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

[Steve Hoersting]

Mark,

I will stipulate there will be many objections until this theory is
developed and resolved.  But it is a theory worth pursuing.  Full
participation in politics is, after *Carolene,* the predicate to
legitimizing the elected officials who will make regulatory decisions, and
a predicate to the Court staying out of, not re-entering, the matter of
economic deprivations.

You say, "[my] 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 else would know."

First, my proposal would provide the *Socialist Workers* safety valve to
opponents of abusive officials.  Only if that does not work, in, say, a
handful to 100 cases, would the Court have no choice but to review the
informational interest itself.

Second, you and I may see different problems.  Regulatory legitimacy can be
restored when each individual believes he can exercise his right to speak.
Only then is the electoral crucible re-sealed, so to speak.  As you say, an
abusive administration, congressional committee chairman or governor can
continue to reward his friends.  That only makes the affidavit John Doe
must swear all the easier to write.  Again, the friends would be disclosing
under the informational interest.  The probably-to-be-put-upon opponents
will be seeking the *exemption* to that informational interest: *Socialist
Workers.*

I will have to read, not just skim as I have before, Ian's Ayres Rawlsian
take on campaign disclosure and public policy making.

Third, I differ from you in that I have always had very little interest in
"testing patterns" as a matter for legislating at the core of the First
Amendment.  I have often thought reformers use the desire to "test
patterns" as the driver for more disclosure in improper areas, with perhaps
the best example being American University's James Thurber's desire to
achieve grassroots lobbying disclosure for all the studies he'd run (among
other policy reasons).  Grassroots lobbying disclosure rests on the false
premise that sunlight on citizens is the disinfectant, rather than sunlight
on governmental operations.  And Bauer taught us long ago that disclosure
is, always and at a minimum, "a beachhead to conduct operations inland."
My interest here is not in testing patterns but in ensuring that all who
want to speak for or against the slate of candidates in 2012, 2014, 2016
and so on, do so without the reasonable belief they will be dinged in
future regulatory processes if they do so.

Fourth, you cite my three examples.  Let me address Boeing.  From memory,
it is my understanding that the NLRB lifted its Boeing suit
*after*administration-allied unions got nearly all the contract
concessions they
wanted in their latest round of negotiations.  To the extent the matter was
an instance of punishing an opponent, I'd say that is a pretty clear case
of message sent; message received -- sent not by protest but by raw
government force.  A John Doe affiant could say he's received the message
as well, no matter the motive the government used for visiting that abuse
(you yourself said it was a bad regulatory decision).  But you want to tie
it not just to evidence of a propensity to abuse but to the direction of
campaign contributions.  By why see the matter entirely as a case of *
punishing* Boeing?  I am equally willing to see it as *rewarding* Labor, a
far, far bigger contributor to the administration -- and something a Jane
Doe can explain clearly in her affidavit for a *Socialist Workers*exemption.

Fifth, you say, "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.)"

I wish you had no point here, but I am afraid you do.  Three reasons
against regaining our politics from intimidation by seeking the *Socialist
Workers* exemption are, I wish it were otherwise, Blair Hull (unsealed
court records), Jack Ryan (unsealed court records) and Joe the Plumber
(contents of records divulged).  These are far from the only examples in
history, I am sure.  But if American businessmen do not have the courage,
dare I say "civic courage," to put their faith in the courts to protect
them from a probability of retribution and to let them speak, then surely
we are lost.

Thanks for your comments.  I will continue to consider the theory, as I am
sure you will.

I will have to read and address the no-doubt-thoughtful comments of Dan,
Rick and others later in the day.

Good morning,

Steve

On Sun, Apr 29, 2012 at 11:26 AM, Mark Schmitt <schmitt.mark at gmail.com>wrote:

>  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>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
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>
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-- 
Stephen M. Hoersting
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