[EL] accountability and disclosure

Fri Jun 1 13:08:02 PDT 2012

Friends:  What Brad finds "depressing" is the "constant fanning of the
fears of 'foreigners' as an excuse for broadly intrusive measures on the
rights of Americans."  But this bit of rhetorical diversion dodges the
question.  Why do Brad and others who believe that the "identity of the
speaker" is wholly irrelevant to the protection of political speech (at
least in the context of corporations) so quickly go along with the
rejection of foreign corporate money in our elections?  For me, this is
easy because I don't think any corporate treasury money has any proper
place being transferred into electoral activity; for me, democracy is
all about "Americans," natural persons and the membership groups they
form, not economic structures defined by law and chartered by the state.
But it seems to me that, for you champions of corporate money political
speech, your whole long train of arguments-let the listeners decide,
speaker identity is irrelevant, more speech is what we need, campaign
expenditures cannot corrupt,etc.-completely runs over your unexplained
willingness simply to accept the categorical prohibition on foreign
corporate and individual campaign spending.  Obviously it might be a
politically uncomfortable position for you to take, but doesn't it
follow from your deep philosophical commitment to total money speech
that foreign-paid speech is presumptively just as valuable and protected
as any other kind?  Serious question.  yours,  Jamie  

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 3:44 PM
To: Rick Hasen; Milyo, Jeffrey D.
Cc: law-election at uci.edu
Subject: Re: [EL] accountability and disclosure

Does the public have an interest in keeping foreign money out of
campaigns?, asks Rick. Yes, the Court has upheld that restriction on
foreign funding in a decision neither shocking nor at odds with Citizens
United. But public disclosure of donors is simply not necessary to
police the possibility of foreign spending, just as tax returns are not
made public to police tax fraud. And of course, if people are illegally
taking foreign donations, they're not likely to disclose it.  

I take Rick's last paragraph as mere frustration. But it is worth
pointing out again that the disclosure being demanded today is not the
disclosure that we once had, or that supporters of free-speech
traditionally supported. If we go back to the pre-McCain-Feingold
disclosure regime, corporations and unions could donate unlimited sums
for issue ads to all kinds of c4 groups - and Rick was a leader in
calling many of those ads "sham" speech and arguing that they were the
same as candidate ads. Moreover, even under McCain-Feingold, issue ads
only needed disclosure if made within 60 days of a general election or
30 days of a primary. Now the call is for much broader disclosure. It is
not correct then, that supporters of free speech have changed their
tune, at least no more than it is to say that Rick and his allies have
changed their tune.

We must further note that the rationale for and use of disclosure has
changed, from attempting to inform the public in order to evaluate
messages and to deter corruption to attempting to inform the public in
order that private individuals and groups may attempt to "hold speakers
accountable." And Professor Hasen now denies that harassment that is as
significant as that that afflicted the Socialist Workers Party over the
years is sufficient for a waiver. 

What I have found depressing in this discussion - if we're going to
address what we find depressing - is the constant fanning of the fears
of "foreigners" as an excuse for broadly intrusive measures on the
rights of Americans. 

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 3:25 PM
To: Milyo, Jeffrey D.
Cc: law-election at uci.edu
Subject: Re: [EL] accountability and disclosure

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] On Behalf Of Rick
Hasen
Sent: Friday, June 01, 2012 1:47 PM
To: JBoppjr at aol.com
Cc: 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 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 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> <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

_________________________________________________________________
	-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 .

	Follow us on Twitter. Like us on Facebook.
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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
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949.824.0495 - fax
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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
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org
Pre-order The Voting Wars: http://amzn.to/y22ZTv 

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