[EL] The need for less disclosure sometimes

Fri Apr 4 05:29:30 PDT 2014

This op ed reflects my thoughts on campaign finance disclosure rather well.

http://www.washingtonpost.com/blogs/plum-line/wp/2014/04/03/the-koch-brothers-the-supreme-court-and-a-new-kind-of-liberty/?wpisrc=nl_popns

The superbosses not only want to influence, but do not want to be
criticized for their public acts.

The First Amendment now protects lying about public issues, the right to an
unlimited financial megaphone to broadcast ones' lies, and our new robber
barons' ability to create fictitious entities to do their lying for them.
Without public disclosure, our political leaders' fates are too much
determined by anonymous wealth telling their anonymous lies to swing
elections. In this environment, only a complete idiot of a politician would
not be overly influenced by the focused interests of mega donors who can
match a Congressman's entire years' fundraising on a whim after their
morning coffee. Our spineless professional politicians will be running over
themselves to figure out what those interests are. Quid pro quo is beside
the point.

Meanwhile, among those to whom politics is not a job, but who are
nevertheless politically active or interested, we have -- like no time
before in my life before -- competing "realities" amplified by these
dishonest, secret and powerful partisans. We choose to go to whatever
source is easiest to listen to because it is consonant with our
pre-existing biases. The biases are reinforced and the realities become
farther apart from each other, and more difficult to reconcile.

And people who are not as plugged into things political all of the time
become understandingly more cynical about politics, public dialogue and
public policy. Can anyone blame them for thinking that it is all lies and
hidden agendas amplified by billions of dollars, when the Supreme Court and
our intransigent Congress seem bent on making it mostly that way? It is a
formula designed to generate resignation, apathy and sometimes worse.

With limits on money fading away, labeling and transparency become an
urgent priority. Those most resisting it seem to be the same as those who
have the largest purses and greatest stakes in the influence game.

On Fri, Apr 4, 2014 at 1:42 AM, Larry Levine <larrylevine at earthlink.net>wrote:

> Isn't the demonstrable likelihood of resultant boycotts so infrequent as
> to be called insignificant when measured against the public's right to know
> the source of funding for candidates and measure?
>
> Larry
>
>
>
>
>
> *From:* law-election-bounces at department-lists.uci.edu [mailto:
> law-election-bounces at department-lists.uci.edu] *On Behalf Of *Smith, Brad
> *Sent:* Thursday, April 03, 2014 9:04 PM
> *To:* Rick Hasen; Josh Orton
>
> *Cc:* law-election at uci.edu
> *Subject:* Re: [EL] The need for less disclosure sometimes
>
>
>
> But Josh completely misses the point.
>
>
>
> Your original question: is there a free speech interest in boycotting? My
> point is that that is the wrong question.
>
>
>
> Of course there is, and no one is proposing to limit that the right to
> boycott (though I have argued, and continue to argue, that generally it is
> a bad use of freedom). Rather, the question is, does the government have an
> interest in forcing people to divulge personal information so that others
> can boycott them? I presume that the answer to that is "no."
>
>
>
> Josh says, in effect, but the state has other interests. I'll concede
> that. As I said, then it's a balancing matter, and you seem to agree, as
> does Josh. But it is not balancing the speech interest of boycotting with
> with the associational and privacy interests on the other side (or your
> answer to the question in the first paragraph would be "yes.") Rather, it
> is balancing whatever other "compelling" interest the government can come
> up with against the associational and privacy interests, and chilling
> effect on speech.
>
>
>
> In other words, if you really believe there is a First Amendment interest
> in having the government force others to provide you with the information
> you need to boycott them, then you would presumably have no objection to
> forcing, under penalty of law, the publication of memberships, voting
> records, charitable contributions, and such.
>
>
>
> Does the government have a compelling interest in encouraging private
> boycotts? Clearly not. It doesn't even have a rational basis interest in
> doing so, boycotting historically having been frowned upon as harmful to
> economic growth and civil society. But if you believe that there is a
> government interest in encouraging private boycotts on the basis of
> political belief and action, I don't see how you conclude there is not a
> government interest in encouraging private boycotts on the basis of voting
> records ("I do not want to do business with a person who votes
> Republican!"), charitable giving ("you give to the homophobic boy scouts! -
> you're fired!" "You support Planned Parenthood and killing babies!!! - I
> want nothing to do with you!"), memberships ("you're a Mason!!!!!!!??? My
> business goes elsewhere!"), and probably quite  bit more. Personally, I
> simply see no way that the state has a compelling interest in forcing
> people to divulge personal information so that others can try to harm them
> through boycotts.
>
>
>
> So in balancing, we weigh the state's interest in disclosure (an informed
> electorate, prevention of corruption, enforcement of limits) against the
> individual/group's interest in privacy, association, and speech. On the
> government side, we should place zero value on the fact that it will help
> people launch private boycotts - indeed, that is an argument in favor of
> limiting disclosure.
>
>
>
>
>
>
>
> *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 <614.236.6317>*
>
> *http://law.capital.edu/faculty/bios/bsmith.aspx
> <http://law.capital.edu/faculty/bios/bsmith.aspx>*
> ------------------------------
>
> *From:* Rick Hasen [rhasen at law.uci.edu]
> *Sent:* Thursday, April 03, 2014 11:29 PM
> *To:* Josh Orton; Smith, Brad
> *Cc:* law-election at uci.edu
> *Subject:* Re: [EL] The need for less disclosure sometimes
>
> Brad,
> I agree with Josh that the analogy to charitable giving is off the mark,
> because there is nothing to balance on the other side.
> My own view is that for small donations, there should be a zone of
> informational privacy.  Revealing such information serves little public
> purpose and could deter some giving by small donors.  For larger donors, I
> think the privacy interest should give way to anticorruption and
> informational interests.
> I develop these ideas in much more detail 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)
>
> It is also a little ironic, as a reader pointed out to me, that you kept
> the Libertarian candidate off the ballot recently in Ohio for failing to
> include employment information on collected petitions.
>
> Rick
>
> On 4/3/14, 8:17 PM, Josh Orton wrote:
>
> Actually, the question is: is it clearly constitutional to legislatively
> require disclosure of potentially corrupting political contributions? This
> and previous courts have plainly said yes.
>
>
>
> The comparison with private charity is completely faulty, unless you
> believe our government has literally no interest in acting to preserve the
> faith of its own citizens.
>
>
>
> And speaking politically, I'm actually quite encouraged by the angry
> complaints about the exercise of informed economic freedom by peer
> corporations and consumers. It helps build momentum for further disclosure.
>
>
>
> On Thu, Apr 3, 2014 at 8:25 PM, Smith, Brad <BSmith at law.capital.edu>
> wrote:
>
> Totally wrong question. The question is: should the government be able to
> force people to reveal personal information that others will use to harm
> them? Is there any government interest, let alone a "compelling" one, the
> usual standard where first amendment rights are infringed  and if the
> government has some other interest, how strong must it be to overcome this
> first amendment interest?
>
>
>
> Here's a question: would you favor a law requiring all charitable
> contributions to be placed on the web, so that citizens can boycott fellow
> citizens more easily? If not, I think you've answered my first question
> above.
>
>
> Sent from my iPhone
>
>
> On Apr 3, 2014, at 9:10 PM, "Rick Hasen" <rhasen at law.uci.edu> wrote:
>
> Do you see no protected First Amendment right to an economic boycott ?
>
> Rick Hasen
>
>
>
> Sent from my iPhone. Please excuse typos.
>
>
> On Apr 3, 2014, at 5:49 PM, "Joe La Rue" <joseph.e.larue at gmail.com> wrote:
>
> "The resignation of Mozilla CEO Brendan Eich over a personal $1,000
> donation he made in 2008 in support of California's Proposition 8 shows the
> dark side of campaign disclosure laws and how [some] are using them to
> intimidate, harass, and bully anyone who disagrees with them on social and
> cultural issues."
>
>
>
> Sometimes the answer is not "more disclosure."  Sometimes the answer must
> be less disclosure, if we are to allow unpopular political speech to
> survive.  This is precisely what the Bopp Law Firm argued in Doe v. Reed.
>
>
>
> Read more here.
> http://blog.heritage.org/2014/04/03/liberals-using-campaign-disclosures-intimidate-harass/
>
>
>
>
> Joe
> ___________________
> *Joseph E. La Rue*
>
> cell: 480.272.2715
> email: joseph.e.larue at gmail.com
>
>
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> --
>
> Rick Hasen
>
> Chancellor's Professor of Law and Political Science
>
> UC Irvine School of Law
>
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