Subject: Re: [EL] Public attitudes to SCOTUS
From: Paul Lehto
Date: 10/19/2010, 4:28 PM
To: Bill Maurer
CC: "election-law@mailman.lls.edu" <election-law@mailman.lls.edu>

On 10/19/10, Bill Maurer <wmaurer@ij.org> wrote:
I'm not sure I follow the "sucking the political rights" argument (are
you saying that political rights are a zero-sum game and if others'
political rights are recognized, mine are diminished?). [snip]
In many states, community property laws create a legally separate entity
to which certain state-created benefits accrue.  This entity owns
property separate from the individuals who are married.  It is a
distinct legal entity, recognized by the state legislature.

Those who "associate" in corporate form have not equal rights under CU
but superior rights vis a vis those who do not associate in corporate
form (if there is a valid form of agency between shareholder and
corporation) or, alternatively, inferior rights (if the corporation
uses shareholder money or rights without a valid agency regarding
political topics).  In the general context here where such political
agencies are either impossible to get (e.g. voting) or difficult to
get (e.g., the presumption that "you don't speak for me") I really
wonder how a broad rule can be crafted that authorizes free exercise
by corporations of political rights derived from others.

That being said, nobody I know of is seriously debating that when
people "associate" Property rights in corporate form, that those
property rights can't be exercised by the form into which they are
pledged.  Were that not true, no entity would exist with standing or
rights regarding the property pledged to the corporate form. That
distinction is critical to many past cases.

The issue here is whether political, and not property, rights can be
transferred from individuals to corporate forms.  The claim is that
corporate rights are "derivative" of the individual rights of
shareholders.  In the vast majority of the cases (outside select
nonprofits where members do pledge for political purposes), there is
no political intent in the investment decision, and even where it
might be argued that there is an amorphous intent to defend the
property pledged, there's no specific intent regarding a specific
position on a political issue position.

Such specific intent is the classic requirement of the laws of agency,
and it's missing with corporations.  At this point I draw the
comparison to marital entities that, as you point out, may exist for
purposes of property law only, but never for purposes of political
speech.  One spouse, one partner, one shareholder would be absolutely
outside their rights in purporting to speak for another absent a
detailed power of attorney, and even then in the context of elections
proxy voting is not allowable.

In a similar vein, an attorney or lobbyist could not legally or
ethically claim to be exercising the rights of a spouse, shareholder
or partner absent such specificity.  But now in corporations it is
claimed that the corporation is able to exercise political rights and
there's no really substantial nexus requirement to the "needs" of the
property pledged to corporate form - no requirement that the issue be
fairly and directly attributable to corporate governance. (The
business judgment rule is essentially empty of content in this
context).

In the above context, I wonder how corporations can suck POLITICAL
rights out of the individual shareholders they have (presuming there
are any), not to mention their corporate shareholders.  I've not seen
anybody else make a case for the ultimate derivation of the corporate
political rights other than as derivative of individuals that
allegedly "associate" but not (in the for profit context) with the
specific political intent typically necessary in such cases.

Perhaps my marital entity can start speaking, on behalf of both me and
my wife, if I can control that entity somehow in its daily operations.
 That way everyone can hear from both me as well as my marital entity,
on pain of the charge that the unique corporate voice that CU points
to will otherwise be silenced.  The fact is that as long as every
individual natural person has the right to speak, nobody is silenced.
The real issue is not true equality, but how to amplify the voices of
those few powerful corporate officers wedded by duties of loyalty to
the corporate form (and thus unfit for self-governance in the views of
Founders based on this lack of objectivity for the public interest)
beyond that which they already have in their individual capacities.

To be fair, the CU majority does try to allege that corporate voice is
utterly unique and not equal to any combination of the executive
officers.  That leads to another kind of superiority in that, if taken
seriously as a truly unique voice, there's no potential criminal
accountability (even if remote) for corporate speech as their is with
individuals who speak, because a corporation can not be jailed and
natural persons can.  There's significant superior rights here created
in the name of "equality."

Paul Lehto, J.D.


  Regardless,
corporations can't vote for anyone, not even themselves, so that
argument doesn't work.

  Rather like
a ... corporation.

Congress will never try to regulate the political activity of the
marital entity, however, because it would be political suicide.  This is
not the case with corporations.  I believe the difference in regulatory
treatment between these two legislative creations is due not to any
consistent principle of "only individuals have Constitutional rights
that they can only exercise individually" on Congress's part, but
political pragmatism.

-----Original Message-----
From: Paul Lehto [mailto:lehto.paul@gmail.com]
Sent: Tuesday, October 19, 2010 1:15 PM
To: Bill Maurer
Cc: Sean Parnell; election-law@mailman.lls.edu
Subject: Re: [EL] Public attitudes to SCOTUS

The marital entity as such has been held not to be a separate
'person.'  Though some may marry for purposes including political
beliefs that are shared, if a spouse tries to vote for the other
spouse they will likely be prosecuted.  Certainly they can't speak for
each other.  Somehow corporations are able to suck these political
rights from others, including everyone's spouse, and use them for
political purposes.  How does that happen?

Paul Lehto, J .D.

On 10/19/10, Bill Maurer <wmaurer@ij.org> wrote:
That reasoning also applies to marriages - at least in my state, a
married couple is a creation of the state (leaving aside religious
grounds for marriage), it is not formed for purposes of political
activity, it receives certain economic benefits from the state simply
for existing, it possesses property separate from the property owned
by
its individual members (that is, community property), it does not have
a
single mouth, it can't be arrested (only the individual members can be
arrested), although I suppose it dies as a legal entity when one of
the
members dies.  And some marriages are very capable of wielding
"distorting" amounts of wealth and some have members who are foreign
nationals.  Can Congress make it illegal for married couples to
contribute money or to make political expenditures, or require
political
activity by married couples to only occur using certain funds via an
entirely separate legal entity ("The Stan and Judy Political Action
Committee for a Prosperous and Strong Stan and Judy")?  If not, why
not?




In other words, I don't see a principled distinction between the two
types of legal entities for purposes of regulating and restricting
their
speech, unless one accepts the absolutist position that the First
Amendment prevents Congress from abridging the freedom of speech,
regardless of how carefully it considered its efforts to suppress
speech
actually are.



________________________________

From: election-law-bounces@mailman.lls.edu
[mailto:election-law-bounces@mailman.lls.edu] On Behalf Of Sean
Parnell
Sent: Tuesday, October 19, 2010 10:21 AM
To: election-law@mailman.lls.edu
Subject: Re: [EL] Public attitudes to SCOTUS



I'm not sure that this is entirely correct, at least among those who
pursue the "corporations aren't people" line of argument. In various
forms I've heard statements to the effect that corporations are
creatures of the state, or they don't have mouths, they can't die or
be
arrested, the First Amendment applies only to individuals, or similar
reasoning, in arguing that the Court got it wrong. It seems to me that
this line of reasoning applies just as much to, say, MCFL as it does
to
General Electric as it does to the AFL-CIO.



Sean Parnell

President

Center for Competitive Politics

http://www.campaignfreedom.org

http://www.twitter.com/seanparnellccp

124 S. West Street, #201

Alexandria, VA  22310

(703) 894-6800 phone

(703) 894-6813 direct

(703) 894-6811 fax



From: election-law-bounces@mailman.lls.edu
[mailto:election-law-bounces@mailman.lls.edu] On Behalf Of Trevor
Potter
Sent: Tuesday, October 19, 2010 1:10 PM
To: richardwinger@yahoo.com; JBoppjr@aol.com; BSmith@law.capital.edu;
election-law@mailman.lls.edu
Subject: Re: [EL] Public attitudes to SCOTUS



I specifically noted that the Supreme Court's MCFL decision created an
exemption for certain non-profit corporations. The FEC has an
exemption
for political entities incorporated for liability purposes--which
would
cover the Libertarians. So we are talking about for-profit corporate
funds--whether spent directly or through non-profit entities, though.



________________________________

From: Richard Winger [mailto:richardwinger@yahoo.com]
Sent: Tuesday, October 19, 2010 1:07 PM
To: JBoppjr@aol.com; BSmith@law.capital.edu;
election-law@mailman.lls.edu; Trevor Potter
Subject: Re: [EL] Public attitudes to SCOTUS

We should say "for-profit corporations" instead of "corporations" when
we discuss this issue.  For example, the Libertarian Party National
Committee is a corporation, and no one thinks the Libertarian National
Committee doesn't have speech rights.  Most corporations are not large
profit-making organizations.  The implication is always that we are
talking about big business, but "corporation" is not a synonym for
"big
business."

--- On Tue, 10/19/10, Trevor Potter <TP@capdale.com> wrote:


From: Trevor Potter <TP@capdale.com>
Subject: Re: [EL] Public attitudes to SCOTUS
To: JBoppjr@aol.com, BSmith@law.capital.edu,
election-law@mailman.lls.edu
Date: Tuesday, October 19, 2010, 9:28 AM

Not to beat a dead horse, but I think the argument that the founder's
"wisdom and foresight" was that corporations were persons for purposes
of the Bill of Rights has been pretty well exploded in previous
postings
on this listserve. I'm afraid the only way to get there is to use that
"liberal" tool--"interpretation of a living Constitution" and
recognize
that judicial views of the constitutional rights of corporations have
evolved over time, and even now are far from complete.

I am struck as I think about these issues how the reasonably small
doctrinal differences in Citizens United have such enormous practical
consequences. I realize that the gap between minority and majority
views
is perceived to be enormous, but it really wasn't. If the issue is
viewed on a scale of one to ten, the debate in Citizens United can be
said to have taken place between "eight" and "nine" on that scale. A
one" would be the view that corporations are artificial creatures of
the
state with no rights  except those specified in their charter, and a
"ten" the concept that corporations are indistinguishable from
individuals for all first amendment speech purposes. In fact, prior to
Citizens United corporations had robust, Court protected,
opportunities
to participate in the federal political process, and in the political
process in the roughly half of the states that prohibited direct
corporate political expenditures.

Under the "draconian" McCain Feingold law upheld by McConnell,
corporations could engage in full political speech to their
shareholders
and executives (the "restricted class") , could use corporate funds to
establish, administer, solicit for and encourage a PAC comprised of
money from individuals (which itself could make both unlimited
independent expenditures and  contributions to candidates larger than
individuals), and could use corporate treasury money to run
advertising
for or against ballot measures and to pay for unlimited  issue ads
talking about issues of concern to the corporation (provided they were
not run in the midst of the election period if they referred to
federal
candidates up for election in that state). Non-profit corporations
(usually the poster child in the corporate rights argument) were
allowed
under the Court's previous MCFL decision to make unlimited political
expenditures provided they did not do so as a conduit for for-profit
corporate money.

Under this pre-Citizens United view, corporations thus had limited but
important expressive rights, despite being correctly identified in
Austin as possessing extra powers in the political marketplace by
virtue
of being artificial person with unlimited life, aggregating wealth in
a
manner different from natural persons, and with a  legally narrow
purpose only of benefiting shareholder economic well-being. The Court
moved from this "eight" position to a "nine" on the scale of corporate
right at least partially based on the currently bankrupt assumption
that
the sources of funding of corporate speech would be fully disclosed so
that shareholders could exercise their  rights of governance and, more
importantly, voters would know who was speaking (I say only a "nine"
on
the 1-10 scale because the majority suggests their view of the First
Amendment rights of citizens to hear all views  is not absolutist--it
may well not extend to the views of non-US corporations, foreign
nationals, or other foreign entities, and perhaps to certain US
entities
if a specific tie to the dangers of quid pro quo corruption can be
shown
in the future).

My point is that the Court majority in Citizens United chose to ignore
the carefully considered policy choices made by Congress in McCain
Feingold (and in the post-Watergate FECA and the Taft Hartley law and
earlier laws) in order to move constitutional doctrine only
incrementally further in an absolutist first amendment direction. In
doing so, the Court (with not a single judge with practical experience
in elective office, since the departure of Justice O'Conner) has
unleashed a significant and as yet ill-defined change on our
democracy--a change it is clear from their statements on disclosure
that
they did not fully understand.

It is quite true, and quite right, that we do not put the Bill of
Rights
up to a plebiscite of voters, or the much smaller universe of persons
who respond to opinion polls. However, what the polls reflect is what
we
know to be true--a five-four Supreme Court decision has wrought an
enormous change in the way our elections are conducted, contrary to
the
will of Congress and the Executive expressed in legislation after a
long-drawn out legislative conversation that was itself based on a
hundred years of previous enactments and discussion of these issues.
In
doing so, the Court upset settled law reaffirmed only a few years
previously by the same Court, in what appears to be a quest for
doctrinal change regardless of consequences (or perhaps unaware of
consequences, as in the case of the Court's statements on the ready
availability of disclosure).

 The false dichotomy presented by the advocates of Citizens United is
that the Court ignored the First Amendment prior to Citizens United,
at
which point the scales fell from the eyes of enough Justices to
(finally) embrace its dictates. This is a unrecognizable caricature of
the Court's position. Beginning with Buckley, and continuing through
Bellotti (1978),  NRTW (1982) ,MCFL ( 1986) ,  Austin (1990), Beaumont
(2003) , and McConnell (2005) , the Court implemented the First
Amendment's requirements in the corporate context, while respecting
the
choices made by the legislative and executive branches in election
administration and the deterrence of corruption. What happened in
Citizens United was not that the Court suddenly discovered the First
Amendment, but rather that a change of a single Justice enabled the
minority in McConnell to become the majority in Citizens United,
ignore
the doctrine of deference to the other branches, overturn a century of
history, and determine that their theory of the First Amendment was
superior to that of their predecessors.  As noted above, I believe
their
theory was only an increment change from the Court's previous doctrine
--but the resulting practical change look set to be far more dramatic
than the doctrinal one.



Trevor Potter





________________________________

From: election-law-bounces@mailman.lls.edu
[mailto:election-law-bounces@mailman.lls.edu] On Behalf Of
JBoppjr@aol.com
Sent: Tuesday, October 19, 2010 9:25 AM
To: BSmith@law.capital.edu; election-law@mailman.lls.edu
Subject: Re: [EL] Public attitudes to SCOTUS

    The main reason that people at the time insisted that the Bill of
Rights be adopted is that they recognized that these freedoms needed
to
be guaranteed against (often) temporary majorities who would use
federal
power against them.  In other words, these freedoms would not be
popular
with a majority of the people from time to time or in some
applications.
In fact, even though the First Amendment protects the four
indispensable
democratic freedoms, protecting the right of the people to criticize
our
government, the ink on the Bill of Rights was hardly dry when the
Federalist Party passed the Alien and Sedition Act in the 1790s making
it a criminal offense to hold the government and public officials in
disrepute. They were attempting to prevent the emergence of the
Republican Party lead by Thomas Jefferson. They failed.



    So here we have some liberals and progressives taking polls on the
First Amendment's protections -- like it matters -- and using it to
justify draconian cutbacks on those freedoms.  And of course we have
the
Democrats eager to do it to fend off the upcoming Republican
victories.
Human nature just doesn't change and the more we find out about the
Founders the more we can admire their foresight and wisdom.  Jim Bopp



In a message dated 10/18/2010 12:11:27 P.M. Eastern Daylight Time,
BSmith@law.capital.edu writes:

     So from a quick review looking at issues that pertain to free
speech, it appears that the public is more supportive of the Court's
decision on Citizens United than it is of the Court's decisions on
flag
burning and "crush" videos, and roughly equal to support for not
censoring video games and allowing tobacco advertising.  Meanwhile,
another question shows that nearly 80% agree that corporations have a
right to free speech.  p. 98.  On other issues, it appears that far
more
people agree with Citizens United than agree, for example, with
handgun
control (p. 103), or that oppose Arizona's immigration law (p. 98).



     It's also interesting the extent to which large pluralities or
majorities generally don't know what the Court has ruled on most
issues.
Within this framework, I would anticipate equally large majorities or
pluralities that do not understand current law or actual practices in
life. I am a firm believer that the electorate will generally get
right
the broad direction in which it seeks to move the country, but that
the
advantage of representative government over pure or direct democracy
is
that it allows for representatives to better inform themselves, put
more
thought to issues, and make better decisions on the specifics of
public
policy.  The problem comes when politicians decide that demogoguery
and
raw emotional appeals can get them elected better than character,
thoughfulness, and serious discussion.



     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: Mon 10/18/2010 10:58 AM
     To: Election Law
     Subject: [EL] Electionlawblog news and commentary 10/18/10


     October 18, 2010


     "Senate Dem: Take up campaign finance bill in lame-duck session"


     The Hill reports

<http://thehill.com/blogs/blog-briefing-room/news/124619-sen-mccaskill-p
ass-campaign-finance-bill-in-lame-duck> .

     Posted by Rick Hasen at 07:56 AM
<http://electionlawblog.org/archives/017424.html>


     "In important cases, Supreme Court outcomes sometimes determined
by a single word"


     The Washington Post offers this report

<http://www.washingtonpost.com/wp-dyn/content/article/2010/10/17/AR20101
01702799.html> .

     Posted by Rick Hasen at 07:51 AM
<http://electionlawblog.org/archives/017423.html>


     "God Didn't Create Corporations"


     Susan Brooks Thistlethwaite blogs

<http://onfaith.washingtonpost.com/onfaith/panelists/susan_brooks_thistl
ethwaite/2010/10/god_didnt_create_corporations.html> .

     Posted by Rick Hasen at 07:47 AM
<http://electionlawblog.org/archives/017422.html>


     Persily/Ansolabehere Data on Attitudes About Corporate Spending
in Elections


     Following up on this post
<http://electionlawblog.org/archives/017402.html> , via Doug Berman

<http://sentencing.typepad.com/sentencing_law_and_policy/2010/10/media-r

eports-inaccurately-on-public-support-for-atkins-graham-heller-and-roper
.html>  comes a link

<http://sentencing.typepad.com/files/constitutional-attitudes-field-repo
rt_client-1.doc>  to this (preliminary version of?) the
Persily-Ansolabehere study of public attitudes toward Supreme Court
constitutional decisions. The CU-related questions are on page 101.

     Posted by Rick Hasen at 07:44 AM
<http://electionlawblog.org/archives/017421.html>


     Cert. Denied in Simmons v. Galvin, First Circuit Felon
Disenfranchisement Case


     SCOTUSBlog reports
<http://www.scotusblog.com/2010/10/ashcroft-case-granted/> . More from
AP

<http://www.nytimes.com/aponline/2010/10/18/us/politics/AP-US-Supreme-Co
urt-Felons-Voting.html?_r=1&hp> . I expected
<http://electionlawblog.org/archives/017279.html>  this after the
Ninth
Circuit's recent en banc ruling on this question eliminated the
circuit
split.

     Posted by Rick Hasen at 07:37 AM
<http://electionlawblog.org/archives/017420.html>


     October 17, 2010


     "Groups Push Legal Limits in Advertising"


     The NYT explores
<http://www.nytimes.com/2010/10/18/us/politics/18express.html?hp>
501(c)(4) status. (More here
<http://www.nytimes.com/2010/10/18/us/18magic.html?ref=politics>  ("A
Profusion of Magic Words")). I give some of the basics in my recent
Slate column <http://www.slate.com/id/2271187/>  on secret donors.

     Posted by Rick Hasen at 06:54 PM
<http://electionlawblog.org/archives/017419.html>


     "Democrats have raised $1 million from foreign-affiliated PACs"


     This item

<http://thehill.com/blogs/blog-briefing-room/news/124565-democrats-have-
raised-1-million-from-foreign-affiliated-pacs>  appears at The Hill's
blog.

     Posted by Rick Hasen at 05:24 PM
<http://electionlawblog.org/archives/017418.html>


     "Axelrod Calls for End to Mystery Donors"


     Roll Call reports <http://www.rollcall.com/news/50779-1.html>
on a sensible Administration pivot from the issue of foreign donors to
the issue of secret donors more generally. Al Hunt's prediction
<http://electionlawblog.org/archives/017407.html> , now picked up in
modified form as a NYT letter from Washington
<http://www.nytimes.com/2010/10/18/us/18iht-letter.html> , is that a
scandal will emerge from all this secret money. And history tells us
that Washington money scandals lead to congressional acquiescence
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1593253>  in new
campaign finance regulations.

     Posted by Rick Hasen at 05:19 PM
<http://electionlawblog.org/archives/017417.html>


     "Political Ads Help Bolster TV Business"


     TV is always a winner

<http://blogs.wsj.com/washwire/2010/10/17/political-ads-gain-steam-helpi

ng-tv-business/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%
3A+wsj%2Fwashwire%2Ffeed+%28WSJ.com%3A+Washington+Wire%29> .

     Posted by Rick Hasen at 05:06 PM
<http://electionlawblog.org/archives/017416.html>


     Levitt: A "Democracy Facts" Product Label?


     Rick has graciously invited me to write a campaign-finance guest
post as well, focused on disclosure. And I also offer my thanks for
the
opportunity.
      Democracy Facts

Label<https://webmail.capital.edu/exchange/BSmith@law.capital.edu/Drafts

/RE:%20%5bEL%5d%20Electionlawblog%20news%20and%20commentary%2010_xF8FF_1
8_xF8FF_10.EML/1_multipart/DemocracyFactsLabel.png>
     Rick has posted a number of campaign finance items recently with
a similar theme: significant donors sponsoring political ads not in
their own names, but in the names of organizations with substantial
positive valence and suggesting widespread support. Americans for
America <http://electionlawblog.org/archives/017408.html>  and the
Concerned Taxpayers of America
<http://electionlawblog.org/archives/017404.html>  are only the most
recent examples. The names seem designed to enhance the credibility of
the message, by encouraging viewers and voters to believe that they
represent the shared opinions of lots of like-minded individuals.

     In a new paper <http://ssrn.com/abstract=1676108> , I've
suggested a new model of disclosure, equipping viewers to see for
themselves whether there are 2 like-minded concerned taxpayers, or 2
million, supporting a particular communication. The model, based on
the
now-ubiquitous "Nutrition Facts" and "Drug Facts" labels on
supermarket
and pharmacy shelves, involves a label for "Democracy Facts" (at
right,
and linked here
<http://electionlawblog.org/archives/DemocracyFactsLabel.html> ).

     Continue reading "Levitt: A "Democracy Facts" Product Label?"
<http://electionlawblog.org/archives/017415.html#more>

     Posted by Justin Levitt at 01:38 PM
<http://electionlawblog.org/archives/017415.html>


     "Ballot Measure would resize Legislature"


     News

<http://www.adn.com/2010/10/16/1505353/ballot-measure-would-resize-legis
lature.html>  from Alaska that does not involve how to spell a
candidate's name.

     Posted by Rick Hasen at 12:50 PM
<http://electionlawblog.org/archives/017414.html>


     "PACs linked to foreign companies legally donate millions to
U.S. campaigns"


     A must-read

<http://www.washingtonpost.com/wp-dyn/content/article/2010/10/17/AR20101
01701916.html>  WaPo report.

     Posted by Rick Hasen at 12:44 PM
<http://electionlawblog.org/archives/017413.html>


     Schleicher: The Parable of the Fox and the Target


     [I have asked election law prof David Schleicher
<http://www.law.gmu.edu/faculty/directory/fulltime/schleicher_david>
to
write a series of guests posts related to election law issues in the
2010 elections. There should be one each week before the election.
Here's the first.--RH]


     First, I'd like to thank Rick for inviting me to write this
column about the 2010 elections. One of the great things about this
election season has been the availability of blogs by political
scientists and statisticians (like the indispensible group blog The
Monkey Cage <http://www.themonkeycage.org/> , Seth Masket's Enik
Rising
<http://enikrising.blogspot.com/> , Brendan Nyhan's blog
<http://www.brendan-nyhan.com/blog/,> , and of course, Five Thirty
Eight
<http://fivethirtyeight.blogs.nytimes.com/> ) to provide better
guidance
about what actually effects voting patterns and what is just
journalistic noise. Election law scholars blog both pretty frequently
and insightfully, I think -- not only Rick, Justin and Dan here, but
Rick Pildes
<http://balkin.blogspot.com/2010/09/do-political-primaries-fuel.html>
,
Heather Gerken

<http://balkin.blogspot.com/2009/09/nations-first-democracy-index.html>
, Michael Kang

<http://www.concurringopinions.com/archives/2010/01/more-citizens-united
.html>  and the people at Moritz
<http://moritzlaw.osu.edu/electionlaw/index.php>  among a number of
others --- but we have not as a group spent too much time using the
medium to address the big election law issues implicated by the 2010
elections. So I thought I would give it a go. I'm going to write three
columns: Today's is about campaign finance; next week's column will be
about election law and party polarization; my final column will
discuss
the failures of primary elections and urban politics through the lens
of
the D.C. Mayoral race.

     -----

     Virtually everyone who thinks about election law has said
something about Citizens United. This discussion has focused both on
normative questions, like the basic question of whether the Court
should
have made such a sweeping decision, and on whole series of positive
questions about the decision's likely effects, including efforts to
determine how much corporate money will be spent in this election
cycle,
whether Citizens United caused any increase, and to whom the benefits
of
increased spending have run.

     But there has been little focus on the most basic question one
might ask about Citizens United: Who is going to change their behavior
following the decision?

     The answer to this question might seem obvious -- Citizens
United eliminated restrictions on independent expenditures by
corporations and unions and therefore they are the entities who will
change their behavior. But corporations and unions are not monolithic.
Some will spend money on politics; others will not. Before we can make
predictions about the long-run effects of Citizens United on parties,
candidates and public policy, we need to answer the question of which
corporations and unions are likely to spend more (and differently) in
elections.

     One possible answer can be found in a story that took up a day
or two of headlines during the 2010 election, in what one might call
The
Parable of the Fox and the Target.

     Within days of one another, two major corporations, News Corp,
the parent company of Fox, and Target got in a bit of hot water about
their political spending. News Corp. gave $1M to the Republican
Governors Association <http://moritzlaw.osu.edu/electionlaw/index.php>
("RGA") and Target gave $150K to Minnesota Forward

<http://tpmdc.talkingpointsmemo.com/2010/07/target-faces-backlash-for-su
pporting-tom-emmer-in-post-citizens-united-world.php> , a group
supporting Tom Emmer, a very conservative candidate for Governor in
Minnesota who, among other things, supports a state constitutional
amendment banning gay marriage. Both were criticized, but the
reactions
were very different. News Corp. was teased in the press for a day or
two, but largely ignored the criticism, with Rupert Murdoch noting

<http://tpmdc.talkingpointsmemo.com/2010/07/target-faces-backlash-for-su
pporting-tom-emmer-in-post-citizens-united-world.php>  that he made
the
donation because he is friends with John Kasich, the Republican
candidate for Governor of Ohio. Target was subject to a boycott
<http://www.cbsnews.com/8301-503544_162-20011983-503544.html>  led by
LGBT groups and was forced to apologize

<http://tpmdc.talkingpointsmemo.com/2010/08/target-ceo-apologizes-for-co
mpanys-support-of-tom-emmer.php> .

     Why did News Corp. largely escape criticism, and ignore what
attacks came its way, while Target was both battered and cowed by the
criticism it received for its much smaller amount of spending?

     The answer, I think, lies in the ownership structure of the
companies. And the difference between Fox and Target can tell us a
great
deal about which corporations are likely to spend money in politics.
And, in turn, this can tell us a lot about the likely effects of
Citizens United on the country and its politics.

     Continue reading "Schleicher: The Parable of the Fox and the
Target" <http://electionlawblog.org/archives/017412.html#more>

     Posted by Rick Hasen at 12:31 PM
<http://electionlawblog.org/archives/017412.html>


     Are Micro-Donors Fueling at Least Part of Tea Party?


     I have written
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1267312>
extensively
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1505527>
about the role of micro-donors (donors giving under $200 in the
aggregate to a campaign) and micro-donations (donations under $200) to
presidential candidates, especially to the Obama 2008 campaign. Now
comes this CBS News report

<http://www.cbsnews.com/video/watch/?id=6965336n&tag=contentMain;content
Body>  (based upon data from the Center for Responsive Politics
<http://www.opensecrets.org/> ) that micro-donors are playing a key
role
for a number of Tea Party candidates for House and Senate.

     Of course, there's big money

<http://blogs.wsj.com/washwire/2010/10/14/koch-industries-shifts-on-tea-
party/>  behind the Tea Party as well.

     Posted by Rick Hasen at 11:58 AM
<http://electionlawblog.org/archives/017411.html>


     "Who is Bankrolling the Ballot?"


     CBS News reports

<http://www.cbsnews.com/8301-31727_162-20019641-10391695.html?tag=cbsnew
sSectionsArea.0> .

     Posted by Rick Hasen at 11:48 AM
<http://electionlawblog.org/archives/017410.html>


     "Justice Department was wrong to dismiss the New Black Panther
case"


     See this letter to the editor

<http://www.washingtonpost.com/wp-dyn/content/article/2010/10/15/AR20101
01506230.html>  in WaPo.

     Posted by Rick Hasen at 10:21 AM
<http://electionlawblog.org/archives/017409.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
     http://www.lls.edu/academics/faculty/hasen.html
     http://electionlawblog.org <http://electionlawblog.org/>





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