[EL] Too Brave for the "Home of the Brave"?
Mark Schmitt
schmitt.mark at gmail.com
Mon Apr 30 12:38:41 PDT 2012
It should be noted that the vision of how money works in politics and
how it influences government decisions expressed here by Steve and Brad
is as rigidly deterministic as anything I've ever heard from reformers.
I can't imagine how one could hold that view of government, and not
support full public financing.
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 1:59 PM, Rick Hasen wrote:
> If elected official extortion of lobbyists is the problem with
> lobbyists, the best solution in my view is to take lobbyists out of
> the fundraising business
> <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1734428>. Then
> they can focus on the work of providing valuable information to
> congressional staff without being caught up in this problem.
>
> On 4/30/2012 8:29 AM, Smith, Brad 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 <mailto: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 <mailto: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 <mailto: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 <tel:202%2F246-2350>
>> gchat or Skype: schmitt.mark
>> twitter: @mschmitt9
>>
>>
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>>
>>
>> --
>> Stephen M. Hoersting
>>
>>
>>
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> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000
> 949.824.3072 - office
> 949.824.0495 - fax
> rhasen at law.uci.edu
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> http://electionlawblog.org
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