[EL] Too Brave for the "Home of the Brave"?
Richard Winger
richardwinger at yahoo.com
Tue May 1 11:23:50 PDT 2012
Rick's brief paragraph conflates two different concepts...his (your) first sentence relates to independent expenditures, and his (your) second and third sentences relate to donations.
Richard Winger
415-922-9779
PO Box 470296, San Francisco Ca 94147
--- On Tue, 5/1/12, Rick Hasen <rhasen at law.uci.edu> wrote:
From: Rick Hasen <rhasen at law.uci.edu>
Subject: Re: [EL] Too Brave for the "Home of the Brave"?
To: "Steve Hoersting" <hoersting at gmail.com>
Cc: law-election at uci.edu
Date: Tuesday, May 1, 2012, 11:08 AM
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 list
Law-election at department-lists.uci.edu
http://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
-----Inline Attachment Follows-----
_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu
http://department-lists.uci.edu/mailman/listinfo/law-election
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20120501/cedce3e9/attachment.html>
View list directory