[EL] Too Brave for the "Home of the Brave"?
JBoppjr at aol.com
JBoppjr at aol.com
Tue May 1 12:25:40 PDT 2012
But this is why Trevor like the PAC requirement. Having lost the outright
ban on corporate speech, requiring it to be done through a PAC is the next
best thing. It prevents 99.97% from speaking. Jim Bopp
In a message dated 5/1/2012 2:53:57 P.M. Eastern Daylight Time,
wmaurer at ij.org writes:
And it's a lousy alternative, as Justice Kennedy pointed out in Citizens
United. Of the 5.8 million for-profit corporations in America, less than
2000 formed PACs. That's like the government banning purchasing cars, but
saying it's not a ban on owning an automobile because you can always build
your own car from scratch.
Bill
-----Original Message-----
From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Trevor Potter
Sent: Tuesday, May 01, 2012 11:31 AM
To: Steve Hoersting; Rick Hasen
Cc: law-election at uci.edu
Subject: Re: [EL] Too Brave for the "Home of the Brave"?
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
Sent by Good Messaging (www.good.com)
-----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/SB1000142405270230472330457736828060452
>> 4916.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.
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>>
>>
>> --
>> 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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