[EL] Too Brave for the "Home of the Brave"?

[Steve Hoersting]

Dear Rick,

When last you and I chatted about disclosure and its exceptions, I closed
on this point:

But ask yourself, for a later discussion: Can you imagine actions taken
with the aid of public disclosure that even "someone important" [and I'm
sure you meant J. Scalia] might likely say is too much, even for "the Brave
?"

Everyone discussing disclosure exemptions, *Doe v. Reed,* Civic Courage and
The Brave do so on the premise of managing the problem of
citizen-on-citizen retribution.  But they ignore a quickly shifting
landscape.  The real question is quickly becoming this: What about the
rights of a potential speaker who witnesses or reads of *
government-on-citizen* retribution visited on others?  This person wants to
participate in the election, but doesn't want to risk being the next one
made an example of.

An op-ed today, by *WSJ's* Kim Strassel, brings this issue to the fore.

http://online.wsj.com/article/SB10001424052702304723304577368280604524916.html?mod=WSJ_Opinion_LEADTop

If the regulatory process is soon to be so divorced from congressional
budgetary processes and meaningful judicial review -- and I am thinking now
of the powers vested in an IPAB or Dodd-Frank's new consumer czar -- the
prospect of *post hoc* regulatory decisions, made by winning officeholders
who have already demonstrated a willingness to reward friends and frustrate
opponents, can intimidate businessmen deciding whether to speak at all in
the election.

An answer to this drain on popular sovereignty is for business-men and
-women to 1) seek the *Socialist Workers* exemption 2) to campaign
disclosure of independent communications (not candidate donations) 3) for
potential speakers who 4) have observed the actions of abusive officials of
any party, want to speak against them in the election, and do not want to
be "next."  These business men or women would file as John Does or Jane
Does to protect their anonymity while the district court adjudicates their
application.  If the request is denied, they would have the choice to
proceed or stay silent -- forming a record for appellate review.

If no one receives the *Socialist Workers* exemption from a district court,
appellate courts will have to consider that fact when revisiting not
only *Socialist
Workers'* efficacy as a safety valve, but the importance of "the
informational interest" itself.  If no lower court will grant the
exemption, then, in the new wave of regulatory power sure to come, the
*Carolene
Products* compromise -- that economic deprivations will not be handled in
the courts but rather in robust political processes -- is all but dead.

Even after the Judicial Revolution of 1937, and irrespective of who wins in
November, regulatory power is only legitimate if it is the result of robust
political processes.

Now back to Scalia, our discussion, and the Home of the Brave.  Where
citizen-on-citizen intimidation is facilitated by disclosure, as in the
Prop 8 cases and *Doe v. Reed*, Scalia wants citizens to toughen up and get
some "civic courage."  But I believe where *government*-on-citizen
intimidation is facilitated by public disclosure Scalia would not look
favorably upon this *at all.*  Scalia knows our Founders pledged their
lives, fortunes and honor in their 18th century campaign against the King.
But these men were already acting outside the political system of their
day, not within it.  Their "Courage" cannot be the model Scalia would hold
businessmen to while U.S. courts are open.  The reasonable probability of
government-on-citizen retribution can be a difference in kind.

It is conventional wisdom that Scalia likes what he calls "real"
constitutional law -- not just adjudicating rights under the first ten
amendments, but deciding questions about relative power distributed among
co-equal branches.  Scalia would recognize that, after 1937 and the *
Carolene* compromise of 1938, regulatory legitimacy derives almost entirely
from robust political processes.  I have to believe he would understand
that those asked to speak electorally in an atmosphere of a probable
government retribution knowing their is a 50-50 chance their side will lose
the coming election are not "Brave" but martyrs or fools.

Most importantly, Scalia knows that when robustness is chilled, the *
Carolene* compromise itself is called into question.  Not only are speech
rights deprived, the electoral crucible that ensures popular sovereignty
begins to produce tainted results; and the very structure of government and
relative power among the branches risks being altered.

This is a theory I will be promulgating when I get the opportunity, in
addition to this old op-ed.
http://www.nationalreview.com/blogs/print/266623  If anyone else wants to
develop it, please be my guest.

-- 
Stephen M. Hoersting
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