| Subject: Re: [EL] Foreign Money |
| From: "Bonin, Adam C." <ABonin@cozen.com> |
| Date: 10/11/2010, 10:58 AM |
| To: Rick Hasen <Rick.Hasen@lls.edu>, David Donnelly <ddonnelly@campaignmoney.org> |
| CC: "Smith, Brad" <BSmith@law.capital.edu>, Election Law <election-law@mailman.lls.edu> |
Let's assume that the Chamber segregates foreign money to a
separate account and doesn't use any of it for political purposes. Does
that (should that) matter? This gets to a rare overlap in my
practice areas, because when it comes to civil liability for the financing of
terrorist organizations it doesn't matter a whit whether you're only slotting
your money for the "good" purposes. (NOTE: I am NOT equating
the Chamber with terrorism in any way. Just making a comment about how
the law views the fungibility of funds in other legal contexts.) Anyway,
Judge Posner, from the Boim decision in 2008:
This case is only a little more difficult because Hamas is
(and was at the time of David Boim's death) engaged not only in terrorism but
also in providing health, educational, and other social welfare services.
The defendants other than Salah directed their support exclusively to those
services. But if you give money to an organization that you know to be engaged
in terrorism, the fact that you earmark it for the organization's nonterrorist
activities does not get you off the liability hook, as we noted in a related
context in Hussain v. Mukasey, 518 F.3d 534, 538-39 (7th Cir. 2008); see also
Singh-Kaur v. Ashcroft, 385 F.3d 293, 301 (3d Cir. 2004). The reasons are
twofold. The first is the fungibility of money. If Hamas budgets $ 2 million
for terrorism and $ 2 million for social services and receives a donation of $
100,000 for those services, there is nothing to prevent its using that money
for them while at the same time taking $ 100,000 out of its social services
"account" and depositing it in its terrorism "account."
Kilburn v. Socialist People's Libyan Arab Jamahiriya, 363 U.S. App. D.C. 87,
376 F.3d 1123, 1130 (D.C. Cir. 2004).
Second, Hamas's social welfare activities reinforce its
terrorist activities both directly by providing economic assistance to the
families of killed, wounded, and captured Hamas fighters and making it more
costly for them to defect (they would lose the material benefits that Hamas
provides them), and indirectly by enhancing Hamas's popularity among the
Palestinian population and providing funds for indoctrinating schoolchildren.
See, e.g., Justin Magouirk, "The Nefarious Helping Hand: Anti-Corruption
Campaigns, Social Service Provision, and Terrorism," 20 Terrorism &
Political Violence 356 (2008); Eli Berman & David D. Laitin,
"Religion, Terrorism, and Public Goods: Testing the Club Model" 7-10
(National Bureau of Econ. Research Working Paper No. 13725, 2008). Anyone who
knowingly contributes to the nonviolent wing of an organization that he knows
to engage in terrorism is knowingly contributing to the organization's
terrorist activities. And that is the only knowledge that can reasonably be
required as a premise for liability. To require proof that the donor intended
that his contribution be used for terrorism--to make a benign intent a
defense--would as a practical matter eliminate donor liability except in cases
in which the donor was foolish enough to admit his true intent. It would also create
a First Amendment Catch-22, as the only basis for inferring intent would in the
usual case be a defendant's public declarations of support for the use of
violence to achieve political ends.
Adam C. Bonin | Cozen
O'Connor
1900 Market Street | Philadelphia, PA,
19103 | P: 215.665.2051 | F:
215.701.2321
abonin@cozen.com |
www.cozen.com
From:
election-law-bounces@mailman.lls.edu [mailto:election-law-bounces@mailman.lls.edu]
On Behalf Of Rick Hasen
Sent: Monday, October 11, 2010 12:29 PM
To: David Donnelly
Cc: Smith, Brad; Election Law
Subject: Re: [EL] Foreign Money
That statement was of course a
shorthand for saying that there's no proof they've taken a penny of foreign
money to use in their political operations. Here's my quote from the
Times: “I’ve seen no proof of the chamber funneling a penny of
foreign money into U.S. elections.”
On 10/11/2010 8:59 AM, David Donnelly wrote:
Rick
writes,
As I told the NY Times, there's no
proof that the Chamber has taken a penny of foreign money.
The Chamber themselves admit to taking foreign money. They’ve admitted to
taking dues from their foreign affiliates and dues from a “relative
handful” of members who are foreign corporations. They have not answered
questions about whether they’ve taken direct contributions from foreign
corporations, repeating consistently that a) we ought to trust them and their
internal controls, and b) they aren’t answering any more questions.
DD
On 10/10/10 2:18 PM, "Smith, Brad" <BSmith@law.capital.edu> wrote:
"It
Appears They've Even Taken Secret Foreign Money to Influence Our
Elections"
That's
the unsubstantiated charge in a new DNC ad <https://webmail.capital.edu/exchweb/bin/redir.asp?URL=http://www.mediaite.com/online/new-dnc-ad-accuses-karl-rove-and-ed-gillespie-of-stealing-our-democracy/>
, "Stealing Democracy," against the Republicans and the Chamber.
As I told <https://webmail.capital.edu/exchweb/bin/redir.asp?URL=http://www.nytimes.com/2010/10/09/us/politics/09donate.html?_r=1%26partner=rss%26emc=rss>
the NY Times, there's no proof that the Chamber has taken a penny
of foreign money. But there's no way for us to know whether the Chamber, or
anyone else engaged in election-related activity, is improperly using foreign
money, unless we allow the FEC or another government agency the ability to
audit the records of the political activities of such agencies. (These audits
would not be made public unless there was proof of wrongdoing, and groups
facing harassment should be exempt from the requirement).
**One other quick point on this: What Rick describes has been the case
ever since foreign money was first prohibited (with arguably a de jure, but
probably not de facto, exception for 3 years in the latter 1970s). It is
also the case as to many other provisions of the FECA, most state campaign
finance laws, and indeed many other general laws. For years there has
been no way to know if independent spenders were using illegal union money,
illegal corporate money, illegal foreign money, or simply underreporting their
expenditures. As Rick points out, the logic of the complaint against the
Chamber applies to anyone (and everyone) else, too. Right now there is no
way for us to know if my university is not illegally pouring undisclosed sums
into some of Ohio's close political races, without allowing the FEC or another
government agency to audit its political activities. To some, this will
be evidence of the need for disclosure. For others, this will be evidence
that the alleged problem is vastly overblown.
Bradley
A. Smith
Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
(614) 236-6317
http://www.law.capital.edu/Faculty/Bios/bsmith.asp
From: election-law-bounces@mailman.lls.edu
on behalf of Rick Hasen
Sent: Sun 10/10/2010 1:09 PM
To: Election Law
Subject: [EL] Electionlawblog news and commentary 10/10/10
October
10, 2010
Final Version of My California Law Review Book Review of
Heather Gerken's Democracy Index <http://press.princeton.edu/titles/8865.html>
Now Available
You
can find Election Administration Reform and the New Institutionalism <http://www.californialawreview.org/assets/pdfs/98-3/Hasen.FINAL.pdf>
at 98 California Law Review 1075 (2010).
Posted by Rick Hasen at 10:08 AM <http://electionlawblog.org/archives/017305.html>
"Report:
Dems planted NJ tea party House candidate"
AP
offers this report <http://www.washingtonpost.com/wp-dyn/content/article/2010/10/09/AR2010100903311.html>
.
Posted by Rick Hasen at 10:03 AM <http://electionlawblog.org/archives/017304.html>
"It
Appears They've Even Taken Secret Foreign Money to Influence Our
Elections"
That's
the unsubstantiated charge in a new DNC ad <http://www.mediaite.com/online/new-dnc-ad-accuses-karl-rove-and-ed-gillespie-of-stealing-our-democracy/>
, "Stealing Democracy," against the Republicans and the Chamber.
As I told <http://www.nytimes.com/2010/10/09/us/politics/09donate.html?_r=1&partner=rss&emc=rss>
the NY Times, there's no proof that the Chamber has taken a penny
of foreign money. But there's no way for us to know whether the Chamber, or
anyone else engaged in election-related activity, is improperly using foreign
money, unless we allow the FEC or another government agency the ability to
audit the records of the political activities of such agencies. (These audits
would not be made public unless there was proof of wrongdoing, and groups
facing harassment should be exempt from the requirement).
I'll have more to say on the foreign money issue tomorrow in Slate.
Posted by Rick Hasen at 10:00 AM <http://electionlawblog.org/archives/017303.html>
Linda
Greenhouse on Justice Breyer and Statutory Interpretation
Here
<http://opinionator.blogs.nytimes.com/2010/10/07/making-congress-all-it-can-be/>
.
Posted by Rick Hasen at 09:51 AM <http://electionlawblog.org/archives/017302.html>