[EL] Too Brave for the "Home of the Brave"?
Joseph Birkenstock
jbirkenstock at capdale.com
Tue May 1 12:38:24 PDT 2012
You know, creating a corporation is pretty burdensome, too - really,
even more burdensome than creating an SSF. You have to agree on
articles of incorporation, bylaws, name a board, appoint directors,
etc., etc. File much of that paperwork with the government, keep it
updated, file annual reports going forward. Truly, the mind boggles.
So if you think the PAC option was bad, just imagine how many
corporations are prevented from speaking by the requirement that they
exist first before they can engage in corporate political speech...
Best,
Joe
________________________________
Joseph M. Birkenstock, Esq.
Caplin & Drysdale, Chtd.
One Thomas Circle, NW
Washington, DC 20005
(202) 862-7836
www.capdale.com/jbirkenstock <http://www.capdale.com/jbirkenstock>
*also admitted to practice in CA
From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of
JBoppjr at aol.com
Sent: Tuesday, May 01, 2012 3:26 PM
To: wmaurer at ij.org; Trevor Potter; hoersting at gmail.com;
rhasen at law.uci.edu
Cc: law-election at uci.edu
Subject: Re: [EL] Too Brave for the "Home of the Brave"?
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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