[EL] accountability and disclosure
Steve Klein
stephen.klein.esq at gmail.com
Fri Jun 1 13:17:57 PDT 2012
>
> this is easy because I don’t think any corporate treasury money has any
> proper place being transferred into electoral activity
>
Stop the presses!
No, literally. Are you suggesting incorporated newspapers should be
prohibited from endorsing candidates?
I don't know where Mrs. McIntyre becomes a Koch sister, but I imagine it
will be far more difficult to determine where Koch Industries becomes CBS.
But if it's easy, please enlighten me.
On Fri, Jun 1, 2012 at 2:08 PM, Jamin Raskin <raskin at wcl.american.edu>wrote:
> 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<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<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> <wertheimer at democracy21.org>
> Reply-To:
> <ekesler at democracy21.org> <ekesler at democracy21.org>
> To:
> Rick Hasen <rhasen at law.uci.edu> <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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> ** **
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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
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--
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Staff Attorney & Research Counsel*
Wyoming Liberty Group
www.wyliberty.org
**Licensed to practice law in Illinois. Counsel to the Wyoming Liberty
Group pursuant to Rule 5.5(d) of the Wyoming Rules of Professional Conduct.*
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