[EL] The need for less disclosure sometimes

Fri Apr 4 09:10:33 PDT 2014

Any attempt to legislate such protections for workers will bump into the
reality of the ability of the worker to seek redress for violation of those
protections. It would require prolonged and expensive litigation that likely
is beyond the means of many of not most workers. The level of proof required
in litigation would be a difficult hurdle at the very least. But the same
could be and has been said of all manner of legislative protections.

Larry

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Samuel
Bagenstos
Sent: Friday, April 04, 2014 8:53 AM
To: Jeff Hauser
Cc: law-election at uci.edu
Subject: Re: [EL] The need for less disclosure sometimes

To add to Jeff's point, there are lots of ordinary workers who are subject
to dismissal for their political speech who are not in a position to make
contributions above any disclosure limit.  We've gone around on this matter
before on this list, but it seems to me
<http://www.michiganlawreview.org/assets/pdfs/112/Bagenstos.pdf>  the best
way to protect the freedom of workers to engage in political speech is to
protect them against reprisals by their employers for engaging in that
speech -- not to keep (one subset of) political speech private.  To take the
nondisclosure tack rather than the protection-against-reprisals tack is to
privilege the kind of political speech that can, practically, avoid
disclosure (the giving of money) over the kind of political speech that
cannot (speaking out to the public, in one's own name, whether alone or with
others, on an issue of the day).  And it's to privilege the kind of
political speech that richer people can engage in over the kind of political
speech that is easiest for ordinary workers.

On Fri, Apr 4, 2014 at 11:44 AM, Jeff Hauser <jeffhauser at gmail.com> wrote:

Allen, do you support laws protecting employees from being fired for
political views? Ramping up enforcement and sanction for pro-union workers
fired with no greater potential sanction than lost wages several years down
the line? What about employers mandating employees listen to political
speech from their employers?

This concern for the above disclosure limit contributor class and the
consequences for them of disclosure would seem to imply a pretty broad array
of commitments on behalf of people less powerful than those capable of
making > disclosure limit contributions.

On Fri, Apr 4, 2014 at 11:39 AM, Allen Dickerson
<adickerson at campaignfreedom.org> wrote:

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-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> <tel:%28215%29%20864-8002> (w)
>> (215) 701-2321 <tel:%28215%29%20701-2321> <tel:%28215%29%20701-2321> (f)
>> (267) 242-5014 <tel:%28267%29%20242-5014> <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 de
partment-lists.uci.edu>
>>
[mailto:law-election-bounces at department-lists.uci.edu<mailto:law-election-bo
unces 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://w
ww.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> <tel:%28703%29%20894-6800>
>>
>> ________________________________________
>> From:
law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at de
partment-lists.uci.edu>
>>
[law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at d
epartment-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 de
partment-lists.uci.edu>
>>
[mailto:law-election-bounces at department-lists.uci.edu<mailto:law-election-bo
unces 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.ed
u<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-disclosures-inti
>>
midate-harass/<http://blog.heritage.org/2014/04/03/liberals-using-campaign-d
isclosures-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:joseph.e.la
rue at gmail.com<mailto:joseph.e.larue at gmail.com>>
>>
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