[EL] Civic Courage, Indeed

Wed Nov 20 05:35:23 PST 2013

I don't think it's wrong that an editorial page is biased - it's supposed
to have an ideology/bias, that's the point.

Pulitzers for commentary, likewise, don't prove an entity's objectivity or
reporting standards. Maureen Dowd has one.

On Wed, Nov 20, 2013 at 8:24 AM, David Keating <dkeating at campaignfreedom.org
> wrote:

> My recollection is that The Wall Street Journal’s editorial staff has won
> four Pulitzers since 2000, so while it may be biased, it certainly has high
> standards.  In any event, all editorial pages express a view, so a charge
> of bias seems inapt.  The WSJ is one of the few papers, ironically, that
> supports First Amendment rights for citizens and groups.
>
>
>
> One of the WSJ Pulitzers was awarded for commentary, much of which was
> original reporting, on the prosecution of the Amiraults.  In that case, the
> parole board voted unanimously for commuting the sentence.  How many other
> editorial pages did anything like that?
>
>
>
> David
>
> _________________________________________________
>
> David Keating | President | Center for Competitive Politics
>
> 124 S. West Street, Suite 201 | Alexandria, VA 22314
>
> 703-894-6799 (direct) | 703-894-6800 | 703-894-6811 Fax
>
> www.campaignfreedom.org
>
>
>
> *From:* law-election-bounces at department-lists.uci.edu [mailto:
> law-election-bounces at department-lists.uci.edu] *On Behalf Of *Josh Orton
> *Sent:* Wednesday, November 20, 2013 1:01 AM
> *To:* Smith, Brad
>
> *Cc:* law-election at uci.edu
> *Subject:* Re: [EL] Civic Courage, Indeed
>
>
>
> Those statements go together perfectly - the second one represents my
> opinion about the self-interested motives for the leak, given that those
> motives don't require any actual knowledge of the precise criminal conduct
> suspected by the prosecutor. I assume you're not trying to suggest that the
> parties subpoenaed actually do believe they broke the law.
>
>
>
> "Most obviously, how do you know that the impression of a "witch hunt" is
> "false," and how do you know that the leak was a "CYA move"?"
>
> Because of all the known reasons to illegally leak a subpoena to a biased
> editorial board with no known reporting standards so they can publish a
> no-byline piece of beneficial yet completely unconfirmed speculation, "CYA
> move" is at the very top of the list. Although at this point I imagine Eric
> O'Keefe might also justify this as a from of civil disobedience.
>
>
>
> On Wed, Nov 20, 2013 at 12:00 AM, Smith, Brad <BSmith at law.capital.edu>
> wrote:
>
> It seems to me that these two statements cannot go together:
>
>
>
> "1. No one knows anything. The subpoenas did not allege specific
> wrongdoing. The only thing we know is that the currently known subpoenas
> target a bunch of conservative groups who played in the recall election and
> were willing to disclose that they received a subpoena. Anyone who pretends
> to know where this is going or what it's investigating is lying for their
> own benefit."
>
>
>
> and
>
>
>
> "the WSJ leak was a CYA move done to squeeze the prosecutor and sway
> state politics by pushing the false impression of a witch hunt."
>
>
>
> Most obviously, how do you know that the impression of a "witch hunt" is
> "false," and how do you know that the leak was a "CYA move"?
>
>
>
> *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 <614.236.6317>*
>
> *http://law.capital.edu/faculty/bios/bsmith.aspx
> <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 Josh Orton [
> orton at progressivesunited.org]
> *Sent:* Tuesday, November 19, 2013 11:27 PM
> *To:* Trevor Potter
> *Cc:* law-election at uci.edu
>
>
> *Subject:* Re: [EL] Civic Courage, Indeed
>
>
>
> As a Wisconsin resident, I offer a few points about this investigation:
>
>
>
> 1. No one knows anything. The subpoenas did not allege specific
> wrongdoing. The only thing we know is that the currently known subpoenas
> target a bunch of conservative groups who played in the recall election and
> were willing to disclose that they received a subpoena. Anyone who pretends
> to know where this is going or what it's investigating is lying for their
> own benefit.
>
>
>
> 2. The way this became public is dirty. One of the recipients of a
> subpoena improperly leaked it to the Wall Street Journal's editorial board
> (!), seeking favorable, ideological pre-spin in the form of baseless
> speculation about the purpose of the investigation, and a likewise baseless
> assertion about the prosecutor's motive. They got it, as the WSJ editorial
> likened the investigation to the IRS deal, and all but concluded that this
> is a free speech witch hunt. Then, given that the WSJ ed-board was the only
> entity with any information, other mainstream reporters had to report the
> editorial, which provided the false imprimatur of the WSJ's legit news side
> "as the Wall Street Journal reported...."
>
>
>
> The reporters I've talked to cannot think of another instance where court
> documents were leaked to an ideologically biased ed board. And some were
> concerned, because no one knows the reporting standards of the WSJ ed board
> (are there any?).
>
>
>
> 3. Those leaking the subpoenas know that a prosecutor is restrained from
> talking about the substance or genesis of the investigation, leaving a
> vacuum which the head of the WI Club for Growth happily filled.
>
>
>
> So the WSJ leak was a CYA move done to squeeze the prosecutor and sway
> state politics by pushing the false impression of a witch hunt. That the
> investigation is also used as an argument against coordination laws is just
> a freebie.
>
>
>
> On Tue, Nov 19, 2013 at 10:28 PM, Trevor Potter <tpotter at capdale.com>
> wrote:
>
> I quite agree with you that "independent " expenditures have the same
> potential to corrupt as contributions... something that some of the
> Justices appeared to appreciate in the McKutcheon argument...
>
> Sent from my iPhone
>
>
> On Nov 19, 2013, at 7:36 PM, "Steve Hoersting" <hoersting at gmail.com
> <mailto:hoersting at gmail.com>> wrote:
>
> Trevor,
>
> You have heard, I am sure, that some campaign-finance watchers think the
> Court should reconsider the contribution/expenditure distinction? Yes? I
> thought so.
>
> With that background in mind, I am saying the following and little more:
> The facts on the ground in Wisconsin -- and they're only sounding worse as
> we read more -- show that now is as good a time as any for the Court to
> reconsider the distinction. The question is with the Court in McCutcheon.
> The Court should take it up. The dawn raids in Wisconsin (and Ken Gross's
> recent citing of a criminal coordination prosecution out of DOJ; a new
> development) only go to show why reconsideration is timely.
>
> Best regards,
>
> Steve
>
> On Tue, Nov 19, 2013 at 12:08 PM, Trevor Potter <tpotter at capdale.com
> <mailto:tpotter at capdale.com>> wrote:
> I have the sense that Steve is suggesting that the Supreme Court presented
> a poisoned chalice in Citizens United when it stated that because
> independent expenditures are independent of candidates and political
> parties, they  cannot corrupt , and therefore cannot be limited by the
> government (unless they are by sources we do not like in US elections, such
> as some foreigners) . The poisoning comes from the fact that the Court
> conditions this finding on the lack of coordination—going back to Buckley,
> the Court has variously referred to such expenditures as “wholly”,
> totally”, and “completely” independent of candidates and political parties.
> But as 2012 made clear, that is not how many such “independent expenditure”
> groups have actually operated in federal elections: they have been created
> by persons close to the candidates to be benefited, including previous
> employees and even family members; persons involved in the campaign have
> also been involved in the “independent expenditures” (as vendors and
> fundraisers);  the candidates have thanked donors for contributing to these
> efforts; and the candidates have met with the principal funders of these
> groups.
>
> It seems Steve ( and the Wall street Journal) believes that Wisconsin is
> investigating whether the “independent expenditures” in the Walker recall
> election were actually coordinated with the candidate or his agents (and
> therefore should have been restricted by state limits  enacted to prevent
> corruption). What is at play here is the suggestion that unlimited
>  independent expenditures should not be conditioned on actual independence,
> because that might undermine the ability to engage in such
> expenditures…even though the Supreme Court in Citizens United only allowed
> such expenditures (and the Circuit Court  in Speech Now only allowed the
> collection of unlimited funds for such expenditures) because it found as a
> matter of legal reasoning that the independence of such expenditures
> ensured they could not corrupt (a debatable proposition of its
> own)…bootstrapping, anyone?
>
> Trevor Potter
>
> From: law-election-bounces at department-lists.uci.edu<mailto:
> law-election-bounces at department-lists.uci.edu> [mailto:
> law-election-bounces at department-lists.uci.edu<mailto:
> law-election-bounces at department-lists.uci.edu>] On Behalf Of Mark Schmitt
>
> Sent: Tuesday, November 19, 2013 11:32 AM
>
> To: law-election at uci.edu<mailto:law-election at uci.edu>
>
> Subject: Re: [EL] Civic Courage, Indeed
>
> Sorry, Steve, I have absolutely no idea what you're talking about. Maybe
> it will become clear later.
>
> Mark Schmitt
>
> 202/246-2350<tel:202%2F246-2350 <202%2F246-2350>>
>
> gchat or Skype: schmitt.mark
> twitter: mschmitt9
>
> On Mon, Nov 18, 2013 at 12:10 PM, Steve Hoersting <
> shoersting at campaignfreedom.org<mailto:shoersting at campaignfreedom.org>>
> wrote:
> 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
> <mailto: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
> <mailto: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
>
> _______________________________________________
> Law-election mailing list
>
> Law-election at department-lists.uci.edu<mailto:
> Law-election at department-lists.uci.edu>
>
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
>
> _______________________________________________
> Law-election mailing list
>
> Law-election at department-lists.uci.edu<mailto:
> Law-election at department-lists.uci.edu>
>
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
>
>
> --
> Steve Hoersting
> CENTER for COMPETITIVE POLITICS
> 124 S. West Street
> Suite 201
> Alexandria, Va. 22314
>
> (703) 894-6800<tel:%28703%29%20894-6800 <%28703%29%20894-6800>>
>
>
>
> - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
>
> To ensure compliance with requirements imposed by the IRS, we inform you
> that, unless specifically indicated otherwise, any tax advice contained in
> this communication (including any attachments) was not intended or written
> to be used, and cannot be used, for the purpose of (i) avoiding tax-related
> penalties under the Internal Revenue Code, or (ii) promoting, marketing, or
> recommending to another party any tax-related matter addressed herein.
>
> This message is for the use of the intended recipient only. It is from a
> law firm and may contain information that is privileged and confidential.
> If you are not the intended recipient any disclosure, copying, future
> distribution, or use of this communication is prohibited. If you have
> received this communication in error, please advise us by return e-mail, or
> if you have received this communication by fax advise us by telephone and
> delete/destroy the document.
>
> --
>
> _______________________________________________
> Law-election mailing list
>
> Law-election at department-lists.uci.edu<mailto:
> Law-election at department-lists.uci.edu>
>
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
>
>
> --
> Stephen M. Hoersting
>
> <- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ->
> To ensure compliance with requirements imposed by the IRS,
> we inform you that, unless specifically indicated otherwise,
> any tax advice contained in this communication (including any
> attachments) was not intended or written to be used, and
> cannot be used, for the purpose of (i) avoiding tax-related
> penalties under the Internal Revenue Code, or (ii)  promoting,
> marketing, or recommending to another party any tax-related
> matter addressed herein.
>
> This message is for the use of the intended recipient only.  It is
> from a law firm and may contain information that is privileged and
> confidential.  If you are not the intended recipient any disclosure,
> copying, future distribution, or use of this communication is
> prohibited.  If you have received this communication in error, please
> advise us by return e-mail, or if you have received this communication
> by fax advise us by telephone and delete/destroy the document.
> <-->
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
>
>
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20131120/b5bb9ec8/attachment.html>