The decline of Facebook and the chilling effect of social media

[Timex]

@wavey

But isn’t this the concept of Chevron deference? That, unless Congress has specified more precisely what a “thing of value” was, then the court would defer to the agency to define it.

Yeah, I think so.

Again, I’m not disagreeing with the definition. It seems somewhat obvious to me that it has value.

However, there may be first amendment issues as brought up in that WaPo piece with the law itself and the things that it prohibits.

This all seems pretty far afield from the issue of Trump and Russia though. I don’t think this is what is going to bring him down. FEC cases are rarely ever prosecuted at all, and I cannot see anyone bringing down a sitting president for this kind of thing.

I think other stuff is going to be what makes or breaks Trump.

Regardless, I was just interested in how the FEC ruling fits into things legally, and I’ve had my question answered.

[scottagibson]

@Timex

Sure, but this is the same as the fact that a district attorney is empowered to administer the law and decide whether to indict a person for breaking it.

Forgive me; I say this for descriptive value, not to be pejorative: gman is playing a mug’s game, and you’re falling into the role of the mug.

The game goes like this:

I point to the plain language of the law. Instead of concurring, gman claims that the plain language isn’t the meaning at all, and that there’s no way to settle our disagreement.

I point to a ruling by the FEC - the statutory authority under the law, not a prosecutor - which upholds my meaning. Instead of granting the meaning, gman says the FEC is also wrong and that no judge would uphold their ruling.

If I were to point to a case where a Federal judge upholds the ruling, gman will still not grant my meaning; instead, he will say that the judge is wrong, and that he would surely be overturned on appeal.

If I were to point to an Appeals Court ruling which confirms my understanding of the laws, he would simply laugh, declare the ruling wrong, and opine that SCOTUS would surely overrule.

If I were to point to to a SCOTUS ruling confirming my understanding, he would simply say that it was wrongly decided by a prior liberal Court, and that the current Court would take a different view.

If SCOTUS were to uphold my understanding tomorrow, he would laugh, and say ‘oh, but that case was about a list of conservative activists, and we’re talking about oppo research, a completely different thing, and obviously that ruling doesn’t apply here.’

The point here is nothing is ever finally decided, because there is always the remote possibility that a future Court will go the other way. This does not mean there is no law. The statue means what the FEC says it means, unless and until a court says it doesn’t. The FEC’s ruling has the force of law, or nothing at all has the force of law.

[scottagibson]

@wavey

That, unless Congress has specified more precisely what a “thing of value” was, then the court would defer to the agency to define it.

Yes, precisely. It is perverse to withhold concurrence that the FEC’s ruling has the force of law.

[Timex]

@scottagibson

The point here is nothing is ever finally decided, because there is always the remote possibility that a future Court will go the other way.

While I understand your meaning here, I think that there is a difference between something being decided by a court and potentially being overturned, and something never being decided by any court at all. That’s not to say that the FEC didn’t issue a clear opinion here, or that their opinion is irrelevant. But they are also not really concerned with all of the issues at hand in a real court. For instance, things like constitutionality are not something the FEC would care about in the slightest, whereas that might play a role in an actual court.

Again, I think that it’s moot from the perspective of Trump, and I think you’ve let yourself get led down this road of arguing over a fairly minor point which is unlikely to play any role in the larger issue.

Regardless, I understand your position, and I do not disagree with the view that such a thing is an object of value under the statute. Even if taken to court, I don’t see how this would really be in dispute. There is no reasonable challenge to that fact, that I could imagine. What you would see in court would potentially attack the legality of whether or not the statute is ALLOWED to prohibit that kind of material, or whether such a prohibition would constitute a violation of the first amendment.

[scottagibson]

@Timex

I think that there is a difference between something being decided by a court and potentially being overturned, and something never being decided by any court at all

I’m afraid you are simply wrong as a matter of law. @wavey explained it to you, just now, and you agreed with him. The question of the meaning of ‘thing of value’ is settled law, because the FEC has the authority to decide what ‘thing of value’ means, because the statute grants them that authority. The possible remote future intervention of a judge has no bearing on the meaning of the law now.

[Timex]

@scottagibson

@wavey explained it to you, just now, and you agreed with him.

No, I explicitly agreed with him.

@scottagibson

The question of the meaning of ‘thing of value’ is settled law, because the FEC has the authority to decide what ‘thing of value’ means, because the statute grants them that authority.

Yes, and I explicitly agreed with you on that. I said:

@Timex

I do not disagree with the view that such a thing is an object of value under the statute. Even if taken to court, I don’t see how this would really be in dispute. There is no reasonable challenge to that fact, that I could imagine.

I think you are under the mistaken impression that I’m disagreeing with you on things that I’m not.

[scottagibson]

@Timex

I think you are under the mistaken impression that I’m disagreeing with you on things that I’m not.

Maybe. I’m under the impression that you think the law is less ‘settled’ than it would be had a judge made the decision rather than the FEC. I’m under that impression because you wrote this:

@Timex

I think that there is a difference between something being decided by a court and potentially being overturned, and something never being decided by any court at all

That’s what I’m objecting to. There’s no difference under the law.

[Timex]

@scottagibson

I’m under the impression that you think the law is less ‘settled’ than it would be had a judge made the decision rather than the FEC.

No, the decision of whether it’s an object of value is something that they are able to determine, so that’s not in question.

But this does not preclude that there could be constitutional challenges to the law itself in this case, and such things would not be covered under the FEC ruling, since the FEC would not be concerned with such things at all.

[gman1225]

@scottagibson

Neither do your juvenile opinions. It is the job of the FEC to determine if something is a thing of value. A court may disagree down the line, but no court has done so, and you can’t dismiss current law and administrative rulings on that law on the grounds that something different may happen later.

The problem is that if a court rules the statute would not constitutionally include the oppo research here, that would preclude prosecuting anyone on the Trump team for soliciting the oppo research. Leading First Amendment scholars have said the statute cannot include things like the oppo research here, and I’ve given you a framework for how to determine what kind of information would count as a “thing of value” for the statute. I have never claimed there is already case law for this, although I haven’t checked.

If you think that’s an argument without “integrity,” you simply cannot have an argument with anyone.

[gman1225]

@Timex

But this does not preclude that there could be constitutional challenges to the law itself in this case, and such things would not be covered under the FEC ruling, since the FEC would not be concerned with such things at all.

This is exactly right. My point is that a legal criminal challenge to the opposition research would run into a very credible constitutional challenge, and I’ve backed that up with developed constitutional arguments from well-known scholars. For some reason, in between insults, socttagibson is assuming that I am arguing there is already case law directly supporting this argument.

[scottagibson]

@gman1225

The problem is that if a court rules the statute would not constitutionally include the oppo research here, that would invalidate your entire argument.

And if Martians destroyed the world, it would also as a practical matter invalidate my argument. So what? Both are hypotheticals, not understandings of the current state of the law. Do you really not get that, or are you just playing the game I say you’re playing?

[scottagibson]

@gman1225

For some reason, in between insults, socttagibson is assuming that I am arguing there is already case law directly supporting this argument.

There is, in fact, already case law. I cited the case. The offender in that case did not dispute the ruling, did not appeal to any court. The offender accepted the judgement of the FEC.

[gman1225]

My hypothetical is clearly more likely than yours, since no leading experts have said that Martians are going to destroy the world. However, Eugene Volokh in Washington Post, a leading First Amendment scholar, has said that the statute cannot be used as you describe, and your arguments against this amount to “YEAH WELL MARTIANS MAY TAKE OVER THE WORLD TOO MAN”:

Opinion | Can it be a crime to do opposition research by asking foreigners for...

It is an interesting legal theory question though. If Congress passes an unconstitutional law, is that the law of the land? Or is it illegitimate even if a court has not yet ruled (but does later strike down the law?) I’m inclined to think the better reading is that the law is illegitimate upon passage, because the court’s decision to invalidate a law would be retroactive in some cases, i.e., would nuke existing prosecutions.

But that silly legal theory question can’t be the reason you’re being so petty and bitter – could it?

[gman1225]

@scottagibson

There is, in fact, already case law. I cited the case. The offender in that case did not dispute the ruling, did not appeal to any court. The offender accepted the judgement of the FEC.

Any constitutional challenges on the scope of “thing of value” within the statute’s meaning?

[scottagibson]

@gman1225

My hypothetical is clearly more likely than yours

Who cares? It’s a hypothetical, with no standing in current law.

By analogy: You wish to commit murder, so first you find a legal scholar willing to argue that laws against murder violate the constitution. Then you murder someone. I say you have committed a crime under the law, but you say you haven’t, because the law is in doubt, because some court somewhere in some future might invalidate the law, because this legal scholar says so. Stupid argument, right?

[gman1225]

Who cares? It’s a hypothetical, with no standing in current law.

Actually, as I tried to point out, my arguments would probably mean that the “current law” is unconstitutional and therefore unenforceable, which would seem to be relevant to whether the Trump team broke the law by soliciting the oppo research.

And yikes, that analogy. It’s a nice attempt at a sleight of hand, by equating murder with a violation of an obscure campaign finance law applied in a novel manner. If you can find me a credible legal scholar who says murder laws violate the constitution, it might be a less stupid argument than your analogy was though.

[scottagibson]

@gman1225

It’s a nice attempt at a sleight of hand, by equating murder with a violation of an obscure campaign finance law applied in a novel manner.

It’s not an equation. It’s an argument of the same form as yours, offered to demonstrate what’s wrong with yours.

If you say that no law can be valid if it is possible it will be struck down later, then no law is valid, because it is possible that any law might be struck down later. Do you really think that no law is valid, or does that argument only apply to the ones you don’t like?

Also: if you make arguments that are so transparently bad and self-serving that they force me to choose between thinking that you’re a poorly schooled child or that you’re a liar, charity demands I assume the former. That you think my doing so is an insult is, well, priceless.

[gman1225]

Do you really think that no law is valid, or does that argument only apply to the ones you don’t like?

It should be obvious that I think only laws that are unconstitutional are invalid. A better analogy would be if a state government passed a law requiring that everyone commit murder. I would have no hesitation calling such a law invalid, regardless of whether a court has yet ruled on its constitutionality.

Also: if you make arguments that are so transparently bad and self-serving that they force me to choose between thinking that you’re a poorly schooled child or that you’re a liar, charity demands I assume the former. That you think my doing so is an insult is, well, priceless.

More smug insults that have nothing to do with the discussion, which long ago reached a point where it’s obvious what we’re both saying – and that my point of view is also held by respected constitutional scholars – and yet you persist in petty personal attacks.

[Timex]

@scottagibson

if you make arguments that are so transparently bad and self-serving that they force me to choose between thinking that you’re a poorly schooled child or that you’re a liar, charity demands I assume the former. That you think my doing so is an insult is, well, priceless.

When you write this, you are doing so with the intention of being insulting.

[wavey]

@gman1225

Actually, as I tried to point out, my arguments would probably mean that the “current law” is unconstitutional and therefore unenforceable, which would seem to be relevant to whether the Trump team broke the law by soliciting the oppo research.

As I see it, @scottagibson has described the law as it currently stands, whereas your opinion seems to be that if that law was challenged, and it got all the way to SCOTUS, then you think that a majority of the justices would strike it down, because the FEC - with all their law experts - accidentally or thoughtlessly came up with something unconstitutional.

Extraordinary claims require extraordinary evidence, as they say - and you must admit your claim is a much bigger one than Scott’s? I’m not saying it’s impossible that your prediction will come true, but in order to be persuasive (assuming, of course, that is your intent), you will need to do a lot more work than him to convince people, and have some pretty watertight arguments from non-partisan sources.

In the meantime, I’ll carry on with the assumption that the law is what it is, and not what one may wish it to be in order to support a particular political cause.