[EL] accountability and disclosure

Fri Jun 1 12:55:35 PDT 2012

          I believe the very difficult policy questions in this debate must take cognizance of the surrounding circumstances.

          During most of my now rather lengthy lifetime the prevailing norm in the United States has been that while strenuous and heated political debate is fairly constant, reprisals other than comments or other behavior within the context of political debate itself were not even to be considered.  There were two significant exceptions.  In some areas of the Deep South during the segregation era, reprisals for political positions were, if not common, also not rare.  Through the mid or late 1950s, there were sometimes reprisals against people who expressed far-left views.  Underlying these reprisals was what turned out to be a correct belief that some of the objectionable speech was part of an enterprise intended to subvert American government and serve the interests of a foreign totalitarian state.  But the reprisals, as is almost inevitable, went beyond those engaged in that enterprise.  Otherwise, whenever an individual instance of violation of this strong norm has arisen, as in the case of the Nixon administration's enemies list, the response was universal repulsion.

         By the beginning of the 1970s, when I began to work on campaign finance, the above exceptions were history and the norm against reprisals for political activity unquestioned, in theory and in practice.  But sometime since the beginning of this century, that has ceased to be the case.  Whatever the courts cited by Rick Hasen may have found on the specific factual questions relevant to the issues before then, the rise of reprisals is plainly apparent to anyone willing to see.  The Target boycott and others, despite their presumed legality, are reprehensible.  The demonization of the Koch brothers because of their political activity is equally so.  In the wake of Proposition 8, numerous spectacular instances of reprisal, such as people being hounded out of their jobs, were reported in a press that, to say the least, had no sympathy for supporters of Proposition 8.  The reported incidents were the tip of an iceberg.  Instances of vandalism were commonplace.  I had a student whose apartment window was smashed and whose wife's car was vandalized.  (There were Prop 8 signs in the window and on the bumper.)  I know personally of disgusting letters and e-mails sent to people whose names and addresses could only have been obtained from either Prop 8 petitions or campaign statements.  The recent incident in which an EPA bureaucrat was forced to resign because of a speech in which he admitted (boasted!) that his method was to single out companies and make an example of them so that other companies would kowtow reflects the same spirit.  As does the recently reported incidents of SWATting.

          A balance has to be drawn between the imposition on privacy caused by disclosure requirements and the purposes served by disclosure.  I do not pretend to know where the line should be drawn.  During the era when the anti-reprisal norm prevailed universally, I recognized that some people object to being publicly identified as engaged in political activity and that disclosure requirements can be quite burdensome, especially for small- and medium-timers.  Still, I tended to resolve doubts in favor of disclosure.  In the current era, I think we ought to be looking first at which unnecessary disclosure requirements might be scaled back, rather than looking for new ways to extend them (though I recognize, of course, that both can be done at once).

          But the bigger question is not campaign finance disclosure.  It is the urgent need to restore to our democracy the strong norm that NO reprisals outside the political sphere for legitimate political activity are anything but vicious and repulsive.

             Best,

             Daniel H. Lowenstein
             Director, Center for the Liberal Arts and Free Institutions (CLAFI)
             UCLA Law School
             405 Hilgard
             Los Angeles, California 90095-1476
             310-825-5148

________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] On Behalf Of JBoppjr at aol.com [JBoppjr at aol.com]
Sent: Friday, June 01, 2012 10:56 AM
To: mmcdon at gmu.edu; law-election at uci.edu
Subject: Re: [EL] accountability and disclosure

    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 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             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 Smith,
Brad
Sent: Friday, June 01, 2012 1:00 PM
To: 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
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 12:37 PM
To: 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>
Reply-To:
<ekesler at democracy21.org>
To:
Rick Hasen <rhasen at law.uci.edu>

_________________________________________________________________
Democracy 21 News Release, June 1, 2012, 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 or kbeard at democracy21.org.

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

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