[EL] Civic Courage, Indeed

Thu Nov 21 15:32:24 PST 2013

Rob,

I suppose I'm less interested in concepts of government ethics applicable
to cubicle-bound bureaucrats and more interested in the preservation of
fundamental constitutional liberties.  I suppose, further, that I'm really
interested in how a free citizenry might thrive rather than its government
apparatus of the day.  These are simply foundational differences in values
that, as I hinted at before, likely describe much of the schism on the
listserv.

As a constitutional litigator and practitioner, I haven't witnessed much of
this responsible regulation you speak of.  Providing cheerful charts about
how not to speak my mind or how not to associate with likeminded allies
probably wouldn't lessen my concerns here.  A better equipped speech police
doesn't resolve my concerns.  Many of us would simply prefer for this
interference and suppression of speech to stop and allow the development of
civil society to flourish through the responsible actions of private
citizens.  No government edicts required.

Forward,

Ben

On Thu, Nov 21, 2013 at 3:34 PM, Robert Wechsler <catbird at pipeline.com>wrote:

>  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>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<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
>> *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
>> 203-230-2548
>> www.cityethics.org
>>
>>   ------------------------------
>>
>>
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>>
>>
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>
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