Daily Media Links 10/1: Ornstein and Smith Argue about McCutcheon: Distinguishing Theories of “Influence” From Theories of “Circumvention,” Which regulatory body is best equipped to manage corporate speech issues?, and more…

October 1, 2013   •  By Joe Trotter   •  
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In the News

More Soft Money Hard Law: Ornstein and Smith Argue about McCutcheon: Distinguishing Theories of “Influence” From Theories of “Circumvention”
By Bob Bauer
It was this potential for “circumvention” as Smith presents it that prompted the Court in Buckley v. Valeo to uphold the aggregate limit when it was first before it in 1976. It referred to Congress’s interest in preventing “evasion” of the specific (then $1,000) per-election limit to candidates. Buckley v. Valeo, 424 U.S. 1, 38 (1976). In a curious aside, the Court made a point of saying that the constitutional question “has not been addressed at length by the parties.” Id. Now, in McCutcheon, it has been. 
So while Smith is focused on the circumvention of contribution limits as a means of influencing specific candidates, Ornstein points more to the way that establishing a large financial presence in politics can translate into outsized influence. Ornstein’s view rests on a view of corruption that is less tied to specific or subtle understandings and more geared to the way the political world is seen to work. The donor who gives millions in the aggregate has no need to “earmark” to achieve influence with her money. She is not trying to get around any limit; she is making her mark with wealth that is spent candidate by candidate, party committee by party committee, entirely within legal limits. But the breadth of support she provides to the party and its candidates gives her the clout to open doors or have her calls answered. 
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ProxyFacts: Which regulatory body is best equipped to manage corporate speech issues?
Featuring CCP Legal Director Allen Dickerson.


Slate: The Next Citizens United?
By Richard L. Hasen
Sometimes at the Supreme Court, it is not if you lose, but how. That principle will be on full display in McCutcheon v. Federal Election Commission, the campaign finance case the Supreme Court will hear next Tuesday, the second day of the new term. If the government loses big, it could mark the beginning of the end of any limits on campaign contributions given directly to candidates in federal, state, and local elections.  
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LA Times: Lobbyist who wrote book about Justice Scalia might need his help 
By David Savage
WASHINGTON — Nine years ago, Kevin Ring was a young rising star in conservative legal circles here when he published his first book, “Scalia Dissents,” a tribute to Antonin Scalia as the Supreme Court’s “wittiest, most outspoken justice.”  
This week, the former lawyer and lobbyist may well need an assist from the outspoken Scalia if he is to avoid going to federal prison for nearly two years.  
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IBTimes: Money In Politics: The Companies Behind David Koch’s Americans For Prosperity 
By Pema Levy 
Due to current disclosure laws, Americans for Prosperity does disclose its donors, one of many dark money groups that pour millions into political activity without revealing its source. But a 2003 IRS Form 990 donor disclosure list, which was meant to remain private but was obtained by National Journal and published Tuesday, details who provided the initial funds for the group. Unsurprisingly, David Koch was the top contributor, providing $850,000. But a number of major American companies also gave hundreds of thousands to the upstart conservative group.  
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Candidates, Politicians, Campaigns, and Parties

Roll Call: A Contracting Company Ad … For Congress? | #MN06 

By Emily Cahn
But federal campaign finance rules are clear about this: A candidate cannot personally advocate for their campaign in an ad paid for by a corporation. If someone files a complaint with the Federal Election Commission against Emmer — and that’s likely, given that Democrats think his race could be competitive — both his campaign and the contracting company could be fined, according to Neil Reiff, a lawyer specializing in campaign finance law.  
“This ad certainly pushes the limit on what would be deemed a corporate in-kind,” Reiff said. “If the commission has four votes to agree that this constitutes as a campaign ad, the campaign and the company can be looking at a fine.”  
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CPI: Not ‘essential’: Shutdown would hit FEC hard 
By Dave Levinthal
If the federal government shuts down Tuesday, the Federal Election Commission — unlike some government agencies filled with employees deemed “essential” — will effectively go dark.  
Organizationally, all but the FEC’s four active commissioners, who are furlough-proof political appointees, would ultimately stay home.  
In all, 335 of the agency’s 339 employees would be affected, according to its 10-page “Commission Plan for Agency Operations in the Absence of the Fiscal Year 2014 Appropriation.”  
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State and Local

New York –– NY Post: Cleaning up New York’s campaign finance laws
The lawsuit is from The New York Progress and Protection PAC, and it challenges a state law limiting individual contributions to PACs to $150,000 a year. The point is that in the wake of the Supreme Court’s 2010 Citizens United decision, New York’s restriction is blatantly unconstitutional. So with Election Day barely a month away, Progress and Protection requested an expedited hearing for next Wednesday.
Enter Schneiderman. He proposed pushing the hearing off another week, to the following Wednesday, Oct. 9. In the end, the judge gave Schneiderman most of what he wanted by setting the hearing for Oct. 8. Which makes it likelier we may not have a decision until after the election.
Advocates of campaign-finance restrictions say they are keeping campaigns clean. But what they are really doing is tilting the playing field in favor of those who are very rich or allied with powerful vested interests. There’s no limit, for example, on what billionaires like Mike Bloomberg can spend from their own pockets — and those in the pocket of the unions won’t have any money worries either. This limits candidates in a position to challenge the status quo.
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New York –– NY Times: High-Cost Runoff for Public Advocate’s Post Prompts Calls for Reform 
The numbers are attention-getting: on Tuesday, New York City will spend about $13 million to hold a runoff in the Democratic primary for an office, public advocate, that is budgeted only $2.3 million a year. And the combination of a little-known post with a little-understood election process is expected to lead to startlingly low turnout — maybe 100,000 to 175,000 voters, in a city of 8 million people. Yet the election is likely to determine the occupant of one of the city’s top offices, because there is no Republican candidate. 
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Vermont –– AP: Vt. Court Upholds Ruling: Political Group Didn’t Register  
Montpelier, Vt. — A Democratic advocacy group violated the state’s campaign finance laws by running television ads against the Republican candidate for governor in 2010 without registering as a political action committee, the state Supreme Court said on Friday, upholding a lower court ruling.  
The Supreme Court also ordered a lower court to reconsider the $10,000 civil penalty it imposed on the group, Green Mountain Future, which received most of its funding from the Democratic Governors Association.  
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Virginia –– Washington Post: In McDonnell probe, action unlikely before Virginia’s November election, sources say 
By Rosalind S. Helderman and Carol D. Leonnig
Federal prosecutors investigating Virginia Gov. Robert F. McDonnell’s ties to a wealthy donor are unlikely to file charges or resolve the case before the state’s November election, as they conduct new witness interviews and continue to review evidence, people familiar with the investigation said.  
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Joe Trotter