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naraburns  nihil supernum  1yr ago (text post)   37996 thread views

Culture War Roundup for the week of March 27, 2023

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You're just kicking the can down the road. They still have to prove that what they claim he intended was in fact a crime, when the relevant authority already said it isn't.

  1. No, the relevant authorities simply declined to prosecute.

  2. Only courts, not prosecutors, can definitively say whether something constitutes a crime. It is a separation of powers issue. Prosecutors' opinions are not binding on anyone.

  3. Regardless, OP is incorrect to say that the state is charging him with a federal crime. Even if the DA has to prove that he committed the federal crime, he is not charged with that crime. If he is convicted, judgment will be entered on the state crime alone, not the federal crime, and the punishment will be that imposed for the state crime. It is no different than when a person convicted of child molestation in TX moves to CA and is charged with frequenting playgrounds. The DA must prove that he committed the TX crime, but the DA is trying him for violation of a CA law, not a TX law.

Only courts, not prosecutors, can definitively say whether something constitutes a crime. It is a separation of powers issue.

Citizens United was pretty clear that the purpose of contribution limits is to prevent quid pro quo. Does that count as a court saying something meaningful about what constitutes a crime here?

What Citizens United said was this:

With regard to large direct contributions, Buckley reasoned that they could be given "to secure a political quid pro quo," id., at 26, 96 S.Ct. 612, and that "the scope of such pernicious practices can never be reliably ascertained," id., at 27, 96 S.Ct. 612. The practices Buckley noted would be covered by bribery laws, see, e.g., 18 U.S.C. § 201, if a quid pro quo arrangement were proved. See Buckley, supra, at 27, and n. 28, 96 S.Ct. 612 (citing Buckley v. Valeo, 519 F.2d 821, 839-840, and nn. 36-38 (CADC 1975) (en banc) (per curiam)). The Court, in consequence, has noted that restrictions on direct contributions are preventative, because few if any contributions to candidates will involve quid pro quo arrangements. MCFL, 479 U.S., at 260, 107 S.Ct. 616; NCPAC, 470 U.S., at 500, 105 S.Ct. 1459; Federal Election Comm'n v. National Right to Work Comm., 459 U.S. 197, 210, 103 S.Ct. 552, 74 L.Ed.2d 364 (1982) (NRWC). The Buckley Court, nevertheless, sustained limits on direct contributions in order to ensure against the reality or appearance of corruption. That case did not extend this rationale to independent expenditures, and the Court does not do so here.

So, if you are asking whehther federal laws re campaign contributions apply only to quid pro quo contributions, no, they don't. The limits on contributions and the requirement to report contributions apply to all contributions, not just quid pro quo contributions (which, as the Court notes, would be separately prosecutable under bribery statutes).

Note Stevens' dissent, which is claiming that the majority construed the rationale for campaign finance laws too narrowly:

Congress may “legitimately conclude that the avoidance of the appearance of improper influence is also critical . . . if confidence in the system of representative Government is not to be eroded to a disastrous extent.” A democracy cannot function effectively when its constituent members believe laws are being bought and sold

and

Proving that a specific vote was exchanged for a specific expenditure has always been next to impossible: Elected officials have diverse motivations, and no one will acknowledge that he sold a vote. Yet, even if “[i]ngratiation and access . . . are not corruption” themselves, they are necessary prerequisites to it; they can create both the opportunity for, and the appearance of, quid pro quo arrangements.

Stevens tried to push the "appearance of" line, like you have. He tried tying it to "ingratiation and access". Stevens lost. Furthermore, while John Edwards took a million dollars from two specific other people in order to pay off his mistress, what "ingratiation and access" was acquired by Trump paying off Trump's mistress?

You are forgetting that Citizens United was about limits on expenditures, not on contributions. That is the crux of the disagreement between Stevens and the majority; the majority thinks that avoiding the appearance of corruption is sufficient to limit contributions but not independent expenditures, while Stevens thinks it is sufficient to limit both. The majority said:

[T]he Government falls back on the argument that corporate political speech can be banned in order to prevent corruption or its appearance. In Buckley, the Court found this interest “sufficiently important” to allow limits on contributions but did not extend that reasoning to expenditure limits. 424 U. S., at 25. When Buckley examined an expenditure ban, it found “that the governmental interest in preventing corruption and the appearance of corruption [was] inadequate to justify [the ban] on independent expenditures.” Id., at 45. . . . For the reasons explained above, we now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.

558 U.S. 310, 356-357.

Five paragraphs later:

When Buckley identified a sufficiently important governmental interest in preventing corruption or the appearance of corruption, that interest was limited to quid pro quo corruption. See McConnell, supra, at 296–298 (opinion of Kennedy, J.) (citing Buckley, supra, at 26–28, 30, 46–48); NCPAC, 470 U. S., at 497 (“The hallmark of corruption is the financial quid pro quo: dollars for political favors”); id., at 498. The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt

When Buckley identified a sufficiently important governmental interest in preventing corruption or the appearance of corruption

But Congress can limit and/or require the reporting of all contributions as a means of combatting quid pro quo contributions and the appearance of quid pro quo corruption:

Moreover, while preventing corruption or its appearance is a legitimate objective, Congress may target only a specific type of corruption—"quid pro quo" corruption. As Buckley explained, Congress may permissibly seek to rein in "large contributions [that] are given to secure a political quid pro quo from current and potential office holders." 424 U.S., at 26, 96 S.Ct. 612. In addition to "actual quid pro quo arrangements," Congress may permissibly limit "the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions" to particular candidates. Id., at 27, 96 S.Ct. 612; see also Citizens United, 558 U.S., at 359, 130 S.Ct. 876 ("When Buckley identified a sufficiently important governmental interest in preventing corruption or the appearance of corruption, that interest was limited to quid pro quo corruption").

Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder's official duties, does not give rise to such quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner "influence over or access to" elected officials or political parties. Id., at 359, 130 S.Ct. 876; see McConnell v. Federal Election Comm'n, 540 U.S. 93, 297, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003) (KENNEDY, J., concurring in judgment in part and dissenting in part). And because the Government's interest in preventing the appearance of corruption is equally confined to the appearance of quid pro quo corruption, the Government may not seek to limit the appearance of mere influence or access. See Citizens United, 558 U.S., at 360, 130 S.Ct. 876.

McCutcheon v. Federal Election Com'n, 572 US 185 (2014).

So, Congress can limit speech (in the form of contributions) in order to combat the appearance of quid pro quo corruption, but cannot limit speech in order to combat the appearance of mere influence or access.

So, what is the appearance of quid pro quo involved when Donald Trump pays his porn star? Your blockquote says:

Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder's official duties, does not give rise to such quid pro quo corruption.

When Donald Trump spends large sums of money in connection with an election, in what way is it an effort on the part of Donald Trump to control the exercise of an officeholder's (presumably, Donald Trump's) official duties?

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