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

Mon Apr 30 06:09:24 PDT 2012

I was always under the impression that voters select the winning candidate?

Sean Parnell

President

Impact Policy Management, LLC

6411 Caleb Court

Alexandria, VA  22315

571-289-1374 (c)

sean at impactpolicymanagement.com

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Dan Meek
Sent: Sunday, April 29, 2012 5:54 PM
To: Mark Schmitt
Cc: law-election at department-lists.uci.edu
Subject: Re: [EL] Too Brave for the "Home of the Brave"?

Anonymity of contributions (and/or independent expenditures), even if
somehow the officeholders could not find out who made the contributions or
expenditures (highly unlikely), is a solution to only a small part of the
problem.  The problem is not primarily that contributions or expenditures
influence an officeholder who is otherwise a blank slate.  The problem is
that the contributors and expenders select the winning candidates by funding
their campaigns.  They select persons who already share their points of
view.  It does not matter whether the candidate knows where the money
originates.

Dan Meek
dan at meek.net

10949 S.W. 4th Ave
Portland, OR 97219

503-293-9021
866-926-9646 fax

On 4/29/2012 8:26 AM, Mark Schmitt 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.ht
ml?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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