[EL] Ohio Fact Check

[Smith, Brad]

A few points off this little story about Ohio Fact Check. 
1. It will almost certainly be used to suggest that more disclosure is needed.
2. Don McTigue, who incorporated the group, is a well-known Columbus lawyer, almost certainly the best and most prominant Democratic Party election lawyer in the state. It is unlikely any Republican or conservative organization or individual would utilize his services, in the same way that liberal and Democratic groups rarely if ever turn to say, Jim Bopp. Thus, for the person who "needs to know," we already have a very valuable clue. Don, by the way, is also an adjunct professor at Capital University Law School. 
3. The cost of the mailer to likely voters in South Euclid (total population approx. 22,000) would be well within the reach of a single, upper-middle class individual. That is, someone who did not want to disclose could easily afford to do the mailing, and to do it without any legal assistance.
4. As anyone who follows FactCheck (or even campaigns) much knows, the alleged misrepresentations on this mailer are of no greater or lesser magnitude than thousands of political statements made every day, from the President on down, including ballot groups which register and disclose all donors with the state. Political argument regularly relies on incomplete information, tendentious argument, recitation of "facts" that are in dispute, or misleading argument (such as the idea of an "out of town" developer that Jackson harps on in this article, when the developer is located 3 miles way  - but is technically from "out of town"). 
5. This level of political discourse is not, in my mind, a good thing, but we should not confuse it with campaign finance or disclosure rules. It is, if anything, an even tougher nut to crack, and it may be that the solutions must be found in the voters themselves determining to inform themselves before going to the polls, in cultural norms that place more emphasis on honest discourse, in less horse race and more substantive media reporting, and in structural reforms such as reducing the role of government in people's lives or reconsidering elements of direct as opposed to representative democracy.
6. Thus, while one may be troubled by misrepresentations that may be in the mailing, one should not leap to the conclusion that there is an easy answer (DISCLOSURE!). There's not much reason to think that the same mailer could not have been sent with all funders fully identified, and had the same effect (since very few voters pay any attention to the source, particularly voters who have not already made up their minds); and we do not know what costs would be imposed on the speaker (perhaps the speaker, to give just one example, is a contractor with the City of South Euclid, and fears political retaliation; or perhaps, to give a second possible example, some of the funders know the developer and know him to be a particularly vindictive person, which is why they oppose the development and why they don't want their names publicized). It is also quite possible that a determined actor could easily have sent this mailer with no regard for any disclosure law.  
7. We have groups such as factcheck (the real one) and newspapers.
 
In other words, let's consider this possibility: if there were a law dictating more disclosure here, would it matter, would it make any difference? We can't be sure, but probably not. Would there be real costs to such a law? We can't be sure, but certainly it is a possibility.
 
That is why the cries of "disclosure today, disclosure forever" are not terribly convincing.
 
 
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 Rick Hasen
Sent: Fri 10/28/2011 11:30 PM
To: law-election at uci.edu
Subject: [EL] ELB News and Commentary 10/29/11


"Ohio Fact Check:" Not What You Think <http://electionlawblog.org/?p=24743>  

Posted on October 28, 2011 3:07 pm <http://electionlawblog.org/?p=24743>  by Rick Hasen <http://electionlawblog.org/?author=3>  

Here <http://factcheck.org/2011/10/a-sneaky-factcheck-front-group/> .

 
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