Re: [EL] Pay to Play or "No Pay to Play"

Dear David,

A constant theme in my scholarship, my legal briefs, and my popular writing for many years has been that a major problem with virtually all campaign finance measures - perhaps *the* major problem - is that they are particularly prone to abuse for partisan purposes. I think it is well known by those who follow the issue closely that I have been highly critical of both major parties and their partisans for attempting to use the law for partisan gain.

Thus, while it is true that particular proposals should be debated on the merits, the merits of a proposal necessarily include the possibility of partisan abuse, either in the conception or the implementation of the laws. I have long and repeatedly argued that one of the most powerful reasons for a strong interpretation of the First Amendment in the area of campaign finance reform - indeed perhaps the primary reason for the enactment of the First Amendment - is the knowledge that if the government is granted power over political speech, for whatever otherwise salutary purpose, it is likely to abuse that power.

The present series of political iniatives - in the courts, in the legislature, in various regulatory agencies - have been launched with the explicit goal of partisan gain. Even by the traditional standards of campaign finance legislation, the effort is jarring for its raw and open partisanship. That is, for the purposes that concern me - the abuse of the law for partisan gain - it is appropriate, indeed helpful, to look at all these efforts together, for it makes clear a pattern.

My final paragraph was not intended to suggest that these issues are discussed on the listserve solely for partisan purposes, which is why I noted that people on this listserve will have legitimate reasons for favoring these policies. Rather, I simply wanted to emphasize that when we do discuss them, we must be conscious of the real world around us, and the fact that ideas that have merit in a pure form must, in fact, be implemented through a political system where, once again, they will be prone to abuse.

It struck me that the current multi-pronged effort was a particulary powerful example of that problem, and merited at least a mention. This may have been on my mind because I spent a not insubstantial portion of Wednesday and Thursday speaking to journalists, who for the most part acted as if a) of course these iniatives were partisan (which is true) and b) that is of no import in evaluating them as questions of policy (which is false, at least if one is thinking of the big picture).

Professor Smith,

I think it goes without saying -- particularly on this listserve -- that many laws impacting the financing of elections and/or election administration can have both 1) non-political and 2) political purposes. Rather than grouping a whole bunch of items together, as you did below, and criticizing them for serving a singular political purpose, I would prefer to see a back and forth about the merits of each item, particularly the election law merits. If I wanted to see a political discussion of the implications of these measures, I can watch CNN, Fox News, Meet the Press, etc..

Additionally, your final point in the email below may be right, but it does a disservice to the listserve, because it seems to imply that the only (or primary) reason these measures get brought up and debated is for partisan politics, and I hope for one that's not the case.

Professor Smith, please continue contributing to the listserve because I really enjoy your posts, but lets stick to the merits as they relate to election law. I trust that most people on the listserve understand (or can figure out the potential political implications) of the issues we discuss.

David

On Thu, Apr 21, 2011 at 4:40 PM, Smith, Brad <BSmith@law.capital.edu> wrote:

Reformers who propose this type of thing often point to the need to look at the real world.

Ok. The real world is that all this - Disclose, new SEC regs, the FCC and FEC efforts, the EO, the Van Hollen petition-
All are conscious efforts to use the law to silence Political opposition.

We all know that that is true, even if there are more defensible reasons for these proposals that motivate the type of people on this list. But that reality, one might hope, would give pause to all.

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

-----Original Message-----
From: election-law-bounces@mailman.lls.edu on behalf of Stephen Klein
Sent: Thu 4/21/2011 1:13 PM
To: Scarberry, Mark
Cc: Election Law
Subject: Re: [EL] Pay to Play or "No Pay to Play"

Certainly could be a subtle shift back in the direction of independent expenditures as quid pro pro, struck down in CU but not gone entirely via Caperton. It's worth noting also that Citizens United did not affect regulations against coordination with candidates. So, if there's a problem there the FEC has a way to address it-- will this reg merely buttress investigations into these concerns or circumvent the gov'ts burden?

Sent from my iPhone

On Apr 21, 2011, at 12:52 PM, "Scarberry, Mark" <Mark.Scarberry@pepperdine.edu> wrote:

> The proposed Executive Order to require potential government contractors to disclose independent expenditures could help to bring to light pay to play schemes, in which making of independent expenditures that help a politician's campaign then lead to an award of a contract by government officials. That is the effect discussed in the blog item to which Rick linked. But such disclosure could also lead to government officials improperly denying contracts to those who make independent expenditures that the government officials don't like. Of course that possibility could "chill" speech that is protected under the First Amendment (at least if you consider the spending of money on independent expenditures to be inextricably linked to speech, as I do). Does that potential chilling effect create a substantial First Amendment issue with respect to the proposed EO? A related question: which effect is likely to predominate? Uncovering of illicit pay to play schemes, or chilling of protected speech by way of independent expenditures due to fear of retaliation?
>
>
>
> Mark Scarberry
>
> Pepperdine
>
>
>
> From: election-law-bounces@mailman.lls.edu [mailto:election-law-bounces@mailman.lls.edu] On Behalf Of Rick Hasen
> Sent: Thursday, April 21, 2011 8:25 AM
> To: Election Law
> Subject: [EL] Electionlawblog news and commentary 4/21/11
>
>
>
> April 21, 2011
>
> CA Redistricting Maps Expected June 10
>
> See here.
>
> Posted by Rick Hasen at 08:24 AM
>
> Hang It Up, Ms. Kloppenburg
>
> That's the sentiment of the Milwaukee Journal-Sentinel editorial board. I too have trouble seeing the reason for the recount at this point, though it is certainly Ms. Kloppenburg's right to request one at state expense given the margin of the election.
>
> Posted by Rick Hasen at 08:21 AM
>
> "Canadians Can't Tweet Election Results"
>
> Crazy, eh?
>
> Posted by Rick Hasen at 08:16 AM
>
> "Advocacy groups, students argue N.J. should allow voter registration on Election Day"
>
> NJ.com reports.
>
> Posted by Rick Hasen at 08:12 AM
>
> Is It Really Legal to Offer Alcohol to Get Someone to Sign a Recall Petition in Wisconsin?
>
> See here. In my work on vote buying I came across a number of jurisdictions (including California) that allow payments for turnout (though not in elections with federal candidates on the ballot). But all of those laws prohibit paying for voting for a specific result. Under similar logic, I find it hard to believe any state makes it legal to pay people to sign a ballot measure petition. Any Wisconsinites who can shed light on this?
>
> Posted by Rick Hasen at 08:06 AM
>
> "Lawsuit seeks disclosure of secret campaign contributions"
>
> The LA Times reports that "Rep. Chris Van Hollen (D-Md.) and a group of reform advocates will file suit in federal court, along with rulemaking petition at the Federal Election Commission, Thursday morning that seeks disclosure of secret contributions flowing to political campaigns." Check out the complaint, and the FEC rulemaking petition. See also this press release.
>
> I had been thinking for some time that a lawsuit like this makes sense. The question is whether any relief, if available, will come in time for the 2012 election season.
>
> Posted by Rick Hasen at 07:58 AM
>
> April 20, 2011
>
> "The Obama Pay-to-Play Initiative"
>
> This item appears at the Corporate Political Activity Law blog.
>
> Posted by Rick Hasen at 03:34 PM
>
> --
> Rick Hasen
> Visiting Professor
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000
> 949.824.3072 - office
> 949.824.0495 - fax
> rhasen@law.uci.edu
>
> William H. Hannon Distinguished Professor of Law
> Loyola Law School
> http://www.lls.edu/academics/faculty/hasen.html
> http://electionlawblog.org
>
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