[EL] An attempt to rigorously define the disclosure debate
Michael McDonald
mmcdon at gmu.edu
Sun Aug 12 18:01:03 PDT 2012
Thanks Ben. Yes, I recall the exhaustive discussion on the list serve
regarding these cases. I should have been clear I was talking about
anonymity and the press in that sentence.
From: Benjamin Barr [mailto:benjamin.barr at gmail.com]
Sent: Sunday, August 12, 2012 7:10 PM
To: mmcdon at gmu.edu
Cc: law-election at uci.edu
Subject: Re: [EL] An attempt to rigorously define the disclosure debate
If there was a constitutional right to anonymity of speech via the press,
then all disclosure would be suspect, and I suspect we would have seen
successful litigation against disclosure long ago.
In support of successful litigation against disclosure - see generally Brown
v. Socialist Workers, 459 U.S. 87 (1982); NAACP v. Button, 371 U.S. 415
(1963); NAACP v. Alabama, 357 U.S. 449 (1958).
More will be coming soon.
Forward,
First Amendment Ben
============
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 Volokh,
Eugene
Sent: Sunday, August 12, 2012 5:40 PM
To: law-election at uci.edu
Subject: Re: [EL] An attempt to rigorously define the disclosure debate
I'm with Mark on this; I canvassed the history of the freedom of the press
in a good deal of detail at http://www.law.ucla.edu/volokh/press.pdf (Penn
L. Rev., 2012), and my conclusion is that the freedom of the press has
consistently been treated as the freedom of all to use mass communications
technology – not a special constitutional right belonging to a particular
industry or profession. That was so around the time of the Framing. It is
so in the Court’s recent precedents. It was so in between the Framing era
and the modern era. It is so if one looks at modern lower court precedents,
with very few exceptions.
I’m of course open to contrary evidence, but when I’ve asked for such
evidence, including on this list, I haven’t seen any. Am I missing
someone? Please let me know if I am. Thanks,
Eugene
> -----Original Message-----
> From: law-election-bounces at department-lists.uci.edu [mailto:law-election-
> bounces at department-lists.uci.edu] On Behalf Of Scarberry, Mark
> Sent: Sunday, August 12, 2012 1:27 PM
> To: law-election at uci.edu
> Subject: Re: [EL] An attempt to rigorously define the disclosure debate
>
> 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 worl d 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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