[EL] Adelson

Wed Apr 11 13:40:31 PDT 2012

                I don’t mean to be a broken record, but I just want to add to the hypo:  Imagine Jack Treehorn’s brother, Jack Bushhorn, who happens to own the one newspaper in town, and who throws his weight around the same way; what should we think about him?  And note that the hypo is probably more realistic:  There will probably be more than one politically minded businessman in each town, but there is often only one newspaper (or only a very few), and especially in the past such newspapers have been tremendously influential in local campaigns.

                Eugene

From: Jack Cushman [mailto:jcushman at gmail.com]
Sent: Wednesday, April 11, 2012 1:37 PM
To: Volokh, Eugene
Cc: law-election at uci.edu
Subject: Re: [EL] Adelson

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<mailto: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> [mailto: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<mailto: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> [mailto: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<mailto: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/>
[cid:image001.png at 01CD17E8.AA06B430]<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>.
[cid:image001.png at 01CD17E8.AA06B430]<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.
[cid:image001.png at 01CD17E8.AA06B430]<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>.
[cid:image001.png at 01CD17E8.AA06B430]<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.”
[cid:image001.png at 01CD17E8.AA06B430]<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
[cid:image001.png at 01CD17E8.AA06B430]<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).
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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”?
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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:…
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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
“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>.
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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>.
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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>.
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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
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