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

[Steve Hoersting]

Fantastic, Joe.  Send out a "shameless plug" when it's time.

On Mon, Apr 30, 2012 at 12:02 PM, Joseph Birkenstock <
jbirkenstock at capdale.com> wrote:

> 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*****
>
> *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
> 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/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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>
> --
> Stephen M. Hoersting****
>
>  ****
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> Stephen M. Hoersting****
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Stephen M. Hoersting
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