[EL] Krauthammer latest to reject the Informational Interest ...

Tue Apr 22 09:54:59 PDT 2014

The problem I have with your analysis, Professor, is that the costs of disclosure are not going to fall on the "few that can afford to give $123,000."  Those people will continue to have influence regardless of what disclosure rules are or are not in place.  Rather, disclosure will drive out small donors who support unpopular causes or who have other reasons for not wanting their name, address, employer, occupation, and political preferences listed in a government database for their neighbors, co-workers, shop stewards, relatives, and bosses to see.

For instance, I represented a small group in an urban area who wanted to organize people to change a state law that threatened their neighborhood.  This would have made them "grassroots lobbyists" who would have needed to report every contribution of $25 or more.  Many of the people in the neighborhood came from countries where it usually ends badly when the government starts collecting the names and address of people engaged in politics.  Some of them were undocumented immigrants.  Needless to say, they simply stopped trying to get the law changed-this lead to the Ninth Circuit concluding that they did not have standing to challenge the law.  Their opponents-developers, lobbyists for local governments, unions-managed to keep going, however, and the law is still in place.  Great job fighting that abuse of money in politics!  Way to disinfect politics!

So you'll forgive me if I find your classification of those wanting to change this as "anti-democratic" and "authoritarian" as divorced from reality.  You may continue the cliché of those wanting to halt the increasing cataloging of the most picayune political activities of citizens as mustache-twirling plutocrats in top hats, waist coats and monocles.  I prefer to think of the people who decide that writing a $25 or $50 check, or going to a neighborhood meeting and bringing a box of pastries, is not worth the hassle.  The mustachioed plutocrat will think that is just fine.  Just realize that you're really on his side.

Bill

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Schultz, David A.
Sent: Monday, April 21, 2014 4:27 PM
To: Scarberry, Mark
Cc: law-election at uci.edu
Subject: Re: [EL] Krauthammer latest to reject the Informational Interest ...

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<mailto: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> [mailto: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<mailto: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<mailto: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<mailto:Mark.Scarberry at pepperdine.edu>>
To: "law-election at uci.edu<mailto:law-election at uci.edu>" <law-election at uci.edu<mailto: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<mailto: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
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