[EL] The need for less disclosure sometimes
Adam Bonin
adam at boninlaw.com
Fri Apr 4 08:42:52 PDT 2014
Or we can enact laws protecting such employees from workplace retaliation
for their political beliefs. I've never quite understood why groups who urge
for more speech *in* elections also argue for *less* speech about their
funders.
--Adam Bonin
-----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 11:39 AM
To: Trevor Potter
Cc: law-election at uci.edu
Subject: Re: [EL] The need for less disclosure sometimes
If disclosure laws were tailored to the CEOs and CinCs of the world, I might
agree. They are not. We need to be thinking about the other 35,000 people,
who can be cashiered without anyone on this list ever hearing about it.
> On Apr 4, 2014, at 11:32 AM, "Trevor Potter" <tpotter at capdale.com> wrote:
>
> Mr. Eich may have "pivoted" too--unlike the President, I don't believe he
has said so. He certainly has a public pulpit to discuss the his views any
time he wants, so his position should be no more "frozen in time" than an
elected official's.
>
> Sent from my iPad
>
>> On Apr 4, 2014, at 11:27 AM, "Allen Dickerson"
<adickerson at campaignfreedom.org> wrote:
>>
>> 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-propos
>> ed-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-bou
>> nces at department-lists.uci.edu>
>> [mailto:law-election-bounces at department-lists.uci.edu<mailto:law-elec
>> tion-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/br
>> endan_e
>> ich_quits_mozilla_let_s_purge_all_the_antigay_donors_to_prop_8.html<h
>> ttp://www.slate.com/articles/news_and_politics/frame_game/2014/04/bre
>> ndan_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-bou
>> nces at department-lists.uci.edu>
>> [law-election-bounces at department-lists.uci.edu<mailto:law-election-bo
>> unces 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-bou
>> nces at department-lists.uci.edu>
>> [mailto:law-election-bounces at department-lists.uci.edu<mailto:law-elec
>> tion-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
>> @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.cap
ital.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<mai
lto: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.l
arue 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-disclosur
>> es-inti
>> midate-harass/<http://blog.heritage.org/2014/04/03/liberals-using-cam
>> paign-disclosures-inti
>> midate-harass/>
>>
>> Joe
>> ___________________
>> Joseph E. La Rue
>> cell:
>> 480.272.2715<tel:480.272.2715><tel:480.272.2715<tel:480.272.2715>>
>> email:
>> joseph.e.larue at gmail.com<mailto:joseph.e.larue at gmail.com><mailto:jose
>> ph.e.larue at gmail.com<mailto:joseph.e.larue at gmail.com>>
>>
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>> --
>>
>> Rick Hasen
>>
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>>
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