[EL] Civic Courage, Indeed
Robert Wechsler
catbird at pipeline.com
Thu Nov 21 16:59:25 PST 2013
Do you (and your colleagues) consider time limits on citizens speaking
at public meetings to be "interference and suppression of speech?" This
is a fundamental government restriction on citizen speech, and yet I
never hear it condemned by conservative First Amendment fundamentalists
(those on the Left and local gadflies in general complain about it all
the time). Would you be willing to take a position against any limits on
this speech, to allow each citizen to determine what is a responsible
time period for him or her to speak?
Rob
On 11/21/2013 6:32 PM, Benjamin Barr wrote:
> 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
> <mailto: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 <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>
>>>
>>> ------------------------------------------------------------------------
>>>
>>>
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>>>
>>
>>
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