Subject: Re: Soros debate
From: "Trevor Potter" <TP@capdale.com>
Date: 12/2/2003, 12:34 PM
To: "Rick Hasen" <Rick.Hasen@lls.edu>, "Frank Askin" <faskin@kinoy.rutgers.edu>
CC: tpotter@campaignlegalcenter.org, volokh@mail.law.ucla.edu, election-law@majordomo.lls.edu


I think Rick is correct in his statement of current law. This raises a variety of legal and policy questions, such as whether an organization whose express purpose is to defeat a specific federal candidate should be outside of the federal election laws.

 -----Original Message-----
From: 	Rick Hasen [mailto:Rick.Hasen@lls.edu]
Sent:	Tue Dec 02 11:26:25 2003
To:	Frank Askin
Cc:	Trevor Potter; tpotter@campaignlegalcenter.org; volokh@mail.law.ucla.edu; election-law@majordomo.lls.edu
Subject:	Re: Soros debate

I am thinking of a 527 that does not engage in express advocacy, though I believe (and the practicing campaign finance lawyers can correct me) that such groups may engage in unlimited electioneering communications so long as they are not incorporated and take no union or corporation funds.

Frank Askin wrote:


Rick - Can you explain why a 527 whose primary purpose is federal electoral activity (and engages in express advocacy) is NOT a political committee subject to limits on contributions it may accept?  I think the difference is that the 527s to which Soros is contributing do not plan to engage in "express advocacy" or in activities which constitute "electioneering communications."    FRANK



Prof. Frank Askin

Constitutional Litigation Clinic

Rutgers Law School/Newark

(973) 353-5687



 

Rick Hasen  <mailto:Rick.Hasen@lls.edu> <Rick.Hasen@lls.edu> 12/02/03 09:51AM >>>

       

I suppose Trevor is right on the political committee point, though not

if the money is given to a 527 as Soros has been doing with some of his

funds.

Rick



Trevor Potter wrote:



 

Two short thoughts on Rick's post:

1.) A group "taking unlimited sums from individuals (subject to

reporting



requirements) to make unlimited independent expenditures supporting or



opposing a candidate for federal office" probably qualifies as a federal

political committee. Such federal committees can make unlimited

expenditures, but NOT with unlimited funds--contributions to PACs are

limited to $5,000 per year from a person.

2.) The point I made in response to Jim Bopp's post is that the "change"

in the law effected by BCRA does not advantage wealthy individuals--both

before and after they could make independent expenditures. What they

lost was the ability to make unlimited direct contributions to parties.

I do not dispute that independent expenditures can generate

gratitude--but I do believe that officeholders and candidates are even

more indebted to direct contributors. Give a candidate the choice

between a million dollar independent expenditure, conveying someone

else's message crafted by someone else's political advisor and perhaps

advancing someone else's agenda, and the same million in cash in a party

account, to be spent under the candidates direction,  and no one

disputes which the candidates would prefer. There are too many examples

of candidates complaining they do not "control" their own message and

campaigns to believe otherwise.

Trevor



-----Original Message-----

From: Rick Hasen [mailto:Rick.Hasen@lls.edu]



Sent: Tuesday, December 02, 2003 9:18 AM

To: election-law; Eugene Volokh; tpotter

Subject: Soros debate





1. I have a question regarding Eugene's initial comment about the Soros



controversy. He wrote: "As I understand it, many opponents of spending



caps argue that the proper check on billionaires throwing their weight



around is disclosure and public condemnation, not legal suppression.



Sure, they argue, let Ted Turner or General Motors spend money to



support or oppose this or that candidate -- so long as their opponents



can point out that this is potentially unfair or corrupting, or what



have you."  Is that what Eugene himself believes?  In any case, I'm



wondering from a strong First Amendment perspective what the



"potentially unfair or corrupting" problem is with Ted Turner (or Soros)



spending their money to promote or oppose a candidate for political



office?  If the idea is that the billionaire could engage in spending



that does not reflect public support for the ideas of the billionaire,



then that seems to endorse what I have termed the "barometer equality



rationale" for campaign finance reform put forward most forcefully by



Justice Marshall in Austin (but whose history traces back much further,



as I detail in Chapter 4 of my book).  But of course, Justice Scalia's



dissent in Austin mocked this rationale (as well as questioned why it



applied to corporations but not to individual billionaires).  I have



trouble seeing from the strong First Amendment perspective what the



problem is.  It cannot be, as Jim Bopp suggests, that it favors



individuals versus groups.  Under BCRA, nothing stops a group today from



taking unlimited sums from individuals (subject to reporting



requirements) to make unlimited independent expenditures supporting or



opposing a candidate for federal office---so long as it is not



coordinated with the candidate or done through a political party.



2. Regarding Trevor's point: "[T]he new law DOES prohibit wealthy



individuals (and corporations or unions) from giving that same unlimited



amount of money to national party committees at the importuning of



federal candidates and officeholders--and that restriction on wealthy



individuals is significant and an welcome change in what had become a



corrupt 'money for legislative policy' system. I fail to see how this



change advantages Mr.. Soros or any other super-wealthy donor--they are



now limited in what they can contribute to parties to buy access and



effect legislative outcomes, while those who give $100 or $1,000 or even



$10,000 now have proportionately more influence."  Trevor's argument



depends upon the increasingly unrealistic assumption in Buckley that



those who make very large independent expenditures cannot be buying



access or influence with a candidate, simply by virtue of the fact that



the spending must be independent.  Of course Soros will gain tremendous



access to any Democratic nominee (and president, if the nominee defeats



Bush) by virtue of such spending.



--



Rick Hasen

Professor of Law and William M. Rains Fellow

Loyola Law School

919 South Albany Street

Los Angeles, CA  90015-1211

(213)736-1466

(213)380-3769 - fax

rick.hasen@lls.edu http://www.lls.edu/academics/faculty/hasen.html

http://electionlawblog.org











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--

Rick Hasen

Professor of Law and William M. Rains Fellow

Loyola Law School

919 South Albany Street

Los Angeles, CA  90015-1211

(213)736-1466

(213)380-3769 - fax

rick.hasen@lls.edu

http://www.lls.edu/academics/faculty/hasen.html

http://electionlawblog.org




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This message is for the use of the intended recipient only.  It is
from a law firm and may contain information that is privileged and
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copying, future distribution, or use of this communication is
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