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

Fri Apr 27 09:45:50 PDT 2012

The idea of "citizen on citizen retribution" misframes the reality of
politics, in which it is not only officeholders or candidates for office
that run (or are under question or attack), but entire political "teams" or
"families," including but not limited to major elements of the political
party to which the candidate or officeholder claims association.

Because of this "team" reality, critics attack Obama's pastor or past
pastor, and rightly or wrongly claim an association and an identification
between pastor and candidate.  While the validity of such identifications
is always contestable, these identifications range from legitimate issues
to unfair attacks, and it is up to the political process to decide what
validity each alleged association has.

Most if not all "citizen on citizen" so-called "retribution" cases are in
fact attacks on some alleged member of an opposing team.  Disclosure
exemptions and other secrecy options *seek to prevent the public from even
being able to identify who the team members are on some other team* -- i.e.
who the contributors or supporters are.  Such secrecy does have an
apparently salutary effect of eliminating baseless debates or attacks, but
it also throws out the legitimate attacks based on associational arguments,
and it is up to the political process to sort out which attacks have some
merit and which are baseless.

"Retribution" is, in most instances, too strong a word.  After all, it is
quite legitimate to seek "retribution" in the form of removing an
officeholder from power, or moving to impeach and the like, which
necessarily involves loss of employment, loss of status, and a very
significantly diminished ability for the candidate or officeholder to get
their political speech and ideas out in the public, relative to these
abilities if they retain office or gain office.  That's a very diminished
ability to exercise First Amendment political speech rights, and it is
legitimate as a consequence of losing an election or losing power.

Thus, "retribution" is a sanctioned and approved part of the political
process in many ways, and on the other end of the spectrum we have
restraining orders and the criminal law against real retribution.  These
laws and orders are deemed sufficient to protect all of us from even the
most serious crimes through the utilization of deterrence and *ex
post*prosecution.  If they are adequate for murder, why aren't they
adequate in
the area of robustly free speech?

In the end, "citizen on citizen retribution" is a clever, but quite
misleading, way to frame the general issue.  The public has the inalienable
right to "kick the bums out" and the "bums" are not merely the
officeholders but the political teams of workers and supporters these
officeholders rely upon not only to  hold office but especially to seek
election or re-election to office.  This implies a right to know who the
supporters or team members are.

Paul Lehto, J.D.

On Fri, Apr 27, 2012 at 12:04 PM, Steve Hoersting <hoersting at gmail.com>wrote:

> 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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-- 
Paul R Lehto, J.D.
P.O. Box 1
Ishpeming, MI  49849
lehto.paul at gmail.com
906-204-4026 (cell)
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