[EL] Prop 8 harassment

[Mark Schmitt]

1. Politicians know who their donors are, and who they aren't. Checks come
with names on them, pledges are made over the telephone, hands are shaken
at fundraisers and in dinners at the Capitol Grill.

It's true that, without disclosure, politicians wouldn't know exactly who
their opponent's donors are. But they will know some of them. (A lot of
fundraising is not exactly secret, and now that all campaigns have
"trackers" that follow the opposing candidate, they can see who is
attending or hosting a fundraiser, for example.) And they can still
retaliate against people who don't give to their own campaigns, if they
operate that way.

About a decade ago, Ian Ayers of Yale Law School proposed a system of
forced total anonymity of donations -- everything would go into a kind of
blind trust, and neither the recipient nor anyone else would know who had
donated. That's a fascinating thought-experiment but, sadly, probably
unworkable, and would require regulatory infrastructure of its own.

2. re Spitzer, I'm not holding the article to a a very high standard of
evidence at all. Two people, one named and the other requesting anonymity,
say the reason they couldn't raise more than $2,000 for a committee
opposing Spitzer was because donors were intimidated. If that were true,
other efforts to oppose Spitzer should have similar problems -- but they're
not.  Spitzer's opponent is rolling in dough (by the standards of NYC
comptroller races) -- it's only this specific committee that had trouble.
The most obvious explanation is that these were Republican operatives (the
one who is named is), tapping Republican donors, who weren't interested in
supporting a very liberal Democrat, Scott Stringer. Or, perhaps they were
just incompetent fundraisers.

Finally, you say these problems (potential retaliation) were caused by the
current campaign finance
 system. But the example you used at the beginning involved Richard Nixon.
Nixon's campaigns took place in a largely deregulated system, and it was
his abuses that, as you know, led to the passage of FECA.

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


On Mon, Sep 2, 2013 at 2:52 PM, Bill Maurer <wmaurer at ij.org> wrote:

>  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> 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 [
>> law-election-bounces at department-lists.uci.edu] on behalf of Mark Schmitt
>> [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> 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] *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 - office****
>>>
>>> 949.824.0495 - fax****
>>>
>>> rhasen at law.uci.edu****
>>>
>>> http://www.law.uci.edu/faculty/full-time/hasen/****
>>>
>>> http://electionlawblog.org****
>>>
>>>
>>> _______________________________________________
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>>>
>>
>>
>
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