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

[Steve Hoersting]

Mark tells me this may not have made it to the list intact.  Apologies to
those who got the whole message the first time.

Steve

---------- Forwarded message ----------
From: Steve Hoersting <hoersting at gmail.com>
Date: Mon, Apr 30, 2012 at 10:31 AM
Subject: Re: [EL] Too Brave for the "Home of the Brave"?
To: Mark Schmitt <schmitt.mark at gmail.com>

Mark,

The "proposal," and that's probably not the right word, is that businessmen
seek the *Socilist Workers* exemption to compelled disclosure of
non-corrupting speech -- implicating not the anti-corruption interest but
the informational interest only.

If businessmen can win the exemption vis a vis an abusive officeholder, and
be freed to speak against him without fear of regulatory reprisals, good.
If no businessman is ever granted the exemption, the reason why all the
denials will be subject to judicial review: Why isn't the *Socialist Workers
* safety valve applying here?  All cases agree it is in place: *Doe v.
Reed, Van Hollen v. FEC,* and the rest.  Why is no one getting it?

The Supreme Court may have to undertake review of those denials, keeping on
the table but not necessarily needing to reach, the question whether the
public benefit of compelled disclosure for non-corrupting speech is not now
too costly a public good.  In other words, would the informational interest
itself have proven too costly relative to its benefits while agencies
possess untrammeled power?

"How to write the affidavit," as you rightly put it, is the whole ball of
wax.  And is something I've been thinking about.  I would encourage anyone
generally on my side of this free-speech issue to begin thinking the same.

Steve


On Mon, Apr 30, 2012 at 10:06 AM, Mark Schmitt <schmitt.mark at gmail.com>wrote:

>  One small clarification: You write, "you yourself said it was a bad
> regulatory decision" -- that is, the NLRB case against Boeing. Actually, I
> said that all three *may* be bad regulatory decisions. That is, I wasn't
> making any argument about the substance of the decisions, just the evidence
> about whether it was plausible that they were retaliation for political
> giving. I'm not familiar enough with the Forest Labs or Shell decisions to
> have an opinion; I have one on Boeing but it's not relevant.
>
> It sounds like you have a specific legislative/regulatory proposal. Have
> you published it somewhere? I'm just curious what the affidavit would say,
> if not to provide some evidence of politically motivated retaliation. The
> Socialist Workers Party had to provide the FEC with a fair amount of
> specific evidence of harassment, often violent. I don't see how a business
> could do that without disclosure, and without "testing patterns" to find
> the evidence of retaliation.
>
> Finally, when I say that political operatives generally know who their
> opponents' backers are, I didn't mean anything having to do with leaking
> court documents or anything like that. I just meant that, generally, people
> in power know who their friends and their enemies are, with or without
> disclosure.
>
>
> Mark Schmitt
> Senior Fellow, The Roosevelt Institute <http://www.newdeal20.org>
> 202/246-2350
> gchat or Skype: schmitt.mark
> @mschmitt9 <https://twitter.com/#%21/mschmitt9>
> On 4/30/2012 8:31 AM, Steve Hoersting wrote:
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20120430/6cfa321a/attachment.html>