[EL] Civic Courage, Indeed

Thu Nov 21 14:58:10 PST 2013

But your assumption, Rob, is that people who aren't government officials and aren't even running for office are bound by some form of government ethics regulation. I suppose on that view we could all be covered by some sort of Hatch Act limit on our political activities.

For an example of how incumbents can get their message out without spending regulated money, see this National Journal article by Ron Fournier: http://www.nationaljournal.com/pictures-video/obama-s-image-machine-monopolistic-propaganda-funded-by-you-20131121. (I don't think the National Journal is thought to be a right-wing publication, though I have a sense that Fournier is controversial, and the headline does seem to be a bit over the top.) I suppose Republican administrations have done the same sort of thing.

This is probably my last contribution to the discussion. Back to preparing for classes.

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 Robert Wechsler
Sent: Thursday, November 21, 2013 2:35 PM
To: Benjamin Barr
Cc: law-election at uci.edu
Subject: Re: [EL] Civic Courage, Indeed

Your message evinces a misunderstanding of a basic government ethics concept. I will quote from my own Local Government Ethics Programs in a Nutshell<http://www.cityethics.org/publications/LGEP-Nutshell>, an introduction to government ethics:
It is important to recognize that the opposite of trust is not distrust, which we need in order to keep our representatives accountable, but a lack of trust. A lack of trust causes people not to accept their government's decisions as fair. A democratic government does not thrive when there is a lack of trust in those who govern it.

(The short introduction, and its long parent, are available free on the City Ethics website, so I am not seeking recompense from my self-quotation.)

By not thriving, I mean that people tend not to participate, not to vote, not to go to meetings, not to volunteer for boards, not to run for office, not to apply for government jobs.

I certainly do not favor "blind trust" in government, any more than I think that unlimited speech is "competitive" or "rigorous." I also favor a campaign finance program where there is training and free advice available so that "policing" is only what happens when someone does not seek or follow advice. Regulation should be responsible, too.

Rob

On 11/21/2013 3:36 PM, Benjamin Barr wrote:
"Unfortunately, many people do not consider appearances and do not think of their responsibilities, and their thoughtlessness undermines trust in our political system."

Well said, Rob.  To the extent you are arguing in support of the idea that private speakers should speak ethically with their moral compass sharply in tune, I applaud you.  But the operation of campaign finance reform removes those moral obligations from individuals and associations and transfers them to boards and commissions of do-goodedness.  Boards of do-goodedness then promulgate bizarrely complicated and incomprehensible rules that attempt to define concepts like the "appearance of corruption" and so on, leaving ordinary speakers with no idea when and how it is safe to speak without the friendly enforcement division of the FEC launching multi-year investigations into why you spoke the way you did or with pre-dawn raids showing up at your front door.

It's this abdication of the notion that we trust the citizenry to rigorously engage one another and office holders and to develop their own sense of civility and discourse that concerns me.  Promulgating the umpteenth version of standards to define the "appearance of corruption" or the invention of a fifteen prong coordination test offers but superficial security while dampening important debate we should be having as a nation.

One question though, since I see this notion frequently lauded on this listserv-why is promoting "trust in our political system" an undifferentiated positive we should support?  And what basis supports this notion?  Skepticism of concentrated power and office holders is the touchstone of government accountability and freedom in the American tradition, not blind trust in political and governmental actors.  This value differentiation seems to explain a good deal of the schism between those who value rigorous, competitive speech and those who favor a heightened regulatory presence to police "responsibilities" of speakers.  But perhaps there's more depth to the notion that we should establish government policies that promote trust in government.  Help me see why this might be.

Forward,

Benjamin Barr
Counsel to Project Veritas, the Wyoming Liberty Group, and speech instigators nationwide

On Wed, Nov 20, 2013 at 10:29 AM, Robert Wechsler <catbird at pipeline.com<mailto:catbird at pipeline.com>> wrote:
An appearance standard need not be subjective, as you argue in the McCutcheon amicus brief. Responsible appearance standards are based on objective relationships, such as family relationships, business relatinships, and superior-subordinate relationships. These are very logical stopping points.

If, for example, I were to form an independent expenditure group that supported a campaign of the senator for whom my stepson works, it would, if this fact came out, appear that the group was not independent, even though in fact I have never met or communicated with the senator. It would be reasonable for the public to assume that I was not acting independently and that any funds I raised to support the senator were no different than the funds raised by the senator's campaign committee.

Do I have a First Amendment right to support the senator? Definitely. Do I have a First Amendment right to form a supposedly independent expenditure group to raise funds to support the senator, when I actually have a close family relationship to the senator's aide? No.

With rights come responsibilities. It is my responsibility to recognize that forming such a group would be seen as fraudulent and would therefore undermine trust in our political system. I wouldn't do such a thing nor argue for it to be done.

The same goes for my right to write in my government ethics blog about this senator. I have every right to do it. But because I have a conflict, because it would appear that I am biased, I shouldn't and I won't.

Unfortunately, many people do not consider appearances and do not think of their responsibilities, and their thoughtlessness undermines trust in our political system.

Rob Wechsler

On 11/20/2013 9:30 AM, Bill Maurer wrote:
Robert,

That's an interesting approach, but I don't see a logical stopping point.  While it would appear to leave independent expenditure/contribution distinction intact, in reality I think it would mean that almost all political speech would be treated as potentially corrupting and thus capable of being regulated and restricted by the government.  If the First Amendment is to be preserved, I think, the assumption should be the other way-political speech cannot be regulated or restricted unless the government can actually show that it is corrupting.

We made this point more thoroughly in our amicus brief in the McCutcheon case, which you may find interesting.  http://www.ij.org/images/pdf_folder/amicus_briefs/mccutcheon-amicus.pdf

Bill

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] On Behalf Of Robert Wechsler
Sent: Wednesday, November 20, 2013 4:14 AM
To: law-election at uci.edu<mailto:law-election at uci.edu>
Subject: Re: [EL] Civic Courage, Indeed

One of the things I find missing in this discussion is the concept of appearance. The public can never know whether an "independent" expenditure group is truly independent of a candidate committee. The public can only go by how independent the group appears to be. Appearance is the only solid standard the public has.

If an "independent" expenditure group is run by members of a candidate's personal circle, then it will not appear independent. And therefore, there is an appearance that contributions to the expenditure group are no different than contributions to a candidate committee. Such contributions, then, may both appear and be corrupting every bit as much as contributions to a candidate committee.

Arguing that contributions to an "independent" expenditure group should be unlimited cannot be legitimate without an accompanying argument that the group must appear independent. Otherwise, from the public's point of view (which is what matters) it is effectively an argument that contributions to a candidate committee should be unlimited, and this has been rejected by the Supreme Court.

Robert Wechsler
Director of Research
City Ethics, Inc.
rwechsler at cityethics.org<mailto:rwechsler at cityethics.org>
203-230-2548<tel:203-230-2548>
www.cityethics.org<http://www.cityethics.org>
________________________________

Spam<https://antispam.roaringpenguin.com/canit/b.php?i=04KPMf5xz&m=960fd14e886c&t=20131120&c=s>
Not spam<https://antispam.roaringpenguin.com/canit/b.php?i=04KPMf5xz&m=960fd14e886c&t=20131120&c=n>
Forget previous vote<https://antispam.roaringpenguin.com/canit/b.php?i=04KPMf5xz&m=960fd14e886c&t=20131120&c=f>

_______________________________________________
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

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20131121/f1e02259/attachment.html>