[EL] Kavanaugh/Bluman

Tue Sep 4 11:27:11 PDT 2018

Thank you, Rick and Justin.

On Tue, Sep 4, 2018 at 10:39 AM Rick Hasen <rhasen at law.uci.edu> wrote:

> Judge Kavanaugh’s Sloppy Illogic in the Bluman Foreign Campaign Spending
> Case: A Question to Ask at the Hearings
> <https://electionlawblog.org/?p=100969>
>
> Posted on September 4, 2018 10:18 am
> <https://electionlawblog.org/?p=100969> by *Rick Hasen*
> <https://electionlawblog.org/?author=3>
>
> In an earlier post <https://electionlawblog.org/?p=99897>, and in pieces
> in Politico
> <https://www.politico.com/magazine/story/2017/09/26/russian-facebook-ads-regulation-215647>
>  and Slate,
> <https://slate.com/news-and-politics/2018/02/the-campaign-finance-loophole-that-could-make-the-next-russian-attack-perfectly-legal.html> I
> explained how Judge Kavanaugh’s opinion for a three-judge court in Bluman
> v. FEC opens a huge gaping hole in campaign finance law allowing for
> foreign governments, entities, and individuals to spend unlimited sums to
> influence federal elections so long as they avoid words of express
> advocacy, like “Vote for Stein.” Kavanaugh upheld the foreign spending ban,
> but construed it for constitutional reasons to apply only to express
> advocacy.and not to “issue ads” (like “Hillary is a Satan”).
>
> As Justin points out <https://electionlawblog.org/?p=100965>, Judge
> Kavanaugh’s construction of the statute was unnecessary to reach the result
> of upholding the statute: none of the plaintiffs wanted to run issue ads.
>
> But I wanted to point to a more fundamental flaw in Judge Kavanaugh’s
> logic that might be worth a question on this topic at the hearing:
>
> In *Buckley v. Valeo*,
> <https://www.law.cornell.edu/supremecourt/text/424/1#writing-USSC_CR_0424_0001_ZO> the
> Court faced a similar question: the law limited to $1,000 the amount an
> (American) individual could spend “relative to” a clearly identified
> candidate for federal office. To avoid vagueness problems, the Court
> construed it to apply only to express advocacy and not issue advocacy. (And
> that express advocacy definition mattered to define the scope of required
> disclosure of independent expenditures). But then the Court went on to
> strike the individual spending limit *despite* having construed it
> narrowly to avoid vagueness problems. The Court wrote:
>
> *We find that the governmental interest in preventing corruption and the
> appearance of corruption is inadequate to justify § 608(e)(1)’s ceiling on
> independent expenditures. First, assuming, arguendo, that large independent
> expenditures pose the same dangers of actual or apparent quid pro
> quoarrangements as do large contributions, § 608(e)(1) does not provide an
> answer that sufficiently relates to the elimination of those dangers.
> Unlike the contribution limitations’ total ban on the giving of large
> amounts of money to candidates, § 608(e)(1) prevents only some large
> expenditures. So long as persons and groups eschew expenditures that, in
> express terms advocate the election or defeat of a clearly identified
> candidate, they are free to spend as much as they want to promote the
> candidate and his views. The exacting interpretation of the statutory
> language necessary to avoid unconstitutional vagueness thus undermines the
> limitation’s effectiveness as a loophole-closing provision by facilitating
> circumvention by those seeking to exert improper influence upon a candidate
> or officeholder. It would naively underestimate the ingenuity and
> resourcefulness of persons and groups desiring to buy influence to believe
> that they would have much difficulty devising expenditures that skirted the
> restriction on express advocacy of election or defeat, but nevertheless
> benefited the candidate’s campaign. Yet no substantial societal interest
> would be served by a loophole-closing provision designed to check
> corruption that permitted unscrupulous persons and organizations to expend
> unlimited sums of money in order to obtain improper influence over
> candidates for elective office.*
>
> (My emphasis)
>
> The question about *Bluman* is why Judge Kavanaugh did not go down the
> same path as the Court did in *Buckley*? If indeed the statute banning
> foreign money had to be interpreted to apply only to express advocacy,
> leaving the issue advocacy path wide open and therefore the express
> advocacy ban ineffective, why not strike the entire statute down as serving
> “no substantial soceital interest?” “It would naively underestimate the
> ingenuity and resourcefulness of [foreign] persons and [foreign] groups
> desiring to buy influence to believe that they would have much difficulty
> devising expenditures that skirted the restriction on express advocacy of
> election or defeat, but nevertheless benefited the candidate’s campaign.”
>
> Given that Kavanaugh is a self-professed First Amendment zealot
> <https://slate.com/news-and-politics/2018/09/brett-kavanaughs-supreme-court-tenure-could-mean-the-end-of-all-campaign-finance-limits.html> in
> the campaign finance area, why did his logic not cause him to strike the
> whole statute down?  (Probably because he’d no longer be up for a Supreme
> Court appointment.)
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D100969&title=Judge%20Kavanaugh%E2%80%99s%20Sloppy%20Illogic%20in%20the%20Bluman%20Foreign%20Campaign%20Spending%20Case%3A%20A%20Question%20to%20Ask%20at%20the%20Hearings>
>
> Posted in campaign finance <https://electionlawblog.org/?cat=10>, Supreme
> Court <https://electionlawblog.org/?cat=29>
>
>
>
>
> Kavanaugh, Foreign Agents, and American Elections
> <https://electionlawblog.org/?p=100965>
>
> Posted on September 4, 2018 6:40 am
> <https://electionlawblog.org/?p=100965> by *Justin Levitt*
> <https://electionlawblog.org/?author=4>
>
> Justin here, with my own take on Kavanaugh and the election process, also
> cross-posted over at the Take Care blog <https://takecareblog.com/>:
>
> In the 2016 elections, we were hacked.  I don’t mean the breach of the
> DNC systems
> <https://assets.documentcloud.org/documents/4598902/DOJ-Russian-Indictments.pdf>,
> serious as that was.  And I don’t mean intrusion into the mechanics of
> casting and counting ballots: media frenzy aside, that structure mostly
> held up.  Someone broke into two states’ voter registration databases
> <https://www.nytimes.com/2016/08/30/us/politics/harry-reid-russia-tampering-election-fbi.html>,
> poked around, and left – but there’s no indication that any registration or
> vote was changed, anywhere in the country.
>
> What I mean is that *we*, the people, were hacked.  Entities of a foreign
> nation-state figured out what we cared about, and what we fought about, and
> turned the volume up to 11.  We were hit by true “crisis actors”: agents
> pretending to be who they were not
> <https://www.nytimes.com/2017/09/07/us/politics/russia-facebook-twitter-election.html>,
> not in the aftermath of crisis but in an attempt to foment it.  They invaded
> our social spaces
> <https://www.nytimes.com/2018/02/17/technology/indictment-russian-tech-facebook.html>,
> with a specific eye to disrupting the election conversation.  And because
> of a 2011 case called *Bluman v. FEC
> <https://scholar.google.com/scholar_case?case=1121532194737627452>*,
> written by Judge Brett Kavanaugh, much of it may have been legally
> authorized.
>
> If there’s a voting case that Senators should be focusing on this week,
> it’s *Bluman*.  It’s not really the case’s substantive connection to a
> Russian threat that should catch the Senate’s eye.  Instead, it’s Judge
> Kavanaugh’s judicial process.  The opinion, written for a three-judge trial
> court, shows little respect for the Supreme Court.  It shows little respect
> for Congress.  And it shows little respect for deep analysis.  Instead, it
> offers a simplistic answer — what amounts to little more than a policy
> preference — to a series of what should have been hard questions.
>
> Continue reading → <https://electionlawblog.org/?p=100965#more-100965>
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D100965&title=Kavanaugh%2C%20Foreign%20Agents%2C%20and%20American%20Elections>
>
> Posted in campaign finance <https://electionlawblog.org/?cat=10>, statutory
> interpretation <https://electionlawblog.org/?cat=21>, Supreme Court
> <https://electionlawblog.org/?cat=29>
>
>
>
>
>
> --
>
> Rick Hasen
>
> Chancellor's Professor of Law and Political Science
>
> UC Irvine School of Law
>
> 401 E. Peltason Dr., Suite 1000
>
> Irvine, CA 92697-8000
>
> 949.824.3072 - office
>
> rhasen at law.uci.edu
>
> http://www.law.uci.edu/faculty/full-time/hasen/
>
> http://electionlawblog.org
>
>
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-- 
Henry Weinstein
Writer, Teacher
cell phone 323-445-7006
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