[EL] Informational benefit outweighed by cost?

[Smith, Brad]

If we believe that the purpose of the bill of rights is to protect the rights of individuals, than this result is exactly right, isn't it.



Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Fredric Woocher [fwoocher at strumwooch.com]
Sent: Friday, May 11, 2012 5:59 PM
To: Steve Hoersting; Mark Schmitt
Cc: law-election at department-lists.uci.edu
Subject: Re: [EL] Informational benefit outweighed by cost?

I am a little confused:  One cannot regulate the size of campaign contributions to elected officials because it’s insufficiently likely that government officials will give favorable treatment to large donors, but one also cannot require disclosure of the names of campaign contributors because it’s sufficiently likely that government officials will give unfavorable treatment to their opponents’ large donors?

Fredric D. Woocher
Strumwasser & Woocher LLP
10940 Wilshire Blvd., Ste. 2000
Los Angeles, CA 90024
fwoocher at strumwooch.com<mailto:fwoocher at strumwooch.com>
(310) 576-1233
From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Steve Hoersting
Sent: Friday, May 11, 2012 2:30 PM
To: Mark Schmitt
Cc: law-election at department-lists.uci.edu
Subject: Re: [EL] Informational benefit outweighed by cost?

Was VanderSloot intimidated?  I don't know.  Possibly not, see this excerpt.

Mr. VanderSloot acknowledges that "when I first learned that President Obama's campaign had singled me out on his 'enemies list,' I knew it was like taping a target on my back." But the more he's thought it through, "the public beatings and false accusations that followed are no deterrent. These tactics will not work in America." He's [that is, VanderSloot's] even "contemplating a second donation."
But if he is not intimidated, he would be a rare breed.  The point I keep raising is that we no longer are seeing only citizen-on-citizen retribution a la Doe v. Reed.  Rather, we may be seeing government-on-citizen retribution.  After all, the man who coined the phrase, "The deterrent effect of campaign disclosure should not be underestimated" is a sitting Senator, not a researcher at Media Matters.

This is interesting stuff to discuss on the list, and I continue to think that if, as it appears, we have officials entering the intimidation fray it marks a difference in kind (from the discussion in, say, Doe v. Reed).  No need to remind me that the intimidator in McIntyre was, technically, a government official.  The malefactor in McIntyre was small potatoes.  Here is what I mean:

VanderSloot is CEO of company making dietary products.  I wonder if businessmen less brave than he have calculated how much relief they will be able to obtain from courts or Congress if their medical products are disallowed by the IPAB soon-to-be-selected by the next administration, whoever that administration may be.  The relief available in Court or Congress is nil, not least because the discretion the agency has is vast that nearly any decision is "defensible."

Given New Deal jurisprudence, the time for concerned businessmen to protect their economic interests is in the political process now, not in courts later.

What I want people to consider is that as we approach a state of affairs where regulatory agencies increasingly are given powers so vast that they effectively possess the means of retaliation, and where officials seeking re-election are displaying the motive to retaliate against businessmen, the informational interest permitting compelled disclosure of independent and non-corrupting political speech is not the slam dunk it used to be -- not if the Socialist Workers exemption to compelled disclosure continues to prove a hollow remedy.

Good weekend, Mark,

Steve


On Fri, May 11, 2012 at 4:29 PM, Mark Schmitt <schmitt.mark at gmail.com<mailto:schmitt.mark at gmail.com>> wrote:
Wait, Vandersloot was intimidated?? You do realize that the guy has a long history of attacking and intimidating any and all critics, including Forbes, which first put up an article about "Four Romney donors he doesn't want you to know about," by a Republican operative, and then pulled the article after Vandersloot's legal threats. He placed a full page newspaper ad, signed in his own name, attacking a reporter as "a homosexual." He put anti-gay billboards all over the state of Idaho. He's a totally public figure, not, as Strassel pretends, just a quiet citizen who wanted to make a contribution.

I don't think divorce records should be made public, and they're usually not (and there's also no indication in Strassel's article that the clerk actually complied with the request for the records). But certainly if corporations are going to be major players in electoral politics, that activity should be open to public scrutiny, and the only way for that information to be useful is if we can also know the corporation's regulatory interests and legal issues. For example, Don Blankenship didn't give $3 million to replace a W. Virginia Supreme Court justice just to express his political views. It would have been useful for voters to know about the expenditure, and also about the legal/regulatory issues that motivated Blankenship and Massey Coal.


Mark Schmitt
Senior Fellow, The Roosevelt Institute<http://www.newdeal20.org>
202/246-2350<tel:202%2F246-2350>
gchat or Skype: schmitt.mark
@mschmitt9<https://twitter.com/#%21/mschmitt9>
On 5/11/2012 2:45 PM, Steve Hoersting wrote:
Kim Strassel has another piece in today's WSJ intimating that the compelled disclosure of independent, non-corrupting speech poses too high a cost on speech rights for too little benefit in voter information -- especially absent a meaningful exemption available not just to Vandersloot, for whom it is too late, but to other would-be funders noticing this treatment, and eager to seek an exemption as John Doe or Jane Doe.
http://online.wsj.com/article/SB10001424052702304070304577396412560038208.html

--
Stephen M. Hoersting


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Stephen M. Hoersting
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