[EL] Prop 8 harassment

Sun Sep 1 10:27:40 PDT 2013

I don't have time at the moment to chime in on this well-worn thread, but those interested in the information rationale and the lack of evidence of any harassment of signatories in ballot issue petitions can access my 'Direct Democracy Scholars Brief' in Doe v. Reed here:
http://electionsmith.wordpress.com/2012/06/01/why-is-disclosure-necessary-ask-former-fec-chairman-bradley-smith/

I also find it instructive to remind folks of Brad's own words in Unfree Speech, where he grudgingly accepts an informational rationale for mandatory campaign finance disclosure.

"Thus, there may be modest benefits to be had from a system that provides voters with information on the sources of campaign funds, through mandatory disclosure."

Best,

Dan

daniel a. smith
sent from my iPhone

On Aug 31, 2013, at 9:50 PM, "Smith, Brad" <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>> wrote:

Maybe or maybe not.

They would not know who contributed to other candidates, including their opponents. Just based on what I hear, it seems that the shake-down pitch, when it comes, is usually aimed at donors giving to the wrong side, suggesting they need to level up; or used to threaten anyone who might be thinking of giving to challengers.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
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<mailto:law-election-bounces at department-lists.uci.edu>] on behalf of Rick Hasen [rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>]
Sent: Saturday, August 31, 2013 7:16 PM
To: Bill Maurer
Cc: law-election at UCI.edu<mailto:law-election at UCI.edu>
Subject: Re: [EL] Prop 8 harassment

Making contributions secret to the public would make it easier, not harder, for politicians to shake down potential contributors and increase any extortion.   Politicians will know who contributes to funds benefiting them and demand proof of support.

Rick Hasen

Sent from my iPhone. Please excuse typos.

On Aug 31, 2013, at 1:29 PM, "Bill Maurer" <wmaurer at ij.org<mailto:wmaurer at ij.org>> wrote:

Professor,

I appreciate your take on private citizen harassment, even though I ultimately disagree.  But what to make of this story, then?

http://www.nypost.com/p/news/local/steamroller_spitz_cows_kittish_stringer_25l25EqIpGaq2WtotahHiO

It would seem that harassment from elected officials is also legitimate concern, perhaps one so significant that it will lead to the election of a vendetta-driven megalomaniac who could qualify for a frequent customer card from a brothel to run New York City’s finances.  In a similar situation (thankfully prostitute-free), I would note that threats from the Nixon Administration against the airlines led to the “brown paper bag filled with cash” campaign scandals around the time of Watergate.

Does the possibility of government harassment in an age of growing government activity raise enough flags to warrant reconsidering disclosure?  How do those in favor of disclosure deal with these situations, which may be even harder to detect than private citizen harassment?  I can’t recall much discussion of this type of harassment here or elsewhere.

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 Rick Hasen
Sent: Saturday, August 31, 2013 10:20 AM
To: law-election at UCI.edu<mailto:law-election at UCI.edu>
Subject: [EL] Prop 8 harassment

Jim Bopp wrote a message which I inadvertently deleted but was able to find in this archived post<http://department-lists.uci.edu/pipermail/law-election/2013-August/007755.html> and this one<http://department-lists.uci.edu/pipermail/law-election/2013-August/007756.html>. In the posts, Jim claimed there were lots of instances of Prop. 8 supporters be harassed (thanks to mapquesting by the "homosexual lobby" of campaign donors).

Jim and I debated this point on the listserv last year.  In that series of posts, I pointed out that the courts in the Protectmarriage.com<http://Protectmarriage.com> and Doe v. Reed cases rejected Jim's claims that there was much unconstitutional harassment of people simply for making donations.  (There were some instances of harassment of leaders of the group---but not of simple campaign donors).  If I remember Jim's response the last time we debated this, he rejected the court's findings on the extent of the harassment as well as the question of what should count as unconstitutional harassment.  (The debate has some interesting parallels to the points Sam Bagenstos was making about private retaliation.)

I cover the evidence of the extent of the harassment in Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in the Internet Age<http://ssrn.com/abstract=1948313>, 27 Journal of Law and Politics 557 (2012). I'd also recommend my former student's note, Elian Dashev Economic Boycotts as Harassment: The Threat to
First Amendment Protected Speech in the Aftermath of Doe v. Reed<http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2776&context=llr>.  In my article, while I reject the claims of harassment as exaggerated, I do believe that as a matter of policy, jurisdictions should greatly increase the threshold for disclosure of campaign contributions and spending, because there is a value in donor privacy and releasing the names of those who are very small financial players in elections does not serve an important governmental purpose.

I don't plan to engage in a debate about this with Jim again---but I did not want to leave his points unanswered for those new to the listserv (or with memory loss).

--

Rick Hasen

Chancellor's Professor of Law and Political Science

UC Irvine School of Law

401 E. Peltason Dr., Suite 1000

Irvine, CA 92697-8000

949.824.3072 - office

949.824.0495 - fax

rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>

http://www.law.uci.edu/faculty/full-time/hasen/

http://electionlawblog.org

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