[EL] Adelson

[Jack Cushman]

>
> It suggests we are a free country ...


But that is not *all* it suggests. Let's not stop the conversation there.

I mean, we're going to keep having to talk about what, if anything, we
should do about highly-concentrated political spending, where a tiny
minority of private citizens direct the majority of paid speech. That's the
question of the day. There's rhetorical power to the answer: "We can and
should do nothing, because this is a free country." But that binds together
two positions that need to be separated if this interminable conversation
is going to go anywhere interesting.

Position One: We *cannot* do anything, because no government can be trusted
to distinguish between good and bad speech.
Position Two: We *don't need* to do anything, because no activity
characterized as speech can be seriously harmful.

To make the difference clear, consider the hypo of Jackie Treehorn -- a
wealthy businessman in a small town. No one else with any money is much
interested in politics in this town, so if you want to be a mayor,
alderman, sheriff, or judge, your best bet is to make friends
with Treehorn at the country club, and he'll make sure your name shows up
on every yard in town. And by the same token, if Treehorn stops liking you,
he'll back someone else the next time around and you'll have a tough time
getting one yard sign up for every 10 of your opponent's. The people
Treehorn backs are mostly pretty good at their jobs. But if one
of Treehorn's friends is in legal trouble, there's a tendency for charges
to be dropped or dismissed. And if someone is in legal trouble for messing
with Treehorn's friends, they'll be prosecuted to the full extent of the
law. Likewise, Treehorn's friends have a much easier time getting things
through the board of aldermen than his competitors.

So in this hypo, Treehorn is unequivocally engaging in free speech. But we
can also infer that he's impairing freedom in the town. It would be
impossible to point to any particular action by any particular official --
but the net effect is for officials to exercise their discretion in
Treehorn's favor more than they otherwise would. That's a basic violation
of the 14th Amendment on the officials' part, and impairs the life,
liberty, and property rights of the citizens of the town. It's an
infringement of core freedoms.

Position One says: government lacks the power to do anything about
Treehorn's actions. The only solution is for voters to overcome Treehorn's
influence, or for the law to somehow detect and prevent the unequal
treatment directly.
Position Two says: there's no problem here. This hypo describes a healthy
democracy.

These positions are important to distinguish, because they control what
kind of conversation we can have. If you're taking Position One, then the
useful questions are, how much evidence do we need that the spending at
issue actually changes the way anyone in government acts, before we think
there's a problem? And if we reach that point, what's the best solution we
can come up with to safeguard speech and equal protection rights as much as
possible? If you're taking Position Two, then the useful question is,
what's our definition of freedom? What kind of town, or nation, are we
trying to create?

Both of those could be productive debates. It would be great to seriously
work on the problem of evaluating influence and protecting both free speech
and equal protection. For people who agree that the Treehorn hypo describes
an unhealthy democracy, there should be a lot of common ground to work on
solutions even if we disagree on the precise bounds of the First Amendment.
On the other hand, for people who disagree about the hypo, it would also be
great to explore what kinds of freedom are at stake here, and be explicit
about why we prefer the ones we prefer.

So to come back (finally) to the article, the claim is that someone under
federal investigation is spending $100 million supporting a candidate who
would control the investigation. If that doesn't trouble you, I think the
first step is to distinguish between "there's no reason to believe this
spending will influence his treatment before the law" and "there's nothing
to be done about the potential for undue influence here, because the
importance of speech outweighs the harm of the influence" and "the
potential for a wealthy person to influence his treatment before the law is
healthy for our democracy." The answer "we are a free country" assumes, I
think, one of those three things, but it doesn't stake out a real position.

(The other reason to distinguish carefully here is, I suspect that
passionate defenders of free speech sometimes give short shrift to the
problem of undue influence because it strengthens the rhetorical force of
their argument. "This is a free country" rings louder if there are no
freedoms on the other side of the scale. So let me invite everyone to
decouple the *importance* of free speech from the *unimportance* of
concentrated political influence, rather than carelessly picking the same
side in both debates.)

Best,
Jack

On Wed, Apr 11, 2012 at 1:56 PM, Volokh, Eugene <VOLOKH at law.ucla.edu> wrote:

> Likewise, what does it suggest when a newspaper that’s under federal,
> state, or local government investigation (e.g., for alleged antitrust or
> employment law or environment law violations) – or a newspaper publisher
> who’s under government investigation (for any of his business ventures) –
> can use its tremendous influence with readers to elect people with
> authority over the agencies conducting those investigations?  Same as Bill
> says:  It suggests we are a free country that doesn’t restrict political
> speech, by newspapers or by others.****
>
> ** **
>
> Eugene****
>
> ** **
>
> *From:* law-election-bounces at department-lists.uci.edu [mailto:
> law-election-bounces at department-lists.uci.edu] *On Behalf Of *Bill Maurer
> *Sent:* Wednesday, April 11, 2012 10:52 AM
> *To:* Rick Hasen; law-election at uci.edu
> *Subject:* Re: [EL] Adelson****
>
> ** **
>
> “What does it suggest when a man under three federal investigations can
> plan on spending up to $100 million dollars to elect the man with authority
> over the agencies conducting those investigations?”****
>
> How about, “It suggests we are a free country that does not restrict
> political speech and accords those accused of crimes the presumption of
> innocence before we strip them of their civil rights.”?****
>
> ** **
>
> Bill ****
>
> ** **
>
> *From:* law-election-bounces at department-lists.uci.edu [
> mailto:law-election-bounces at department-lists.uci.edu<law-election-bounces at department-lists.uci.edu>]
> *On Behalf Of *Rick Hasen
> *Sent:* Tuesday, April 10, 2012 9:17 PM
> *To:* law-election at uci.edu
> *Subject:* [EL] ELB News and Commentary 4/11/12****
>
> ** **
> “Excess McCain 2008 presidential funds went to charity, not 2012 race”<http://electionlawblog.org/?p=32846>
> ****
>
> Posted on April 10, 2012 9:06 pm <http://electionlawblog.org/?p=32846> by Rick
> Hasen <http://electionlawblog.org/?author=3> ****
>
> Interesting *Washington Times *report.<http://www.washingtontimes.com/news/2012/apr/10/excess-mccain-2008-presidential-funds-went-charity/>
> ****
>
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D32846&title=%E2%80%9CExcess%20McCain%202008%20presidential%20funds%20went%20to%20charity%2C%20not%202012%20race%E2%80%9D&description=>
> ****
>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off ****
> “Major corporations drop support of ‘stand your ground’ group”<http://electionlawblog.org/?p=32843>
> ****
>
> Posted on April 10, 2012 9:00 pm <http://electionlawblog.org/?p=32843> by Rick
> Hasen <http://electionlawblog.org/?author=3> ****
>
> Cox reports <http://seattletimes.nwsource.com/text/2017951679.html>.****
>
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D32843&title=%E2%80%9CMajor%20corporations%20drop%20support%20of%20%E2%80%98stand%20your%20ground%E2%80%99%20group%E2%80%9D&description=>
> ****
>
> Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off
> ****
> “Activist’s Undercover Videos on Rules for Voter IDs Lead to an
> Investigation” <http://electionlawblog.org/?p=32841> ****
>
> Posted on April 10, 2012 8:59 pm <http://electionlawblog.org/?p=32841> by Rick
> Hasen <http://electionlawblog.org/?author=3> ****
>
> AP reports<http://www.nytimes.com/2012/04/11/us/activists-undercover-videos-on-rules-for-voter-ids-lead-to-an-investigation.html>
> .****
>
> MORE <http://dcist.com/2012/04/dc_elections_board_unimpressed_by_j.php>from the DCist.
> ****
>
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D32841&title=%E2%80%9CActivist%E2%80%99s%20Undercover%20Videos%20on%20Rules%20for%20Voter%20IDs%20Lead%20to%20an%20Investigation%E2%80%9D&description=>
> ****
>
> Posted in chicanery <http://electionlawblog.org/?cat=12>, fraudulent
> fraud squad <http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>,
> voter id <http://electionlawblog.org/?cat=9> | Comments Off ****
> “Justice Dept.: S.C. voter ID law violates Voting Rights Act”<http://electionlawblog.org/?p=32839>
> ****
>
> Posted on April 10, 2012 8:48 pm <http://electionlawblog.org/?p=32839> by Rick
> Hasen <http://electionlawblog.org/?author=3> ****
>
> *USA Today* reports<http://www.usatoday.com/news/washington/judicial/story/2012-04-10/south-carolina-voter-id/54159078/1>
> .****
>
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D32839&title=%E2%80%9CJustice%20Dept.%3A%20S.C.%20voter%20ID%20law%20violates%20Voting%20Rights%20Act%E2%80%9D&description=>
> ****
>
> Posted in voter id <http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>
> | Comments Off ****
> “NY’s Redistricting Process Continues in Legal Purgatory”<http://electionlawblog.org/?p=32836>
> ****
>
> Posted on April 10, 2012 8:42 pm <http://electionlawblog.org/?p=32836> by Rick
> Hasen <http://electionlawblog.org/?author=3> ****
>
> WNYC<http://www.wnyc.org/blogs/empire/2012/apr/10/nys-redistricting-process-continues-legal-purgatory/>:
> “Like a sequel to a horror movie most people never saw in the first
> place, New York’s redistricting saga continues to play out in court rooms
> and administrative offices from Washington, DC and Albany.”****
>
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D32836&title=%E2%80%9CNY%E2%80%99s%20Redistricting%20Process%20Continues%20in%20Legal%20Purgatory%E2%80%9D&description=>
> ****
>
> Posted in redistricting <http://electionlawblog.org/?cat=6> | Comments Off
> ****
> Quote of the Day <http://electionlawblog.org/?p=32833> ****
>
> Posted on April 10, 2012 11:50 am <http://electionlawblog.org/?p=32833> by Rick
> Hasen <http://electionlawblog.org/?author=3> ****
>
> “What does it suggest when a man under three federal investigations can
> plan on spending up to $100 million dollars to elect the man with authority
> over the agencies conducting those investigations?****
>
> –Rick Perlstein<http://www.rollingstone.com/politics/blogs/national-affairs/why-gop-mega-donor-sheldon-adelson-is-mad-bad-and-a-danger-to-the-republic-20120410#ixzz1rfG4XXeS>,
> in *Rolling Stone* article on Sheldon Adelson****
>
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D32833&title=Quote%20of%20the%20Day&description=>
> ****
>
> Posted in campaign finance <http://electionlawblog.org/?cat=10>, chicanery<http://electionlawblog.org/?cat=12>
> | Comments Off ****
> Does Mark McKinnon Want a Roemer-Lessig AE Ticket?<http://electionlawblog.org/?p=32830>
> ****
>
> Posted on April 10, 2012 11:43 am <http://electionlawblog.org/?p=32830> by Rick
> Hasen <http://electionlawblog.org/?author=3> ****
>
> Check it out<http://irregulartimes.com/index.php/archives/2012/04/10/americans-elect-leaders-cant-stop-themselves-from-weighing-in-on-the-presidential-race/>(near bottom of post).
> ****
>
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D32830&title=Does%20Mark%20McKinnon%20Want%20a%20Roemer-Lessig%20AE%20Ticket%3F&description=>
> ****
>
> Posted in third parties <http://electionlawblog.org/?cat=47> | Comments
> Off ****
> Major Computer Crime Case Turns on Meaning of “So”<http://electionlawblog.org/?p=32828>
> ****
>
> Posted on April 10, 2012 11:12 am <http://electionlawblog.org/?p=32828> by Rick
> Hasen <http://electionlawblog.org/?author=3> ****
>
> U.S. v. Nosal<http://www.ca9.uscourts.gov/datastore/opinions/2012/04/10/10-10038.pdf>,
> en banc Ninth Circuit Kozinski opinion:****
>
> In its reply brief and at oral argument, the government focuses on the
> word “so” in the same phrase. See 18 U.S.C. § 1030(e)(6) (“accesser is
> not entitled *so* to obtain or alter” (emphasis added)). The government
> reads “so” to mean “in that manner,” which it claims must refer to use
> restrictions. In the government’s view, reading the definition narrowly
> would render “so” superfluous.****
>
> The government’s interpretation would transform the CFAA from an
> anti-hacking statute into an expansive misappropriation statute. This
> places a great deal of weight on a two-letter word that is essentially a
> conjunction. If Congress meant to expand the scope of criminal liability to
> everyone who uses a computer in violation of computer use restrictions —which
> may well include everyone who uses a computer— we would expect it to use
> language better suited to that purpose.3 Under the presumption that
> Congress acts interstitially, we construe a statute as displacing a
> substantial portion of the common law only where Congress has clearly
> indicated its intent to do so.****
>
> Another snippet:****
>
> Minds have wandered since the beginning of time and the computer gives
> employees new ways to procrastinate, by gchatting with friends, playing
> games, shopping or watching sports highlights. Such activities are
> routinely prohibited by many computer-use policies, although employees are
> seldom disciplined for occasional use of work computers for personal
> purposes. Nevertheless, under the broad interpretation of the CFAA, such
> minor dalliances would become federal crimes. While it’s unlikely that you
> ’ll be prosecuted for watching Reason.TV on your work computer, you *could
> * be. Employers wanting to rid themselves of troublesome employees
> without following proper procedures could threaten to report them to the
> FBI unless they quit.6 Ubiquitous, seldom-prosecuted crimes invite
> arbitrary and discriminatory enforcement.7****
>
> From the dissent:****
>
> This case has nothing to do with playing sudoku, checking email, fibbing
> on dating sites, or any of the other activities that the majority rightly
> values. It has everything to do with stealing an employer’s valuable
> information to set up a competing business with the purloined data,
> siphoned away from the victim, knowing such access and use were prohibited
> in the defendants’ employment contracts. The indictment here charged that
> Nosal and his co-conspirators knowingly exceeded the access to a protected
> company computer they were given by an executive search firm that employed
> them; that they did so with the intent to defraud; and further, that
> they stole the victim’s valuable proprietary information by means of that
> fraudulent conduct in order to profit from using it. In ridiculing
> scenarios not remotely presented by this case, the majority does a good job
> of knocking down straw men —far-fetched hypotheticals involving neither
> theft nor intentional fraudulent conduct, but innocuous violations of
> office policy.****
>
> The majority also takes a plainly written statute and parses it in a
> hyper-complicated way that distorts the obvious intent of Congress. No
> other circuit that has considered this statute finds the problems that the
> majority does.****
>
> Did someone say “SCOTUS”?****
>
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D32828&title=Major%20Computer%20Crime%20Case%20Turns%20on%20Meaning%20of%20%E2%80%9CSo%E2%80%9D&description=>
> ****
>
> Posted in statutory interpretation <http://electionlawblog.org/?cat=21>, Supreme
> Court <http://electionlawblog.org/?cat=29> | Comments Off ****
> “ReCoding Good: Part 4″ <http://electionlawblog.org/?p=32825> ****
>
> Posted on April 10, 2012 9:20 am <http://electionlawblog.org/?p=32825> by Rick
> Hasen <http://electionlawblog.org/?author=3> ****
>
> Stanford Social Innovation Review:<http://www.ssireview.org/blog/entry/recoding_good_part_4>
> ****
>
> On March 20, two-dozen scholars, practitioners, and policymakers met for a
> discussion around the theme “Are Nonprofits People, Too? Citizens United
> and the Future of the Social Sector.” Responding to the expanded roles
> that certain nonprofit organizations—501(c)(4) social welfare
> organizations, in particular—are now playing in electoral politics, the
> group discussed the potential effects of *Citizens United* on the
> philanthropic and nonprofit sector as a whole, beyond the particular
> actions now allowed by law.****
>
> We opened a presentation by Professor Rick Hasen<http://www.ssireview.org/pdf/hasen-stanfordpacs-2.pdf>of UC Irvine, who studies election law and created the Election
> Law Blog <http://electionlawblog.org/>. He explained how the legal and
> political landscape has shifted for 501(c)(4) and (c)(6) nonprofit
> organizations since January 2010, emphasizing the role they can now play in
> making electioneering expenditures. From the perspective of campaign
> finance, 501(c)(4) and (c)(6) nonprofits offer donors a distinctive
> loophole (or, perhaps, advantage) over other organizations such as
> political action committees, political parties, and Super PACs: These
> nonprofits do not need to publicly disclose donors’ identities. Data
> comparing campaign finance expenditure reports from 2012 to previous
> presidential election years show a clear shift in dollars from PACs and
> other 527 groups <http://en.wikipedia.org/wiki/527_organization> that do
> require donor disclosure to (c)(4) and (c)(6) nonprofits. Using data from
> the Center for Responsive Politics <http://www.opensecrets.org/>, Hasen
> found that outside spending in the 2012 presidential election through
> February was 264 percent greater than the same time in 2008 and more than
> 600 percent greater than in 2004.****
>
> Adam Bonica of the Stanford Political Science Department questioned the
> degree to which electioneering spending equals influence.<http://www.ssireview.org/pdf/bonica_cu_data.pdf>His research looks at the many ways commercial corporations seek to
> influence political decision making—including lobbying, federal election
> spending, involvement on state ballot measures, and the “revolving door”of relationships between private sector and elected officials and their
> staff. One notable finding: Nonprofit and commercial corporations spend
> significantly less on elections than they do on lobbying.****
>
> These opening remarks led the group to reach a general consensus that
> policing one organization structure—say, by imposing disclosure
> requirements on 501(c)(4) social welfare organizations—would have limited
> impact on campaign finance *per se*. Changing the rules for certain
> nonprofits would be like playing “whack-a-mole” with the money; it would
> simply pop up somewhere else.****
>
> The discussion then branched out in several directions:…****
>
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D32825&title=%E2%80%9CReCoding%20Good%3A%20Part%204%E2%80%B3&description=>
> ****
>
> Posted in campaign finance <http://electionlawblog.org/?cat=10>, tax law
> and election law <http://electionlawblog.org/?cat=22> | Comments Off ****
> “The Breitbart ‘Voter Fraud’ Video Proves Absolutely Nothing”<http://electionlawblog.org/?p=32822>
> ****
>
> Posted on April 10, 2012 9:18 am <http://electionlawblog.org/?p=32822> by Rick
> Hasen <http://electionlawblog.org/?author=3> ****
>
> The *Business Insider *reports<http://articles.businessinsider.com/2012-04-09/politics/31311600_1_voter-fraud-voter-identification-voter-id-laws>
> .****
>
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D32822&title=%E2%80%9CThe%20Breitbart%20%E2%80%98Voter%20Fraud%E2%80%99%20Video%20Proves%20Absolutely%20Nothing%E2%80%9D&description=>
> ****
>
> Posted in election administration <http://electionlawblog.org/?cat=18>, fraudulent
> fraud squad <http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>,
> voter id <http://electionlawblog.org/?cat=9> | Comments Off ****
> “Americans Elect sheds staff, delays voting till May”<http://electionlawblog.org/?p=32819>
> ****
>
> Posted on April 10, 2012 8:23 am <http://electionlawblog.org/?p=32819> by Rick
> Hasen <http://electionlawblog.org/?author=3> ****
>
> *Politico* reports<http://www.politico.com/blogs/burns-haberman/2012/04/americans-elect-sheds-staff-delays-voting-till-may-120016.html>
> .****
>
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D32819&title=%E2%80%9CAmericans%20Elect%20sheds%20staff%2C%20delays%20voting%20till%20May%E2%80%9D&description=>
> ****
>
> Posted in ballot access <http://electionlawblog.org/?cat=46>, third
> parties <http://electionlawblog.org/?cat=47> | Comments Off ****
> “The History of the Recall in Wisconsin”<http://electionlawblog.org/?p=32816>
> ****
>
> Posted on April 10, 2012 8:11 am <http://electionlawblog.org/?p=32816> by Rick
> Hasen <http://electionlawblog.org/?author=3> ****
>
> Christian Schneider writes this extensive review<http://www.wpri.org/Reports/Volume25/Vol25No3/Vol25No3.html>
> .****
>
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D32816&title=%E2%80%9CThe%20History%20of%20the%20Recall%20in%20Wisconsin%E2%80%9D&description=>
> ****
>
> Posted in recall elections <http://electionlawblog.org/?cat=11> | Comments
> Off ****
>
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000
> 949.824.3072 - office
> 949.824.0495 - fax
> rhasen at law.uci.edu
> http://law.uci.edu/faculty/page1_r_hasen.html
> http://electionlawblog.org****
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
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