Lying in Political Campaigns and the Judicial Response

September 19, 2014
posted by Bob Bauer
The District Court that struck down Ohio's false campaign speech statute won few points for craftsmanship.  See Susan B. Anthony List v. Ohio Elections Comm'n, No. 1:10-CV-720, 2014 WL 4472634 (S.D. Ohio Sept. 11, 2014).  In straightforward terms, the court concluded that the government may not police the truth or falsity of political campaign speech. It is an opinion seemingly prepared for a general audience, its sentences plastered in bold type or energetically underlined.  At one point, the court consciously pitches its presentation to a wider lay readership, patiently explaining that "lawyers and courts call [laws like Ohio's] ‘overbroad’ and hence ‘unconstitutional.’”  Id at *1.  For all this earnestness, Rick Hasen critiqued the Ohio decision as lacking subtlety, and he was joined by Eugene Volokh in this skeptical view of the court’s work.
Category: First Amendment
If it is generally agreed that politics should not be criminalized, there is uncertainty about the sort of “politics” that should be protected. Jeffrey Bellin warns about prosecutors with unfettered discretion who can aim vaguely drafted laws at public officials.  And he and others have noted the concern triggered by the McDonnell prosecution over the breadth of the definition that may be given to the term "official act" in prosecuting public corruption cases. The task is to distinguish the official from the political act, or to decide when an action motivated by both official and political purposes is properly accountable under the criminal laws.

The Mayday PAC and Progressive Politics, Part II

September 10, 2014
posted by Bob Bauer

Jim Rubens has lost, but the discussion of Mayday politics will continue. The issues it raises for progressives were raised to a new level of visibility by the news that the PAC was working  with Stark360 , a New Hampshire organization that opposes campaign finance reform and is generally hostile to progressive objectives.  Professor Lessig replied to critics with a clear and thoughtful defense, denying that he was  “compromising” on fundamental commitments.  He was not, he stressed, collaborating with Stark360 on anything on other than the election of Jim Rubens, and it was a strength, not a weakness, to join with adversaries in the search for “common ground.”

But it seems that this reply confuses the issue.  That Professor Lessig means  to advance the cause of reform, and that his joint venture with Stark 360 was launched (on his part) for that purpose alone, is not to be doubted. As in all matters political, however, the means chosen have consequences, and Professor Lessig underestimates the burden he carries to establish for progressives that the means are well fitted to his ends. In this case, in New Hampshire, he has yet to make the case.

The Mayday PAC and Progressive Politics

September 4, 2014
posted by Bob Bauer
Walter Shapiro and Larry Lessig have argued over whether Lawrence Lessig’s Super PAC, Mayday, is poised to claim success in electing its endorsed candidates.  They correctly assume that this measure—electoral impact—may dominate discussion of how well the PAC  performs.  But it is not the only measure. For progressives, who make up the natural constituency for the Mayday reform program, there is the additional question of whether, considering carefully the PAC’s strategy, they should welcome any success it achieves. It is a question of the type of politics represented by Mayday.
Exploiting the political process for personal gain will not be tolerated, and we will continue to pursue those who commit such illegal actions

 Acting Assistant Director in Charge of FBI Field Office, on the Sorenson Indictment

Mr. Kent Sorenson was indicted and now has pled guilty in a matter involving falsified campaign finance reports. One campaign paid him to switch his support from another, and the compensation was routed through other vendors to the campaign to conceal money paid for his changed candidate preference. His guilty plea covers the federal reporting violation and the obstruction of justice committed when he denied publicly that he had been paid for his switch in allegiance and asserted that anybody who doubted him could simply consult the campaign’s reports where they would not find any such compensation.

As a straightforward reporting offense, Mr. Sorenson's case is of limited interest. But another question, presented squarely by the comments of the senior FBI official, is whether the criminal laws reach compensated political endorsements that are openly disclosed. Is it true, as this official suggests, that it is a crime to "exploit the political process for personal gain” in this way? Or that it should be?

Category: Uncategorized