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

Tue May 1 11:30:39 PDT 2012

Since the PAC. (seperate seggregated fund) is created and completely controlled by the corporation, why is it not the corporation? Just because its funding is voluntarily contributed  rather than achieved through commerce does not seem to make it any less "the corporation".
Trevor Potter

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 -----Original Message-----
From: 	Steve Hoersting [mailto:hoersting at gmail.com]
Sent:	Tuesday, May 01, 2012 02:19 PM Eastern Standard Time
To:	Rick Hasen
Cc:	law-election at uci.edu
Subject:	Re: [EL] Too Brave for the "Home of the Brave"?

The PAC is not the corporation.  Banning the latter because rights are
recognized in the former is insufficient.

On Tue, May 1, 2012 at 2:08 PM, Rick Hasen <rhasen at law.uci.edu> wrote:

>  Any human being associated with a corporation (who is a U.S. citizen)
> should have the right to spend money on elections.  And if they want to do
> so together to speak as the voice of the corporation, they can amply do so
> with a PAC.  As Justice Souter said in the context of the ban on corporate
> contributions in elections in FEC v. Beaumont, " A ban on direct corporate
> contributions leaves individual members of corporations free to make their
> own contributions, and deprives the public of little or no material
> information. "
>
>
> On 5/1/2012 11:01 AM, Steve Hoersting wrote:
>
> 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
>
>
> --
> 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

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