Subject: Re: [EL] Electionlawblog news and commentary 9/28/10
From: Trevor Potter
Date: 9/28/2010, 12:56 PM
To: "JBoppjr@aol.com" <JBoppjr@aol.com>, "lehto.paul@gmail.com" <lehto.paul@gmail.com>
CC: "election-law@mailman.lls.edu" <election-law@mailman.lls.edu>

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_koch/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-Outside-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=politics) .
> 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=politics) .
> 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/AR2010092706500.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-west-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
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>
>


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