[EL] An attempt to rigorously define the disclosure debate

[Scarberry, Mark]

Michael says that the

"journalism exceptions appear to me to be covered under the separate First Amendment freedom of the press."

I think it is very clear that protection of the freedom of the press is protection of an activity, not protection of a class of speakers. If I print up a bunch of leaflets, I'm protected by freedom of the press; ditto if I publish a book in hard copy using my laserprinter or in electronic format for online purchase by Kindle users. I'm as protected as MSNBC if I create video for broadcast or for posting on YouTube or iTunes or for distribution as an email attachment.

The institutional press, however we might want to define it, has no more right to freedom of the press than anyone else. The New York Times corporation gets no more protection than any other corporation. Same with NBC (or whoever owns it now) or the nearly worthless (sold for one dollar, right?) Newsweek.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law

-----Original Message-----
From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Michael McDonald
Sent: Sunday, August 12, 2012 12:53 PM
To: law-election at uci.edu
Subject: [EL] An attempt to rigorously define the disclosure debate

Brad,

Thanks. You've helped me clarify my thinking on this issue in a way that I hope productively contributes to this debate. Let me try to rigorously sketch out the process of speech and money. I welcome others who may wish to clarify.

Speech occurs between a speaker and receiver. (There is no speech without a receiver unless one is schizophrenic.) For example, a volunteer canvasser can speak to another person or the CEO of Chic-fil-A can make statements on video. The receiver can assess the speaker and decide to take action accordingly. When money is added to the dynamic, speech occurs between a speaker, a paid intermediary (e.g., a paid staffer or a commercial created by a media firm), and a receiver. With no regulation, the paid intermediary can chose to reveal the identity of the speaker to the receiver, not to disclose, or send a false message. When the government requires disclosure, the receiver can be informed of the identity of the speaker. (Someone has to have written out this formal description of speech in the context of disclosure somewhere!)

Those who support disclosure take the perspective of the receiver. They believe that the receiver has a right to know the identity of the speaker and that political markets function best when there is complete information among all participants.

Those who oppose disclosure take the perspective of the speaker. They believe that the speaker has a right to make anonymous speech and should not be coerced by the government to reveal their identity to receivers. (Putting aside that the government maintains an environment that enables anonymity between the speaker, a paid intermediary, and receiver: a currency, regulated financial institutions, and government-owned airwaves.)

The debate on the list serve is so frustrating to me because there is no real discussion of balance. I will grant that there may be isolated instances of illegal harassment from required disclosure, any speech (not just political) can result in harassment or worse when the receiver disagrees with it; but as many have pointed out these cases can be properly dealt with by law enforcement. Those who have studied or read political communication know that information plays an important role in elections.
This is why I believe that political markets function best with disclosure.
A well-functioning democracy weighs heavily in my calculations in favor of disclosure.

As asides in response to Brad, journalism exceptions appear to me to be covered under the separate First Amendment freedom of the press. And I do not believe that Sen. Reid's accusations are a good example of anonymity - people make claims all the time with contestable factual basis. You might include as another example Romney's characterizations of various authors that they have disavowed as false. To take the example further, to assess Ryan's philosophy not only would be need to know Ayn Rand is Ryan's inspiration, we would have to know everything that has informed his beliefs.
This is, of course, preposterous. We know who Sen. Reid is, which allows receivers to judge the merits of the information, which the Romney campaign has done by pointing out the messenger's obvious conflict of interest.
Indeed, I don't think the example would have been raised if we did not know Sen. Reid's identity.

-Mike

============
Dr. Michael P. McDonald
Associate Professor, George Mason University Non-Resident Senior Fellow, Brookings Institution

                             Mailing address:
(o) 703-993-4191             George Mason University
(f) 703-993-1399             Dept. of Public and International Affairs
mmcdon at gmu.edu               4400 University Drive - 3F4
http://elections.gmu.edu     Fairfax, VA 22030-4444

From: Smith, Brad [mailto:BSmith at law.capital.edu]
Sent: Saturday, August 11, 2012 5:38 PM
To: mmcdon at gmu.edu; law-election at uci.edu
Subject: RE: [EL] Check out Unions ready to send volunteers out for Obama | Fox News

Michael has made an assertion several times that I think is incorrect and I guess I'll address it. Michael says that the harassment argument "treats money differently than other forms of speech."

This, I think, is wrong. Anonymous speech is protected in a host of ways.
For example, many states journalism shield laws that protect journalists from revealing their sources; in other words, sources can remain anonymous.
Even where such laws do not exist, I am not aware of any state that requires public revelation of sources other than in the context of legitimate criminal investigations and the the like. Magazines and newspapers will even occasionally publish op-eds by persons under pseudonyms or anonymously.
Persons can place comments all over the internet anonymously, and a great many bloggers, some of reasonable prominence, have blogged under pseudonyms.
Callers to C-Span and other radio and television shows remain anonymous.
Harry Reid has no requirement to reveal the name of the mysterious "Bain investor" who apparently has had access to Mitt Romney's tax returns but, for whatever reasons, chooses not to come forward beyond his conversation with Harry. Let us admit, that if Reid's not just making it up, this guy is pretty influential.

Persons can anonymously post notices, including political notices, in public places. Those union member or Planned Parenthood volunteers who canvass neighborhoods are protected by the Constitution from having to reveal their names, let alone their addresses and employers. See Thomas v. Collins; Watchtower Bible & Tract Society v. Village of Stratton.

"Anonymity," as it is used in this discussion, doesn't mean that nobody knows who the speaker is. Obviously, somebody does - somebody collects and cashes the check of the billionaires and trillionaires, and the citizens of much more average means, who write checks big and small.

Obviously, some forms of political speech and involvement require a general public revelation. But only in the case of financial participation does the law require one to publicly disclose one's name, address, and employment. As Michael notes himself, most volunteer activity is not subject to compulsory disclosure. This doesn't mean that no one will know about, but it does make it much less likely that persons will learn about the participation. Some types of speech allow a greater degree of privacy than others. For example, if one agrees to film an endorsement for a candidate, there won't be much anonymity. If, on the other hand, one marches in a protest, some might see that person, and the person might be caught on film; but generally, the participant is "anonymous," one of a crowd - not forced to broadcast his or her participation to the world unless desired. And if the person wishes to make GOTV calls or stuff envelopes from HQ, he or she will remain anonymous to the world outside the campaign - just like a financial donor would but for compulsory disclosure laws.

Political and policy consultants can communicate anonymously with candidates in ways that might help them win, and they can do so even if they are CEOs of Fortune 500 companies.

The vast majority of political activity in the country goes on "anonymously," in the sense that there is no government law requiring its disclosure, and the actor or speaker is able to hide his identity to the extent practical and desired.

It is interesting to me that Mike would require public disclosure of certain volunteer activity. I'm pretty sure I would take the other side in that debate, although never say never, not knowing what hypos Mike might create, or what real world scenarios may appear. But Mike's starting premise strikes me as wrong. Critics of excessive disclosure generally want the government to bear the burden of demonstrating the necessity of compulsory disclosuree, and would otherwise treat it as other political speech is treated - as anonymous as the speakers cares to, and can, make it.

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
   Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
614.236.6317
http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________________
From: law-election-bounces at department-lists.uci.edu
[law-election-bounces at department-lists.uci.edu] on behalf of Michael McDonald [mmcdon at gmu.edu]
Sent: Saturday, August 11, 2012 4:38 PM
To: law-election at uci.edu
Subject: Re: [EL] Check out Unions ready to send volunteers out for Obama | Fox News

In numerous past exchanges, we have heard from Jim Bopp and others that anonymity is the overriding factor for opposing campaign finance regulation, so that a person could not be subject to harassment. Yet, in this example a union volunteer's speech has no anonymity. I am heartened that we may finally have gotten past the harassment argument that treats money differently than other forms of speech.

A concern for the supporters of campaign finance regulation is corrupting influence of money. I think Jim makes a valid point that we should have a discussion if in-kind donations should be considered similar to monetary donations for their corrupting influence and subject to disclosure.
Certainly, I believe that the money that the unions have contributed to organizing the canvassing effort should be disclosed (has it not?) if supporting the campaign and not, say, targeted at issues to increase union membership. But the organizing is not an in-kind contribution from a volunteer, although it seems like it is being conflated with it.

If we are to say that an in-kind contribution originating from canvassing should be disclosed, then that raises some interesting questions. First, I am not convinced that door-to-door canvassing by a volunteer should be given a monetary value equal to a paid staffer since in the latter instance someone has to be induced to do something that they would not otherwise do, but I am willing to stipulate it has value to a campaign. If as a volunteer I knock on a door but no one is home, does that count as an in-kind contribution to the campaign? Does the time walking from door to door count?
I.e., is it the act of speaking that counts or should all activities that lead to the speech count? If I speak to my neighbor over the fence or discuss politics at a poker game, should that trigger disclosure? Should we limit the speech to canvassing, or should it include activities like writing an e-mail or a blog comment? How are we to monitor such activities for compliance with disclosure, especially in light of the Obama campaign releasing their canvassing app that requires minimal contact between the campaign and volunteer? And what specific speech should be disclosed, should it be only those that invoke the magic words asking for a vote? It strikes me that the minimal monetary value of volunteering balanced against these questions should weigh in favor of not disclosing volunteer canvassing.
However, I do think there should be a threshold of volunteer activity that should lead to disclosure, such as an expert volunteering their specialized skills to aid a campaign.

============
Dr. Michael P. McDonald
Associate Professor, George Mason University Non-Resident Senior Fellow, Brookings Institution

Mailing address:
(o) 703-993-4191 George Mason University
(f) 703-993-1399 Dept. of Public and International Affairs mmcdon at gmu.edu 4400 University Drive - 3F4 http://elections.gmu.edu Fairfax, VA 22030-4444

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of JBoppjr at aol.com
Sent: Saturday, August 11, 2012 3:31 PM
To: Mark.Scarberry at pepperdine.edu; joseph.e.larue at gmail.com; jerald.lentini at gmail.com
Cc: law-election at uci.edu
Subject: Re: [EL] Check out Unions ready to send volunteers out for Obama | Fox News

Even at $10 an hour, we are talking about one days value at $36,000,000. If they spend 3 Saturdays doing this, we are up to almost $100 million. "Reformers" were apoplectic when one casino owner gave $10 million to a Super PAC, not $100 million to a candidate. No press releases from "watch dog" Fred. No editorials in the NYTimes. Interesting.

Even if the union members do it for free, the union leadership has organized this and it would not happen if they had not. Furthermore, as I understand the articles, the union used union employees to do the organizing. Obama will certainly give the union leadership credit for this
-- which "reformers" would call "corruption" if done by a corporatio -- and they would be calling the people involved criminals. But nothing but silence. Jim

In a message dated 8/11/2012 1:01:35 P.M. Eastern Daylight Time, Mark.Scarberry at pepperdine.edu writes:
Is the union paying the workers for their canvassing work?

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law



From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Joe La Rue
Sent: Saturday, August 11, 2012 9:29 AM
To: Jerald Lentini
Cc: JBoppjr at aol.com; law-election at uci.edu
Subject: Re: [EL] Check out Unions ready to send volunteers out for Obama | Fox News

I find it funny that Jerald, in arguing about the value of the contribution, has proved Jim's point. A union sending its members to campaign for a candidate is a valuable in-kind contribution. But most reformers won't see that as a problem, as Jerald just demonstrated. But let a corporation make a contribution up to the regular, noncorrupting contribution limits, and the sky will fall.

On Aug 11, 2012, at 7:38 AM, Jerald Lentini <jerald.lentini at gmail.com>
wrote:
Believe it or not, Jim, my intent in criticizing your comment was to point out its lack of foundation and merit, not to "chill your speech." Or is criticism from private parties inherently chilling now, too?
On Sat, Aug 11, 2012 at 10:03 AM, <JBoppjr at aol.com> wrote:
One of my assumptions was that this was just for one day's work. I now see from this Click here: Labor chief Trumka vows stronger ground game for elections - Washington Times that it is much more than that.

No, I don't know what the going rate for canvassers is. Maybe someone on the list serve can provide that info. In any event, we are talking about 100s of millions of dollars for this effort.

And, JR, I know that your name calling is intended to chill my speech (boy, we have seen a lot of that coming from the left these days) but, sorry, it just won't work. Jim Bopp

In a message dated 8/11/2012 9:29:00 A.M. Eastern Daylight Time, jerald.lentini at gmail.com writes:
Jim, all else aside, do you really think the value of an in-kind contribution is what the person's normal hourly rate doing something completely different would be, and not the value of the service actually rendered?

Unless you think a canvassing program that happens outside business hours should be valued as an in-kind contribution of what the volunteers would make doing their regular jobs (which are most likely a little more taxing than knocking on doors), then your snark makes no sense.

-JR


On Sat, Aug 11, 2012 at 9:09 AM, <JBoppjr at aol.com> wrote:
AFL-CIO to send out 3 or 400,000 volunteers to help Obama. See

Click here: Unions ready to send volunteers out for Obama | Fox News

I have always been curious why the "reformers" only focus only on money. This sure seems like a very valuable contribution to the Obama campaign to me (if this is coordinated, but I cannot figure that out. Anyway the "reformers" say it doesn't matter -- corruption either way). Many of these volunteers make 30, 40 or 50 dollars an hour, so this is a 144 million dollar contribution to the Obama campaign. 400,000 x 8 x 40 = $144,000,000.

And the "reformer" scream bloody murder over contributions from corporations of a few thousand. Jim Bopp

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