[EL] "Exhibit A"

Fri Apr 13 17:43:16 PDT 2012

We are now down to what we believe, what is overblown, and to other factors
not yet broached -- a point at which I am comfortable saying, Good weekend.

But ask yourself, for a later discussion: Can you imagine actions taken
with the aid of public disclosure that even "someone important" might
likely say is too much, even for "the Brave?"

Steve

On Fri, Apr 13, 2012 at 8:10 PM, Rick Hasen <rhasen at law.uci.edu> wrote:

>  I believe the specter of citizen vigilantes is WAY overblown.  See my Chill
> Out paper, <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1948313>examining the evidence of the lack of serious harassment of contributors or
> signature gatherers in the case of the gay marriage propositions in CA and
> WA.  And, for reasons explained in the paper, I do not consider calls for
> economic boycotts to be either unconstitutional harassment (I think Brad
> Smith agreed yesterday on the constitutional point) or vigilantism.
>
> The specter is raised by those who not only want to have the wealthy spend
> their unlimited sums on it, but to do so without any political
> accountability.  As someone important once said, this does not resemble the
> Home of the Brave.
>
> Rick
>
>
> On 4/13/12 5:05 PM, Steve Hoersting wrote:
>
> What I am saying is that the informational interest justifying the public
> disclosure of non-corrupting independent speech needs to be reexamined.
>
> If an enforcement agency or any administration's Department of Justice
> finds that a C4 coordinated its electioneering communications or express
> advocacy with a candidate or party committee, that agency will have *no
> trouble* subpoenaing the documents to determine precisely who put up the
> money and the extent to which the funder was involved in securing the *quid
> pro quo*.  So, how is this a basis for compelled disclosure to the
> general public of funders of independent speech in every instance, on the
> front end?
>
> It seems your answer is that of *Doe v. Reed*: We need the citizen
> prosecutor, whatever the cost in chilled speech and association.
>
> My reply is this: Your "citizen prosecutor" justification discounts the
> costs and rising incidents of "citizen vigilantes."   To borrow and bend a
> phrase, "I do have broader theories of [intimidation], and I hope that one
> day the Supreme Court will return to them in the IE context[.]"
>
> Steve
>
>
>
> On Fri, Apr 13, 2012 at 7:45 PM, Rick Hasen <rhasen at law.uci.edu> wrote:
>
>>  So we agree:
>> 1. c4s are engaging in significant spending on electioneering
>> communications and express advocacy
>> 2. if donors to c4s engage in illegal coordination, extortion or bribery,
>> the donors and/or the officeholders would be violating federal law.
>>
>> That alone is enough for me to conclude that disclosure of MAJOR donors
>> to c4s and any other entity making significant ECs or IEs is necessary to
>> ferret out potential corruption, because then journalists, opposing
>> candidates, and the public can look for corrupt activity.  And by corrupt
>> activity here, I am referring to quid pro quo corruption.
>>
>> I do have broader theories of corruption, and I hope that one day the
>> Supreme Court will return to them in the IE context, but the argument above
>> does not depend upon them.
>>
>> Rick
>>
>>
>> On 4/13/12 4:37 PM, Steve Hoersting wrote:
>>
>>
>>
>> On Fri, Apr 13, 2012 at 7:14 PM, Rick Hasen <rhasen at law.uci.edu> wrote:
>>
>>>  Unfortunately, I believe you are incorrect on the facts.
>>> 1. On whether c4 spending will be on electioneering communications or
>>> express advocacy,  I'm afraid c4 spending is coming to dominate spending on
>>> electioneering communications and we've now seen independent expenditures
>>> coming from these groups too.
>>>
>>
>> Even if it is, we can agree it will not be coordinated, or, if
>> coordinated, covered by law.  Despite theories to the contrary -- some of
>> them yours -- that eliminates the anti-corruption concern.  Gratitude for
>> uncoordinated speech is not enough to constitute corruption.
>>
>>   From CRP data on my slides<http://www.slideshare.net/hasenr/hasen-stanfordpacs2>
>>> :
>>>
>>> [image: 501]
>>>
>>> [image: 501-2]
>>>
>>>
>>> 2. The coordination rules don't prevent corruption.
>>>
>>
>> Yes, they do, as matter of law.  This is bedrock caselaw.
>>
>>
>>> First, if Fatcat X (or CEO of Corporation Y) lets Senator Z know of the
>>> contribution, the potential for corruption is there without violating the
>>> coordination rules.
>>>
>>
>> Independent ads anger as much as ingratiate.  And if I may borrow an
>> analog from contract law: Past consideration is no consideration.  Any
>> recently re-elected Senator -- Z or otherwise -- would scoff at so obvious
>> a gambit.  And I'm betting your nightmare scenario is covered under Title
>> 18  if the Senator were influenced to take official action on such a donor
>> statement.
>>
>>
>>>  Second, the lack of disclosure makes it more likely that Fatcat X will
>>> in fact engage in corrupt activity if the relationship is never disclosed
>>> thanks to disclosure laws.
>>>
>>
>> "Fat Cat X," under your nomenclature, is a *private* citizen.  He has no
>> power.  It is not the actions of private citizens the Courts have been
>> writing about in the dozens of cases since *Buckley.*
>>
>>>
>>> 3. We are not in an era yet, and we may never be, where big money fails
>>> to matter.  For the reasons Justin gave, the public should know who is
>>> ultimately behind political and campaign messages.
>>>
>>
>> I hope private sector money always matters in our elections.  The day it
>> *doesn't* is the day we are in trouble.  Either because, on that day,
>> the people will be sovereign no longer... or because our free press will be
>> captured government or so saturated with subsidies as to be effectively
>> captured.
>>
>> Good weekend,
>>
>> Steve
>>
>>>
>>>
>>> On 4/13/12 3:48 PM, Steve Hoersting wrote:
>>>
>>> C4 spending will not likely be electioneering communications or express
>>> advocacy.  Even if it is, we can agree it will not be coordinated, or, if
>>> coordinated, covered by law.  Despite theories to the contrary -- some of
>>> them yours -- that eliminates the anti-corruption concern.  Gratitude for
>>> uncoordinated speech is not enough to constitute corruption... And were it
>>> enough it would surely prove too much: Bye, bye Oprah endorsements.
>>>
>>> The informational interest, too, is supposed to limit disclosure to
>>> electoral speech, which, again, may not be present in the Crossroads C4
>>> ads.  In any event, the informational interest is justified despite its
>>> burden on speech to place candidates in the political spectrum on bases
>>> over and above party labels and platform positions.  The more the internet
>>> grows the more this benefit wanes.
>>>
>>> Disclosure is a public good, while speaking and associating through c4s
>>> are fundamental rights -- growing more important to popular sovereignty all
>>> the time, as allies of yours cite the political process as the *only*and best constitutional check against excessive economic restrictions.
>>>
>>> As to policing of the contribution limits, this speech will not be an
>>> in-kind contribution.  There will be no coordination here, as I mention
>>> above.  If to the contrary, the law covers it.  As to foreign funds...
>>> you've made my point.
>>>
>>> Let us be clear: As we move from phone mobs to flashmobs, and from
>>> capitalism to crony capitalism, the costs of increased disclosure for
>>> independent, non-corrupting speech are increasing exponentially.  The
>>> benefits of such disclosure -- on the terms the Court has approved -- are
>>> flat to fading.
>>>
>>> All the best, guys,
>>>
>>> Steve
>>>
>>>
>>>
>>> On Fri, Apr 13, 2012 at 6:20 PM, Rick Hasen <rhasen at law.uci.edu> wrote:
>>>
>>>>  Justin may have his own answer.  Here's mine<http://www.slate.com/articles/news_and_politics/politics/2010/10/show_me_the_donors.html>:
>>>> " First, disclosure laws *can prevent corruption* and the appearance
>>>> of corruption. Having no more paper bags of cash makes it harder to bribe a
>>>> member of Congress. Second, disclosure laws provide *valuable
>>>> information* to voters.  A busy public relies on disclosure
>>>> information more than ever. This was apparent when California voters
>>>> recently turned down a ballot proposition which would have benefited
>>>> Pacific Gas and Electric. PG&E provided almost all of the $46 million<http://articles.sfgate.com/2010-06-09/news/21902416_1_choice-aggregation-pg-e-public-power>to the "Yes on 16" campaign, compared with very little spent opposing the
>>>> measure. Thanks to California's disclosure laws<http://electionlawblog.org/archives/016482.html>,
>>>> PG&E's name appeared<http://www.youtube.com/watch?v=fyEKT0ehcTE&feature=player_embedded>on every "Yes on 16" ad and the measure narrowly went down to defeat.
>>>> Third, disclosure laws *help**enforce other campaign finance laws*.
>>>> Worried about foreign money in elections? Disclosure tells you how much is
>>>> coming in."
>>>>
>>>> So if we are worried about possible foreign money coming into the
>>>> system, or worried that someone is seeking to curry favor with a politician
>>>> by making a large contribution to a sympathetic c4 which will benefit him,
>>>> or we want to give voters MORE information to know how they should judge an
>>>> ad from a group they perhaps never heard of (not everyone will know what
>>>> "GPS" is), then disclosure makes a lot of sense.
>>>>
>>>>
>>>> On 4/13/12 3:05 PM, Steve Hoersting wrote:
>>>>
>>>> Yes, it is too bad, Justin.  For I presume you won't know what to make
>>>> or think of Crossroads' ads without this crucial information.
>>>>
>>>> Or, is the purpose of disclosure something else entirely?
>>>>
>>>> Steve Hoersting
>>>>
>>>> On Fri, Apr 13, 2012 at 5:21 PM, Justin Levitt <levittj at lls.edu> wrote:
>>>>
>>>>>  I look forward to James O'Keefe's new hidden-camera video, showing
>>>>> his shell corporation receiving its $10 million check from the North Korean
>>>>> government, and writing its $10 million check to Crossroads GPS.  He could
>>>>> even show a sinister hand walking just up to the brink of depositing the
>>>>> envelope in the mail to Crossroads.
>>>>>
>>>>> What was the phrase<http://department-lists.uci.edu/pipermail/law-election/2012-April/003087.html>?
>>>>> "How simple, how hard to catch and how easy to prevent<http://electionlawblog.org/archives/017415.html>
>>>>> ."
>>>>>
>>>>> Justin
>>>>>
>>>>>
>>>>>
>>>>> On 4/13/2012 2:05 PM, Rick Hasen wrote:
>>>>>
>>>>>  Exhibit A on Why We Need to Fix Campaign Finance Disclosure Law<http://electionlawblog.org/?p=32965>
>>>>> Posted on April 13, 2012 2:04 pm <http://electionlawblog.org/?p=32965>
>>>>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>>>>
>>>>> Crossroads GPS gets an anonymous $10 million donation<http://www.washingtonpost.com/politics/mystery-donor-gives-10-million-to-crossroads-gps-group-to-run-anti-obama-ads/2012/04/13/gIQAzdtdFT_story.html>(possibly from a corporation) to run political ads.  Thanks to holes
>>>>> in our disclosure laws <http://electionlawblog.org/?p=32374>the
>>>>> identity may never be revealed to the public.
>>>>>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D32965&title=Exhibit%20A%20on%20Why%20We%20Need%20to%20Fix%20Campaign%20Finance%20Disclosure%20Law&description=>
>>>>>   Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
>>>>> Off
>>>>>
>>>>>
>>>>> --
>>>>> Justin Levitt
>>>>> Associate Professor of Law
>>>>> Loyola Law School | Los Angeles
>>>>> 919 Albany St.
>>>>> Los Angeles, CA  90015213-736-7417justin.levitt at lls.edussrn.com/author=698321
>>>>>
>>>>>
>>>>> _______________________________________________
>>>>> Law-election mailing list
>>>>> Law-election at department-lists.uci.edu
>>>>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>>>>
>>>>
>>>>
>>>>
>>>> --
>>>> Stephen M. Hoersting
>>>>
>>>>
>>>>
>>>> _______________________________________________
>>>> Law-election mailing listLaw-election at department-lists.uci.eduhttp://department-lists.uci.edu/mailman/listinfo/law-election
>>>>
>>>>
>>>>   --
>>>> 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 - office
>>>> 949.824.0495 - fax
>>>> rhasen at law.uci.edu
>>>> http://law.uci.edu/faculty/page1_r_hasen.html
>>>> http://electionlawblog.org
>>>>
>>>
>>>
>>>
>>> --
>>> Stephen M. Hoersting
>>>
>>>
>>> --
>>> 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 - office
>>> 949.824.0495 - fax
>>> rhasen at law.uci.edu
>>> http://law.uci.edu/faculty/page1_r_hasen.html
>>> http://electionlawblog.org
>>>
>>
>>
>>
>> --
>> Stephen M. Hoersting
>>
>>
>> --
>> 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 - office
>> 949.824.0495 - fax
>> rhasen at law.uci.edu
>> http://law.uci.edu/faculty/page1_r_hasen.html
>> http://electionlawblog.org
>>
>
>
>
> --
> Stephen M. Hoersting
>
>
> --
> 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 - office
> 949.824.0495 - fax
> rhasen at law.uci.edu
> http://law.uci.edu/faculty/page1_r_hasen.html
> http://electionlawblog.org
>

-- 
Stephen M. Hoersting
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