[EL] accountability and disclosure
Jamin Raskin
raskin at wcl.american.edu
Fri Jun 1 13:23:05 PDT 2012
Dan's post is baffling to me. He says the "Target boycott" is
"reprehensible." Why? Boycotts are just political speech and
collective expression, no? They have been protected under the First
Amendment as such, see Claiborne Hardware, etc. If Target wants to give
money to support anti-gay politicians to express its views on that or
any other issue, shouldn't supporters of gay rights have an equal right
to stop patronizing the store? Have we gotten to the point that we only
celebrate free speech in the form of secret corporate campaign
expenditures?
Why should a publically traded corporation have a right to engage in
political campaign spending and not disclose it? Gee, on this theory
Target should be able to keep its treasury political expenditures secret
from shareholders because Rick Hasen or a muckraking journalist might
buy a share and tell the public what the corporation is up to!
Why is the "demonization" of the Koch Brothers a problem but not
the Koch brothers' demonization of the president? Is Dan just making a
political point tat he likes what the Kock brothers stand for? If not,
I can't see any difference.
-----Original Message-----
From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of
Lowenstein, Daniel
Sent: Friday, June 01, 2012 3:56 PM
To: JBoppjr at aol.com; mmcdon at gmu.edu; law-election at uci.edu
Subject: Re: [EL] accountability and disclosure
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 .
Follow us on Twitter. Like us on Facebook.
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