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

Wed May 2 07:31:16 PDT 2012

You're completely misrepresenting Dan's argument. He is emphatically not saying that contributors/expenders selecting candidates (even who genuinely agree with them in their heart of hearts) is quid pro quo. He's saying that both the selection problem (for lack of a better term) and quid pro quo are problematic for the same reason: that it "results in government actions that benefit the providers at the expense of persons of average means or less."

I would venture that for Dan and many others, whether the politician in question is an "evil" person is beside the point. The important matter is whether government is acting in the interests of the public at large or in the interests of a select few.

Also, lobbing out
It appears that you just don't like the way democratic elections work. What system do you prefer, a monarchy?
is a diversion and immaterial to the discussion. Saying that the method of democratic elections can be improved is not advocating monarchy.

Finally, you pull out another strawman when you argue that "There is no such thing as only people of average means behind one candidate and only rich people behind another." Again, that's not anyone's argument. I think the argument is more that selection bias affects which candidates are eventually available to vote on, a filtering effect that would happen much earlier than the general election. Saying that there is at least some big money behind every party/ideology, even if that is true, is not the same as arguing that wealth and ideology do not correlate at all, which would be an… interesting claim.

-Kurt Walters

From: "JBoppjr at aol.com<mailto:JBoppjr at aol.com>" <JBoppjr at aol.com<mailto:JBoppjr at aol.com>>
Date: Wed, 2 May 2012 08:08:39 -0400
To: "dan at meek.net<mailto:dan at meek.net>" <dan at meek.net<mailto:dan at meek.net>>
Cc: "law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>" <law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>>
Subject: Re: [EL] Too Brave for the "Home of the Brave"?

If the candidate already agrees with the contributor before he contributes, as your statement of the "problem" says, then there is no quid-pro-quo.  That a contributor supports someone who already agrees with them on the issues and as a result they win is not corruption or bribery. And if the politician does what he said he would do in office is not evil but a honest politician.  And all the average people who voted for this guy benefited from the monetary support the candidate received from the contributor since their candidate won.

It appears that you just don't like the way democratic elections work. What system do you prefer, a monarchy?

Furthermore, there are huge providers of money behind every political party, every ideology and almost every candidate I can think of.  So no matter who wins there are rich people behind them.  There is no such thing as only people of average means behind one candidate and only rich people behind another.

If you look at the overall demographics of voting in the U.S.  The Democrats are predominately supported by (1) the very rich and (2) the very poor. So if your theory is that the rich line up against the poor, it is actually flat wrong.

The Republicans, however, are supported by the great middle class from the blue collar voter to the upper middle class.

But while I am envious that the Democrats get disproportionate support from the wealthy, I don't think they should be prohibited because of their foolishness.  We just have to figure out how to compete with it.  Jim Bopp

In a message dated 5/2/2012 1:05:30 A.M. Eastern Daylight Time, dan at meek.net<mailto:dan at meek.net> writes:
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<mailto: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<mailto: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<mailto: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<mailto: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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