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

[Steve Hoersting]

In the event I was not clear, the kind of retribution I of which I speak is
largely regulatory/economic.

I am not speaking just of crony capitalism.  I am speaking of the increased
importance of political participation in an environment Richard Epstein
describes as "Government by Waiver." Among the ideas is that, as agency
power is subject to less review from the other branches, and more and more
statutes vest vast powers in administrators with repeated statements such
as, "The Secretary shall...," a businessman speaking against the team
empowered to decide, on a multitude of unverifiable factors, whether he
will be a medical provider at all in, say, a nationalized medical system is
not "Brave."  Rather he is something beyond brave where the team,
officeholder or official he would speak against has shown a predilection to
reward allies and frustrate opponents, and has a 50-50 chance of winning.

Two objections I expect... And two quick replies:

1) *Socialist Workers* only protects dissidents and the like, certainly not
business leaders or the wealthy.  Not so.  The paradigmatic case -- *NAACP
v. Ala*. -- protected all contributors to the NAACP.  This must have
included some of the wealthiest, established persons in Birmingham at the
time.  The exemption goes to those who need it.

2) You'll never prove retribution.  It is important to remember, this isn't
tort law.  No one is saying the official is liable here.  And the official
cannot say he would be "damaged" by full political participation,
particularly after *Carolene Products.*   The "reasonable probability of
retribution" standard of *Socialist Workers, Doe v Reed* and the like, is
within the context of the 1st Am. -- and exists only to free political
speakers.  It should be a far lower standard than in tort law.

Steve

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
>
>


-- 
Stephen M. Hoersting
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