[EL] Check out Study shows who breaks campaign laws - The Pueblo Chieftai...

Wed Aug 10 12:25:31 PDT 2011

There are now ads on the radio in California (paid for by labor groups) telling people that they shouldn't sign petitions because people will find out where they live and because they may be subject to identity theft.
Mark S. Scarberry
Pepperdine Univ. School of Law
Malibu, CA 90263
(310)506-4667

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Justin Levitt
Sent: Wednesday, August 10, 2011 12:11 PM
To: BZall at aol.com; law-election at uci.edu
Subject: Re: [EL] Check out Study shows who breaks campaign laws - The Pueblo Chieftai...

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<mailto: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<mailto: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<mailto: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

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