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

[Mark Schmitt]

Here's a third objection (and there are surely others): Let's stipulate 
that the executive branch works as you claim it does: agency officials 
routinely take arbitrary regulatory actions to reward the sitting 
president's political friends and punish his political enemies. Even if 
that were the case, your solution of blocking campaign spending 
disclosure would work, at best, on only one side of the problem, because 
it hides only one side of the transaction. It might make retribution 
harder. But the party in power would still know exactly who its friends 
are, and could reward them. But no one else would know. Journalists, 
opposing campaigns, researchers, and congressional investigators and 
even prosecutors would have no ability to determine whether the 
administration was, in fact, rewarding its financial backers. And if the 
agency administrators are the unprincipled political operatives you 
depict, they're also unlikely to be ignorant about who the 
administration's political opponents are. (Whether they are named on a 
campaign-affiliated web site or not.)

Ian Ayres' solution (in the 2002 book /Voting with Dollars, /with Bruce 
Ackerman) of mandatory anonymity on contributions was theoretically 
appealing. If every single legislative or administrative action could 
take place behind a veil of total ignorance, on all sides, about who the 
donors were, that might be as effective, in its own way, as total 
disclosure. But it's a thought experiment, not a realistic proposal, 
because of course elected officials will know exactly who their 
financial supporters are, even if they're not sure of the exact amounts. 
And they know who their opponents' backers are, just as they can know 
with reasonable accuracy what share of the vote they'll get from a given 
county or state or demographic category.

In the dystopian "government by waiver" coupled with massive cronyism 
and revenge that you depict, the broadest possible disclosure would be 
absolutely essential, in order to actually reveal or test the patterns 
of favoritism and revenge you see. For example, in your 2011 National 
Review article, you cite three examples of the administration taking 
action against businesses: the NLRB action against Boeing; the move by 
the HHS Inspector General to exclude Forest Laboratories from 
participation in federal health programs, following three criminal 
guilty pleas on fraud charges; and an EPA rejection of Shell's permits 
to drill in the Arctic. Without disclosure, we would have no evidence at 
all about whether these decisions were politically motivated. With 
disclosure, they become testable propositions. As it happens, Boeing is 
primarily a Democratic donor and, as a Chicago company, a huge source of 
money for Obama;  Forest Labs CEO Howard Solomon is /exclusively/ a 
Democratic donor and a big one; and only Shell is mostly a Republican 
donor. These may have been bad administrative decisions, but there's no 
reason to think they were retribution for political spending. Without 
disclosure, we can't even try to answer that question.

All three actions have since been settled, dropped, or reversed, also by 
administration officials.



On 4/27/2012 1:05 PM, Steve Hoersting wrote:
> 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 
> <mailto: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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-- 
Mark Schmitt
Senior Fellow, The Roosevelt Institute
202/246-2350
gchat or Skype: schmitt.mark
twitter: @mschmitt9
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