[EL] Adelson
John Tanner
john.k.tanner at gmail.com
Wed Apr 11 13:58:32 PDT 2012
Are the groups mutually exclusive?
On Wed, Apr 11, 2012 at 4:52 PM, Frank Askin <faskin at kinoy.rutgers.edu>wrote:
> Does this mean that we should throw out the baby with the bathwater.
> That if we want to prevent billionaires from dominating the electoral
> process, we have to invade the freedom of the press provided in the
> First Amendment? FRANK
>
>
>
>
> Prof. Frank Askin
> Distinguished Professor of Law and Director
> Constitutional Litigation Clinic
> Rutgers Law School/Newark
> (973) 353-5687>>> "Volokh, Eugene" <VOLOKH at law.ucla.edu> 4/11/2012 4:40
> PM >>>
> 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).
> [cid:image001.png at 01CD17E8.AA06B430]<
> 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”?
> [cid:image001.png at 01CD17E8.AA06B430]<
> 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:…
> [cid:image001.png at 01CD17E8.AA06B430]<
> 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
> >.
> [cid:image001.png at 01CD17E8.AA06B430]<
> 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
> >.
> [cid:image001.png at 01CD17E8.AA06B430]<
> 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>.
> [cid:image001.png at 01CD17E8.AA06B430]<
> 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<tel:949.824.3072> - office
> 949.824.0495<tel:949.824.0495> - fax
> rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
> http://law.uci.edu/faculty/page1_r_hasen.html
> http://electionlawblog.org
>
> _______________________________________________
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