[EL] Accountability and disclosure/The First Amendment is not for sissies!

[Smith, Brad]

I am glad to see that you agree that "changing empirical conditions necessitate changes in positions." Now perhaps we can stop all the various accusations of hypocrisy aimed at those who oppose the proposals for new, extended disclosure regulations.

The fundamental divide otherwise appears to be the purpose of disclosure. Steve Hoersting has been thumping this theme for the last several years: the purpose of disclosure ought to be to inform the citizenry of its government, not to inform the government of its citizenry. This is not always an easy distinction, because often the two principles are flip sides of the same coin. But they do allow us to attempt to frame the issue, and to effectively consider costs and benefits, and to consider when government coercion is justified and when it is not.

You assume that I am worried about the privacy rights of the rich and powerful, but actually I am worried about equality before the law and, ultimately, about the rights of the powerless and less powerful, who generally will benefit far more from protection from forced disclosure than the rich and powerful.

I thought that at least some of the main things that distinguished a free, democratic society from an unfree, undemocratic one was the scope of government power over its citizenry,  the assumption that government must justify its actions and intrusions of freedom rather than that the people must justify their preferences and freedoms to the government, and the ability of the people to keep their affairs private from government. Democracies were built on government transparency, not the government forcing citizens to make their affairs transparent. The public's "right to know" has never been interpreted before as the right of government to force other citizens to make their affairs known to all. As the term is being used in this public debate, it is an odd "right" indeed - the right to use government force on a selective basis to learn things that a temporary majority wants to know about others, so that some can use that information, gained through government coercion, to harass, bully, and "hold accountable" (there's that phrase again - what do you mean by that? What does it mean to "hold accountable" someone for their non-tortious speech?) people who voice political views. And if I want to "hold accountable" those who engage in what I consider gossip, do I have a right to tape record all conversations? This seems a silly overreach, of course, but I do think that before we cede more liberty to the state on this "right to know"/"hold accountable" theory, we need to know what is the limiting principle.

I find your last sentence a bit chilling. Hey, if one is not engaged in crime, let them subject themselves to warrantless search; what do they have to fear? If one is not engaged in bad behavior, why do they need privacy at all - shouldn't that bundle of rights be abolished? If one is not cheating on one's taxes, why should they care if all tax returns were made public? If one is not engaging in treasonous politics, why shouldn't all meetings be forced to be open to the public, and why shouldn't all organizations - at least 501c4 organizations that engage in political activity of some kind, such as the NAACP, Planned Parenthood, Common Cause, Public Citizen, the Campaign Legal Center, and Hamline University, if not for-profits such as the firms of Caplan Drysdale and Wilmer Hale, or Berkshire Hathaway, or Soros Fund Management - not have to make all their firm meetings public? The public wants to know (I'd sure like to know what goes on at Berkshire Hathaway and Soros Fund Management meetings - their privacy is allowing the rich and powerful to amass more riches while we little guys have to try to make do on 0.00000000000000001% interest, or something in that range, for our savings).

The reason, obviously, goes back to the main point. In a free society, the government must justify such intrusions on its citizens. Citizens do not need to justify their actions to government. That seems to be the biggest difference I can see between Tsarist Russia, the old Soviet Union, and now Putin's Republic, and the United States. It is in Russia that non-profits must disclose their activities and donors to the state - in the United States, we've historically had a more liberal regime. Which of those societies has been more free and democratic?


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: David A. Schultz [dschultz at gw.hamline.edu]
Sent: Monday, June 04, 2012 8:10 AM
To: Smith, Brad; law-election at uci.edu
Subject: Re: [EL] Accountability and disclosure/The First Amendment is not for sissies!

Brad:

There is a bit of Anatolie France in your response ("The rich and poor can equally sleep under a bridge").  You seem so worried about the privacy rights of the rich and powerful  and less about the general right of the public to know who is trying to influence elections.

America is a constitutional republic.  if I recall (after three semesters of Latin in college) the word "res publica" means the pubic thing as a opposed to res privita or the private thing.  Democracy is a public thing and what happens in the polis is something the public has a right to know about.  JS Mill's public/private distinction is still good guidance and we are entitled to maintain confidentiality over that which is private and not public.

As a matter of policy I may or may not be willing to say that a small amount of individual donations should be given some privacy in order to facilitate some donations.  However, I do not think the First Amendment as a rule should protect corporations and other legal entities from disclosure.  The First Amendment is about the marketplace of ideas and not the monopolizing or suppression of ideas or the concealment of information.

As for supporters of disclosure having changed their position, two responses.  Changing empirical conditions necessitate changes in positions.  By that, for some  they never anticipated the world of Citizens Untied and stealth  use  and hijacking of 501 c 4s to escape public accountability for their political activity.  Second, my position has not changed on disclosure and I have always favored disclosing as much as possible.

I just returned from a week in Russia.  Part of what distinguishes a free democratic society from a closed one is disclosure.  The first thing oppressive societies do is move to hide information and oppose transparency. If one's political aims are not  nefarious the undertake them in a open fashion and let the public decide--which is what a free society is supposed to do in a res publica.



David Schultz, Professor
Editor, Journal of Public Affairs Education (JPAE)
Hamline University
School of Business
570 Asbury Street
Suite 308
St. Paul, Minnesota 55104
651.523.2858 (voice)
651.523.3098 (fax)
http://davidschultz.efoliomn.com/
http://works.bepress.com/david_schultz/
http://schultzstake.blogspot.com/
Twitter: @ProfDSchultz
Name of the inaugural 2012 Faculty Row SuperProfessors

>>> "Smith, Brad" 06/03/12 8:26 PM >>>
Dave,

One can agree with all that you write and still find oneself asking the key question: where is the government interest in forcing citizens to take actions that make it easier for others to harass them? Simply put, the argument for more disclosure - and note that this has not really been a debate of trimming back existing laws, but more about efforts to impose new ones - is quite weak, and relies very little on the traditional grounds for disclosure (providing voter cues, assuring enforcement of limits, helping voters to spot patterns of legislative shirking) and a great deal on "holding people accountable" - i.e. harassing them in ways big and small.

I don't think people are acting like "sissies." SWATting seems to me to be pretty serious. That might give people a reason to want anonymity. We have documented instances of people losing their jobs or having property vandalized, and of being placed on "now you know where to find them" lists by known terrorist organizations. All of these strike me as fairly serious reasons to want to retain some degree of privacy. I think being subjected to a commercial boycott for one's speech is pretty serious.

But leaving that aside, why shouldn't people be able to retain some degree of privacy just because they want to? Why shouldn't a wealthy person be able to retain some privacy just so that he doesn't have to deal with others asking for funds? Or angering his siblings of different political persuasions? Or making relations at his place of employment a bit less pleasant? Why aren't these perfectly legit reasons for demanding some degree of privacy? Throughout this discussion almost no serious argument has been made for these new levels of disclosure. Rather, incantations about "corruption," fears about "foreigners," and the word "Secret" to describe activities that aren't entirely secret, are repeated with almost no real world accounting for what the new, requested laws would actually accomplish.

Contrary to your concluding paragraph, it is not supporters of deregulation who have changed on disclosure as much as supporters of regulation. Supporters of regulation are demanding levels of disclosure that have never before been required in U.S. politics. It is, I suppose, fair enough if supporters of campaign finance regulation want to change their position on disclosure in the wake of Citizens United and other defeats, in order to try to stop indirectly what they can no longer block directly. But it is not somehow unfair if supporters of free speech respond by saying "no," and it marks no hypocrisy on their part to do so. When we talked of disclosure, we didn't talk of forced disclosure of trade association dues or of funding for non-express advocacy communications. It is the regulators who seek to change the norms of disclosure.

And the reason for wanting to do this new, unprecedented disclosure is not secret. It is, by and large, to make our political life nastier, meaner, and less open to rational discussion and debate, in the hopes that some people will simply quit participating. If they complain or simply retire from the debate, we can call them "sissies," I guess, and go after the next group of people with somewhat thicker skins. The goal now is not to cue voters to the validity of a message, or to spot patterns of legislative shirking. It is to "hold speakers accountable" (I continue to ask, given that that doesn't seem to mean simply replying to arguments -since for that no ID is needed - what does that mean in the context of non-tortious, lawful speech? It means, it seems clear to me, attempting to harm these people in their property, their livelihood, or their tranquility). We  have the president of the United States urging his supporters to make politics meaner - to "get in their face." We have a reasonably prominent political consultant sending letters to donors threatening to disrupt their lives. The information is sought because, as one anti-prop 8 activist put it, before compulsory disclosure "we could never have gotten together a blacklist so quickly." Where is the public decency here?

People who have spent a lifetime criticizing Antonin Scalia suddenly quote him like he's some kind of unerring oracle and people who often agree with Scalia ipso facto must surrender all standing. But he's wrong on this as he's been wrong on many things (let's say, e.g. Raisch). Disclosure does not make for a bolder, more open society. It is making for a meaner, nastier, society in which some hide behind their own anonymity (anonymous blogs, anonymous false tips to police, mobs - by the way, should protesters be required to register individually and have their names then made public if they participate in any type of public protest? - and groups with undisclosed membership) to viciously attack their opponents who are subject to compulsory disclosure by the government.

I don't think I have to take a back seat to too many people in having had the courage to express my convictions publicly, and doing so has certainly not always been in my professional or personal interest. But I don't think the government has any interest in making it easier for people to harass other private citizens, and I am not interested in seeing our politics take that turn for the worse.

The First Amendment isn't for "sissies," but its not to enable bullies, either. And we as a society have long understood that the government doesn't always have to do the persecuting directly - it can give the tools to others to do the persecuting for it, to make sure they know that they should be holding their adversaries "accountable," that they should "get in their faces," and that they should "blacklist" them.

Maybe this is the society you want. I see it as a society which many people do not want and most people shouldn't want; and further, I see it as one that, thankfully, the Constitution still protects from, and least when it comes to the government seeking to enable it by force.


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 David A. Schultz [dschultz at gw.hamline.edu]
Sent: Sunday, June 03, 2012 6:26 PM
To: law-election at uci.edu
Subject: [EL] Accountability and disclosure/The First Amendment is not for sissies!

Hi all:

My comments on the ?accountability and disclosure? discussion may be late but I want to offer one observation?the First Amendment is not for sissies!

I read all the comments on disclosure and what struck me most were two errors on the part of those opposing disclosure.  First, there seems to be some belief that the first Amendment protects one against all social criticism.  Second, democracy is for the faint-hearted.

As far as I know the first Amendment is meant to protect us from government persecution of our beliefs.  We are to be protected from some petty or high official proclaiming orthodoxy and persecuting us for our political views.  Remember Justice Jackson?s great quote from Barnette: ?If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.?

However, even if the government cannot shun us, that does not mean that the public cannot too.  Within reason, if I hold strange views or take a stand on controversial issues, then the public has a right to shun me (not hurt me physically of course).  This is classic John Stuart On Liberty.  My simple point here is that the Constitution does not insulate us from criticism for our political views, including who we give money to.  Thus what seems to worry opponents of disclosure is what happened in Minnesota two years ago when Target Corporation gave money to support an anti-gay, anti-choice candidate for governor?the company go bad press and people boycotted it.  God bless America, that is what is supposed to happen if people disagree with you.  Here, Target paid the price for its views?the public held it accountable?and the First Amendment should encourage.

Second, opponents of disclosure here act like sissies!  They seem to assume that any dirty look or glance at  or criticism of a donor constitutes coercion and therefore we need to protect them.  Somehow I cannot image Justice Scalia going along with such a fainthearted view of democracy.  Democracy, as he argues repeatedly, is about robust debate where individuals should be ready to respond to criticism from others because of their views.  Somehow I think this is the market place of ideas.  If one wants to play the game of politics be prepared to play hardball and be accountable for your views, including who you give money to.  If you are not confident or proud enough to stand publicly?especially if you are rich or a corporation?for what you believe in, don?t play the game of democracy.  The First Amendment should not be in the game of hiding information but encouraging its dissemination.

Finally, several years ago I wrote a piece for the Election Law Journal arguing that those who argued for no campaign finance limits were hiding inside a Trojan Horse in arguing for no limits but full disclosure.  I contended that eventually they would argue against disclosure too.

David Schultz, Professor
Editor, Journal of Public Affairs Education (JPAE)
Hamline University
School of Business
570 Asbury Street
Suite 308
St. Paul, Minnesota 55104
651.523.2858 (voice)
651.523.3098 (fax)
http://davidschultz.efoliomn.com/
http://works.bepress.com/david_schultz/
http://schultzstake.blogspot.com/
Twitter: @ProfDSchultz
Name of the inaugural 2012 Faculty Row SuperProfessors

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