Re: [EL] Electionlawblog news and commentary 9/28/10

In a message dated 9/28/2010 4:46:25 P.M. Eastern Daylight Time, TP@Capdale.com writes:

Quite right. However, in WRTL and Citizens United the Court has accepted
a standard of express advocacy broader than the "magic words" of vote
for/vote against ("capable of no other interpretation" etc) , thereby
making it harder to know where the line between issue advocacy and
express advocacy lies. This creates another incentive for c4s and c6s to
go ahead and use clear express advocacy-- they then file the FEC IE form
and can be done with it (rather than worrying that their attempt at
issue advocacy may not be fuzzy enough, and someone will later charge it
was express advocacy not reported to the FEC)...
Trevor

-----Original Message-----
From: Lowenstein, Daniel [mailto:lowenstein@law.ucla.edu]
Sent: Tuesday, September 28, 2010 4:39 PM
To: Trevor Potter; JBoppjr@aol.com; lehto.paul@gmail.com
Cc: election-law@mailman.lls.edu
Subject: RE: [EL] Electionlawblog news and commentary 9/28/10

Was it not argued--persuasively, I thought--in McConnell that ads
without the "vote for" type language were as effective as ads with the
language and that, indeed, ads placed by candidates themselves often
lacked the "vote for" type language?

   Best,

   Daniel H. Lowenstein
   Director, Center for the Liberal Arts and Free Institutions
(CLAFI)
   UCLA Law School
   405 Hilgard
   Los Angeles, California 90095-1476
   310-825-5148

________________________________
From: election-law-bounces@mailman.lls.edu
[election-law-bounces@mailman.lls.edu] On Behalf Of Trevor Potter
[TP@Capdale.com]
Sent: Tuesday, September 28, 2010 12:56 PM
To: JBoppjr@aol.com; lehto.paul@gmail.com
Cc: election-law@mailman.lls.edu
Subject: Re: [EL] Electionlawblog news and commentary 9/28/10

Jim Bopp says he is "doubtful" that many business corporations will take
advantage of the Citizens United decision, citing the potential adverse
reactions of "customers, employees, shareholders and investment bankers
of all political stripes" whom they do not want to alienate. However,
that argument only applies if those constituencies KNOW about the
business's political spending--and certain lawyers and political actors
appear committed to ensuring that such information is not public. Under
our current rules (as interpreted by a deadlocked FEC), business
corporations need only give to c4s or c6s (Chamber of Commerce, etc) to
avoid public disclosure while actively spending funds to elect or defeat
candidates.

Jim states that business corporations have been comfortable with "issue
ads", which they could do before Citizens United, thus suggesting that
they will stick with these. However, now that c4s and c6s can run
express advocacy ads, using undisclosed corporate money, to communicate
more direct messages to voters, I suspect old fashioned phony issue ads
will be about as extinct as the dodo--why run them when something more
effective is possible, with no more disclosure?

Trevor Potter

________________________________
From: election-law-bounces@mailman.lls.edu
[mailto:election-law-bounces@mailman.lls.edu] On Behalf Of
JBoppjr@aol.com
Sent: Tuesday, September 28, 2010 11:41 AM
To: lehto.paul@gmail.com
Cc: election-law@mailman.lls.edu
Subject: Re: [EL] Electionlawblog news and commentary 9/28/10

I do believe that a few for-profit corporations will take advantage
of CU and many more advocacy groups will. However, whether this results
in a flood of business corp spending or even of new net political
spending, as claimed by the regulators, is doubtful in my view and
certainly not proven.

It is doubtful since there are many disincentives for business
corps. They have customers, employees, shareholders and investment
bankers of all political stripes, many are regulated by government
bureaucrats (or on the Obama agenda to be regulated) and they don't want
to alienate any of them. "Vote for" ads can do that. Further, they
have always been able to do issue ads and I think they are more
comfortable with these, if they want to get involved.

Many more advocacy groups will take advantage of CU's permission to
do "vote for" ads. Most will just shift from issue ads to "vote for" ads
with not net increase in ads. Further, some will be MCFL-qualified who
could have done "vote for" ads before CU. So it is hard to know if
there is a net increase in advocacy group ads overall.

I am certainly hopeful that corps use this freedom when they think
it is warrented. Prof John Lott has demonstrated that increase in
political spending is closely correlated with increased spending by
government. We have the most massive increase in government spending
over the last 2 years than ever before. Surely this will trigger more
political spending now. Whether it will be from business corp mainly, I
doubt.

By the way, the importance of CU goes way beyond whether corp and
labor unions can now do "vote for" ads. Analytically, the "corporate
corruption" interest supported numerous government campaign finance
restrictions and regulations. These are now also bereft of legal support
and await the next lawsuit to strike them down. Jim Bopp

In a message dated 9/28/2010 10:58:46 A.M. Eastern Daylight Time,
lehto.paul@gmail.com writes:
It certainly seems fair to conclude, even prior to empirical proof,
that Jim Bopp's landmark litigation to remove corporate limits in
campaign finance was not a moot case or an academic case with nothing
truly at issue.   Corporations freed from these limits would naturally
take advantage of that freedom.

Because I believe Congress did not set totally meaningless limits on
corporate contributions and that Jim Bopp doesn't bring moot cases not
capable of repetition, the only real question is by how much past
corporate expenditures increase in given major election periods, not
if they are increasing.

Paul Lehto, J.D.

On 9/28/10, JBoppjr@aol.com <JBoppjr@aol.com> wrote:
> "Who _turned on_ (http://www.slate.com/id/2221753/) the corporate
spigot?
> _Oh yeah_
(http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1620576) ."
>
>    I don't think the AP report supports Rick's conclusion.
>
>    First, the article says the spending is "financed in part by
> corporations and millionaires," but provides no further info on how
much
> was from
> corporations. Before CU, "millionaires" could do this. It is
misleading to
> point to corporations as the source.
>
>    Second, the article says "The GOP is getting additional help from
some
> groups that don't even weigh in directly in congressional races.
Americans
> for Prosperity, a conservative group started by billionaire
conservative
> _David Koch_
>
(http://topics.nytimes.com/top/reference/timestopics/people/k/david_h_ko
ch/index.html?inline=nyt-per)
> , has spent about $5.5 million in key
> House battlegrounds with ads that don't mention candidates but
criticize
> Obama's policies." Of course these issue ads by corporations were
legal
> before CU.
>
>    So the article does not support the implication that this is
post-CU-
> enabled corporate spending. Jim Bopp
>
>
> In a message dated 9/28/2010 12:09:56 A.M. Eastern Daylight Time,
> hasenr@gmail.com writes:
>
> September 27, 2010
>
> "GOP Groups Overwhelm Dems With Political Ads"
> _AP_
>
(http://www.nytimes.com/aponline/2010/09/27/us/politics/AP-US-Campaign-O
utside-Money.html?ref=politics)
> : "Just five weeks from midterm
> elections, groups allied with the Republican Party and financed in
part by
> corporations and millionaires have amassed a crushing 6-1 advantage
in
> television
> spending, and now are dominating the airwaves in closely contested
> districts
> and states across the country."
>
> Who _turned on_ (http://www.slate.com/id/2221753/) the corporate
spigot?
> _Oh yeah_
(http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1620576) .
> Posted by Rick Hasen at _09:02 PM_
> (http://electionlawblog.org/archives/017152.html)
>
>
> "As Laws Shift, Voters Cast Ballots Weeks Before the Polls Close"
> The NY Times offers _this report_
>
(http://www.nytimes.com/2010/09/28/us/politics/28voting.html?ref=politic
s) .
> Posted by Rick Hasen at _08:56 PM_
> (http://electionlawblog.org/archives/017151.html)
>
>
> NYT: Sen. Murkowski Could "Well Pull Off" a Write-in Victory
> See _here_
>
(http://www.nytimes.com/2010/09/28/us/politics/28alaska.html?ref=politic
s) .
> Posted by Rick Hasen at _08:53 PM_
> (http://electionlawblog.org/archives/017150.html)
>
>
> "New 'Super Pacs' bringing millions into campaigns"
> WaPo _reports_
>
(http://www.washingtonpost.com/wp-dyn/content/article/2010/09/27/AR20100
92706500.html)
> .
> Posted by Rick Hasen at _08:47 PM_
> (http://electionlawblog.org/archives/017149.html)
>
>
> Tony Mauro Gets Results!
> Following up on _this post_
> (http://electionlawblog.org/archives/017133.html) , a West Virginia
state
> supreme court justice has, on further
> consideration, reversed himself and decided to recuse in a case,
citing
> Tony Mauro's
> earlier post on the case. (Original _story_
>
(http://legaltimes.typepad.com/blt/2010/09/new-recusal-controversy-in-we
st-virginia-high-court.html)
> : "A
> West Virginia Supreme Court justice has refused to take himself out of
a
> case involving the state cap on non-economic damages, even though he
pledged
>
> during his election campaign that he would never vote to overturn the
law
> imposing the cap."). And the justice is not happy about the power of
the
> blogosphere, which he says forced him to recuse in this case:
> "Upon further reflection, I am disqualifying myself from the above
case. I
> strongly believe there is absolutely no legal basis for my
> disqualification. See Republican Party of Minnesota v. White, 536 U.S.
765
> (2002).
> However, it appears to me that the lawyers who moved to disqualify me
are
> attempting to create a 'firestorm' by assaulting the integrity and
> impartiality of
> West Virginia's Supreme Court.
>
> "I promptly sent my disqualification response to the lawyers on
September
> 23, 2010. The next day my response appeared in a Washington internet
blog.
> (See copy attached.) How did a blog so quickly get my
disqualification
> memorandum which was sent only to the lawyers in the case? Why is it
> newsworthy
> that a West Virginia judge previously exercised his right of Freedom
of
> Speech?
>
> "The blog did not have the decency to publish my First Amendment
rationale
> as authorized by Republican Party of Minnesota v. White, or quote the
> legal rationale from White set out in my memorandum.
>
> "I could care less if the blogs or press crucify me personally.
However, I
> believe the lawyers are pulling the press's strings to place our
Court in
> an unfavorable light. A lot of hard work has been accomplished to
keep the
> Court out of the limelight since I took office on January 1, 2009. I
don't
> want our Court to be publicly maligned by those with a
'win-at-all-cost'
> mentality. I disqualify myself from this case."
>
> Posted by Rick Hasen at _08:40 PM_
> (http://electionlawblog.org/archives/017148.html)
>
>
> "Anti-gay marriage group sues over RI election law"
> AP offers _this report_
>
(http://newsblog.projo.com/2010/09/anti-gay-marriage-group-sues-o.html)
> about how NOM wants to to run ads in the Rhode Island
> governor's race but not comply with laws imposed on political
committees.
> A press release I received said the pleadings are on the James
Madison
> Center's _website_ (http://www.jamesmadisoncenter.org/) , but so far I
don't
> see
> them there.
>
> UPDATE: There's also a NOM challenge in Florida, which I think will
> eventually appear on the Center's web page.
> Posted by Rick Hasen at _01:08 PM_
> (http://electionlawblog.org/archives/017147.html)
>
>
> "Poverty and Political Participation: Overcoming the Registration
Barrier"
> Brenda Wright _blogs_ (http://www.acslaw.org/node/17098) at the ACS
blog.
> Posted by Rick Hasen at _01:00 PM_
> (http://electionlawblog.org/archives/017146.html)
>
>
> American Crossroads Raised 91% of Its Money from Just 3 Billionaires
> Salon _reports_
>
(http://www.salon.com/news/politics/war_room/2010/09/20/rove_group_more_
millionaire_donations/index.html)
> .
> Posted by Rick Hasen at _12:56 PM_
> (http://electionlawblog.org/archives/017145.html)
>
> --
>
> Rick Hasen
>
> William H. Hannon Distinguished Professor of Law
>
> Loyola Law School
>
> 919 Albany Street
>
> Los Angeles, CA 90015-1211
>
> (213)736-1466
>
> (213)380-3769 - fax
>
> _rick.hasen@lls.edu_ (mailto:rick.hasen@lls.edu)
>
> _http://www.lls.edu/academics/faculty/hasen.html_
> (http://www.lls.edu/academics/faculty/hasen.html)
>
> _http://electionlawblog.org_ (http://electionlawblog.org/)
>
>
>
>
>
> _______________________________________________
> election-law mailing list
> election-law@mailman.lls.edu
> http://mailman.lls.edu/mailman/listinfo/election-law
>
>

--
Paul R Lehto, J.D.
P.O. Box 1
Ishpeming, MI 49849
lehto.paul@gmail.com
906-204-2334
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