[EL] accountability and disclosure

Fri Jun 1 12:51:29 PDT 2012

If we don't count the documented instances of people losing their jobs due to boycotts, having property vandalized, and so on.

I understand that the level of harassment one should have to endure in society varies from person to person. Some folks support laws to restrict "hate speech" for example.

>From my perspective, I keep going back to the government interest. Let's assume that the level of harassment is as low as Rick (mistakenly) insists: OK - where is the government interest in facilitating that private harassment at that low level? Historically, the public's "right to know" was the right to know about government - not to have government force disclosure of facts about other citizens. That takes us back to Jeff Milyo's point: shouldn't the government need a more serious case to justify its infringements on the privacy of citizens?

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 Rick Hasen [rhasen at law.uci.edu]
Sent: Friday, June 01, 2012 3:43 PM
To: Steve Hoersting
Cc: law-election at uci.edu
Subject: Re: [EL] accountability and disclosure

Not only do I not agree.  This has been tested in court in the most controversial areas of social policy today and found wanting.  Go read those gay marriage referendum cases.  Here's the harassment that the group faced:  one guy was mooned. another was given the finger.
Those who make claims of widespread harassment are either misinformed or disingenuous.

On 6/1/12 12:41 PM, Steve Hoersting wrote:
No, Rick: it's a fear of harassment.  The underlying fear is one of businessmen or women acutely aware that ministers tied to a winning politician or politicians can, more and more "legitimately," determine the very economic fate of a businessman or woman after an election.

This is lost on no one.  This is the message sent when a Chuck Schumer (let alone a Van Jones) says, "The deterrent effect of disclosure should not be underestimated."

This is a real problem, whether you agree it is or not.  It's all the larger problem when we see, as Smith has been detailing, that the Court's articulated interests for disclosure of independent political speech are not being furthered in the current "accountability" crusade.

Steve

On Fri, Jun 1, 2012 at 3:25 PM, Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:
Does the public have a compelling interest in keeping foreign money out of elections?  The lower court said so in Bluman, and the Supreme Court unanimously affirmed.  Jim Bopp said this was the right decision (along with making derogatory comments about Democrats and communist China if I recall).  And where is the scientifically sound statistical evaluation to back this up?    Without it, should courts let foreign governments flood our elections with money?  Of course not.

When it comes to disclosure, we know that voters rely upon cues about who pays in evaluating the worth of such ads.  We know that there are prosecutions of elected officials and contributors which occur after campaign finance information is disclosed.  We know the FEC looks at campaign information to make sure foreign money is coming in.  No more evidence is necessary.  Eight Justices of the Supreme Court seem to agree.

I must say that it is quite depressing to have to defend disclosure, which used to be endorsed by the likes of someone even as extreme as Senator Mitch McConnell.  But no more.  Truly, there are some who not only want to use all of the wealth at their command to affect electoral and legislative outcomes and to not even stand up in public for what they are doing. It is shameful.  Justice Scalia is exactly right about the need for civic courage.  Let's be clear.  What's at issue here is not a fear of harassment but, as I've said, a desire for speech (and power and influence) without consequences.

Count me out.

On 6/1/12 12:18 PM, Milyo, Jeffrey D. wrote:
Well, at least we now we know who speaks for the public’s interest: it’s Rick!  I guess Dan was right after all…

Rick has claimed repeatedly that disclosure has particular beneficial effects on the quality of democracy, but he surely also knows that there are no scientifically sound statistical evaluation studies of disclosure laws to back this up.  It’s just another example of reformers basing their claims on vacuous appeals to the public interest and repeated unfounded assertions about the effects of regulations.  Shouldn’t the burden of proof be greater than “because I say so”?  The fact that the courts get this wrong time and again is all the more reason to speak out; and who can blame the courts for getting it wrong when they rely on experts who can divine the will of the people and determine the effects of regulations based on intuition and anecdote.

Of course, I may not fully comprehend Rick’s argument, since I don’t know what his salary is or even his home address, so I’m just going off the argument itself without the obvious insights that full disclosure would provide…

From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Friday, June 01, 2012 1:47 PM
To: JBoppjr at aol.com<mailto:JBoppjr at aol.com>
Cc: law-election at uci.edu<mailto:law-election at uci.edu>
Subject: Re: [EL] accountability and disclosure

It is the choice of the people.  Disclosure serves the public interest.  It is not only broadly supported; court's have consistently recognized the strong public interests in disclosure.  Indeed, I don't believe you have succeeded in any of your major litigation challenges to disclosure since Citizens United.  There's a reason for that.  You are an excellent lawyer and win many cases.  But the law, and the public's interest is against you here.  The public wants to know who's behind the ads, for information purposes, to prevent corruption, and to ensure that other campaign finance laws (like the one banning foreign money) are being enforced.  You may not care who is funding the tidal wave of ads you have helped unleashed but you are in a decided minority.

Rick

On 6/1/12 10:56 AM, JBoppjr at aol.com<mailto:JBoppjr at aol.com> wrote:
    Why should this be the choice of the government rather than the speaker and listener?

    It seems to me that the First Amendment makes that the speaker's and listener's choice.  If the speaker wants to risk the fact that some will ignore her if she is anonymous then that is a risk she takes.  If it is up to the government, then the effect is to ban those speakers who won't speak unless they can do it anonymously.

    In addition, I for one am willing to listen to some anonymous speech -- I have read the Federalist Papers.  But I am skeptical of some anonymous speech, like the anonymous letters we often get here before some contested Democrat primary saying scandalous things about one candidate or another.  Why isn't that also the listener's choice?

    Making it the government's choice means anonymous speech is banned for those who will only speak anonymous, even though some would listen to them.

    It also seems to me that the identity of the speaker is also irrelevant to most arguments. Does 2 plus 2 equal 4?   Does the sun come up in the morning?  Is water H2O?  Did the Holocaust happen?  Is Obama a socialist?  Does abortion kill an unborn child?  Why is one thing a fact if Joe says it, but not if Pam says it? Or are all facts just a matter of opinion or true if the government says so? See 1984. Jim Bopp

In a message dated 6/1/2012 1:28:34 P.M. Eastern Daylight Time, mmcdon at gmu.edu<mailto:mmcdon at gmu.edu> writes:
It was the idea of the authors of the Federalist Papers not to disclose
their identity so that others could not attack their arguments on a personal
level, on what they personally could gain or lose in successful or failed
ratification of the constitution. The disclosure argument today mirrors that
strategic choice: is public discussion more or less informative to the
general public if the identity of the speaker is known?

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

                             Mailing address:
(o) 703-993-4191<tel:703-993-4191>             George Mason University
(f) 703-993-1399<tel:703-993-1399>             Dept. of Public and International Affairs
mmcdon at gmu.edu<mailto: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>
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Smith,
Brad
Sent: Friday, June 01, 2012 1:00 PM
To: law-election at uci.edu<mailto:law-election at uci.edu>
Subject: Re: [EL] accountability and disclosure

Of course, in this example, there is no evidence at all of a) corrupt
politicians; b) corrupt spenders; or c) foreign money (although if there
were foreign money, it is highly unlikely it would be disclosed), and d)
there is no evidence that this makes creates a better informed public (note
that the idea of the federalist papers was that that the busy public would
better evaluate the message if it DID NOT know who it came from). So we see
here all the problems of overly broad disclosure regimes.

We can't ban guns because some people commit crimes with them; we can't ban
speech because some people defame others; we can't ban juries because they
sometimes let the guilty go free, and so on.

That said, for reasons I won't elaborate on here, I do believe that some
disclosure can be justified. Unfortunately, the current effort is a push for
broader disclosure than the courts have traditionally upheld, primarily for
the purpose of fostering private harassment of speakers (even if it's
relatively low levels of harassment that don't equate to sending SWAT teams
to kill you), with very little added informational value.

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<tel:614.236.6317>
http://law.capital.edu/faculty/bios/bsmith.aspx
________________________________________
From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>
[law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] on behalf of Rick Hasen
[rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>]
Sent: Friday, June 01, 2012 12:37 PM
To: law-election at uci.edu<mailto:law-election at uci.edu>
Subject: [EL] accountability and disclosure
Great illustration of the need for accountability.  Note how the Koch
brothers and others try  to hide behind the anodyne "Center for Patients
Rights" and funnel the money through numerous organizations to mask their
involvement.
The busy public will evaluate campaign messages better knowing who they
really came from.  And disclosure can make it harder for corrupt politicians
and spenders to escape scrutiny.  At it ensures that foreign money---which
the Supreme Court tells us is perfectly constitutional to BAN because of the
IDENTITY of the speaker--stays out of our elections.

-------- Original Message --------
Subject:
Washington Post Column By Ruth Marcus: An End Run Around Campaign Finance
Laws
Date:
Fri, 1 Jun 2012 12:25:53 -0400
From:
<wertheimer at democracy21.org><mailto:wertheimer at democracy21.org>
Reply-To:
<ekesler at democracy21.org><mailto:ekesler at democracy21.org>
To:
Rick Hasen <rhasen at law.uci.edu><mailto:rhasen at law.uci.edu>

_________________________________________________________________
Democracy 21 News Release, June 1, 2012, www.democracy21.org<http://www.democracy21.org>
_________________________________________________________________
-NOTE TO THE MEDIA-
Enclosed for your review is a Washington Post column published May 31, 2012
by Ruth Marcus, entitled "An end run around campaign finance laws."
An end run around campaign finance laws
By Ruth Marcus
May 31, 2012
To grasp the clear and present danger that the current flood of campaign
cash poses to American democracy, consider the curious case of Post Office
Box 72465. It demonstrates that the explosion of super PAC spending is only
the second-most troubling development of recent campaign cycles.
Box 72465, on a desert road near Phoenix, belongs to a little-known group
called the Center to Protect Patient Rights. According to reports by the
Center for Responsive Politics and the Los Angeles Times, the center
funneled more than $55 million to 26 Republican-leaning groups during the
2010 midterm election.
Where is the money from? The Times found links to the conservative Koch
brothers, yet because the center is a nonprofit corporation, it is
impossible to know. Such groups must disclose how they distribute their
money, not who donates to them.
This privacy makes sense in the context of ordinary nonprofits. But in the
push-the-envelope world of modern campaigns, in which such groups spend
millions of dollars on thinly disguised campaign ads, the result is an end
run around the fundamental principle of campaign finance law: that voters
are entitled to know who is trying to influence elections.
Even the Supreme Court understands this: Disclosure, it wrote in its
otherwise appalling 2010 Citizens United ruling, “permits citizens and
shareholders to react to the speech of corporate entities in a proper way.
This transparency enables the electorate to make informed decisions and give
proper weight to different speakers and messages.”
Except when, as in the case of the Center to Protect Patient Rights, the
identities — and motives — of those giving are hidden from public view. The
center sent almost $13 million to the American Future Fund, a Des
Moines-based group that ran campaigns against two dozen Democrats in 2010.
Rep. Bruce Braley (D-Iowa) was targeted with what the Times described as “a
$2-million fusillade” of radio ads, robo-calls and mailers.
“It was almost a feeling of helplessness because there was no way to
identify who the source of the funds was,” Braley said. He won by two
percentage points, after a 29-point margin two years earlier.
The gusher of secret money that nearly toppled Braley promises to be even
more abundant this year — and the groups behind the undisclosed cash remain
determined to do whatever it takes to keep the sources hidden.
In March, ruling in a lawsuit brought by Rep. Chris Van Hollen (D-Md.), a
federal judge found that the Federal Election Commission was wrong to exempt
nonprofits and other groups that run “electioneering communications” —
advertising that names specific candidates within a short time before the
election — from having to reveal their donors.
It says something about the FEC that the agency charged with overseeing
campaign reporting would come out against disclosure.
Luckily, U.S. District Judge Amy Berman Jackson disagreed. “Congress
intended to shine light on whoever was behind the communications bombarding
voters immediately prior to elections,” she wrote. The federal appeals court
in Washington refused to stay the ruling while an appeal was underway.
The response from the U.S. Chamber of Commerce was telling: It would switch
its way of influencing elections rather than reveal its donors. The chamber,
which has made itself a major political player, plans to spend more than $50
million during the 2012 campaign.
At a breakfast with reporters this week, chamber officials said that, in
reaction to the ruling, the organization would conduct its political
spending through independent expenditures that explicitly support or oppose
particular candidates.
Such is the perverse mess that is the current campaign finance law. Under
the Citizens United ruling, corporations, such as the chamber, can make
unlimited independent expenditures. The upshot is that advertising like the
chamber’s can be even more brutal — because it won’t have to pretend to be
merely “educating” voters — and just as opaque.
Meanwhile, the American Future Fund, the organization that ran ads against
Braley, has brazenly asked the FEC to approve a different end run. The group
contends that if its ads merely mention “the administration” or “the White
House,” they would not be attacking a “clearly identified candidate” and
therefore not subject to disclosure requirements.
This would be laughable — if it were not such a scary illustration of the
lengths to which these groups will go to avoid letting voters know who is
trying to buy their elections, and the unfortunate likelihood that they will
succeed.

#   #   #
Released: June 1, 2012
Contact Kathryn Beard at 202-355-9600<tel:202-355-9600> or kbeard at democracy21.org<mailto:kbeard at democracy21.org>.

For the latest reform news and to access previous reports, releases, and
analysis from Democracy 21, visit www.democracy21.org<http://www.democracy21.org> .

Follow us on Twitter. Like us on Facebook.
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