FAN 199.10 (First Amendment News) Prof. Hasen Weighs in on Fundraising Campaign Threat to Senator Collins’ Election Bid

Senator Susan Collins (Photographer: Pete Marovich/Bloomberg via Getty Images)

Over at Slate, Professor Richard Hasen has just weighed in on the controversy circling around a campaign to raise money to influence Senator Susan Collins’ (R-ME) vote in the Judge Brett Kavanaugh confirmation matter. Here are a few excerpts:

“On Monday, Sen. Susan Collins accused political opponents of Judge Brett Kavanaugh of attempted “bribery.” The charge itself is without any legal merit whatsoever. That complaints about the campaign finance effort came from Collins, Republican election lawyer Cleta Mitchell, and an aide to Senate Majority Leader Mitch McConnell make the episode almost too rich to be believed. Their cries of bribery, illegality, and lack of principle lay bare the bankrupt campaign finance system that Mitchell and McConnell helped create and that Collins has contributed to with previous Supreme Court votes and will supersize with her likely vote to confirm Kavanaugh.”

“Collins labeled as a “bribe” a fundraising plan by two progressive Maine groups, aided by the company Crowdpac, to raise funds for Collins’ eventual opponent in 2020. People are pledging to give money via Crowdpac to that unknown future opponent, but donors will only be charged for the donation if Collins votes “yes” on Kavanaugh’s nomination to the Supreme Court. As of Tuesday night, the groups reported pledged donations of more than $1 million, with a $1.3 million goal. There were more than 39,000 individual pledges ranging from $1 to the maximum allowable donation to a candidate of $2,700.”

“. . . [Senator] Mitchell pointed Newsmax to a federal bribery statute, Title 18, Section 201 of the U.S. Code, which makes it a crime when someone “directly or indirectly gives, offers, or promises anything of value to any public official … for or because of any official act performed or to be performed by such public official.” Mitchell said: ‘These people have conspired to do just that—they are dangling a fairly substantial ‘thing of value’—namely, $1 million to be given or not given to Sen. Collins’ opponent, in exchange for her vote on a specific matter before the Congress.'”

Prof. Richard Hasen (credit: Daily Gazette – Swarthmore)

“But the Maine groups did not violate section 201. The groups are not promising anything of value to Collins to vote in a particular way; nor are they promising anything to Collins’ (now unknown) opponent for the opponent to vote in a certain way. This behavior does not come close to violating the federal bribery statute. . .”

“And what about reading this statute or other federal statutes to prevent what might look like extortion of Collins to vote in a particular way? Well, the Supreme Court has told us in cases like 2010’s Citizens United that large amounts of money sloshing around the system are just fine so long as they are not given by an individual directly to candidates. So long as there is no direct quid pro quo—dollars for political favors—all is fine.”

“And the behavior of the two Maine progressive groups is not unusual, expect for the fact that it is funded by small donors. This is demonstrated easily by looking at the behavior of those shouting bribery the loudest. As Adam Smith noted, although Sen. John Cornyn boosted Collins’ bribery complaints, back in January he was urging the Koch brothers to spend hundreds of millions of dollars to reward the Republican Party for tax cuts benefiting wealthy donors. This came after big donors threatened to withhold money until Republicans got that tax bill passed. That’s closer to Mitchell’s claims of “bribery” than what the Maine groups are doing. Indeed, a 2014 report by . . . law professors Dan Tokaji and Renata Strause found that threats by super PACs to spend against incumbents if they don’t vote the way the super PAC donors want is an everyday Washington occurrence. . . .”

Go here to read the full Hasen op-ed.

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