[EL] Civic Courage, Indeed

Thu Nov 21 11:46:28 PST 2013

Mr. Peralta's argument (how could the public believe that someone who spends so much money advocating for a candidate is independent) reopens Buckley. If the expenditure of a lot of money in support of a candidate creates such an appearance of corruption that it can be prohibited, then the contribution/expenditure distinction in Buckley is not tenable. Do the pro-regulation folks on the list want to reopen Buckley? I'm fairly comfortable with the distinction, but if the matter has to be decided one way or the other without the distinction, then I'd come down (and I think the Court) would, against regulation of contributions or expenditures.

I'm not happy that people with money get to have such a disproportionate impact on elections. People who are extremely rich are often arrogant, power-hungry, and controlling; they often have views that are contrary to my view of the public good. I'd prefer a system in which there were Lincoln-Douglas style debates that would be the main basis for voters' decisions. But that's not our world. With media of all kinds that have tremendous power to affect public opinion, with incumbency providing such an advantage (including by way of a President's ability to use incumbency to speak in an almost unlimited way to the public and to manipulate information), and with the inevitability that regulation will be used to protect incumbents and others who already have power, I have to come down on the anti-regulation/pro-free speech side.

I distrust everyone who has substantial power. I particularly distrust those who have the ability to use the power of the state for their ends. Again, there is no choice but to have government, and I'm not a libertarian. But distrust is more than amply justified. Mark Twain may have overstated the case, and he could have been speaking of public officials other than those in Congress, but I have sympathy for his view that "[T]here is no distinctively native American criminal class, except Congress." I don't want Congress deciding how much people can spend on speech.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Steve Klein
Sent: Thursday, November 21, 2013 10:32 AM
To: Salvador Peralta
Cc: law-election at department-lists.uci.edu
Subject: Re: [EL] Civic Courage, Indeed

Shel Adelson effectively purchased the Republican Primary for Newt Gingrich in South Carolina by giving him a $5 million megaphone to "speak" with.

And how did that work out in the long run?

We limit speech rights all the time.

I believe most restrictions on time / manner / place have articulable interests behind them. The nebulousness of the "corruption" interest (evidenced in this thread) is second only to the baffling "informational" interest, and both support regimes that threaten to choke everyone who can't pay compliance fees to accountants and attorneys in red tape. (Nebulous interests, meet nebulous laws.) These laws are not making the political process any cleaner, but simply more exclusive-- far more than Adelson's money, I might add.

Be it the DeLay witch hunt<http://wyliberty.org/feature/wyliberty-arguments-prevail-in-important-free-speech-case/>, IRS inquisitions<http://wyliberty.org/feature/cmon-its-just-disclosure-irs-edition/>, retaliation by elections commissions<http://wyliberty.org/feature/another-chilling-step-in-campaign-finance-disclosure/>, and now pre-dawn raids on political groups, whether you care or not these governmental abridgements have the benefit of being articulable. Platitudes may blot out the sun in these battles, but I, for one, will continue to fight in the shade.

On Thu, Nov 21, 2013 at 11:09 AM, Salvador Peralta <oregon.properties at yahoo.com<mailto:oregon.properties at yahoo.com>> wrote:
I don't think that candidates should be cloistered monks, but I also don't feel any particular need to buy into the fiction that a pac funded by billionaire allies of the candidate, run by close allies of a candidate, outspending that candidate in key races in a fashion that to all outward appearances seems clearly coordinated, can never be corrupting.

We limit speech rights all the time.  Many of the strongest opponents of limiting money as speech have demonstrated that they have no problem with limiting political speech when it involves actual speech (e.g., time and place restrictions such as free speech ghettos), but those same people often develop a near-terminal case of the vapors at the prospect that anyone would want to keep billionaires from buying elections on behalf of the candidates they support.

Shel Adelson effectively purchased the Republican Primary for Newt Gingrich in South Carolina by giving him a $5 million megaphone to "speak" with.  That's 1000x more than he could give directly to Gingrich, yet the public is supposed to passively accept the notion that this was wholly uncoordinated while folks like yourself try and make the argument that such acts could never, ever, possibly be corrupting if it doesn't involve an outright "quid pro quo" transaction?
________________________________
From: Jon Roland <jon.roland at constitution.org<mailto:jon.roland at constitution.org>>
To: law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>
Sent: Thursday, November 21, 2013 8:52 AM

Subject: Re: [EL] Civic Courage, Indeed

This discussion is becoming ridiculous. The reforms sought by some here would mean the only way campaign spending can avoid an "appearance" of corruption is if the candidate is some kind of cloistered monk isolated from family, friends, and supporters, who does nothing to get elected other than consenting to be a candidate and then keeps quiet until he is elected.

-- Jon

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Austin, TX 78757 512/299-5001<tel:512%2F299-5001>  jon.roland at constitution.org<mailto:jon.roland at constitution.org>

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*Licensed to practice law in Illinois. Counsel to the Wyoming Liberty Group pursuant to Rule 5.5(d) of the Wyoming Rules of Professional Conduct.
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