[EL] ALEC Boycott

[Kathay Feng]

Talk about red herrings.  When a member of a family decides to give to a political campaign, the donation is given from an individual.  The donation comes from and is reported as coming from Sheldon Adelson, not the Adelson Family.  When the Adelson unit decided they wanted to give more, they gave through Miriam Adelson.  

 

When McDonald’s spends money as a corporation, it’s legal fiction to treat this entity made up of many individuals the same as an individual human being for purposes of speech protections.  I am raising issue with how decisions that have nothing to do with the purpose for which that fictitious entity was created are made, and how largely unaccountable they are.  

 

From: JBoppjr at aol.com [mailto:JBoppjr at aol.com] 
Sent: Thursday, April 12, 2012 1:15 PM
To: Kathay Feng; schmitt.mark at gmail.com
Cc: law-election at department-lists.uci.edu
Subject: Re: [EL] ALEC Boycott

 

    Any organization or association of people has to have some mechanism for decision making. Hopefully you would agree that a family is made up of people. The parents decide and if some of the children disagree, it does not mean that they aren't people.  It also does not make the decision illegitimate since it is not unanimous, as you suggest. And whether it is the purchase of hamburgers or the decision to put up a candidates yard sign in the front yard, it remains that it is the family's decision.

 

    So the bottom line is I think you are actually not making a point regarding political speech or even corporations but are really challenging either the legitimacy of delegating group decisionmaking to certain people in the group or the legitimacy of group decisions that are not unanimous among the group. It seems to me that it is impossible for a group to operate if they could not function in the way you condemn.  Jim Bopp

 

In a message dated 4/12/2012 3:57:36 P.M. Eastern Daylight Time, KFeng at CommonCause.org writes:

	This is where the “corporations = people” argument breaks down.   The decision to join ALEC is being made by “corporate owners and managers,” maybe by the relevant government relations staff, but certainly not through consultation with all employees or stakeholders. So the decision to join ALEC is made by a few, but not all the people, who make up the corporation.  You can imagine the conversation in McDonald’s going something like this:

	 

	VP of Media and Communication: “Wow! We are getting a lot of flack for being associated with ALEC and this “Stand your Ground” legislation.  Who made the decision to join ALEC?” 

	VP of Government Relations: “I did.  It made sense at the time and CEO Bob approved it.”

	CEO Bob: “I did approve this, but we can’t be associated with this shooting of Trayvon Martin.  Whatever we were getting out of ALEC, this is too hot to touch.”  (no coffee pun intended).

	VP of GR: “You’re right.  I’ll start the work with Legal to pull out.”

	VP of MC: “I’ll start the damage control.”

	 

	Even if the conversation involved two dozen more people at McD, it still does not reflect all the people who work, invest, or eat there.  So “corporate speech,” whether to buy an ad, participate in ALEC, or pull out of ALEC, involves a few decision-makers speaking without consultation or approval of the entire entity.  That kind of decision making structure works when the for-profit corporation is engaged in economic activity for which is was created – making hamburgers, say.  It becomes much muddier when the corporation is engaged in (or associated with) political speech that represents the boss’s preference or a few people’s preferences but not the “corporation’s.”  

	 

	-Kathay

	From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of JBoppjr at aol.com
	Sent: Thursday, April 12, 2012 12:10 PM
	To: schmitt.mark at gmail.com
	Cc: law-election at department-lists.uci.edu
	Subject: Re: [EL] ALEC Boycott

	 

	But this does nothing to support your categorical (and false) statement:

	 

	"No corporation gives to ALEC because it "does good work" in the abstract."

	 

	. Of course there are conservative, pro-free enterprise corporate owners and managers who would give to ALEC because they like the pro-free enterprise conservative legislation that ALEC proposes.   

	 

	Jim Bopp

	 

	In a message dated 4/12/2012 2:44:02 P.M. Eastern Daylight Time, schmitt.mark at gmail.com writes:

		Let's compare the fundraising pitches of the Brennan Center and ALEC. 
		
		Here's Brennan, from the "donate" page of its web site:
		
		"The Brennan Center is the best organization to push for deep reforms. We are independent. We get results. We base our advocacy on facts, not partisan talking points. We need your help."
		
		Compare ALEC. Instead of asking for plain old no-strings donations, ALEC invites corporate contributors to become "private-sector members" at several levels, with specific benefits at each level, from "Washington Circle" to "Jefferson Circle." Here's the pitch:
		
		"One of ALEC’s greatest strengths is the public-private partnership. ALEC provides the private sector with an unparalleled opportunity to have its voice heard, and its perspective appreciated, by the legislative members."
		
		Those are totally different approaches to donors. It makes it very explicit that ALEC is a lobbying network selling access, not just "good work." ALEC also engages in political speech (such as promotion of Stand Your Ground), and the boycott made the companies question whether it was political speech they wanted to be associated with. Apparently many of them didn't.

		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 4/12/2012 9:23 AM, JBoppjr at aol.com wrote: 

		Why would someone say this obviously erroneous statement:

		 

		"No corporation gives to ALEC because it "does good work" in the abstract."

		 

		Of course they would.  ALEC is pro free enterprise and most companies like the free enterprise system.  There are, of course, conservative businessmen out there who like conservative policies and legislators..

		 

		I assume the corporations that give to the Brenan Center also do so because they do "good works" in the view of the donor.  Jim Bopp

		 

		In a message dated 4/11/2012 10:32:28 P.M. Eastern Daylight Time, schmitt.mark at gmail.com writes:

			 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 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

			http://www.law.capital.edu/faculty/bios/bsmith.asp

			 

			 

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