[EL] Technology to facilitate compliance

Mon Aug 15 07:59:30 PDT 2011

Oh, it's really much worse than that. I was going to stop flogging this  
dead horse, but . . .

I just got off the phone with an even worse problem: even if you have  
money, you are still out of luck if you are unpopular, or just at the  wrong 
time or place:

1) Guy calls me, on a referral from a national ballot initiative vendor. He 
 has the organization and the money to hire an experienced, capable 
attorney to  help craft and protect a ballot initiative to challenge a recent 
County  ordinance affecting his members. He knows he needs help, and desperately 
wants  it, because he has only two months left before his petitioning 
deadline. 

2) His is an unpopular cause right now (protecting unionized workers), and  
despite the best efforts of national and local organizations, he can't find 
any  competent counsel to represent him and his members. His state law is  
fiendishly-complex, his local jurisdiction has additional rules, and recent  
court decisions are roiling it further. It's not something that 
run-of-the-mill  attorneys, or even national experts, can do on a short turnaround. He 
knows his  effort will get lit up sooner rather than later, and he's stuck 
without an  experienced attorney. 

3) I have to turn him away. I sent him to the best guy I could, suspecting  
that he'll just keep getting turned away. I feel pretty bad about it. To 
him and  his members, this is not "no big deal," just because it isn't going 
to get in  the NYT or WaPo. 

The bottom line: we have a system crafted to catch "bad guys," however  
defined, that does a far better job of stopping other people. 

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 8/15/2011 10:35:33 A.M. Eastern Daylight Time,  
BSmith at law.capital.edu writes:

Your position, as I  understand it, has been that citizens are represented 
through large  organizations, such as the NRA, NARAL Pro-Choice, unions, and 
large  professional organizations. (We will not unduly harp on the fact 
that for  years many members of the reform community has demanded more 
restrictions on  PACs, at different times expressing a desire to abolish them). 
Similarly, you  have suggested that large corporations can afford large PACs. 
And you have  suggested that small corporations that have a PAC do so solely 
for lobbying,  ignoring the real point that a) virtually no such companies 
have PACs because  the combination of compliance and the restrictions on 
fundraising make them  impractical, and b) to the extent they are practicable, 
they are only such if  used for the limited purpose of supplementing lobbying, 
rather than having a  serious impact on political debate.

The point that Jim, Larry, I and others  have been raising is that the 
rules are a real hardship on small,  often-spontaneous, grassroots activity. 
Your response, and Doug's has been  that this type of activity really isn't 
very important. People who can't  afford to hire Caplan-Drysdale aren't likely 
to raise much money or have much  influence anyway. As Doug suggested, maybe 
if they can't handle the  compliance, they should find other ways to 
participate. This does have some  truth to it, but it is not a normative position 
I find inspiring and it is a  position that reinforces the pull of large 
entities and discourages, indeed is  even dismissive of, the political 
activities of citizens in everyday  life.

The presence of large organizations  exercising political influence simply 
does not do away with the question of  the effect of these laws on small 
organizations, local party committees,  small, volunteer-based campaigns, and 
spontaneous citizen-directed and  organized activites. Indeed, the dominance 
of large organizations may  reflect in some respects the difficulty of 
organic, grassroots participation  under the law. 

Challenged to come forth with "proof"  that more activity that might be 
going on if there weren't these laws in  place (not an easy task, to be sure, 
since no one can no for sure) and the  cost of compliance, we have presented 
evidence of the cost of the compliance  and evidence from our own 
experiences that many people are discouraged from  participation by these laws. Your 
response, which amounts to "hey, stop  complaining, they've got the NRA" is, 
I take it, a concession of the point we  originally raised, by you who have 
insisted on calling us  "plutocrats."

Bradley A.  Smith
Josiah H. Blackmore II/Shirley M. Nault  Designated Professor of Law
Capital University Law  School
303 E. Broad St.
Columbus, OH 43215
(614) 236-6317
_http://www.law.capital.edu/Faculty/Bios/bsmith.asp_ 
(http://www.law.capital.edu/Faculty/Bios/bsmith.asp) 

____________________________________
From: Trevor Potter  [mailto:tpotter at capdale.com]
Sent: Mon 8/15/2011 9:43  AM
To: Smith, Brad; Volokh, Eugene;  law-election at department-lists.uci.edu
Subject: RE: [EL] Technology  to facilitate compliance

Brad:

I have said expressly the opposite. I assume  others can read, and am 
ending this  thread.

Trevor

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