[EL] Subject change - CU and media corporations' speech

John White white at lfa-law.com
Mon Mar 26 10:05:02 PDT 2012 

Trying to follow Professor Hasen's instruction regarding topic change -



Upon what legal foundation would the ability of the New York Times, Washington Times, Washington Post or a news network to expressly advocate the election or defeat of a candidate rest?  Does it matter if the media corporation is a subsidiary of another corporation or whether its media operations are profitable?  How large a subsidy is evidence of an end-run?  Does it matter if the loss and subsidy from the corporate giant is 1 year, 5 years or 30?

Mr. Stewart's response that the institutional press is protected by a statutory exemption at CU's first argument was the honest answer, and demonstrated the risk to speech posed by the Austin rationale.  A "construction" of the First Amendment that "press" was meant to be limited to the modern day institutional "press" lacks historical support, as Professor Volokh's work and others have shown.  The notion that corporate-owned media poses any less risk of "distortion" or influence over candidate or elected officials' positions is questionable.  The entire "distortion" argument seems to be in the eye of the beholder - what would the debate be "but for" the spending - not a neutral or objective one.

These are fundamental problems of implementing the proposed rule of law.  The logical conclusion of allowing the government to criminalize independent speech by some is to place the ability of others to speak or publish freely at risk.  That is why Austin  was a mistake and why CU was right.

The ongoing debate about whether independent speech corrupts the process by causing candidates to change their views should give heart to the term limits folks.  With proper findings about corruption of entrenched officeholders and the appearance of corruption, term limits should survive scrutiny on exactly the same standards as other election campaign regulations.



John J. White, Jr.
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From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Thomas J. Cares
Sent: Saturday, March 24, 2012 8:30 AM
To: Election Law
Subject: Re: [EL] ELB News and Commentary 3/24/12

I'd agree - to give a different example - if in the pre-CU days, the Washington Post (who attributes most of its market cap to its ownership of Kaplan's test prep services), were investigated by the FEC, for something like editorializing against candidates who endeavored to increase regulation of test prep services, that would be somewhat tyrannical.

However, 1. it would still be within a newspaper - a market-serving product paid for by readers and/or advertisers and 2. it cannot be overstated what 'small potatoes' that is compared to allowing non-media corporations to spend unlimited amounts on campaign ads, immediately before an election.


While I did disagree with the CU decision at the time, I may be coming around. Who knows, maybe Jim did win us an important civil right, way ahead of its time; and those who agree with the ACLU ~95% of the time, with the main exception of CU, just haven't realized it yet.

Setting aside the question of which rights corporations are entitled to, perhaps the public's right to hear any speech, regardless of who - or what - desires to speak it, should trump the potential harms of corruption and conflicts of interest. (Though unaffected by CU, in assessing the absolutism of money's influence in politics, I was a little moved by the 2010 defeats of Meg Whitman, PG&E's Prop 16, CA A.G. candidate Chris Kelly, and a local democratic assembly candidate who lost a primary he was easily winning, and told me he attributed his demise to last-minute large corporate I.E.s against his opponent, which, he believed, intrigued the district's liberal primary voters as to why these corporations hated his opponent enough to spend so heavily.)

(If I were to concede that I've 180ed on CU, my sentiment would be that, for civil libertarian reasons, government should be almost-entirely [FN 1] out of the business of restricting political speech, and, rather, get into the business of enabling an adequate amount of common-citizen-supported political speech through a voucher system of public campaign financing).

But, nevertheless, I see no equivocation in the extreme-silliness of arguing that CU leveled an important playing field for the likes of Exxon and Goldman Sachs in relation to the New York Times.



Thomas J. Cares

FN 1. I would continue the exception of having reasonable limits on how much can be contributed directly to candidates and parties as well limiting the origins of those contributions to non-alien people.

On Sat, Mar 24, 2012 at 7:31 AM, <JBoppjr at aol.com<mailto:JBoppjr at aol.com>> wrote:
This distinction is not so easy to draw. If IEs by everyone but the media were banned, like in the good old days, then only the media can speak.  Well there is a market for this speech, as Thomas acknowledges.  So the profits of the corporate NYTimes is enhanced by adoption of the very campaign finance reforms they advocate.

So at least we should agree, if we accept Tom's point, that the NYTimes should be banned from advocating campaign finance reform -- the adoption of which would enhance its profits.

And since we are seeking out who "profits" from their advocacy, then who owns the NYTimes, or "where does the money come from?," as the reformers ask.  Does GE own stock in the NYTimes, since it profits from the NYTimes' advocacy of the government requiring all of us to buy GE's lightbulb? In Tom's world, the FEC would have to investigate this. And then they all can be thrown in jail. How fun.  Jim

In a message dated 3/24/2012 9:30:54 A.M. Eastern Daylight Time, tomjcares at gmail.com<mailto:tomjcares at gmail.com> writes:
That comparison really puzzles me.

Can we really not have consensus that there's a difference between a corporation filling a market demand for election advocacy speech - and profiting from that just as an energy company profits by filling a market demand for energy - and an energy company investing in election advocacy speech, not to fill a market demand for that speech to make a profit from the speech, but to alter the course of public policy such to increase the profits of their energy business, both by affecting who gets elected and - even without necessarily altering who would get elected - corrupting the policy deliberations of policy-makers by making their elections dependent on their I.E.s

Regardless of whether one agrees with (or was the primary individual to have accomplished) the CU decision, that distinction should not be difficult to acknowledge.


-Thomas J. Cares

Sent from my iPhone

On Mar 24, 2012, at 1:09 PM, JBoppjr at aol.com<mailto:JBoppjr at aol.com> wrote:
Thanks to Rick for informing us of another multi-million dollar corporate expenditure to corrupt the judiciary:

It's Not Every Day the Severability Doctrine Makes the NY Times Op-Ed Page<http://electionlawblog.org/?p=32064>

Fortunately, if "corporations are not people" any more, we won't have to hear from the NYTimes any more. See New York Times v. Sullivan.

And their evil effort to use their vast corporate wealth to corrupt the judiciary can be stopped. Jim Bopp

In a message dated 3/24/2012 12:46:00 A.M. Eastern Daylight Time, rhasen at law.uci.edu<mailto:rhasen at law.uci.edu> writes:
Update on the South Carolina Voter ID Voting Rights Act Challenge<http://electionlawblog.org/?p=32108>
Posted on March 23, 2012 9:27 pm<http://electionlawblog.org/?p=32108> by Rick Hasen<http://electionlawblog.org/?author=3>

Here<http://txredistricting.org/post/19807390090/meanwhile-in-the-south-carolina-voter-id-case>.
<share_save_171_16.png><http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D32108&title=Update%20on%20the%20South%20Carolina%20Voter%20ID%20Voting%20Rights%20Act%20Challenge&description=>
Posted in voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15> | Comments Off
"Obama's Small-Dollar Percentage Down Slightly in February; Santorum's Stayed High; Romney's Stayed Low"<http://electionlawblog.org/?p=32105>
Posted on March 23, 2012 4:59 pm<http://electionlawblog.org/?p=32105> by Rick Hasen<http://electionlawblog.org/?author=3>

The Campaign Finance Institute has issued this press release<http://cfinst.org/Press/PReleases/12-03-22/Obama%E2%80%99s_Small-Dollar_Percentage_Down_Slightly_in_February_Santorum%E2%80%99s_Stayed_High_Romney%E2%80%99s_Stayed_Low.aspx>.
<share_save_171_16.png><http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D32105&title=%E2%80%9CObama%E2%80%99s%20Small-Dollar%20Percentage%20Down%20Slightly%20in%20February%3B%20Santorum%E2%80%99s%20Stayed%20High%3B%20Romney%E2%80%99s%20Stayed%20Low%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
Minnesota Voter ID Amendment Would End, Without Notice, Same Day Voter Registration<http://electionlawblog.org/?p=32101>
Posted on March 23, 2012 4:10 pm<http://electionlawblog.org/?p=32101> by Rick Hasen<http://electionlawblog.org/?author=3>

Ending same day voter registration is not part of the ballot language for a constitutional amendment establishing a voter id requirement, leading Minn. Secretary of State Mark Ritchie to call it<https://twitter.com/#%21/mritchie/status/183296071458504704> a "Trojan horse."

Minnesota's voter id proposal looks like a false solution<http://www.amazon.com/Fraudulent-Fraud-Squad-Understanding-ebook/dp/B00795X5XI/ref=zg_bs_157417011_9> to a non-existent problem.
<share_save_171_16.png><http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D32101&title=Minnesota%20Voter%20ID%20Amendment%20Would%20End%2C%20Without%20Notice%2C%20Same%20Day%20Voter%20Registration&description=>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9> | Comments Off
Lessig Responds to Critics About Supporting Roemer While Holding AE Leadership Position<http://electionlawblog.org/?p=32098>
Posted on March 23, 2012 4:06 pm<http://electionlawblog.org/?p=32098> by Rick Hasen<http://electionlawblog.org/?author=3>

Go to the bottom of the comments on this post<http://irregulartimes.com/index.php/archives/2012/03/22/neutrality-americans-elect-leader-tweets-his-heart-out-for-buddy-roemer/> at Irregular Times. From my read of Lessig's comments, it appears that AE is touting him as part of their leadership in ways that are inconsistent with his own understanding of his role: "My only activity with them has been to raise criticisms and concerns with their management. I helped people concerned about the voting technology get access to the staff. I have raised concerns about how they frame priorities."
<share_save_171_16.png><http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D32098&title=Lessig%20Responds%20to%20Critics%20About%20Supporting%20Roemer%20While%20Holding%20AE%20Leadership%20Position&description=>
Posted in third parties<http://electionlawblog.org/?cat=47> | Comments Off
"Photo ID marches on, but critics vow litigation"<http://electionlawblog.org/?p=32095>
Posted on March 23, 2012 3:59 pm<http://electionlawblog.org/?p=32095> by Rick Hasen<http://electionlawblog.org/?author=3>

The latest<http://www.mysanantonio.com/news/article/Photo-ID-marches-on-but-critics-vow-litigation-3430780.php> from Minnesota.
<share_save_171_16.png><http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D32095&title=%E2%80%9CPhoto%20ID%20marches%20on%2C%20but%20critics%20vow%20litigation%E2%80%9D&description=>
Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15> | Comments Off
Will Buddy Roemer Pick Abramoff or Lessig as His VP Choice on AE Ticket?<http://electionlawblog.org/?p=32092>
Posted on March 23, 2012 3:25 pm<http://electionlawblog.org/?p=32092> by Rick Hasen<http://electionlawblog.org/?author=3>

Or maybe someone else.  Roemer has promised<http://www.politico.com/politicoinfluence/0312/politicoinfluence225.html> we will be "shocked, pleased and surprised."
<share_save_171_16.png><http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D32092&title=Will%20Buddy%20Roemer%20Pick%20Abramoff%20or%20Lessig%20as%20His%20VP%20Choice%20on%20AE%20Ticket%3F&description=>
Posted in Uncategorized<http://electionlawblog.org/?cat=1> | Comments Off
"Romney's road to nomination paved by dedicated delegate counter"<http://electionlawblog.org/?p=32089>
Posted on March 23, 2012 2:03 pm<http://electionlawblog.org/?p=32089> by Rick Hasen<http://electionlawblog.org/?author=3>

WaPo offers this profile<http://www.washingtonpost.com/politics/romneys-road-to-nomination-paved-by-dedicated-delegate-counter/2012/03/20/gIQAKAWaRS_story.html> of Katie Biber Chen.  See also this brief GQ profile<http://www.gq.com/news-politics/blogs/death-race/2012/03/the-weekly-power-list-030912.html> in which I am quoted on the importance of Biber's work for Romney.
<share_save_171_16.png><http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D32089&title=%E2%80%9CRomney%E2%80%99s%20road%20to%20nomination%20paved%20by%20dedicated%20delegate%20counter%E2%80%9D&description=>
Posted in election law biz<http://electionlawblog.org/?cat=51> | Comments Off
"Republican primary turnout rebounds, is up overall"<http://electionlawblog.org/?p=32086>
Posted on March 23, 2012 1:45 pm<http://electionlawblog.org/?p=32086> by Rick Hasen<http://electionlawblog.org/?author=3>

The Fix reports.<http://www.washingtonpost.com/blogs/the-fix/post/republican-primary-turnout-rebounds-is-up-overall/2012/03/23/gIQAOeCNWS_blog.html>
<share_save_171_16.png><http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D32086&title=%E2%80%9CRepublican%20primary%20turnout%20rebounds%2C%20is%20up%20overall%E2%80%9D&description=>
Posted in political parties<http://electionlawblog.org/?cat=25>, primaries<http://electionlawblog.org/?cat=32> | Comments Off
"Congressional Redistricting Matters, and It's Hurting This Country: a Response to Michael Barone"<http://electionlawblog.org/?p=32083>
Posted on March 23, 2012 1:42 pm<http://electionlawblog.org/?p=32083> by Rick Hasen<http://electionlawblog.org/?author=3>

FairVote responds<http://www.fairvote.org/congressional-redistricting-matters#.T2zgK9nwDAJ>.
<share_save_171_16.png><http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D32083&title=%E2%80%9CCongressional%20Redistricting%20Matters%2C%20and%20It%E2%80%99s%20Hurting%20This%20Country%3A%20a%20Response%20to%20Michael%20Barone%E2%80%9D&description=>
Posted in redistricting<http://electionlawblog.org/?cat=6> | Comments Off
"Mistrial declared in Troy ballot fraud trial"<http://electionlawblog.org/?p=32079>
Posted on March 23, 2012 9:00 am<http://electionlawblog.org/?p=32079> by Rick Hasen<http://electionlawblog.org/?author=3>

I had missed this development<http://www.benningtonbanner.com/local/ci_20167729/mistrial-declared-troy-voting-fraud-trial>.
<share_save_171_16.png><http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D32079&title=%E2%80%9CMistrial%20declared%20in%20Troy%20ballot%20fraud%20trial%E2%80%9D&description=>
Posted in chicanery<http://electionlawblog.org/?cat=12> | Comments Off
Shorter Dahlia Lithwick<http://electionlawblog.org/?p=32076>
Posted on March 23, 2012 8:55 am<http://electionlawblog.org/?p=32076> by Rick Hasen<http://electionlawblog.org/?author=3>

Conservatives will uphold<http://www.slate.com/articles/news_and_politics/jurisprudence/2012/03/the_supreme_court_is_more_concerned_with_the_politics_of_the_health_care_debate_than_the_law_.single.html> health care now to dismantle affirmative action and Voting Rights Act later.

Similar thoughts<http://www.huffingtonpost.com/2012/03/18/health-care-reform-supreme-court-obamacare_n_1354804.html> from Mike Sacks.
<share_save_171_16.png><http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D32076&title=Shorter%20Dahlia%20Lithwick&description=>
Posted in Supreme Court<http://electionlawblog.org/?cat=29> | Comments Off
How I Would Like To Reverse Citizens United: A More Modest Proposal<http://electionlawblog.org/?p=32073>
Posted on March 23, 2012 8:42 am<http://electionlawblog.org/?p=32073> by Rick Hasen<http://electionlawblog.org/?author=3>

Unlike Larry's broader dreams<http://www.theatlantic.com/politics/archive/2012/03/an-open-letter-to-the-citizens-against-i-citizens-united-i/254902/>, I discuss evidence<http://electionlawblog.org/?p=31998> showing Super PACs and 501c4s can corrupt, and this is a basis to overturn Citizens United

Then again, Larry is trying to foment a popular movement.  I just need the change of one Justice on the Supreme Court.
<share_save_171_16.png><http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D32073&title=How%20I%20Would%20Like%20To%20Reverse%20Citizens%20United%3A%20A%20More%20Modest%20Proposal&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
"An Open Letter to the Citizens Against Citizens United"<http://electionlawblog.org/?p=32070>
Posted on March 23, 2012 8:37 am<http://electionlawblog.org/?p=32070> by Rick Hasen<http://electionlawblog.org/?author=3>

Larry Lessig blogs<http://www.theatlantic.com/politics/archive/2012/03/an-open-letter-to-the-citizens-against-i-citizens-united-i/254902/> at the Atlantic.  What does he want?

I believe the Court's reasoning was mistaken. But to respond to its mistake with a declaration that "corporations are not persons" alone is also a mistake. Citizens United would be reversed by granting Congress the explicit power to limit independent expenditures. And that is the call that these citizen movements need to be making, whatever else they ask for as well.

So these are the first changes that this democracy needs:

 1.  Citizen-funded elections - elections funded by citizens, not corporations (for whether or not a corporation is a person, no one has ever suggested corporations are federal citizens), and elections funded by all citizens, not just a tiny fraction of the 1 percent;
 2.  Limits on independent expenditures - whether by individuals or corporations, Congress must have the power to make sure this important political speech doesn't dominate our democracy, and thereby distract our representatives from a dependence "upon the People alone;"
 3.  An express recognition in our constitution that only persons are persons - that when the Declaration of Independence spoke of entities "endowed by their Creator with certain unalienable Rights," it was speaking of natural persons only.

These changes would restore a dependence upon "the People alone." They are the changes that these movements should be pushing.
<share_save_171_16.png><http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D32070&title=%E2%80%9CAn%20Open%20Letter%20to%20the%20Citizens%20Against%20Citizens%20United%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
The Democracy Deficit Widens at Americans Elect<http://electionlawblog.org/?p=32067>
Posted on March 23, 2012 7:23 am<http://electionlawblog.org/?p=32067> by Rick Hasen<http://electionlawblog.org/?author=3>

NOLA<http://www.nola.com/politics/index.ssf/2012/03/is_americans_elect_the_adjustm.html>:

Meanwhile, there are four Feb. 29 postings on the Americans Elect site, under the heading "board decisions<http://www.americanselect.org/board-decisions>," indicating changes to the bylaws and pre-convention rules that, it says, have been posted for delegates review. But it is not apparent what the changes are or where any more detailed explanation of the changes can be found for purposes of review. Next to each of the four items, it says, "this decision has been approved," and if you roll your cursor over the question mark alongside, it says, "This decision was unanimously approved by the Board and is not subject to delegate review." It is not clear from the site when the board was vested with that power....

On the site's news page<http://www.americanselect.org/news>, there is notice of another meeting of the board, by telephone, to be held today "to vote on the following items: adoption of amendments to the Pre-Convention Rules, to post the Post-Election Rules on the website for public comment and to adopt amendments to the Bylaws," but no other specifics are provided.
<share_save_171_16.png><http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D32067&title=The%20Democracy%20Deficit%20Widens%20at%20Americans%20Elect&description=>
Posted in chicanery<http://electionlawblog.org/?cat=12>, third parties<http://electionlawblog.org/?cat=47> | Comments Off
It's Not Every Day the Severability Doctrine Makes the NY Times Op-Ed Page<http://electionlawblog.org/?p=32064>
Posted on March 23, 2012 7:18 am<http://electionlawblog.org/?p=32064> by Rick Hasen<http://electionlawblog.org/?author=3>

Must-read<http://www.nytimes.com/2012/03/23/opinion/the-severability-doctrine.html?_r=1&hp> Abbe Gluck and Michael Graetz on the severability argument in the health care case.  It concludes:

It's not clear why the Obama administration has chosen this course. Perhaps it made a strategic choice to raise the stakes of striking down the mandate by asking the court to also invalidate the law's more popular provisions. Or it may be concerned that, if the mandate alone is struck down, there would not be enough votes in Congress to pass new provisions to compensate the insurance industry for its loss. But as a legal matter, the court should reject the argument.

We believe that imposing the mandate was within Congress's powers to regulate commerce and that the legislation should be upheld. But if the Supreme Court strikes the mandate down, the rest of the law should stand, and Congress should have to decide what happens next.

Why should an unelected court free the insurance industry from having to do its own political lobbying work in Congress? Why should the court choose whether or not to deny injured and sick Americans health insurance? These crucial decisions must be left to our elected officials, who - unlike the Supreme Court - can then be held accountable for them by the voting public.
<share_save_171_16.png><http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D32064&title=It%E2%80%99s%20Not%20Every%20Day%20the%20Severability%20Doctrine%20Makes%20the%20NY%20Times%20Op-Ed%20Page&description=>
Posted in legislation and legislatures<http://electionlawblog.org/?cat=27>, statutory interpretation<http://electionlawblog.org/?cat=21> | Comments Off
Sad News: The NAACP LDF's John Payton Has Passed Away<http://electionlawblog.org/?p=32061>
Posted on March 23, 2012 7:16 am<http://electionlawblog.org/?p=32061> by Rick Hasen<http://electionlawblog.org/?author=3>

A leading lawyer<http://content.usatoday.com/communities/theoval/post/2012/03/obama-mourns-naacp-lawyer-payton/1#.T2yFaNnwDAI> in the civil rights and voting rights world.
<share_save_171_16.png><http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D32061&title=Sad%20News%3A%20The%20NAACP%20LDF%E2%80%99s%20John%20Payton%20Has%20Passed%20Away&description=>
Posted in election law biz<http://electionlawblog.org/?cat=51> | Comments Off
"On health care, Supreme Court loss could be electoral win"<http://electionlawblog.org/?p=32058>
Posted on March 23, 2012 7:09 am<http://electionlawblog.org/?p=32058> by Rick Hasen<http://electionlawblog.org/?author=3>

The Fix reports<http://www.washingtonpost.com/blogs/the-fix/post/on-health-care-supreme-court-loss-could-be-electoral-win/2012/03/22/gIQAresaUS_blog.html>. I made a similar argument back in September.<http://electionlawblog.org/?p=23578>
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Posted in campaigns<http://electionlawblog.org/?cat=59>, Supreme Court<http://electionlawblog.org/?cat=29> | Comments Off

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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http://electionlawblog.org<http://electionlawblog.org/>


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