[EL] Civic Courage, Indeed

Thu Nov 21 16:50:09 PST 2013

"Free speech" areas several blocks for the convention halls for the national
political conventions are an abridgment of free speech. Forcing "free
speech" to an area distant from where it isn't intended to be heard is no
different than the tree falling in a forest. 

Larry

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Benjamin
Barr
Sent: Thursday, November 21, 2013 3:32 PM
To: Robert Wechsler
Cc: law-election at uci.edu
Subject: Re: [EL] Civic Courage, Indeed

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
<http://www.cityethics.org/publications/LGEP-Nutshell> Local Government
Ethics Programs in a 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] 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

  _____  

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
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/20131121/4d30f657/attachment.html>