[EL] Too Brave for the "Home of the Brave"?
JBoppjr at aol.com
JBoppjr at aol.com
Tue May 1 06:12:18 PDT 2012
I though it was Brad's determination to respect the First Amendment that
was so "rigid." He needs to be more flexible so he can get on the bandwagon
to prohibit the speech he does not like! And he will get a big grant from
Pew, Joyce or Soros if he does. Jim
In a message dated 4/30/2012 8:45:27 P.M. Eastern Daylight Time,
BSmith at law.capital.edu writes:
Mark's post below made my day.
For years the criticism of my work has been that I don't appreciate the
extent to which having money determines one's political views; that I don't
appreciate the extent to which campaign advertising determines public
opinion; that I don't appreciate the extent to which money determines who wins
campaigns; that I don't appreciate the extent to which money determines
political access; that I don't appreciate the extent to which money determines
the nation's legislative agenda; that I don't appreciate the extent to which
money determines what legislation passes or fails to pass; and that I
don't appreciate the extent to which money determines how legislators vote.
Finally someone recognizes my determinist reform side. Thanks, Mark!
Sadly, however (because I hate to disappoint), I don't think that
recognizing possibilities for abuse and that abuse can occur in some cases is very
deterministic, let alone "rigidly" so.
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_
(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 Mark Schmitt [schmitt.mark at gmail.com]
Sent: Monday, April 30, 2012 3:38 PM
To: law-election at department-lists.uci.edu
Subject: Re: [EL] Too Brave for the "Home of the Brave"?
It should be noted that the vision of how money works in politics and how
it influences government decisions expressed here by Steve and Brad is as
rigidly deterministic as anything I've ever heard from reformers. I can't
imagine how one could hold that view of government, and not support full
public financing.
Mark Schmitt
Senior Fellow, _The Roosevelt Institute_ (http://www.newdeal20.org/)
202/246-2350
gchat or Skype: schmitt.mark
_ at mschmitt9_ (https://twitter.com/#!/mschmitt9)
On 4/30/2012 1:59 PM, Rick Hasen wrote:
If elected official extortion of lobbyists is the problem with lobbyists,
the best solution in my view is to _take lobbyists out of the fundraising
business_ (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1734428) . Then
they can focus on the work of providing valuable information to
congressional staff without being caught up in this problem.
On 4/30/2012 8:29 AM, Smith, Brad wrote:
I really don’t much want into the theory of this debate here, but the
issue isn’t that officeholders know their supporters, it’s that they don’t
know their enemies – at least not for sure. The K Street project, for example,
worked only when Republicans knew who was giving to Democrats. With or
without disclosure, a corrupt official can pressure someone for a
contribution under threats of reprisal. And he can know his friends. What he can’t
know who is working to take him down. The threats of retaliation can’t work so
long as the opposition donor retains deniability – especially since that
donor can make a modest contribution to the corrupt official if need be
demonstrate his “friendship.”
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
Designated Professor of Law
Capital University Law School
303 East Broad Street
Columbus, OH 43215
(614) 236-6317
_bsmith at law.capital.edu_ (mailto:bsmith at law.capital.edu)
_http://www.law.capital.edu/faculty/bios/bsmith.asp_
(http://www.law.capital.edu/faculty/bios/bsmith.asp)
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 Mark Schmitt
Sent: Monday, April 30, 2012 10:06 AM
To: _law-election at department-lists.uci.edu_
(mailto:law-election at department-lists.uci.edu)
Subject: Re: [EL] Too Brave for the "Home of the Brave"?
One small clarification: You write, "you yourself said it was a bad
regulatory decision" -- that is, the NLRB case against Boeing. Actually, I said
that all three may be bad regulatory decisions. That is, I wasn't making any
argument about the substance of the decisions, just the evidence about
whether it was plausible that they were retaliation for political giving. I'm
not familiar enough with the Forest Labs or Shell decisions to have an
opinion; I have one on Boeing but it's not relevant.
It sounds like you have a specific legislative/regulatory proposal. Have
you published it somewhere? I'm just curious what the affidavit would say,
if not to provide some evidence of politically motivated retaliation. The
Socialist Workers Party had to provide the FEC with a fair amount of specific
evidence of harassment, often violent. I don't see how a business could do
that without disclosure, and without "testing patterns" to find the
evidence of retaliation.
Finally, when I say that political operatives generally know who their
opponents' backers are, I didn't mean anything having to do with leaking court
documents or anything like that. I just meant that, generally, people in
power know who their friends and their enemies are, with or without
disclosure.
Mark Schmitt
Senior Fellow, _The Roosevelt Institute_ (http://www.newdeal20.org/)
202/246-2350
gchat or Skype: schmitt.mark
_ at mschmitt9_ (https://twitter.com/#!/mschmitt9)
On 4/30/2012 8:31 AM, Steve Hoersting wrote:
Mark,
I will stipulate there will be many objections until this theory is
developed and resolved. But it is a theory worth pursuing. Full participation
in politics is, after Carolene, the predicate to legitimizing the elected
officials who will make regulatory decisions, and a predicate to the Court
staying out of, not re-entering, the matter of economic deprivations.
You say, "[my] solution of blocking campaign spending disclosure would
work, at best, on only one side of the problem, because it hides only one side
of the transaction. It might make retribution harder. But the party in
power would still know exactly who its friends are, and could reward them.
But no else would know."
First, my proposal would provide the Socialist Workers safety valve to
opponents of abusive officials. Only if that does not work, in, say, a
handful to 100 cases, would the Court have no choice but to review the
informational interest itself.
Second, you and I may see different problems. Regulatory legitimacy can
be restored when each individual believes he can exercise his right to
speak. Only then is the electoral crucible re-sealed, so to speak. As you say,
an abusive administration, congressional committee chairman or governor
can continue to reward his friends. That only makes the affidavit John Doe
must swear all the easier to write. Again, the friends would be disclosing
under the informational interest. The probably-to-be-put-upon opponents
will be seeking the exemption to that informational interest: Socialist
Workers.
I will have to read, not just skim as I have before, Ian's Ayres Rawlsian
take on campaign disclosure and public policy making.
Third, I differ from you in that I have always had very little interest in
"testing patterns" as a matter for legislating at the core of the First
Amendment. I have often thought reformers use the desire to "test patterns"
as the driver for more disclosure in improper areas, with perhaps the best
example being American University's James Thurber's desire to achieve
grassroots lobbying disclosure for all the studies he'd run (among other policy
reasons). Grassroots lobbying disclosure rests on the false premise that
sunlight on citizens is the disinfectant, rather than sunlight on
governmental operations. And Bauer taught us long ago that disclosure is, always
and at a minimum, "a beachhead to conduct operations inland." My interest
here is not in testing patterns but in ensuring that all who want to speak
for or against the slate of candidates in 2012, 2014, 2016 and so on, do so
without the reasonable belief they will be dinged in future regulatory
processes if they do so.
Fourth, you cite my three examples. Let me address Boeing. From memory,
it is my understanding that the NLRB lifted its Boeing suit after
administration-allied unions got nearly all the contract concessions they wanted in
their latest round of negotiations. To the extent the matter was an
instance of punishing an opponent, I'd say that is a pretty clear case of
message sent; message received -- sent not by protest but by raw government
force. A John Doe affiant could say he's received the message as well, no
matter the motive the government used for visiting that abuse (you yourself said
it was a bad regulatory decision). But you want to tie it not just to
evidence of a propensity to abuse but to the direction of campaign
contributions. By why see the matter entirely as a case of punishing Boeing? I am
equally willing to see it as rewarding Labor, a far, far bigger contributor
to the administration -- and something a Jane Doe can explain clearly in
her affidavit for a Socialist Workers exemption.
Fifth, you say, "And if the agency administrators are the unprincipled
political operatives you depict, they're also unlikely to be ignorant about
who the administration's political opponents are. (Whether they are named on
a campaign-affiliated web site or not.)"
I wish you had no point here, but I am afraid you do. Three reasons
against regaining our politics from intimidation by seeking the Socialist
Workers exemption are, I wish it were otherwise, Blair Hull (unsealed court
records), Jack Ryan (unsealed court records) and Joe the Plumber (contents of
records divulged). These are far from the only examples in history, I am
sure. But if American businessmen do not have the courage, dare I say "civic
courage," to put their faith in the courts to protect them from a
probability of retribution and to let them speak, then surely we are lost.
Thanks for your comments. I will continue to consider the theory, as I am
sure you will.
I will have to read and address the no-doubt-thoughtful comments of Dan,
Rick and others later in the day.
Good morning,
Steve
On Sun, Apr 29, 2012 at 11:26 AM, Mark Schmitt <_schmitt.mark at gmail.com_
(mailto:schmitt.mark at gmail.com) > wrote:
Here's a third objection (and there are surely others): Let's stipulate
that the executive branch works as you claim it does: agency officials
routinely take arbitrary regulatory actions to reward the sitting president's
political friends and punish his political enemies. Even if that were the
case, your solution of blocking campaign spending disclosure would work, at
best, on only one side of the problem, because it hides only one side of the
transaction. It might make retribution harder. But the party in power would
still know exactly who its friends are, and could reward them. But no one
else would know. Journalists, opposing campaigns, researchers, and
congressional investigators and even prosecutors would have no ability to determine
whether the administration was, in fact, rewarding its financial backers.
And if the agency administrators are the unprincipled political operatives
you depict, they're also unlikely to be ignorant about who the
administration's political opponents are. (Whether they are named on a
campaign-affiliated web site or not.)
Ian Ayres' solution (in the 2002 book Voting with Dollars, with Bruce
Ackerman) of mandatory anonymity on contributions was theoretically appealing.
If every single legislative or administrative action could take place
behind a veil of total ignorance, on all sides, about who the donors were, that
might be as effective, in its own way, as total disclosure. But it's a
thought experiment, not a realistic proposal, because of course elected
officials will know exactly who their financial supporters are, even if they're
not sure of the exact amounts. And they know who their opponents' backers
are, just as they can know with reasonable accuracy what share of the vote
they'll get from a given county or state or demographic category.
In the dystopian "government by waiver" coupled with massive cronyism and
revenge that you depict, the broadest possible disclosure would be
absolutely essential, in order to actually reveal or test the patterns of
favoritism and revenge you see. For example, in your 2011 National Review article,
you cite three examples of the administration taking action against
businesses: the NLRB action against Boeing; the move by the HHS Inspector General
to exclude Forest Laboratories from participation in federal health
programs, following three criminal guilty pleas on fraud charges; and an EPA
rejection of Shell's permits to drill in the Arctic. Without disclosure, we
would have no evidence at all about whether these decisions were politically
motivated. With disclosure, they become testable propositions. As it happens,
Boeing is primarily a Democratic donor and, as a Chicago company, a huge
source of money for Obama; Forest Labs CEO Howard Solomon is exclusively a
Democratic donor and a big one; and only Shell is mostly a Republican
donor. These may have been bad administrative decisions, but there's no reason
to think they were retribution for political spending. Without disclosure,
we can't even try to answer that question.
All three actions have since been settled, dropped, or reversed, also by
administration officials.
On 4/27/2012 1:05 PM, Steve Hoersting wrote:
In the event I was not clear, the kind of retribution I of which I speak
is largely regulatory/economic.
I am not speaking just of crony capitalism. I am speaking of the
increased importance of political participation in an environment Richard Epstein
describes as "Government by Waiver." Among the ideas is that, as agency
power is subject to less review from the other branches, and more and more
statutes vest vast powers in administrators with repeated statements such as,
"The Secretary shall...," a businessman speaking against the team empowered
to decide, on a multitude of unverifiable factors, whether he will be a
medical provider at all in, say, a nationalized medical system is not
"Brave." Rather he is something beyond brave where the team, officeholder or
official he would speak against has shown a predilection to reward allies and
frustrate opponents, and has a 50-50 chance of winning.
Two objections I expect... And two quick replies:
1) Socialist Workers only protects dissidents and the like, certainly not
business leaders or the wealthy. Not so. The paradigmatic case -- NAACP
v. Ala. -- protected all contributors to the NAACP. This must have
included some of the wealthiest, established persons in Birmingham at the time.
The exemption goes to those who need it.
2) You'll never prove retribution. It is important to remember, this
isn't tort law. No one is saying the official is liable here. And the
official cannot say he would be "damaged" by full political participation,
particularly after Carolene Products. The "reasonable probability of
retribution" standard of Socialist Workers, Doe v Reed and the like, is within the
context of the 1st Am. -- and exists only to free political speakers. It
should be a far lower standard than in tort law.
Steve
On Fri, Apr 27, 2012 at 12:04 PM, Steve Hoersting <_hoersting at gmail.com_
(mailto:hoersting at gmail.com) > wrote:
Dear Rick,
When last you and I chatted about disclosure and its exceptions, I closed
on this point:
But ask yourself, for a later discussion: Can you imagine actions taken
with the aid of public disclosure that even "someone important" [and I'm sure
you meant J. Scalia] might likely say is too much, even for "the Brave?"
Everyone discussing disclosure exemptions, Doe v. Reed, Civic Courage and
The Brave do so on the premise of managing the problem of
citizen-on-citizen retribution. But they ignore a quickly shifting landscape. The real
question is quickly becoming this: What about the rights of a potential
speaker who witnesses or reads of government-on-citizen retribution visited on
others? This person wants to participate in the election, but doesn't want
to risk being the next one made an example of.
An op-ed today, by WSJ's Kim Strassel, brings this issue to the fore.
_http://online.wsj.com/article/SB10001424052702304723304577368280604524916.h
tml?mod=WSJ_Opinion_LEADTop_
(http://online.wsj.com/article/SB10001424052702304723304577368280604524916.html?mod=WSJ_Opinion_LEADTop)
If the regulatory process is soon to be so divorced from congressional
budgetary processes and meaningful judicial review -- and I am thinking now of
the powers vested in an IPAB or Dodd-Frank's new consumer czar -- the
prospect of post hoc regulatory decisions, made by winning officeholders who
have already demonstrated a willingness to reward friends and frustrate
opponents, can intimidate businessmen deciding whether to speak at all in the
election.
An answer to this drain on popular sovereignty is for business-men and
-women to 1) seek the Socialist Workers exemption 2) to campaign disclosure of
independent communications (not candidate donations) 3) for potential
speakers who 4) have observed the actions of abusive officials of any party,
want to speak against them in the election, and do not want to be "next."
These business men or women would file as John Does or Jane Does to protect
their anonymity while the district court adjudicates their application. If
the request is denied, they would have the choice to proceed or stay
silent -- forming a record for appellate review.
If no one receives the Socialist Workers exemption from a district court,
appellate courts will have to consider that fact when revisiting not only
Socialist Workers' efficacy as a safety valve, but the importance of "the
informational interest" itself. If no lower court will grant the exemption,
then, in the new wave of regulatory power sure to come, the Carolene
Products compromise -- that economic deprivations will not be handled in the
courts but rather in robust political processes -- is all but dead.
Even after the Judicial Revolution of 1937, and irrespective of who wins
in November, regulatory power is only legitimate if it is the result of
robust political processes.
Now back to Scalia, our discussion, and the Home of the Brave. Where
citizen-on-citizen intimidation is facilitated by disclosure, as in the Prop 8
cases and Doe v. Reed, Scalia wants citizens to toughen up and get some
"civic courage." But I believe where government-on-citizen intimidation is
facilitated by public disclosure Scalia would not look favorably upon this
at all. Scalia knows our Founders pledged their lives, fortunes and honor
in their 18th century campaign against the King. But these men were already
acting outside the political system of their day, not within it. Their
"Courage" cannot be the model Scalia would hold businessmen to while U.S.
courts are open. The reasonable probability of government-on-citizen
retribution can be a difference in kind.
It is conventional wisdom that Scalia likes what he calls "real"
constitutional law -- not just adjudicating rights under the first ten amendments,
but deciding questions about relative power distributed among co-equal
branches. Scalia would recognize that, after 1937 and the Carolene compromise
of 1938, regulatory legitimacy derives almost entirely from robust
political processes. I have to believe he would understand that those asked to
speak electorally in an atmosphere of a probable government retribution
knowing their is a 50-50 chance their side will lose the coming election are not
"Brave" but martyrs or fools.
Most importantly, Scalia knows that when robustness is chilled, the
Carolene compromise itself is called into question. Not only are speech rights
deprived, the electoral crucible that ensures popular sovereignty begins to
produce tainted results; and the very structure of government and relative
power among the branches risks being altered.
This is a theory I will be promulgating when I get the opportunity, in
addition to this old op-ed.
_http://www.nationalreview.com/blogs/print/266623_ (http://www.nationalreview.com/blogs/print/266623) If anyone else wants
to develop it, please be my guest.
--
Stephen M. Hoersting
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