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 <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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