If so, then you folks have what is known in the political business as a whopper of an "expectations" problem with the American people. It is a common side effect of over-selling legislation. Then again, if the ultimate goal is still more regulation, a little planned obsolescence in BCRA is not altogether a bad thing, is it?
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-----Original Message-----
From: Marty Lederman <marty.lederman@comcast.net>
To: election-law@majordomo.lls.edu <election-law@majordomo.lls.edu>; RJLipkin@aol.com <RJLipkin@aol.com>
CC: mickey kaus <Mickey_Kaus@msn.com>
Sent: Sat Dec 27 12:43:03 2003
Subject: Re: But People Are Still Running Expensive/Negative Political Ads!
The answer is described at length in the title I discussion in McConnell: It's the same anticorruption rationale that animates the entire line of Buckley cases involving contribution (and coordinated expenditure) limits. That rationale does not justify limits on independent expenditures, both because such expenditures are entitled to a far higher degree of constitutional protection, and because, at least as the Court sees it -- and this one of the points of Kaus's posts -- such expenditures are far less likely to have the same corrupting effect as contributions to candidates and their parties.
FWIW, here's a brief post I sent to the list in October on, principally, the latter point:
The stated and manifest objectives of title I of BCRA are not to get money out of politics, or to "stop the flow of funds," or even to make parties more or less influential vis-a-vis other political players. Those may be the goals of many reformers who regret (bemoan) the Court's holdings in Buckley regarding expenditures; but BCRA was not drafted, nor defended, based upon such rationales. It was, instead, predicated on the assumption that Buckley is (like it or not) good law (i.e., binding precedent for the foreseeable future), on the basic premise that officeholders should not be beholden to moneyed interests, and on the common-sense notion that officeholders will, on the whole, be much more grateful to persons (corporations, unions) for having contributed money to political parties than they are to persons who have engaged in independent expenditures or who have made contributions to other groups (e.g., 527s) that are unaffiliated with the candidates themselves.
This makes perfect sense from where I sit (which is, admittedly, not in the midst of political campaigning). Of course an officeholder will be somewhat beholden to someone who makes independent expenditures urging the candidate's election, or who contributes to "independent" entities that run such ads. But, at least in theory, Andy Stern cannot do much by way of coordination with federal candidates. A far greater risk of (real or perceived) "corruption" occurs when persons make contributions to the candidates themselves, or to the parties -- which are represented and headed by such candidates, and which engage in far more extensive coordinated expenditures with such candidates than do other entities. That is to say, the risk of an officeholder quid pro quo, and the risk that the officeholder will otherwise alter her official behavior, is almost certainly higher as a result of contributions to the officeholder or her party than when the same contribution is made to Andy S!
tern's 527's.
----- Original Message -----
From: RJLipkin@aol.com
To: election-law@majordomo.lls.edu
Sent: Saturday, December 27, 2003 11:42 AM
Subject: Re: But People Are Still Running Expensive/Negative Political Ads!
In a message dated 12/27/2003 10:23:43 AM Eastern Standard Time, marty.lederman@comcast.net writes:
As we've discussed endlessly, this "criticism," of course, misunderstands BCRA's objectives, which do not include "getting money out of politics," "equalizing the debate/playing field," or "stopping negative advertising."
It might be helpful if Marty would succinctly state just what "BCRA's objectives" are. Thanks.
Bobby
Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware