[EL] Prop 8 harassment

Mon Sep 2 11:52:14 PDT 2013

Mark,

Thanks for your response and for this thread.  I'm finding it very useful to understand the substantive arguments for regulation in a way that doesn't get explored in articles or cases.

With that in mind, I don't understand the argument that, without disclosure, elected officials would know who gave and no one else would--Rick also mentioned this and I must be missing an assumption here.  I'm talking about a system where the government does not keep a database of political activity.  How would they know if no one else knows?

I am also confused as to why this article doesn't support the position that certain donors fear retaliation from Spitzer.  Certainly, newspaper stories with far less specificity have been used to support restricting political activity (see Nixon v. Shrink Mo. Gov't PAC, etc.), why does evidence of harm have such a higher standard of proof, given that the government has the legal responsibility to justify its laws under the First Amendment?

I actually think the $200 donor is much more susceptible to official retaliation, especially for smaller offices.  A denied permit here, a delayed application there, etc.  As with much of the harm from other forms of campaign finance reform, the larger an actor is, the more easily they can overcome these kinds of disincentives to participate.  There's a reason why the two poster children for political harassment--Socialist Workers and Prop. 8 supporters--were well-removed from the center of political and economic power.

As for the argument regarding how public financing would fix all these problems, I would note that many of them are actually caused by the campaign finance regulations that already exist.  Getting the government out of the business of regulating speech and political activity would also address this problem, while avoiding having to tax people to support politicians about which they care little or actively dislike or diverting funds from important public services.

Bill
________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Mark Schmitt [schmitt.mark at gmail.com]
Sent: Sunday, September 01, 2013 4:26 PM
To: law-election at UCI.edu
Subject: Re: [EL] Prop 8 harassment

Sure, but that's entirely speculation about why people might not give to defeat Spitzer, or more specifically, why they apparently didn't give to this particular outside-money operation. That doesn't seem like very useful speculation.

As to your question, the answer is really simple: "Retaliation" against your opponent's donors is the flip side of rewarding your own. Both are forms of corruption. Almost everything that reformers favor would address both forms of corruption: With public financing, of course, there would be no one to retaliate against. Contribution limits minimize the temptation to retaliate -- a Nixonian politician might go after the guy who put $500,000 into his opponent's campaign, but probably not one of many $2,000 donors.  Etc.

And disclosure is also essential to spotting retaliation when and if it occurs. For example, in an article last year (discussed on this list), Steve Hoersting named three companies that he believed the Obama administration had retaliated against in regulatory actions. Because of disclosure, it was easy to test that accusation, and see that two of the three companies were primarily Democratic donors. Without public disclosure, elected officials would still know who their friends are and aren't, and could still retaliate as well as reward -- but we would never know about it.

Mark Schmitt
Senior Fellow, The Roosevelt Institute<http://www.rooseveltinstitute.org/>
202/246-2350
gchat or Skype: schmitt.mark
twitter: mschmitt9

On Sun, Sep 1, 2013 at 3:20 PM, Bill Maurer <wmaurer at ij.org<mailto:wmaurer at ij.org>> wrote:
Thanks, Mark.  Those are interesting points, but I can think of plenty of reasons why people on Wall Street would be hesitant to cross Elliot Spitzer, whereas union leaders would feel no such reservations.  I don't remember union leaders being charged in highly publicized actions by the "Sheriff of Wall Street" only to have the charges quietly dropped months later (but only after their reputations and finances were destroyed).  There was a reason why he was known as the "Sheriff of Wall Street" and not the "Sheriff of the Union Hall."  Sometimes the most obvious explanation is the right one and if people did not fear retaliation from Spitzer, perhaps Stringer would have outraised deBlasio by now.

However, you didn't answer my question, which is how do pro-regulation proponents deal with minimizing the threat of official retaliation, which, while perhaps you feel is not at play here, has been in the past (i.e., Nixon and the airlines).

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<mailto:law-election-bounces at department-lists.uci.edu>] on behalf of Mark Schmitt [schmitt.mark at gmail.com<mailto:schmitt.mark at gmail.com>]
Sent: Saturday, August 31, 2013 9:00 PM
To: law-election at UCI.edu

Subject: Re: [EL] Prop 8 harassment

"What to make of this story?" Well, first note that there's no actual retribution or intimidation even alleged. According to the Post, a couple of political entrepreneurs set up a committee to tap the Wall Street Spitzer-haters (a well-known group, several of whom appeared on camera in the fascinating film about Spitzer, Client 9), then failed to raise any money at all. They now claim that it's only because potential donors were fearful of retribution by Spitzer. No intimidated donor is quoted, even anonymously -- just two schmoes who couldn't raise enough to pay a month's rent.

As the story acknowledges, other anti-Spitzer committees have had no trouble raising money, and Spitzer's main opponent, Scott Stringer, has raised more than $4 million in fully disclosed contributions. For context, Stringer has raised almost as much as the $4.5 million raised by the current front-runner for mayor, Bill deBlasio. So people don't seem intimidated about contributing to Spitzer's opponent. And if your concern is that "a vendetta-driven megalomaniac etc etc" might win, you should be thankful for New York City's public-financing system, which boosts the value of Stringer's small donations and puts his total at close to $6 million, vs Spitzer's $8 million. As a result, it's likely to be a very competitive race, in which name-recognition and other factors will matter more than the difference in spending.

Current NY fundraising totals here:
http://www.nyccfb.info/VSApps/WebForm_Finance_Summary.aspx?as_election_cycle=2013

On Sat, Aug 31, 2013 at 4:29 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<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
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 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<tel:949.824.3072> - office

949.824.0495<tel: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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