[EL] Civic Courage, Indeed

[Scarberry, Mark]

Maybe we could define as fraud the claim of an organization to be an independent news provider when it habitually favors one side in political disputes. Oh wait! There is something called the First Amendment that even protects MSNBC, along with less extreme examples like Fox News, CNN, CBS, the New York Times, and the Washington Times.

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 Sean Parnell
Sent: Thursday, November 21, 2013 11:33 AM
To: 'Robert Wechsler'
Cc: law-election at uci.edu
Subject: Re: [EL] Civic Courage, Indeed

Well, you have me there. Now you just need to get a law passed defining as fraud the claiming of independence for a contribution made to an IE committee that supports the donor's relative. Because that certainly isn't there now.

Sean Parnell
President
Impact Policy Management, LLC
6411 Caleb Court
Alexandria, VA  22315
571-289-1374 (c)
sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>

From: Robert Wechsler [mailto:catbird at pipeline.com]
Sent: Thursday, November 21, 2013 2:17 PM
To: Sean Parnell
Cc: law-election at uci.edu<mailto:law-election at uci.edu>
Subject: Re: [EL] Civic Courage, Indeed

One has a First Amendment right to be snarky, but not a First Amendment right to commit fraud (saying one is independent when one has a close personal relationship so that one can spend unlimited contributions on a campaign that is limited with respect to contributions). But fraud is the sort of thing that isn't in the Constitution. It is found in the Bill of Responsibilities known as criminal laws, so it does not exist in your world. It exists in mine.

Rob
On 11/21/2013 2:01 PM, Sean Parnell wrote:
Ah, my apologies - you're not prohibiting people from exercising their First Amendment rights, you're only prohibiting them from doing so in the manner they prefer and find effective. Forgive me for not picking up on that distinction. Next I suppose we ought to focus on prohibiting Rush Limbaugh from being as effective as he is. Maybe we can restrict his political speech mode to some form of artistic expression where he won't so dominate the field, such as erotic dance?

I have to admit however, I struggle to find the 'Bill of Responsibilities' embedded in the Constitution alongside the Bill of Rights. Perhaps it's one of the emanations? A penumbra maybe? It might be hidden in the general welfare language, I suppose.

If that's too snarky for you, I apologize, and I'll simply observe that our rights have legal underpinnings embedded in the U.S. Constitution, while these 'responsibilities' you refer to generally do not have the same sort of legal force. Your '3 dimensions' apparently give equal legal weight to all 3 dimensions, whereas I am content to keep two of those three dimensions well in the background when it comes to the exercise of constitutional rights. One chief advantage (I believe at least) of my one dimensional world is it keeps me from wanting to strip some people of their constitutional rights because it appears to me that doing so would be of benefit to the public (or that part of the public I align with) or where I believe some people are failing to live up to their responsibilities as good citizens.

Best,

Sean Parnell
President
Impact Policy Management, LLC
6411 Caleb Court
Alexandria, VA  22315
571-289-1374 (c)
sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>

From: Robert Wechsler [mailto:catbird at pipeline.com]
Sent: Thursday, November 21, 2013 1:01 PM
To: Sean Parnell
Cc: law-election at uci.edu<mailto:law-election at uci.edu>
Subject: Re: [EL] Civic Courage, Indeed

I don't understand why, if you believe in your argument, you cannot make it without misrepresenting others' arguments. I never said that these people (including myself) should not exercise their First Amendment rights, based on appearances. I just said that they should not do it in the form of a supposedly independent group that does not appear independent (with clear definitions of who this includes).

I also find it deeply sad that you don't see that responsibilities accompany rights. I live in a wonderfully complex, three-dimensional world of rights, responsiblities, and appearances. My responsibilities are at least as important to me as my rights. You live in a simple one-dimensional world of rights, rights, and rights. I wouldn't live there for anything.

Rob

On 11/21/2013 8:35 AM, Sean Parnell wrote:
Thank you, Robert, for helping to fill in a few of the details on what I'm sure will be the ever-growing list of Americans who are prohibited from exercising their First Amendment rights based on appearances, or at least the appearances preferred (disfavored?) by the 'reform' community. I look forward to reading about more Americans who need to go on this list. Perhaps it could be cross-referenced with Santa's naughty/nice list?

Sean Parnell
President
Impact Policy Management, LLC
6411 Caleb Court
Alexandria, VA  22315
571-289-1374 (c)
sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>

From: Robert Wechsler [mailto:catbird at pipeline.com]
Sent: Thursday, November 21, 2013 8:01 AM
To: Scarberry, Mark; sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>
Cc: law-election at uci.edu<mailto:law-election at uci.edu>
Subject: Re: [EL] Civic Courage, Indeed


Dear Mark and Sean:

I think it is too often forgotten that campaign finance is part of government ethics. Therefore, basic government ethics principles can seem foreign to the conversation.

Both of you note that family members often don't like each other's politics. In fact, they often don't like each other, period. But that does not make them any less conflicted with respect to their candidate/official sibling. And the public, which does not know the details of any sibling relationship (see all of literature for the complexities involved), sees the same thing no matter what the relationship actually is. And they are right to. Equally, governments are right to create clear conflict rules, rather than basing them on a vague concept of appearance.

I have never seen a conflict of interest provision that differentiates between siblings that like or agree with their siblings. This equal treatment of siblings, and others, is a basic government ethics principle. It should apply equally in campaign finance.

Mark asks, "Would a family member be disqualified under this standard from organizing an independent group to oppose a family member's election?" The family member would still be conflicted, but would coordination still be a concern?
Well, it could be a fake supporter of an opponent. There are so many fakes in recent elections that this kind of fake would not be surprising. Considering how effective some outside independent groups have been at shooting those they support in the foot, I would argue that a coordinated opposing group would be a clever tactic.

The other basic concept that seems to be missing here is power. Both of you seem to think that family relationships involve political ideas. No, family relationships tend to involve power. The Cheney sisters' public disagreement is atypical, as are Carville and Matlin.

With respect to independent groups, the principal issue involving family members is not ideas. The principal issue is family members being seen as coordinating to help one member get elected, to get power.

I don't share all the views of the senator my stepson works for, but I know that if I were to form a supposedly independent group that took sides in his next election, no one who knew about the relationship would believe there was no coordination. The First Amendment isn't all that relevant here. No one has a First Amendment right to insist he is not coordinating with his stepson when the public reasonably believes that he is coordinating. This is about fraud and making a mockery of rules that are intended to prevent corruption, not about a marketplace of ideas.

Rob


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