[EL] The need for less disclosure sometimes

[Josh Orton]

Did Eich change his view on same sex marriage and I missed it? If not,
what's the point of this Obama comparison?


On Fri, Apr 4, 2014 at 9:06 AM, Allen Dickerson <
adickerson at campaignfreedom.org> wrote:

> I stand corrected. Thank you, Adam.
>
> But it somewhat avoids my point, which as that article states, is that
> Senator Obama "had said repeatedly that he believes marriage should be only
> between man and a woman. When the California Supreme Court overturned the
> state's ban on same-sex marriage in May, Obama released a carefully nuanced
> statement saying he respected the court's decision, believed states should
> make their own decisions on marriage and "will continue to fight for civil
> unions as president."
>
> That sort of nuance isn't present from the fact of a political
> contribution. Nor are most of the 35,000 contributors--some of whom, at
> least, must have changed their minds--in the same position to articulate
> their nuanced beliefs or explain their changing views. For them, a national
> boycott isn't necessary; just a boss who happens to have an Internet
> connection.
>
>
> ________________________________________
> From: Adam Bonin [adam at boninlaw.com]
> Sent: Friday, April 04, 2014 9:59 AM
> To: Allen Dickerson; larrylevine at earthlink.net; 'Smith, Brad'; 'Rick
> Hasen'; 'Josh Orton'
> Cc: law-election at uci.edu
> Subject: RE: [EL] The need for less disclosure sometimes
>
> Actually, no.  Eich supported Prop 8; the President opposed it.
>
>
> http://www.sfgate.com/news/article/Obama-opposes-proposed-ban-on-gay-marriag
> e-3278328.php
>
>
> Adam C. Bonin
> The Law Office of Adam C. Bonin
> 1900 Market Street, 4th Floor
> Philadelphia, PA 19103
> (215) 864-8002 (w)
> (215) 701-2321 (f)
> (267) 242-5014 (c)
> adam at boninlaw.com
> http://www.boninlaw.com
>
>
>
>
> -----Original Message-----
> From: law-election-bounces at department-lists.uci.edu
> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Allen
> Dickerson
> Sent: Friday, April 04, 2014 9:42 AM
> To: larrylevine at earthlink.net; 'Smith, Brad'; 'Rick Hasen'; 'Josh Orton'
> Cc: law-election at uci.edu
> Subject: Re: [EL] The need for less disclosure sometimes
>
> That's an interesting empirical question. It's also one that will become
> clearer over time.
>
> There's another aspect though: this is a testable question precisely
> because, once the government compels disclosure, it can't restore a donor's
> privacy. This isn't something that can be put back in a box, nor is it
> something that necessarily conveys anything helpful years after the fact.
>
> Take Mr. Eich's example. We know only that, in 2008, he opposed Proposition
> 8. Of course, in 2008, so did the Democratic presidential nominee (at least
> in substance). But Mr. Eich has been forced from his job, while we do not
> see a groundswell of support for the President's impeachment, even though
> they expressed an identical opinion at an identical time.
>
> Of course, these are very different jobs. But I'd suggest there's another
> point as well: by virtue of his office, the President's thinking has been
> able to publicly evolve on this issue--as have the views of a substantial
> number of Americans, both in government and privately. But Mr. Eich is
> still
> defined by a contribution made in 2008. And even if Mr. Eich is a bad
> example, since he is a semi-public figure, certainly the 35,000 other
> contributors must include some individuals whose thinking has evolved but
> who will be judged by many solely on the basis of a contribution made in a
> very different time and place.
>
> http://www.slate.com/articles/news_and_politics/frame_game/2014/04/brendan_e
> ich_quits_mozilla_let_s_purge_all_the_antigay_donors_to_prop_8.html (note:
> satire is involved).
>
> To translate all of that into law: the government's informational interest
> is short-term (who is affecting this vote?) and the individual's privacy
> interest is long-term (how will this be viewed in future decades?) That's a
> serious asymmetry since we are far more likely to be able to guess the
> former than the latter. Perhaps we should be asking the effect on political
> participation if individuals are required to make lifetime bets on
> historical trends, the sort of public record that has traditionally been
> limited to explicitly public positions and official action.
>
> It certainly argues for far more care in drafting disclosure statutes.
> After
> all, disclosure thresholds are set low enough to capture individuals who
> could not weather a future storm as well as Mr. Eich is likely to.
>
> Best,
> Allen
>
> Allen Dickerson
> Legal Director
> Center for Competitive Politics
> (703) 894-6800
>
> ________________________________________
> From: law-election-bounces at department-lists.uci.edu
> [law-election-bounces at department-lists.uci.edu] On Behalf Of Larry Levine
> [larrylevine at earthlink.net]
> Sent: Friday, April 04, 2014 1:42 AM
> To: 'Smith, Brad'; 'Rick Hasen'; 'Josh Orton'
> Cc: law-election at uci.edu
> Subject: Re: [EL] The need for less disclosure sometimes
>
> 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
>
> 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<mailto: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<mailto: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<mailto: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<mailto: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-inti
> midate-harass/
>
> Joe
> ___________________
> Joseph E. La Rue
> cell: 480.272.2715<tel:480.272.2715>
> email: joseph.e.larue at gmail.com<mailto: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
>
> 401 E. Peltason Dr., Suite 1000
>
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