[EL] Legality of the Collins/Kavanaugh Crowdpac campaign?

[jboppjr at aol.com]

This is a very timely question since the Supreme Court will soon be considering 2 cert petition that focus on this very issue, Lair v. Mangan, regarding Montana's contribution limits (mine), and Zimmerman v. Austin, regarding Austin's.  The Supreme Court has ordered responses in both cases.
 
In my view, based on current Supreme Court precedent establishing the legal definition of quid pro quo corruption, Crowdpac pledging to financially support Senator Collins’ future opponent if she votes for Kavanugh’s nomination is not quid pro quo corruption for multiple reasons.
 
The Supreme Court’s decisions defining quid pro quo corruption can be summarized as  1) an explicit arrangement 2) for the direct exchange of something of value for 3) a public official’s improper promise or commitment that is 4) contrary to the obligations of his or her office 5) in an effort to control an official, sovereign act.
 
First, insofar as funding an opponent based on Senator Collins' official act can be construed as an offer, Senator Collins expressly rejected it, as she has said that she “will make up her mind based on the merits of the nomination” and that the efforts “will not play a factor in her decision making whatsoever.”
 
Second, Crowdpac has pledged financial support to Senator Collins’ future opponent, not to Senator Collins herself.  Quid pro quo corruption requires a direct exchange with Senator Collins, ie, a contribution to her. Crowdpac has not offered a contribution to her.
 
Finally, if she accepted it, it would not be an improper commitment. In FEC v. Nat’l Conservative Political Action Committee,  the Supreme Court held that a candidate or public official altering or reaffirming her position on an issue because of an offer of a contribution is not quid pro quo corruption. It is democracy.
 
Thus, while the Crowdpac pledge is quid pro quo corruption, there is still the question of whether it is legal, which Brad Smith’s recent article in The Washington Post addresses.
 
James Bopp, Jr.
Attorney
The Bopp Law Firm, PC | www.bopplaw.com
The National Building | 1 South 6th Street | Terre Haute, IN 47807
voice: (812) 232-2434 ext. 22 | fax: (812) 235-3685 | cell: (812) 243-0825 | jboppjr at aol.com
 
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In a message dated 9/14/2018 9:09:53 PM US Eastern Standard Time, stephen.klein.esq at gmail.com writes:

 
I recommend Brad Smith’s piece in The Washington Post:
 
https://www.washingtonpost.com/opinions/is-attempting-to-sway-susan-collinss-vote-breaking-the-law-its-hard-to-tell/2018/09/13/363cf150-b78b-11e8-a7b5-adaaa5b2a57f_story.html
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On Sep 14, 2018, at 8:53 PM, Charlotte Hill <charlottehill at berkeley.edu> wrote:


Hello,
 
I'm a graduate student at UC Berkeley who studies campaign finance, among other things. I'm curious about the legality of the Crowdpac campaign that's raised $1.3M in an effort to sway Collins' vote on the Kavanaugh nomination. If Collins supports Kavanaugh, the money goes to her opponent in the next election; if she rejects his nomination, Crowdpac donors are not charged. 
 
https://www.crowdpac.com/campaigns/387413/either-sen-collins-votes-no-on-kavanaugh-or-we-fund-her-future-opponent
 
I've seen some speculation on Twitter that this campaign is a clear example of quid pro quo bribery and therefore illegal. However, I haven't seen a nuanced, informed argument in either direction. I'd appreciate hearing thoughts from people on this listserv.
 
Thank you,
 
Charlotte
 
 
-- 

Charlotte Hill, MPPPhD student, UC Berkeley School of Public Policy
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