get his position known and understood.  That appears to be the gist Sen. Sanders criticism of Citizen United.

That experience bears no resemblance to Trump’s irresponsible accusations that thousands of, mostly Republican, election officials are going to collude with Democrats to stuff the ballot box against him using illegal votes from “those communities.”

Those two ideas have no equivalence.

And the pronouncement of their equivalency is inconsistent with a good faith effort “to achieve common ground.”

John W. Farrell
Attorney at Law

<image001.gif><http://mccandlishlawyers.com/>

11350 Random Hills Road | Suite 500
Fairfax, Virginia 22030-7421
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On Oct 19, 2016, at 3:11 PM, Bill Maurer <wmaurer at ij.org<mailto:wmaurer at ij.org>> wrote:

The utility of any exchange is also frustrated by cryptic and substantive-less statements about how the utility of any exchange is lacking.

Lawyers should be able to respond to arguments instead of just calling something ideology and false equivalency and then declaring the matter beyond discussion. Because, God knows, that approach has worked to achieve common ground on important topics in other arenas.

And, of course, there are differences between the two criticisms. But they both take problems and conflate them into a condemnation of the entire system unjustified by the evidence.

Bill

From: John Farrell [mailto:jfarrell at mccandlishlawyers.com]
Sent: Wednesday, October 19, 2016 12:01 PM
To: Bill Maurer
Cc: Rick Hasen; Election Law Listserv
Subject: Re: [EL] Ned Foley's piece

Yet another instance of false equivalency.

Lawyers ought to be able to understand the differences in the two criticisms but it advances an ideology to pretend that all criticisms of our system of government are the same and equally invalid.

And there ends the utility of any exchange.

John W. Farrell
Attorney at Law

<image001.gif><http://mccandlishlawyers.com/>

11350 Random Hills Road | Suite 500
Fairfax, Virginia 22030-7421
tel (703) 934-1182 cell (703) 507-1182

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On Oct 19, 2016, at 2:43 PM, Bill Maurer <wmaurer at ij.org<mailto:wmaurer at ij.org>> wrote:

I encourage everyone to read Ned Foley’s excellent piece below. I was doing some research the other day and noted that Bernie Sanders has been talking about a “rigged political system” that benefits the wealthy and connected for much longer than Donald Trump has been talking about a “rigged election” that will benefit the wealthy and connected. Trump’s unique contribution seems to be that he has identified the specific election he believes will be rigged, while Sanders and some (but clearly not all) of those who favor campaign finance regulations make more amorphous and broader suggestions of campaigns being “bought,” thus suggesting that all or at least a large number of election results are fraudulent.

Ned is correct that neither is correct and that that this kind of rhetoric from both sides encourage cynicism, distrust, and alienation. CNN is no more rigging the election than the Koch Brothers and having both voices in the political debate strengthens our political system. People voting multiple times is as much a fantasy as Sheldon Adelson or Charles Koch picking the next president practically on their own. Trump supporters cannot name one election determined by fraud and the more extreme pro-regulation supporters cannot name one election that was “bought,” but both believe, without noticing the inherent contradiction, that in order to have a fair election, voices with which they disagree must be silenced or reduced and the “wrong” people discouraged to participate. They both believe that when the government threatens people with fines and criminal sanctions for engaging in peaceful political activity, this somehow is “democracy.” Ned is totally correct that these types of Manichean delusion deserve to be publicly rejected and refuted by those who can do so.

I encourage Ned to expand this piece and publish it for a mass audience.

Bill

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 Rick Hasen
Sent: Wednesday, October 19, 2016 8:02 AM
To: Election Law Listserv
Subject: [EL] ELB News and Commentary 10/19/16

“The Claim that the Media is Rigging the Election–and Citizens United”<http://electionlawblog.org/?p=87695>
Posted on October 18, 2016 5:16 pm<http://electionlawblog.org/?p=87695> by Rick Hasen<http://electionlawblog.org/?author=3>
Ned Foley<http://prawfsblawg.blogs.com/prawfsblawg/2016/10/the-claim-that-the-media-is-rigging-the-election-and-citizens-united.html>:
Now for the relevance of Citizens United: insofar as the attack on that decision rests on the premise that corporate-funded speech will distort the electoral process by persuading voters of its message, it seems the same sort of argument that Trump and Pence are making with respect to the media’s capacity to influence what voters think.  To be sure, there might be different types of arguments for attacking Citizens United–that corporate money, for some reason, should be off-limits in the process of persuading voters what to think.  But if one rejects the idea that CNN and the New York Times are capable of rigging the election because the messages they send to voters about the competing candidates, then presumably to be consistent one should equally reject the idea that Citizens United and other corporations are capable of improperly distorting the electoral process because of the messages these other corporations send to voters.
Conversely, defenders of Citizens United should be taking the lead in condemning the Trump-Pence claim that the media is currently rigging the election because of its messages about the candidates.  The First Amendment reasoning that underlies Citizens United rules out the Trump-Pence position on this issue.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

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