[EL] accountability and disclosure

Fri Jun 1 13:35:57 PDT 2012

It's quite clear (see Eugene Volokh's recent work) that freedom of the press is freedom to engage in an activity. The First Amendment does not protect the press as an institution (or media companies as media companies) but rather the activity they and others engage in. They have no special right to engage in that activity; the right belongs to all of us, and there is no special protection for the NY Times if we say that corporations may not engage in certain kinds of speech.

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law

-----Original Message-----
From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Michael McDonald
Sent: Friday, June 01, 2012 1:25 PM
To: law-election at uci.edu
Subject: Re: [EL] accountability and disclosure

It is too bad there is no separate "freedom of the press" protection found in the First Amendment and everything must be covered under "freedom of speech."

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Steve Klein
Sent: Friday, June 01, 2012 4:18 PM
To: Jamin Raskin
Cc: law-election at UCI.EDU; Smith, Brad
Subject: Re: [EL] accountability and disclosure

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] 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>
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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