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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