[EL] Too Brave for the "Home of the Brave"?

Tue May 1 11:01:21 PDT 2012

Rick,

Thank you for the reply.

I will think about your point that the ability of an independent speaker to
choose anonymity can be worse than a system of compelled disclosure for all
independent electoral speakers, though I don't lean that way.  Nonetheless,
this point still leaves open the question of exemptions... of when they are
triggered and acceptable.

I don't believe, however, I'll be coming to the position that there is, on
balance, a benefit in banning corporate electoral speakers to shield them
from extortion.  Corporations are one of many associational forms; they are
groups of people.  If they choose not to speak, fine.  But I believe the
association has rights that cannot be reconciled with a ban.

Banning the rights of the people to protect them from their representatives
reverses the role of principal and agent.

Best regards,

Steve

On Mon, Apr 30, 2012 at 12:23 AM, Rick Hasen <rhasen at law.uci.edu> wrote:

>  Steve,
> Sorry for the late response---I've been travelling.  I don't think your
> post below adds anything to our earlier discussion (that is, I don't think
> we've done anything since the last time to convince each other to change
> our own positions).  I've yet to see compelling evidence in current times
> of economic retaliation by government actors based upon to whom they
> give/don't give money.
> But even if we suppose that this happens on a regular enough basis to
> worry about, I think that non-disclosure of campaign spending makes things
> WORSE, not better. The government actor could still demand that money be
> spent in support of a campaign or exact retribution.  But now the public is
> deprived of relevant information for elections and it is harder to ferret
> out corrupt deals end enforce other campaign finance laws, such as the ban
> on foreign money in elections.
> Even more importantly, the best way to deal with this problem might be to
> prevent corporations from making such spending so that they could not be
> extorted in this way.  I understand this is precisely why many large
> corporations supported the soft money provisions of BCRA.
> Rick
>
>
> On 4/27/12 9:04 AM, Steve Hoersting 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.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  If anyone else wants to
> develop it, please be my guest.
>
> --
> Stephen M. Hoersting
>
>
>
> _______________________________________________
> Law-election mailing listLaw-election at department-lists.uci.eduhttp://department-lists.uci.edu/mailman/listinfo/law-election
>
>
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000
> 949.824.3072 - office
> 949.824.0495 - fax
> rhasen at law.uci.edu
> http://law.uci.edu/faculty/page1_r_hasen.html
> http://electionlawblog.org
>

-- 
Stephen M. Hoersting
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20120501/942911cc/attachment.html>