[EL] accountability and disclosure
JBoppjr at aol.com
JBoppjr at aol.com
Sat Jun 2 07:56:52 PDT 2012
And where we started with this is that Rick would welcome this result.
His article argues that there should not be "speech with no consequences." He
welcomes reprisals for speech and that is why he wants government mandated
disclosure. Jim
In a message dated 6/2/2012 10:51:46 A.M. Eastern Daylight Time,
jha5 at case.edu writes:
Part of the concern is that once the practice of reprisals for political
activity (and speech, in particular) become commonplace, they will reinforce
existing power structures, work to the advantage of political majorities
and concentrated wealth, and weaken the ability of outsiders and those with
minority views to influence political debate.
------
Jonathan H. Adler
Johan Verheij Memorial Professor of Law
Director, Center for Business Law & Regulation
Case Western Reserve University School of Law
11075 East Boulevard
Cleveland, OH 44106
ph) 216-368-2535
fax) 216-368-2086
cell) 202-255-3012
_jha5 at case.edu_ (mailto:jha5 at case.edu)
_http://www.jhadler.net_ (http://www.jhadler.net/)
SSRN: _http://ssrn.com/author=183995_ (http://ssrn.com/author=183995)
From: _law-election-bounces at department-lists.uci.edu_
(mailto:law-election-bounces at department-lists.uci.edu)
[mailto:_law-election-bounces at department-lists.uci.edu_ (mailto:law-election-bounces at department-lists.uci.edu) ] On
Behalf Of Jerald Lentini
Sent: Friday, June 01, 2012 4:15 PM
To: Joe La Rue
Cc: _law-election at uci.edu_ (mailto:law-election at uci.edu)
Subject: Re: [EL] accountability and disclosure
"The Target boycott and others, despite their presumed legality, are
reprehensible."
I think it's perfectly reasonable that some might not want to
contribute--directly or indirectly--to positions they oppose. If Jim discovered his
local coffee shop was sending a portion of its income to NARAL, he'd probably
want to get his espresso elsewhere. There's nothing "reprehensible" about
that in the slightest, and I can't possibly imagine what's to be gained by
conflating that with things like physical threats or vandalism.
On Fri, Jun 1, 2012 at 3:57 PM, Joe La Rue <_joseph.e.larue at gmail.com_
(mailto:joseph.e.larue at gmail.com) > wrote:
Although, now that I think about it, some of the harassment was directed
not to those who signed petitions but rather to those who gave money to fund
the Prop 8 initiative.
Joe
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On Fri, Jun 1, 2012 at 12:54 PM, Rick Hasen <_rhasen at law.uci.edu_
(mailto:rhasen at law.uci.edu) > wrote:
I gave the citations earlier today. Anyone who wishes can read the
district court's opinions and see what facts the courts found.
On 6/1/12 12:53 PM, Joe La Rue wrote:
No, it was directed at those who signed the petitions, whose identities we
tried unsuccessfully to protect.
Joe
___________________
Joseph E. La Rue
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On Fri, Jun 1, 2012 at 12:51 PM, Rick Hasen <_rhasen at law.uci.edu_
(mailto:rhasen at law.uci.edu) > wrote:
These were not what was directed to campaign contributors or to to ballot
signature gatherers.
On 6/1/12 12:49 PM, Joe La Rue wrote:
Rick, I don't have time at the moment to document this so anyone who asks
for citations will simply have to go pull them off PACER themselves. But
you are wrong about the harassment in the same-sex "marriage" cases. I worked
on a couple of them. There were death threats; there were people who were
fired & forced out of their jobs, including an Olympic official; there were
acts of vandalism resulting in the destruction of property; there were
invasions of worship services by homosexual "activists"; and there was at
least one physical battery. And that's just what I recall off the top of my
head.
It is simply not accurate to say the harassment was only a few moonings
and middle fingers. There was more than that.
Joe
___________________
Joseph E. La Rue
cell: _480.272.2715_ (tel:480.272.2715)
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On Fri, Jun 1, 2012 at 12:43 PM, Rick Hasen <_rhasen at law.uci.edu_
(mailto:rhasen at law.uci.edu) > wrote:
Not only do I not agree. This has been tested in court in the most
controversial areas of social policy today and found wanting. Go read those gay
marriage referendum cases. Here's the harassment that the group faced:
one guy was mooned. another was given the finger.
Those who make claims of widespread harassment are either misinformed or
disingenuous.
On 6/1/12 12:41 PM, Steve Hoersting wrote:
No, Rick: it's a fear of harassment. The underlying fear is one of
businessmen or women acutely aware that ministers tied to a winning politician or
politicians can, more and more "legitimately," determine the very economic
fate of a businessman or woman after an election.
This is lost on no one. This is the message sent when a Chuck Schumer
(let alone a Van Jones) says, "The deterrent effect of disclosure should not
be underestimated."
This is a real problem, whether you agree it is or not. It's all the
larger problem when we see, as Smith has been detailing, that the Court's
articulated interests for disclosure of independent political speech are not
being furthered in the current "accountability" crusade.
Steve
On Fri, Jun 1, 2012 at 3:25 PM, Rick Hasen <_rhasen at law.uci.edu_
(mailto:rhasen at law.uci.edu) > wrote:
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)
[_mailto: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_ (mailto:JBoppjr at aol.com)
Cc: _law-election at uci.edu_ (mailto: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_ (mailto: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_ (mailto: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_ (tel:703-993-4191) George Mason University
(f) _703-993-1399_ (tel:703-993-1399) Dept. of Public and
International Affairs
_mmcdon at gmu.edu_ (mailto:mmcdon at gmu.edu) 4400 University Drive
- 3F4
_http://elections.gmu.edu_ (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)
[_mailto: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_ (mailto: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_ (tel:614.236.6317)
_http://law.capital.edu/faculty/bios/bsmith.aspx_
(http://law.capital.edu/faculty/bios/bsmith.aspx)
________________________________________
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_
(mailto:law-election-bounces at department-lists.uci.edu) ] on behalf of Rick Hasen
[_rhasen at law.uci.edu_ (mailto:rhasen at law.uci.edu) ]
Sent: Friday, June 01, 2012 12:37 PM
To: _law-election at uci.edu_ (mailto: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_
(http://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_ (tel:202-355-9600) or
_kbeard at democracy21.org_ (mailto:kbeard at democracy21.org) .
For the latest reform news and to access previous reports, releases, and
analysis from Democracy 21, visit _www.democracy21.org_
(http://www.democracy21.org/) .
Follow us on Twitter. Like us on Facebook.
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