[EL] ALEC Boycott

[Smith, Brad]

True, if you believe that the public good can never be harmonious with the good of any of the private individuals who collectively make up the public; or if you subscribe to the dark view that no one is ever really interested in just having good public policy. Of course, sometimes the careers we choose belie that claim.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Mark Schmitt [schmitt.mark at gmail.com]
Sent: Wednesday, April 11, 2012 10:31 PM
To: law-election at department-lists.uci.edu
Subject: Re: [EL] ALEC Boycott

 The problem with that theory is that ALEC isn't a public good. Corporate giving to ALEC is entirely transactional -- companies give because corporate sponsors get X number of seats at the annual conference, and opportunities to weigh in on some of the task forces. If you don't give, you lose that access. No corporation gives to ALEC because it "does good work" in the abstract.

To some extent, in demonizing ALEC, the left has exaggerated what it is. It's just a network for lobbyists connected to a network of legislators.


Mark Schmitt
Senior Fellow, The Roosevelt Institute<http://www.newdeal20.org>
202/246-2350
gchat or Skype: schmitt.mark
@mschmitt9<https://twitter.com/#%21/mschmitt9>

On 4/11/2012 4:36 PM, Volokh, Eugene wrote:
                It’s possible, but this might also be a classic public goods situation – even if a corporation thinks ALEC is doing superb work, the marginal effect of that corporation’s withdrawal of its contribution is likely to be fairly modest, so that the corporation might stop contributing.

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 Mark Schmitt
Sent: Wednesday, April 11, 2012 12:50 PM
To: law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>
Subject: Re: [EL] ALEC Boycott


It's interesting how quickly some of the corporations have abandoned ALEC based on a very small boycott. That suggests to me that the corporations didn't feel they were getting much value from their involvement with ALEC, or not enough to offset the very small cost of a little of bad publicity in a limited community. A boycott effort by colorofchange.org is simply not going to prevent a company from doing something it really wants to do.

Most likely, no one at a particularly high level of the companies had even been involved in the decision to fund ALEC. It was probably a decision made by the company's DC office, as a way of ensuring access to the ALEC member legislators, rather than an act of political speech.

The effect of the boycott, then is to make the corporation notice what its lobbyists are doing and ask whether it makes any sense. That seems like a healthy development.


On 4/10/2012 12:15 PM, Rick Hasen wrote:
These are all excellent questions, and I'd recommend Economic Boycotts as Harassment: The Threat to First Amendment Protected Speech in the Aftermath of Doe v. Reed<http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2776&context=llr>



On 4/10/2012 8:57 AM, Smith, Brad wrote:

“While I’ve heard some conservatives saying that political activism from liberals to get groups to not support ALEC is intimidation, it looks to me like protected First Amendment boycott-like activity<http://electionlawblog.org/?p=31462>.”

Of course, it can be both. One question we are going to have to ask ourselves is whether we want the meanness of the society that is shaping up. While boycotts have some honorable history and can be a useful tool, nobody really much wants to live in a boycott world. Labor law has long prohibited secondary boycotts, largely for that reason.

We’ll also have to address more honestly whether the government has a compelling interest in forcing people to disclose activity that may subject them to boycotts and other forms of harassment. Notice that those boycotting and organizing boycotts are not required to disclose themselves, neither their identity nor their sources of financing.

Justice Scalia has voiced concern that a world without compulsory disclosure would be particularly nasty. I think he’s got it backwards – compulsory disclosure, supported primarily because it enables opponents of speech to engage in boycotts and other harassment, is creating an increasing nasty political environment.

One can certainly see something as protected First Amendment activity while recognizing it as intimidation as well. And that raises the question as to what interest the government has in enabling intimidation.

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
  Designated Professor of Law
Capital University Law School
303 East Broad Street
Columbus, OH 43215
(614) 236-6317
bsmith at law.capital.edu<mailto:bsmith at law.capital.edu>
http://www.law.capital.edu/faculty/bios/bsmith.asp




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