[EL] ELB News and Commentary 11/1/11

Tue Nov 1 06:14:50 PDT 2011

David is correct that one may coherently and with intellectual consistancy argue for discounting anonymous messages even while opposing government mandated disclosure. For example, we might ask those who think this is a great paradox if they would favor a law prohibiting newspapers from using publishing any article with unnamed sources. After all, certainly Cain is being damaged more by these allegations than any political attack. That said, it strikes me that Rick's criticism is off base in two other ways. 

First, he implies that we don't have information on political adverstisements, when in fact we do. It bears constant repeating: all political ads include a statement as to who paid for it. Reform advocates complain that this is not always enough information, not as much as they would like, and that may be a legit argument, but it is not the same as saying that the ads are anonymous. "Anonymous sources say" is very different from "a group you've never heard of incorporated by a prominent Democratic party lawyer says."

Second, there is a considerable difference "a statement of political opinion (or even fact) which can be rebutted are addressed on the basis of public information: "The rich don't pay enough in taxes;" "we ought to have more campaign finance disclosure laws;" "President Obama's policies aren't working;" "it's time for change;" "this is a partisan redistricting plan;" "there is no voter fraud;" etc. That is a difference in kind from a specific accusation of illegal activity by an actor. Cain appears to be, as David notes, suggesting that we should discount the accusations because they are anonymous, and on that he is perhaps correct (I think so). But Cain is also arguing, implicitly, that he is unable to respond substantively to such anonymous allegations. That is not the same as judging a message by the messenger.

Correspondingly, lest anyone draw some incorrect conclusion, it should be obvious that mandatory campaign disclosure rules would not get at this type of anonymous allegation. In fact, this arguably shows the limits of the disclosure argument: people are all worried about the influence of "who is behind" some 501(c)(4) or (c)(6) with a clear, well known agenda, while anonymous leaks to the papers have far more influence on events. We frequently apply different rules to different types of situations. Thus the driving age is different than the voting age; you have a right to face your accuser in a court of law, but not necessarily to face your accuser in a court of gossip.

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

________________________________

From: law-election-bounces at department-lists.uci.edu on behalf of Primo, David
Sent: Tue 11/1/2011 7:20 AM
To: law-election at uci.edu
Subject: Re: [EL] ELB News and Commentary 11/1/11

While Herman Cain certainly deserves criticism for many things, Rick's critique of him below elides two separate issues regarding disclosure.  The first is whether we ought to judge a message based on the speaker, perhaps discounting it if it is anonymous.  This is an individual judgment call.  The second is whether the government has the right to force disclosure.  It is perfectly consistent for somebody to take the position that disclosure should not be coerced by the government, while at the same time discounting anonymous speech.

Dave

David M. Primo

Associate Professor of Political Science and Business Administration

University of Rochester

________________________________

Date: Mon, 31 Oct 2011 21:30:12 -0700
From: rhasen at law.uci.edu
To: law-election at UCI.EDU
Subject: [EL] ELB News and Commentary 11/1/11

"Anti-Democratic text messages in Northern Va. prompt lawsuit, complaints" <http://electionlawblog.org/?p=24840> 

Posted on October 31, 2011 9:24 pm <http://electionlawblog.org/?p=24840>  by Rick Hasen <http://electionlawblog.org/?author=3>  

WaPo <http://www.washingtonpost.com/local/dc-politics/anti-democratic-text-messages-in-northern-va-prompt-lawsuit-complaints/2011/10/31/gIQA0cVdaM_story.html> : "A week before Election Day, Democrats have taken legal action to try to stop thousands of unsolicited text messages encouraging people in Northern Virginia to vote against their candidates."

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Posted in campaigns <http://electionlawblog.org/?cat=59> , chicanery <http://electionlawblog.org/?cat=12> , election administration <http://electionlawblog.org/?cat=18>  | Comments Off 

"Herman Cain's ties to Wisconsin nonprofit raise legal questions" <http://electionlawblog.org/?p=24837> 

Posted on October 31, 2011 9:05 pm <http://electionlawblog.org/?p=24837>  by Rick Hasen <http://electionlawblog.org/?author=3>  

The LA Times reports <http://www.latimes.com/news/politics/la-pn-cain-charity-debt-20111031%2c0%2c1848833.story?track=rss> .

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"The Republican 'voter fraud' fraud" <http://electionlawblog.org/?p=24834> 

Posted on October 31, 2011 8:57 pm <http://electionlawblog.org/?p=24834>  by Rick Hasen <http://electionlawblog.org/?author=3>  

Diane Roberts has written this column <http://www.guardian.co.uk/commentisfree/cifamerica/2011/oct/31/republican-voter-fraud-fraud?newsfeed=true>  for The Guardian (U.K.).

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Posted in The Voting Wars <http://electionlawblog.org/?cat=60>  | Comments Off 

"E-voting remains insecure, despite paper trail" <http://electionlawblog.org/?p=24832> 

Posted on October 31, 2011 8:56 pm <http://electionlawblog.org/?p=24832>  by Rick Hasen <http://electionlawblog.org/?author=3>  

InfoWorld reports <http://www.infoworld.com/t/security/e-voting-still-insecure-even-paper-trail-177623> .

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Posted in election administration <http://electionlawblog.org/?cat=18> , voting technology <http://electionlawblog.org/?cat=40>  | Comments Off 

"Congressional hearing sought over voter ID laws sweeping states" <http://electionlawblog.org/?p=24829> 

Posted on October 31, 2011 8:54 pm <http://electionlawblog.org/?p=24829>  by Rick Hasen <http://electionlawblog.org/?author=3>  

McClatchy reports <http://electionlawblog.org/Congressional%20hearing%20sought%20over%20voter%20ID%20laws%20sweeping%20states%20%20Read%20more%3a%20http%3a//www.miamiherald.com/2011/10/31/2481340/congressional-hearing-sought-over.html#ixzz1cQFrHlzv> .

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Posted in election administration <http://electionlawblog.org/?cat=18> , voter id <http://electionlawblog.org/?cat=9>  | Comments Off 

"Election manual includes Voter ID law before it's the law" <http://electionlawblog.org/?p=24827> 

Posted on October 31, 2011 8:53 pm <http://electionlawblog.org/?p=24827>  by Rick Hasen <http://electionlawblog.org/?author=3>  

Houston Chronicle <http://www.chron.com/news/houston-texas/article/Election-manual-includes-Voter-ID-law-before-it-s-2245612.php> : "A manual being using to train election judges for next week's elections contains inaccurate information, reflecting a new voter identification law that has not yet taken effect, Harris County Clerk Stan Stanart said Monday"

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Posted in election administration <http://electionlawblog.org/?cat=18> , voter id <http://electionlawblog.org/?cat=9>  | Comments Off 

"GOP redistricting bill faltering" <http://electionlawblog.org/?p=24824> 

Posted on October 31, 2011 8:51 pm <http://electionlawblog.org/?p=24824>  by Rick Hasen <http://electionlawblog.org/?author=3>  

Milwaukee Journal Sentinel <http://www.jsonline.com/news/statepolitics/gop-redistricting-bill-faltering-before-afternoon-hearing-132921823.html> : "An effort to change state law that would make it tougher to recall Republican state senators faltered Monday, as one GOP senator said he wouldn't go along with it and the chamber's top leader said the measure was not on a fast track."

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Posted in campaign finance <http://electionlawblog.org/?cat=10>  |Comments Off 

"Court Sets January Date for Arguments On Beefing Up FEC's Disclosure Rules" <http://electionlawblog.org/?p=24821> 

Posted on October 31, 2011 8:45 pm <http://electionlawblog.org/?p=24821>  by Rick Hasen <http://electionlawblog.org/?author=3>  

BNA <http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=23307836&vname=mpebulallissues&fn=23307836&jd=a0c9p4r7j8&split=0> : "A federal judge will hear oral arguments in January over a challenge to the adequacy of Federal Election Commission disclosure rules for groups planning to spend millions of dollars to influence next year's election campaigns (Van Hollen v. FEC, D.D.C., No. 11-766, scheduling order 10/28/2011)."

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Posted in campaign finance <http://electionlawblog.org/?cat=10>  |Comments Off 

"Super PACs Rising to Key Role in Campaigns With No New Law or Rules, CRS Report Says" <http://electionlawblog.org/?p=24819> 

Posted on October 31, 2011 8:44 pm <http://electionlawblog.org/?p=24819>  by Rick Hasen <http://electionlawblog.org/?author=3>  

BNA reports <http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=23307837&vname=mpebulallissues&fn=23307837&jd=a0c9p4r7m2&split=0>  on a new CRS report <http://op.bna.com/der.nsf/id/rtar-8n6pkq/%24File/Super%20Pacs%20in%20Federal%20Elections.pdf>  on Super PACs.

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Posted in campaign finance <http://electionlawblog.org/?cat=10>  |Comments Off 

"In Election Season, Legal Organization Warns Of Threat To Judicial Independence" <http://electionlawblog.org/?p=24816> 

Posted on October 31, 2011 1:44 pm <http://electionlawblog.org/?p=24816>  by Rick Hasen <http://electionlawblog.org/?author=3>  

The Defense Research Institute has issued this press release <http://www.prlog.org/11711773-in-election-season-legal-organization-warns-of-threat-to-judicial-independence.html> .

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Posted in judicial elections <http://electionlawblog.org/?cat=19>  |Comments Off 

"Court won't get involved in fight over redistricting in Mississippi" <http://electionlawblog.org/?p=24813> 

Posted on October 31, 2011 1:30 pm <http://electionlawblog.org/?p=24813>  by Rick Hasen <http://electionlawblog.org/?author=3>  

AP reports <http://search.clarionledger.com/sp?aff=1100&skin=&keywords=supreme%20court>  on today's summary affirmance <http://www.scotusblog.com/2011/10/no-clarity-on-religious-displays/#more-130695>  from the Supreme Court.

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Posted in redistricting <http://electionlawblog.org/?cat=6> , Supreme Court <http://electionlawblog.org/?cat=29>  | Comments Off 

Must-Read Az. Capitol Times Report on Incumbents' Efforts to Influence Independent Redistricting Commission <http://electionlawblog.org/?p=24810> 

Posted on October 31, 2011 1:14 pm <http://electionlawblog.org/?p=24810>  by Rick Hasen <http://electionlawblog.org/?author=3>  

Here <http://azcapitoltimes.com/news/2011/10/31/fair-game/> .

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Posted in chicanery <http://electionlawblog.org/?cat=12> , citizen commissions <http://electionlawblog.org/?cat=7> , redistricting <http://electionlawblog.org/?cat=6>  | Comments Off 

Quote of the Day <http://electionlawblog.org/?p=24807> 

Posted on October 31, 2011 12:46 pm <http://electionlawblog.org/?p=24807>  by Rick Hasen <http://electionlawblog.org/?author=3>  

"It looks like a law school exam on potential campaign-finance violations,"

-Lawrence Norton <http://www.washingtonpost.com/politics/campaigns/herman-cain-campaigns-financial-ties-to-wisconsin-charity-questioned/2011/10/31/gIQAJ61gZM_story.html>  on today's Herman Cain campaign finance allegations <http://www.jsonline.com/watchdog/noquarter/state-firms-cash-to-herman-cain-may-breach-federal-campaign-tax-laws-132898423.html> 

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Posted in campaign finance <http://electionlawblog.org/?cat=10>  |Comments Off 

Does Herman Cain Support Campaign Finance Disclosure? <http://electionlawblog.org/?p=24804> 

Posted on October 31, 2011 12:40 pm <http://electionlawblog.org/?p=24804>  by Rick Hasen <http://electionlawblog.org/?author=3>  

I wouldn't bet on it, but I found it interesting that, according to this report <http://thecaucus.blogs.nytimes.com/2011/10/31/cain-campaign-prepares-for-scrutiny-of-harassment-allegations/?hp>  in the NYT's "The Caucus," "He derided the report in Politico as being based on "anonymous sources."

Doesn't this mean that people should judge the credibility of a message in part based on the credibility of the messenger?

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Posted in campaign finance <http://electionlawblog.org/?cat=10>  |Comments Off 

"Politics, money and taxes:The IRS should determine whether Crossroads GPS and three others deserve 501(c)(4) status, which are for social welfare groups, or be reclassified as politically active 527 entities." <http://electionlawblog.org/?p=24801> 

Posted on October 31, 2011 11:55 am <http://electionlawblog.org/?p=24801>  by Rick Hasen <http://electionlawblog.org/?author=3>  

See this LA Times editorial <http://www.latimes.com/news/opinion/opinionla/la-ed-exempt-20111031%2c0%2c3636802.story> .

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Posted in campaign finance <http://electionlawblog.org/?cat=10> , tax law and election law <http://electionlawblog.org/?cat=22>  | Comments Off 

"SPECIAL INVESTIGATION: Who's behind the 'information attacks' on climate scientists?" <http://electionlawblog.org/?p=24798> 

Posted on October 31, 2011 11:53 am <http://electionlawblog.org/?p=24798>  by Rick Hasen <http://electionlawblog.org/?author=3>  

Some interesting election law connections in this Facing South report <http://www.southernstudies.org/2011/10/special-investigation-whos-behind-the-information-attacks-on-climate-scientists.html> .

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Posted in campaign finance <http://electionlawblog.org/?cat=10>  |Comments Off 

What Voter Fraud and Poisoned Halloween Candy Have in Common <http://electionlawblog.org/?p=24795> 

Posted on October 31, 2011 9:03 am <http://electionlawblog.org/?p=24795> by Rick Hasen <http://electionlawblog.org/?author=3> 

See here. <http://t.co/H7siJwBY> 

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Posted in Uncategorized <http://electionlawblog.org/?cat=1>  | Comments Off 
-- 
Rick Hasen
Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
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949.824.0495 - fax
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http://electionlawblog.org <http://electionlawblog.org/> 

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