[EL] ALEC Boycott

Mark Schmitt schmitt.mark at gmail.com
Wed Apr 11 21:54:13 PDT 2012


I think that Prof. Volokh was using the term "public good" in a totally 
different sense. He was arguing that because the policy work of ALEC is 
gnerally available, a controversy-averse corporation can just be a free 
rider, and expect that the "superb work" remains available.

My response, based not on belief or assumption but what I know of the 
reality of ALEC, is basically that corporations aren't paying to produce 
freely available work, the work's not generally available, and that 
these contributions are basically transactions, for access.

Whether those transactions, or the ideas promoted by ALEC might serve 
"the public good" in that other sense of the word is a totally different 
question and not a point I'm arguing here. We've created a wonderfully 
pluralistic system in the U.S., in which both tax-subsidized and 
non-subsidized contributions fuel an enormous number of policy and 
political initiatives, as well as networking and lobbying. We assume 
that deliberately encouraging such a vibrant marketplace of ideas will 
ultimately lead to something like the public good. And while that may be 
a flawed assumption, you're right that many of our careers are entirely 
built on that assumption.

But one way that individuals without a lot of economic power of their 
own, or jobs at think tanks, can participate in that marketplace is 
through selective boycotts of companies that support ideas or 
organizations they find distasteful. That seems entirely appropriate to 
me, and hardly intimidation of political speech at all, especially when 
political speech is a very small part of the reason these contributions 
are made.


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 11:12 PM, Smith, Brad wrote:
> 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] *On Behalf Of 
>> *Mark Schmitt
>> *Sent:* Wednesday, April 11, 2012 12:50 PM
>> *To:* 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 likeprotected 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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