[EL] Check out Study shows who breaks campaign laws - The Pueblo Chieftai...
Justin Levitt
levittj at lls.edu
Wed Aug 10 12:10:38 PDT 2011
This is an interesting discussion about the downside of regulatory
requirements that make it incrementally difficult for some individuals
seeking to exercise their constitutional rights, for what's perceived to
be an insufficiently compelling purpose. (And to be clear, I'm
_sympathetic_ to the argument that large-scale disclosure of low-level
contributors can create some substantial practical burdens.)
But take Mr. Zall's complaint about the fact that "it's hard enough to
encourage _small exempt organizations_ to exercise their legitimate
rights to speak truth to power, to assemble to be heard, and to petition
the government for redress of grievances" given existing regulatory
requirements, his admonition that legislators and regulatory officials
have been warned about the likely burdens of incremental requirements,
and his conclusion that the effect of the burden must be intended. Now
replace "_small exempt organizations_" with "_poor, historically
disengaged voters_." It almost sounds like an argument against unduly
strict ID rules at the polls...
Justin
On 8/10/2011 11:42 AM, BZall at aol.com wrote:
> What if one sees the effect of one's past actions (in this case,
> creating a regulatory scheme which has the effect of causing hardship
> to those without the means to hire capable counsel), decries that
> effect, and then does the same thing again?
> Like the ABA Administrative Law Section, which got the ABA to enact a
> resolution to create a lobbying regulatory agency similar to the FEC,
> despite having been told by the ABA Tax Section and its Exempt
> Organization Committee's Political Subcommittee that the result will
> be the same as creating the FEC?
> http://www.abanow.org/wordpress/wp-content/files_flutter/1312830542104bREV.pdf
> It's hard enough to encourage small exempt organizations to exercise
> their legitimate rights to speak truth to power, to assemble to be
> heard, and to petition the government for redress of grievances in
> light of incredibly complicated IRS rules differentiating issue
> advocacy from electioneering (see, e.g., Rev. Rul 2004-6, with 14
> factors to consider). If this proposal is put in place, there likely
> will be even more rules than there are now under the IRC and the LDA.
> Does anyone seriously think that a new regulatory agency will REDUCE
> complexity?
> There are, arguably, many possible purposes and many possible
> consequences of such a proposal, but clearly there was foreknowledge
> that at least one might be the creation of a barrier to the rights of
> association and petition. At what point does "purpose" get inferred
> from prior warning?
> Barnaby Zall
> Of Counsel
> Weinberg, Jacobs & Tolani, LLP
> 11300 Rockville Pike, Suite 1200
> Rockville, MD 20852
> 301-231-6943 (direct dial)
> www.wjlaw.com <http://www.wj/>
> bzall at aol.com
>
>
>
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> In a message dated 8/10/2011 2:13:50 P.M. Eastern Daylight Time,
> VOLOKH at law.ucla.edu writes:
>
> Let me offer a friendly amendment: One can indeed
> assume (as a factual matter) that people intend -- in the sense of
> purposefully aim at -- the natural and probable consequences of
> their acts, but /only if there are no other natural and probable
> consequences of note/. Thus, even in criminal law, if I point a
> loaded gun at someone and pull the trigger, a jury is entitled
> (though not required) to infer that I intended to kill the person,
> or at least seriously wound him, since that's the main significant
> consequence of my action -- though even there one could imagine
> circumstances that would rebut the inference.
>
> But such an inference stops being sensible when an
> action has many natural and probable consequences. There, as
> Brian points out, one could act with the purpose of creating one
> consequence, and in spite of (i.e., without the purpose of
> creating) another consequence. Thus, to consider a crime that
> famously turns on purpose -- treason -- say that I organize a
> strike during wartime, knowing that it will foreseeably interfere
> with the war effort and help the enemy. That might be treason if
> I'm doing it /with the purpose/ of helping the enemy, but it's not
> if I'm doing with the purpose of getting better wages for members
> of my union, even if I /know /that it likely will help the enemy.
> Nor would it be sound for a jury to infer a purpose to help the
> enemy simply because that is a natural and probable consequence of
> my actions: Because there are two natural and probable
> consequences (raising wages, and helping the enemy), the mere act
> does not tell us what its purpose likely was.
>
> Eugene
>
>
>
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--
Justin Levitt
Associate Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA 90015
213-736-7417
justin.levitt at lls.edu
ssrn.com/author=698321
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