[EL] Civic Courage, Indeed

[Steve Hoersting]

Hello, Mark,

There is every reason to believe the special prosecutor is probing 1)
reporting violations for independent speech, or 2) coordination violations
for political speech.

If it is the pursuit of 1), this case presents good reasons for us each to
reconsider the rationale, costs and benefits of the so-called
"informational interest."

If it is 2), it is a good time seriously to take-up the
expenditure/contribution distinction, that is, the (independent)
expenditure / (in-kind) contribution distinction. Criminal prosecution of
coordination will swallow Citizens United, and there is every reason the
Court should take up that question, now before them, in McCutcheon --
there's an op-ed to be written there if anyone wants it. And don't think
the overarching effect of criminal prosecution of independent speech hasn't
crossed anyone's mind, perhaps even minds in Wisconsin.

Odds are the prosecutor is probing speech crimes. If so, these facts are a
good time to reconsider the interests furthered by speech restrictions: the
informational interest certainly, and the quid-pro-quo interest
short-of-bribery, if we are serious about free speech, a representative
republic and popular sovereignty. (Why do I suspect I am merely begging
other questions?)

Here's what will be *oh so special* about this matter should events go
fully in the direction they are headed: And I suspect many on the left will
hoot with joy should it happen. I can envision, as I sit here, a new
Democratic governor of Wisconsin, sometime in January 2015, saying into a
microphone: "Hey, if the people want civil society and education vouchers,
they'd better start winnin' some elections..." Perhaps even the special
prosecutor will be on the stage.

Do we really want to live in a world of rigged games?

Some look at the Wisconsin scandal and gleefully see Republican v.
Democrat, "finally the endgame!", and for all the marbles. They ought to
look a little closer. Visible in the Wisconsin tactics is something that
transcends party, whether we want to acknowledge it or not: a future
Enlightenment v. a future Dark Ages.

I'll let you, Mark, and the left in on a little secret. How this turns out
isn't really up to the right anymore. Look at the playing field and the
balance of power. The left has got to ask itself, what are its limits, and,
if it finds any, to start slowing the train, little by little.

All the best,

Steve




On Mon, Nov 18, 2013 at 10:33 AM, Mark Schmitt <schmitt.mark at gmail.com>wrote:

> OK, I'll bite. What does disclosure have to do with this story? It appears
> that a Wisconsin prosecutor has reason to think that some Wisconsin law was
> broken, and has subpoenaed a lot of information. That's what prosecutors do
> -- they subpoena information that otherwise would be private. And defense
> attorneys contest subpoenas, and hearings and sometimes trials or
> settlements ensue.
>
> Did these groups violate Wisconsin law? I don't know, and I don't think
> you know or the unnamed Wall Street Journal writer knows. There's no doubt
> that there's plenty of prosecutorial excess -- e.g., the Ted Stevens case
> -- but that's a very different issue than disclosure.
>
>
>
> On Sun, Nov 17, 2013 at 10:29 AM, Steve Hoersting <hoersting at gmail.com>wrote:
>
>>
>> http://online.wsj.com/news/articles/SB10001424052702304799404579155953286552832
>>
>> Can we yet stop calling it the "informational interest" in
>> disclosure, and start calling it the "retributional interest," as is
>> rightly deserved?
>>
>> And if ever there were reason to reconsider Buckley's in-kind
>> contribution / independent expenditure line, this is it.
>>
>> Welcome to your brave new world, members of the left. May it never come
>> back on you. (Though, if you've been reading the papers lately, and closely
>> enough, you know it already has).
>>
>> --
>> Stephen M. Hoersting
>>
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-- 
Steve Hoersting
CENTER for COMPETITIVE POLITICS
124 S. West Street
Suite 201
Alexandria, Va. 22314
(703) 894-6800
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