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

Mon Apr 30 09:02:05 PDT 2012

Well, Steve, if you're inviting in *anyone* else, I'll just quickly
mention an essay I contributed to the upcoming issue of the Virginia
Journal of Law and Politics titled "Three Can Keep a Secret, If Two of
Them Are Dead: A Thought Experiment Around Compelled Public Disclosure
of 'Anonymous' Political Expenditures."  In it, I briefly analyze what I
see as faulty claims of anonymity by selectively disclosed political
funders, and spend some time evaluating the various rationales for
compelled public disclosure under the counterfactual that a given
donor's funding is truly anonymous - that is, known only to the donor
and the recipient, but not disclosed at all to any public official.

In short, I come away in a bit of a muddle: on the one hand, I think the
disclosure rationales are all substantially weakened in the case of the
truly anonymous donor, since (among other reasons) the officeholder no
longer knows to whom to be beholden and/or in what degree, which effect
also deeply undermines any public signaling function of the disclosure.
Hard to assume how well a given expenditure will predict an
officeholder's future behavior if & when the officeholder knows nothing
more about the ad than what was actually said in its four corners.
Which, of course, the public is equally positioned to evaluate as a
signal of everyone's future conduct, the group's or the candidate's.  

Yet on the other hand, that conclusion about theoretically weakened
rationales has to confront the reality that I allude to in the title:
claims of donor "anonymity" are much easier to make than they are to
actually live with, and the country has a great deal of lived experience
suggesting that donors generally are much more interested in secrecy and
legislative influence than they are in anonymity and purely electoral
influence, a view which underlies the prohibitions/extremely low dollar
limits on anonymous contributions in federal law and many state & local
laws around the country.

So, while my essay doesn't purport to actually answer anything, I would
just suggest that people stay tuned for the next issue of Law and
Politics for these same basic thoughts laid out in a few thousand more
words.  And with footnotes!!

Best,

Joe

________________________________
Joseph M. Birkenstock, Esq.
Caplin & Drysdale, Chtd.
One Thomas Circle, NW
Washington, DC 20005
(202) 862-7836
www.capdale.com/jbirkenstock
*also admitted to practice in CA

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of
Steve Hoersting
Sent: Monday, April 30, 2012 11:37 AM
To: Smith, Brad
Cc: law-election at department-lists.uci.edu
Subject: Re: [EL] Too Brave for the "Home of the Brave"?

Well said, Brad.  Yes, I agree.

And we need you in this debate.  And anyone else who wants to jump in,

Steve Hoersting

On Mon, Apr 30, 2012 at 11:29 AM, Smith, Brad <BSmith at law.capital.edu>
wrote:

I really don't much want into the theory of this debate here, but the
issue isn't that officeholders know their supporters, it's that they
don't know their enemies - at least not for sure. The K Street project,
for example, worked only when Republicans knew who was giving to
Democrats. With or without disclosure, a corrupt official can pressure
someone for a contribution under threats of reprisal. And he can know
his friends. What he can't know who is working to take him down. The
threats of retaliation can't work so long as the opposition donor
retains deniability - especially since that donor can make a modest
contribution to the corrupt official if need be demonstrate his
"friendship."

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault 

  Designated Professor of Law

Capital University Law School

303 East Broad Street

Columbus, OH 43215

(614) 236-6317 <tel:%28614%29%20236-6317> 

bsmith at law.capital.edu

http://www.law.capital.edu/faculty/bios/bsmith.asp

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Mark
Schmitt
Sent: Monday, April 30, 2012 10:06 AM
To: law-election at department-lists.uci.edu

Subject: Re: [EL] Too Brave for the "Home of the Brave"?

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 <tel:202%2F246-2350> 
gchat or Skype: schmitt.mark
@mschmitt9 <https://twitter.com/#%21/mschmitt9> 

On 4/30/2012 8:31 AM, Steve Hoersting wrote:

	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/SB1000142405270230472330457736828060452491
6.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

		_______________________________________________
		Law-election mailing list
		Law-election at department-lists.uci.edu

http://department-lists.uci.edu/mailman/listinfo/law-election

	-- 
	Mark Schmitt
	Senior Fellow, The Roosevelt Institute
	202/246-2350 <tel:202%2F246-2350> 
	gchat or Skype: schmitt.mark
	twitter: @mschmitt9

	_______________________________________________
	Law-election mailing list
	Law-election at department-lists.uci.edu
	http://department-lists.uci.edu/mailman/listinfo/law-election

	-- 
	Stephen M. Hoersting

_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu
http://department-lists.uci.edu/mailman/listinfo/law-election

-- 
Stephen M. Hoersting

<- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ->
To ensure compliance with requirements imposed by the IRS,
we inform you that, unless specifically indicated otherwise,
any tax advice contained in this communication (including any
attachments) was not intended or written to be used, and
cannot be used, for the purpose of (i) avoiding tax-related
penalties under the Internal Revenue Code, or (ii)  promoting,
marketing, or recommending to another party any tax-related
matter addressed herein. 

This message is for the use of the intended recipient only.  It is
from a law firm and may contain information that is privileged and
confidential.  If you are not the intended recipient any disclosure,
copying, future distribution, or use of this communication is
prohibited.  If you have received this communication in error, please
advise us by return e-mail, or if you have received this communication
by fax advise us by telephone and delete/destroy the document.
<-->

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20120430/6299f2dc/attachment.html>