[EL] Too Brave for the "Home of the Brave"?
Dan Meek
dan at meek.net
Tue May 1 22:05:27 PDT 2012
Why is this a problem? For the same reasons that bribery and quid pro
quo corruption are problems: Because it is antithetical to democracy,
to the principle of one-person one-vote, and to the goal that each
individual citizen has a meaningful say in electing government
officers. Arranging, through contribution and/or expenditure of huge
sums of money, to elect only those who agree with the providers of the
money results in government actions that benefit the providers at the
expense of persons of average means or less.
So let me ask you, why is bribery a problem? Why is quid pro quo
corruption a problem?
Dan Meek
dan at meek.net
10949 S.W. 4th Ave
Portland, OR 97219 503-293-9021
866-926-9646 fax
On 4/30/2012 11:00 AM, JBoppjr at aol.com wrote:
Why is this a problem?
/The problem is that the contributors and expenders select the winning
candidates by funding their campaigns. They select persons who already
share their points of view./
There is no quid-pro-quo and this is just democracy -- supporting a
politician who agrees with you already. So it is corrupt to support a
politician who agrees with you! Jim Bopp
In a message dated 4/29/2012 5:55:19 P.M. Eastern Daylight Time,
dan at meek.net writes:
Anonymity of contributions (and/or independent expenditures), even
if somehow the officeholders could not find out who made the
contributions or expenditures (highly unlikely), is a solution to
only a small part of the problem. The problem is not primarily that
contributions or expenditures influence an officeholder who is
otherwise a blank slate. The problem is that the contributors and
expenders select the winning candidates by funding their campaigns.
They select persons who already share their points of view. It does
not matter whether the candidate knows where the money originates.
Dan Meek
dan at meek.net
10949 S.W. 4th Ave
Portland, OR 97219 503-293-9021
866-926-9646 fax
On 4/29/2012 8:26 AM, Mark Schmitt wrote: Here's a third objection
(and there are surely others): Let's stipulate that the executive
branch works as you claim it does: agency officials routinely take
arbitrary regulatory actions to reward the sitting president's
political friends and punish his political enemies. Even if that
were the case, your solution of blocking campaign spending
disclosure would work, at best, on only one side of the problem,
because it hides only one side of the transaction. It might make
retribution harder. But the party in power would still know exactly
who its friends are, and could reward them. But no one else would
know. Journalists, opposing campaigns, researchers, and
congressional investigators and even prosecutors would have no
ability to determine whether the administration was, in fact,
rewarding its financial backers. And if the agency administrators
are the unprincipled political operatives you depict, they're also
unlikely to be ignorant about who the administration's political
opponents are. (Whether they are named on a campaign-affiliated web
site or not.)
Ian Ayres' solution (in the 2002 book /Voting with Dollars, /with
Bruce Ackerman) of mandatory anonymity on contributions was
theoretically appealing. If every single legislative or
administrative action could take place behind a veil of total
ignorance, on all sides, about who the donors were, that might be as
effective, in its own way, as total disclosure. But it's a thought
experiment, not a realistic proposal, because of course elected
officials will know exactly who their financial supporters are, even
if they're not sure of the exact amounts. And they know who their
opponents' backers are, just as they can know with reasonable
accuracy what share of the vote they'll get from a given county or
state or demographic category.
In the dystopian "government by waiver" coupled with massive
cronyism and revenge that you depict, the broadest possible
disclosure would be absolutely essential, in order to actually
reveal or test the patterns of favoritism and revenge you see. For
example, in your 2011 National Review article, you cite three
examples of the administration taking action against businesses: the
NLRB action against Boeing; the move by the HHS Inspector General to
exclude Forest Laboratories from participation in federal health
programs, following three criminal guilty pleas on fraud charges;
and an EPA rejection of Shell's permits to drill in the Arctic.
Without disclosure, we would have no evidence at all about whether
these decisions were politically motivated. With disclosure, they
become testable propositions. As it happens, Boeing is primarily a
Democratic donor and, as a Chicago company, a huge source of money
for Obama; Forest Labs CEO Howard Solomon is /exclusively/ a
Democratic donor and a big one; and only Shell is mostly a
Republican donor. These may have been bad administrative decisions,
but there's no reason to think they were retribution for political
spending. Without disclosure, we can't even try to answer that question.
All three actions have since been settled, dropped, or reversed,
also by administration officials.
On 4/27/2012 1:05 PM, Steve Hoersting wrote:
> In the event I was not clear, the kind of retribution I of which I
> speak is largely regulatory/economic.
>
> I am not speaking just of crony capitalism. I am speaking of the
> increased importance of political participation in an environment
> Richard Epstein describes as "Government by Waiver." Among the
> ideas is that, as agency power is subject to less review from the
> other branches, and more and more statutes vest vast powers in
> administrators with repeated statements such as, "The Secretary
> shall...," a businessman speaking against the team empowered to
> decide, on a multitude of unverifiable factors, whether he will be
> a medical provider at all in, say, a nationalized medical system
> is not "Brave." Rather he is something beyond brave where the
> team, officeholder or official he would speak against has shown a
> predilection to reward allies and frustrate opponents, and has a
> 50-50 chance of winning.
>
> Two objections I expect... And two quick replies:
>
> 1) /Socialist Workers/ only protects dissidents and the like,
> certainly not business leaders or the wealthy. Not so. The
> paradigmatic case -- /NAACP v. Ala/. -- protected all contributors
> to the NAACP. This must have included some of the wealthiest,
> established persons in Birmingham at the time. The exemption goes
> to those who need it.
>
> 2) You'll never prove retribution. It is important to remember,
> this isn't tort law. No one is saying the official is liable
> here. And the official cannot say he would be "damaged" by full
> political participation, particularly after /Carolene Products./
> The "reasonable probability of retribution" standard of /Socialist
> Workers, Doe v Reed/ and the like, is within the context of the
> 1st Am. -- and exists only to free political speakers. It should
> be a far lower standard than in tort law.
>
> Steve
>
> On Fri, Apr 27, 2012 at 12:04 PM, Steve Hoersting
> <hoersting at gmail.com <mailto:hoersting at gmail.com>> 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
>
>
>
>
> --
> Stephen M. Hoersting
>
>
>
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--
Mark Schmitt
Senior Fellow, The Roosevelt Institute
202/246-2350
gchat or Skype: schmitt.mark
twitter: @mschmitt9
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