[EL] Krauthammer latest to reject the Informational Interest ...
Schultz, David A.
dschultz at hamline.edu
Mon Apr 21 16:27:11 PDT 2014
Krauthammer's op-ed is yet another example of two problems with the debates
in so much of election law. First it relies on a theory of abstract
individualism and a theory of rights that fails to appreciate how rights
must be understood contextually. Second, it is a position largely devoid of
a theory of where disclosure fits into a broader of democracy. Lastly,
it is a wonderful example of hypocrisy.
FYI: Here is a version of a recent column of mine that appeared in
Politics in Minnesota (not the final version).
http://politicsinminnesota.com/2014/04/schultz-money-v-democracy-and-the-coming-death-of-disclosure/
*Money v Democracy and the Coming Death of Disclosure*
The battle over money and politics did not end in *McCutcheon*.
Instead, that recent Supreme Court decision is only a small skirmish in the
larger war by some en route to their ultimate objective--neither limits on
the amount of money spent for political purposes nor any disclosure. Their
real goal is to let money rule, and without having to be accountable for
how it is expended.
In *McCutcheon v F.E.C.* the Supreme Court struck down
aggregate political contribution limits that individuals can contribute to
candidates and parties. At the core of the *McCutcheon* is the argument
that all individuals have a right to expend unlimited money for political
purposes. Because of that right, federal laws that overall limit
individuals to contributing approximately $123,000 per year to candidates
and political parties violated their right to free speech. Who knew that
such a cap was so suppressive and chilling of free speech? At least this is
what the Roberts Court wants us to believe. We should all rejoice in our
new found freedom to spend as much as we want to affect the political
process. Yes, now the rich and poor equally have the right to spend more
than $123,000 per year for political purposes much in the same way that
writer Anatole France once said that the rich and poor were equally free to
sleep under the bridge.
But the Supreme Court offered some solace in that decision,
asserting that laws that would provide for how such money is spent could be
enacted. In making this argument, the Court essentially asserted what
many critics of campaign finance have argued for years--we should take all
spending and contribution limits off of the use of money in politics and
replace it with simply a disclosure-only regime.
The battle against limits on the use of money to affect
campaigns and elections is as old as America's political system. Yet the
modern battle line began in 1974 when Congress passed the Federal Election
Campaign Act (FECA). FECA sought to overcome the abuses that came to light
with Nixon and Watergate . Among the major provisions of FECA, expenditure
limits on spending by candidates and political parties, contribution limits
on candidates, parties, and political action committees, and overall
aggregate contribution limits for these same entities. Very quickly in
1976 the Supreme Court ruled in *Buckley v. Valeo* that money expended or
contributed for political purposes in campaigns and elections implicated
First Amendment free speech concerns. The Court then ruled that only
preventing corruption or its appearance justified contribution limits. The
Court ruled in *Buckley* that mandatory expenditure or spending limits were
unconstitutional on First Amendment grounds . Finally, in *Buckley* the
Court upheld disclosure rules, contending that disclosure severed
numerous goals including ensuring compliance with the law and to
prevent efforts
to circumvent contribution limits.
Since *Buckley* there has been a checkered path regarding how
the Supreme Court treated contribution limits and disclosure. Gradually
though it has proved itself, especially under the Roberts' Court, to be
hostile to all forms of efforts to reform the way money has been spent for
political purposes. Over time the court has loosened up restrictions on
independent expenditures, political parties, and third party groups, undone
limits on corporate spending, and now with *McCutcheon*, struck down
aggregate spending limits. All that is really in place now are bans on
direct corporate contributions to candidates, individual limits to
candidates, and restrictions on foreign nationals or parties seeking to
contribute to campaigns.
There is no question that many conservatives want to see at
least these first two contribution limits overturned. They have already
been challenging these limits for the last several years, and now between
the 2010 *Citizens United * and now the *McCutcheon* decisions, they can
taste victory. The Roberts Court has proved consistently hostile to any
contribution limits and with test cases being brought across the country,
it is perhaps only a matter of time before the Supreme Court concludes that
all contribution limits are unconstitutional. In effect, the dream of some
where the Court fully embraces the idea that money is speech (for First
Amendment purposes), is near.
But throughout this litigation, opponents have argued that what
they would like to see if simply a disclose-only regime. These
individuals, including Bradley Smith (former Federal Election Commission
chair), Republican lawyer James Bopp, Jr., and John Samples of the Cato
Institute, long supported disclosure-only. Perhaps consistent with Justice
Brandeis' assertion that "Sunlight is said to be the best of
disinfectants," their claim was that disclosure would solve most of the
problems with money in politics. Nice theory, but it does not work in
practice.
First, as I point out in *Election Law and Democratic Theory*,
there is little sense of what disclosure-only means. What is to be
disclosed, how, and when. Second, some of the individuals contended that
disclosure will deter bad behavior. There is little or no evidence to
sustain this claim, especially in so many political campaigns that are
uncompetitive or where if voters do not like how money is being spent, that
have no real tools at their disposal to punish candidates or unelected
groups or individuals. Finally, disclosure-only accepts the legitimacy of
the idea that money should be allowed to determine the scope of someone's
free speech rights or be able to be a legitimate factor allocating
political power or democratic decision making.
But perhaps the biggest problem with advocates of
disclosure-only is their hypocrisy. Over the last few years Smith, Bopp,
Samples are other have been attacking disclosure, contending that such laws
haze or chill the free speech rights of individuals. They point to
circumstances where rich donors were criticized or businesses like Target
Corporation were boycotted because of their decision to make political
contributions. Somehow we need to pity the rich and corporate as
persecuted minorities, unable to protect themselves. What was formally seen
as a check on abuses of money in politics-disclosure-is now being argued
against as a violation of free speech. Justice Clarence Thomas takes this
position and he has consistently ruled unconstitutional many disclosure
laws.
Why the hypocrisy? It's quite simple-these individuals want
the right to spend as much money as they want and they do not want anyone
to know who they are. They reject the concept of transparency and openness
in a democratic society, preferring to hide in the dark. In short, they
want all the privilege and power that comes with money but they do not want
to be accountable for their behavior. This is the classic hallmark of
authoritarianism-the use power unchecked and unaccountable. Authoritarians
operate in secret, in the dark, wearing masks, and beyond clear view of
what they are doing. This new attack on disclosure is anti-democratic.
So look beyond *McCutcheon* and one will see an agenda hostile
to democratic accountability. It is one that wants to create a new
plutocracy where money rules and it is not accountable. It is a theory of
democracy that enshrines capitalism and the power of money in the First
Amendment, creating a political system for the few who can afford to give
more than $123,000 per year.
On Mon, Apr 21, 2014 at 3:52 PM, Scarberry, Mark <
Mark.Scarberry at pepperdine.edu> wrote:
> In defense of Dr. K:
>
>
>
> It doesn't seem right to analogize the desire to have transparency, on the
> one hand, with the First Amendment, on the other. It's perfectly reasonably
> to say that zealots ruined the usefulness of a method of creating
> transparency, so that the method is no longer on-balance desirable, without
> saying that the actions of some zealots would justify jettisoning the First
> Amendment.
>
>
>
> Mark (the other "Mark")
>
>
>
> Mark S. Scarberry
>
> Professor of Law
>
> Pepperdine Univ. School of Law
>
>
>
>
>
>
>
> *From:* law-election-bounces at department-lists.uci.edu [mailto:
> law-election-bounces at department-lists.uci.edu] *On Behalf Of *Steve
> Hoersting
> *Sent:* Monday, April 21, 2014 10:20 AM
> *To:* Mark Schmitt
> *Cc:* law-election at uci.edu
> *Subject:* Re: [EL] Krauthammer latest to reject the Informational
> Interest ...
>
>
>
> I actually hear what Mark is saying. My belief, on this point, is that Dr.
> K is early in his conversion, and that his thinking on the topic will
> strengthen over time.
>
> The roots of "let's have full disclosure" run deep. Antipathy to its
> automated appeal will increase as the true purpose of compelled disclosure
> continues to reveal itself -- particularly for noncorrupting speech -- and
> the relative lack of benefit is better understood.
>
> People are realizing: Margaret McIntyre's experience is too often the
> rule, not the exception.
>
> -S
> Sent from my phone.
>
>
> On Apr 21, 2014 1:02 PM, "Mark Schmitt" <schmitt.mark at gmail.com> wrote:
>
> I can understand the argument that the potential abuses of disclosure
> might outweigh the benefits to democracy. (Especially because I think those
> benefits are overstated.) But it seems awfully weird to hold the view that
> disclosure was "an elegant solution" and "a reasonable way to reconcile the
> irreconcilables," but *also* that it has now been "ruined" beyond
> rescue. Ruined by a handful of incidents, all of which involve a single
> issue in a single state. (I'm ignoring good old Mr. Vander Skloot and his
> multi-level marketing scheme -- it's hard to believe he wasn't audited
> sooner.)
>
>
>
> It's a lot like saying that you thought the First Amendment was a good
> idea, until some "zealot" ruined it by calling someone a bad name or
> burning a flag. It seems like the worst possible form of argument.
>
>
>
>
>
>
>
>
>
>
>
> ------ Original Message ------
>
> From: "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu>
>
> To: "law-election at uci.edu" <law-election at uci.edu>
>
> Sent: 4/20/2014 10:39:52 PM
>
> Subject: Re: [EL] Krauthammer latest to reject the Informational Interest
> ...
>
>
>
> The end of his column (fair use, I think):
>
> "The ultimate victim here is full disclosure itself. If revealing your
> views opens you to the politics of personal destruction, then transparency,
> however valuable, must give way to the ultimate core political good, free
> expression.
>
> "Our collective loss. Coupling unlimited donations and full disclosure was
> a reasonable way to reconcile the irreconcilables of campaign finance. Like
> so much else in our politics, however, it has been ruined by zealots. What
> a pity."
>
> Mark S. Scarberry
>
> Pepperdine University School of Law
>
>
> Sent from my iPad
>
>
> On Apr 20, 2014, at 7:11 PM, "Steve Hoersting" <hoersting at gmail.com>
> wrote:
>
>
> http://www.nationalreview.com/article/376023/zealots-win-again-charles-krauthammer
>
>
>
> Hear. Hear.
>
>
>
> --
> Stephen M. Hoersting
>
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--
David Schultz, Professor
Editor, Journal of Public Affairs Education (JPAE)
Hamline University
Department of Political Science
1536 Hewitt Ave
MS B 1805
St. Paul, Minnesota 55104
651.523.2858 (voice)
651.523.3170 (fax)
http://davidschultz.efoliomn.com/
http://works.bepress.com/david_schultz/
http://schultzstake.blogspot.com/
Twitter: @ProfDSchultz
My latest book: Election Law and Democratic Theory, Ashgate Publishing
http://www.ashgate.com/isbn/9780754675433
FacultyRow SuperProfessor, 2012, 2013
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