[EL] The need for less disclosure sometimes
Allen Dickerson
adickerson at campaignfreedom.org
Fri Apr 4 08:20:57 PDT 2014
The point is that contributions are made in a particular time and place, and then interpreted later in a different time and place. Politics and mores change. Politicians, including the President, routinely pivot to account for this fact. It ought to affect how we view political disclosure, and the manner in which particular disclosure regimes are tailored to the government's informational interest.
________________________________________
From: Josh Orton [orton at progressivesunited.org]
Sent: Friday, April 04, 2014 11:05 AM
To: Allen Dickerson
Cc: Adam Bonin; larrylevine at earthlink.net; Smith, Brad; Rick Hasen; law-election at uci.edu
Subject: Re: [EL] The need for less disclosure sometimes
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<mailto: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<mailto:adam at boninlaw.com>]
Sent: Friday, April 04, 2014 9:59 AM
To: Allen Dickerson; larrylevine at earthlink.net<mailto:larrylevine at earthlink.net>; 'Smith, Brad'; 'Rick Hasen'; 'Josh Orton'
Cc: law-election at uci.edu<mailto: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<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<tel:%28215%29%20864-8002> (w)
(215) 701-2321<tel:%28215%29%20701-2321> (f)
(267) 242-5014<tel:%28267%29%20242-5014> (c)
adam at boninlaw.com<mailto: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>
[mailto: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<mailto:larrylevine at earthlink.net>; 'Smith, Brad'; 'Rick Hasen'; 'Josh Orton'
Cc: law-election at uci.edu<mailto: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<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<tel:%28703%29%20894-6800>
________________________________________
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 Larry Levine
[larrylevine at earthlink.net<mailto: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<mailto: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>
[mailto: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<mailto: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<tel:614.236.6317>
http://law.capital.edu/faculty/bios/bsmith.aspx
________________________________
From: Rick Hasen [rhasen at law.uci.edu<mailto: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><mailto: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><mailto: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><mailto: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><mailto: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/<http://blog.heritage.org/2014/04/03/liberals-using-campaign-disclosures-inti
midate-harass/>
Joe
___________________
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