Original Proposal - Preliminary Comments

[johnkarls]

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The following comments accompanied the Original Proposal before its selection for the March 18 meeting by the participants at the February 19 meeting.

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READING LIBERALLY - SALT LAKE -- PUBLIC POLICY VS. POLITICS

We have always prided ourselves in being a PUBLIC-POLICY discussion group that takes effective action on PUBLIC-POLICY issues. In other words, we do not get involved in politics, per se.

Which, for example, is why we have spent four meetings over three years on FISA abuse. In other words “Authoritarian Rule by Our Intelligence Services” is ALWAYS a public policy issue because it comprises the DEATH OF DEMOCRACY -- but it could have been interpreted as an Anti-Republican issue when the Democrats were abusing FISA 2016-17 and it could now be interpreted as an Anti-Democratic issue now that the Republicans are in control.

But back on point --

Unlimited campaign SELF-FINANCE is a PUBLIC POLICY issue no matter the party or candidate.

For example, Democrats were upset in 2016 with Donald Trump’s campaign SELF-FINANCE.

And currently some Democrat candidates (and perhaps many Republicans as well) are upset with the campaign SELF-FINANCE of Michael Bloomberg and Tom Steyer.

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McCAIN-FEINGOLD LIMITS ON CAMPAIGN CONTRIBUTIONS

We launched a Six-Degrees-Of-Separation E-mail Campaign following our 5/16/2018 meeting entitled “Resurrecting and Re-Invigorating McCain-Feingold.”

It was directed to Sen. John McCain imploring him to lead a campaign to resurrect and re-invigorate the public financing of political campaigns, which required renouncing any private financing.

Reminding Sen. McCain that the U.S. Supreme Court in McConnell vs. Federal Election Commission (2003) upheld the constitutionality of the McCain-Feingold modifications to public financing of political campaigns in all important respects.

And concluding --

“It has struck us that restoring ‘Democracy in America’ would only require adequate financing for Presidential and Congressional Campaigns….. It should be ‘child’s play’ for any law school graduate to draft amendments to the Federal Election Campaign Act that would --

“(A) extend public financing to Senatorial/Congressional Campaigns for any candidate who renounces campaign contributions and who can show a modicum of support by the voting public, and

“(B) MOST IMPORTANTLY, provide levels of public financing equal to what would be available to any opponents from campaign contributions, such as gearing it to the amount of campaign contributions being received by competitors (or to recent historical levels if all competing candidates have chosen public financing).

“[Indeed, it strikes us that in such a New World, ‘independent expenditures’ accompanied by full disclosure of the sources of such expenditures, would become comparatively insignificant.]

“And it strikes us that a simple Press Release from you supporting the resurrection and re-invigoration of the public financing of political campaigns would do quite a bit to get the ball rolling.

“And that ultimate success could result from the ability of your daughter, Meghan, as a Co-Host of ABC’s ‘The View’ (with, hopefully, support from all of her Co-Hosts who are presumably patriotic) to marshal public opinion for as long as it takes.

“Thank you for your consideration.”

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SELF-FINANCING -- MICHAEL BLOOMBERG & TOM STEYER

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Background – Citizens United vs. Federal Election Commission (U.S. Supreme Court 2010) --

Citizens United held that the U.S. Constitution’s “Freedom of Speech” extends to juridical entities such as, specifically, corporations and labor unions.

If the U.S. Supreme Court did not view itself as an unelected legislative body, it would have reached the same result in a one-sentence opinion!!!

First, whenever the U.S. Supreme Court considers for the first time whether a Constitutional Right is limited to human beings or whether it extends to juridical entities, the Court feels free to decide the issue either way depending on the result it wants to achieve in the case before it at that time.

Second, the U.S. Supreme Court had already decided in NAACP vs. Button (1963) that the U.S. Constitution’s “Freedom of Speech” applies to juridical entities.

Putting aside all of the peripheral legal issues involved in the case, the essence of NAACP vs. Button revolved around the practice of the NAACP to advertise for African-American individuals who had been treated illegally to step forward and permit the NAACP to provide them with legal representation -- and at that time virtually every state (including Virginia which was involved in that case) had laws prohibiting advertising for legal clients.

The 1963 U.S. Supreme Court decided that it liked the Civil Rights Movement so it decided that the U.S. Constitution’s “Freedom of Speech” applied to juridical entities such as the NAACP.

So if the 2010 U.S. Supreme Court had been honest, it would simply have said in a one-sentence opinion -- “This issue was already decided in NAACP vs. Button”!!!

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Campaign Contribution Limits -- The Federal Election Campaign Act of 1971

Under the Federal Election Campaign Act, whose limits are indexed for inflation every two years, common examples of the 2019-2020 limits are --

1. Re contributions by “persons” (“person” includes a juridical entity) to candidates -- $2,800 per election per candidate -- 52 U.S. Code Sec. 30116(a)(10(A).

2. Re “persons” to national party committees -- $35,500 per calendar year -- 52 U.S. Code Sec. 30116(a)(1)(B).

3. Re certain political party committees to Senate candidates -- $49,600 per campaign -- 52 U.S. Code Sec. 30116(h).

Indeed, here is a much-more detailed (but NOT exhaustive) Federal Election Commission Chart of campaign-contribution limits for 2019-20 --

RL-g217-FederalElectionCommissionChartOfVariousTypesOfCampaignContributionLimits-2019-2020.pdf

(130.35 KiB) Downloaded 98 times

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The U.S. Supreme Court and The Constitutionality of Campaign Contribution Limits

In Buckley vs. Valeo (1976), the U.S. Supreme Court HELD that “Freedom of Speech” (which Law School 101 has always taught does NOT entail the right to shout “fire” in a crowded theater) is NOT impermissibly-restricted by some of the campaign-contribution limits in the recently-enacted Federal Election Campaign Act of 1971.

It HELD in approving some of the FECA limits that “Congress may regulate campaign contributions to protect against corruption or the appearance of corruption.”

It ALSO HELD in striking down some of the FECA limits that Congress “may not, however, regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others.”

[NB: These principles were NOT involved in the U.S. Supreme Court’s APPROVAL (in all important respects) of McCain-Feingold public financing because it permitted each candidate to make a choice of either accepting public financing WHICH ENTAILED renouncing all private support, or rejecting public financing.]

In McCutcheon vs. FEC (2014), the U.S. Supreme Court distinguished between the so-called “base limits” approved by Buckley vs. Valeo and a so-called “aggregate” limit.

In other words, one of the restrictions mentioned in the preceding section of this essay is a limit of $2,800 by a person to a candidate for a single election. HOWEVER, an aggregate limit would prohibit a person from donating $2,800 to each of a ZILLION different candidates.

The U.S. Supreme Court in McCutcheon HELD that aggregate limits impermissibly violate “Freedom of Speech.”

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Self-Financing -- Michael Bloomberg & Tom Steyer

The conventional wisdom is that self-financing campaigns (subject to proper reporting as mentioned above vis-à-vis Michael Cohen and Stormy Daniels) is UNLIMITED.

Obviously from what has already been discussed above, there is nothing in the Federal Election Campaign Act which limits the AMOUNT of self-financing.

HOWEVER, that does NOT NECESSARILY mean that the Federal Election Campaign Act could not be amended to apply limits to self-financing.

ACCORDINGLY, we should attempt, inter alia, to ascertain whether the U.S. Supreme Court would uphold a statutory limit on self-financing.

MY GUESS is that the Michael Bloomberg case in which he is reputed to have already bought up all of the available advertising (at least in markets he considers important) “from now until Kingdom come” would present an interesting “question of first impression” whether, inter alia, Michael Bloomberg has interfered with the “Right of Free Speech” of other candidates.

If not, what is to prevent other Billionaires from having their unidentified minions secretly buy up well in advance, literally, every available bit of advertising (print, digital and TV) long in advance so that any opponents who might decide to challenge her/him are forced to travel the country with nothing but a bull horn!!!

[This is what Law School 101 teaches -- taking a principle to its extreme to test its validity/propriety.]

Enough already for now.