[EL] 7th circuit john doe opinon

Steve Hoersting hoersting at gmail.com
Sun Jul 19 13:19:30 PDT 2015 

I am saying 'mainstream' explains the trouble the world is having.
Anti-concept is epistemology just as F=ma is physics and "the world is
flat" is topography. Validity does not determine the categorization.

I obviously think the point made about anti-concepts is valid.

As to arguments from Marx made under the banner economics, "ones," if you
will, do it all the time. Or don't you read the leading editorials?

When you noted the origin was Rand, I said, Hey, someone is doing some
thinking; as in, Bravo for spotting the source!

I have nothing to hide here. I encourage everyone to Google 'anti-concept.'

Re: "dark money", I have this question: subjective intent to influence an
election or intent objectively manifested? It matters. (Talk about limiting
a concept!)

But more to the crux of your definition, I have seen a lot of proposals to
disclose corporate donations to think tanks. When I get more time I will
double-check whether the advocates of such disclosure scrupulously eschew
the term "dark money" -- since, by your definition, that's beyond
elections. (Or is it!, shouts the "accountability" crowd.)

Re: "soft money" and your easy limitation to party-committee activity: Were
you not around during the Electioneering Communication funding source
prohibiton debates? 'Cause that  was about soft money to the chattering
class, no matter what BCRA says. It wasn't just about party committees.

Re: "polarization," I think you know you're on thin ice with this one --
and nice touch with the words "simply refers;" that was daring.

You're on thin ice not because you concede there are problems with
measurement. Rather because there is a built-in problem with establishing a
baseline from which to measure! (Which, as I have said a few times now, is
an in-terrorem feature to the chief "polarization"  advocates not a bug).

As to your last, I wasn't quoting. I was providing mock dialogue to make a
point.

As to whether anyone has ever uttered that mock dialogue -- Speech rights
are nice, but what about polarization!? -- I answer 'perhaps' or 'perhaps
not.'

But I can tell you this: The sentiment captures the entire throughline of
the early chapters in Cass Sunstein's 2002 book Designing Democracy.

I encourage people to read it...and then to Google Ayn Rand...on what is
achieved by the deployment of "anti-concepts"...an epistemological term, by
the way...coming to a bookshelf near you!

Best,

Steve

On Jul 19, 2015 3:26 PM, "Mark Schmitt" <schmitt.mark at gmail.com> wrote:

> Sorry, are you arguing that "anti-concept" really is a term from
> epistemology (that is, mainstream philosophy) and not from Objectivism?
> You're wrong about that (google the phrase), and if you want to make an
> argument based on Ayn Rand, you should be clear about it. (One wouldn't
> make an argument based on Marx and pretend that it's based on "economics"
> more generally.)
>
> As for your questions, all the terms are easily defined. Dark money is
> money intended to influence an election that runs through groups that don't
> have to disclose their donors. Soft money is generally money run through
> parties or party-affiliated committees that isn't subject to hard-money
> limits. Polarization simply refers to the measure of the ideological
> distance between parties in Congress and most legislatures. On the first
> and third, there are surely some disputes about how to measure the
> phenomena, but those disputes don't invalidate the concepts.
>
> You're right that none of the concepts are trump cards. But is your quote,
> "an individual's right to speak is a fine idea, but what about the
> national threat lurking in polarization?!" anything that anyone has ever
> actually said?
>
> Mark Schmitt
> Director, Political Reform Program
> <http://www.newamerica.org/political-reform/>, New America
> <http://www.newamerica.org/>
> 202/246-2350
> gchat or Skype: schmitt.mark
> twitter: @mschmitt9 <https://twitter.com/@mschmitt9>
>
> On Sun, Jul 19, 2015 at 2:43 PM, Steve Hoersting <hoersting at gmail.com>
> wrote:
>
>> Hey, something is thinking....
>>
>> And not a moment too soon?
>>
>> By the way, Mark, I looked in all the 20th Century Automobile catalogues
>> on my bookshelf ... and couldn't find Tesla anywhere.
>>
>> You're welcome to argue a Tesla's a "car" if you want to. But, until we
>> all agree it's a car, don't call a Tesla something it's not.
>>
>> To what does "dark money" refer in reality?
>>
>> Notice, I started with the easiest one -- as did you.
>>
>> Let's dig deeper.  To what does "soft money" refer, in reality? What is
>> the outer or upper imit of the concept "soft money"?
>>
>> Still with me? Try this one?
>>
>> To what does "polarization" refer?
>>
>> Answer: anything one needs it to.
>>
>> "Polarization" is an anti-concept. It is not a concept. It's definition
>> is infinitely elastic, which is to say NOT defined.
>>
>> And that explains its utility to those who deploy it.
>>
>> I said this was worthy work for academics....
>>
>> It is most decidedly not, by the way, irrelevant nor unimportant.
>>
>> It explains how the *war* is being waged. And why the good guys are
>> losing.
>>
>> All the best, Mark, as always,
>>
>> Steve
>> On Jul 19, 2015 2:27 PM, "Mark Schmitt" <schmitt.mark at gmail.com> wrote:
>>
>>> Steve, you write, "'Dark money' is what is known in epistemology as an
>>> anti-concept."
>>>
>>> The term "anti-concept" is not employed in epistemology, but comes from
>>> Ayn Rand. "Anti-concept" can't be found in any of the dictionaries of
>>> philosophy on my bookshelves or online.
>>>
>>> You might consider the term "dark money," and the others you mention,
>>> too pejorative or loaded. But it is a term with a clear and specific
>>> meaning, same for the other two.
>>>
>>> Needless to say, you're welcome to make Randian or Objectivist
>>> arguments. But don't pretend they're something else.
>>>
>>>
>>>
>>> Mark Schmitt
>>> Director, Political Reform Program
>>> <http://www.newamerica.org/political-reform/>, New America
>>> <http://www.newamerica.org/>
>>> 202/246-2350
>>> gchat or Skype: schmitt.mark
>>> twitter: @mschmitt9 <https://twitter.com/@mschmitt9>
>>>
>>> On Sat, Jul 18, 2015 at 6:56 PM, Steve Hoersting <hoersting at gmail.com>
>>> wrote:
>>>
>>>> Wrong!
>>>>
>>>> "Dark money" is what is known in epistemology as an anti-concept.
>>>>
>>>> It literally has no meaning. But it's purpose and effect is to trump
>>>> any discussion or consideration of leaving some aspects of debate to
>>>> anonymity.
>>>>
>>>> Same with the anti-concept "soft-money," which is not a thing but
>>>> rather the inverse of a thing. Just as darkness is the absence of light, so
>>>> 'soft money' is the absence of regulation.
>>>>
>>>> "Ban soft money," then, is a perpetual and recyclable call for a plan
>>>> of incremental and plenary governmental control over the processes of
>>>> information exchange.
>>>>
>>>> And my personal favorite anti-concept is ... "polarization."
>>>>
>>>> Yes, "polarization."
>>>>
>>>> It means nothing -- or whatever its deployer needs it to mean (which is
>>>> the same thing).
>>>>
>>>> Its purpose is to serve as a stand-in or scarecrow; to cast doubt on
>>>> the hallowed place concepts such as "free speech," "unhibited debate" or
>>>> "the First Amendment" would normally hold sway.
>>>>
>>>> It is designed to work like so: "Sure, an individual's right to speak
>>>> is a fine idea, but what about the national threat lurking in
>>>> polarization?!"
>>>>
>>>> The mind is a conceptual entity. It deals in concepts.
>>>>
>>>> Anti-concepts are deployed to take the place of true concepts, for
>>>> in-terrorem effect; to forestall any standing for, say, the separation of
>>>> campaign and state (a concept Brad Smith is busy resuscitating) for the
>>>> larger ghostly and 'ghastly' fear of "polarization," as Sunstein and, I
>>>> believe, Pildes have long been deploying.
>>>>
>>>> Any academic unsure how to spend his or her next 3 years -- and who
>>>> wants to go toe-to-toe with the Big Dogs on an effort that matters and can
>>>> make a difference -- should demystify then denude the anti-concepts
>>>> "soft money," "dark money," and "polarization" for the epistemologic
>>>> assaults they are.
>>>> Anti-concepts are Kantian bunk.  They're Alinskyite bunk; "Pick it,
>>>> isolate it, freeze it." They are not concepts, they're tactics.
>>>>
>>>> The three I listed deserve denuding.
>>>>
>>>> Regrettably, I haven't the time.
>>>>
>>>> Good weekend,
>>>>
>>>> Steve Hoersting
>>>>
>>>> Sent from my Phone.
>>>>  On Jul 18, 2015 6:07 PM, "Craig Holman" <holman at aol.com> wrote:
>>>>
>>>>> Ilya:
>>>>>
>>>>>  The definition of "dark money" for groups is that we do not know
>>>>> about their expenditures; it is that the groups do not disclose the sources
>>>>> of the funds.
>>>>>
>>>>> Craig Holman, Ph.D.
>>>>> Government Affairs Lobbyist
>>>>> Public Citizen
>>>>> 215 Pennsylvania Avenue SE
>>>>> Washington, D.C. 20003
>>>>> T-(202) 454-5182
>>>>> C-(202) 905-7413
>>>>> F-(202) 547-7392
>>>>> Holman at aol.com
>>>>>
>>>>>
>>>>> -----Original Message-----
>>>>> From: Ilya Shapiro <IShapiro at cato.org>
>>>>> To: 'Eric J Segall' <esegall at gsu.edu>; Smith, Brad <
>>>>> BSmith at law.capital.edu>; Rick Hasen <rhasen at law.uci.edu>;
>>>>> law-election at UCI.edu <law-election at uci.edu>
>>>>> Sent: Sat, Jul 18, 2015 3:33 pm
>>>>> Subject: Re: [EL] 7th circuit john doe opinon
>>>>>
>>>>>   How are they “dark moneyed groups” if everyone knows who they are?
>>>>>
>>>>>  Ilya Shapiro
>>>>> Senior Fellow in Constitutional Studies,
>>>>> Editor-in-Chief of the *Cato Supreme Court Review*
>>>>> Cato Institute
>>>>> 1000 Massachusetts Ave. NW
>>>>> Washington, DC  20001
>>>>> tel. (202) 218-4600
>>>>> cel. (202) 577-1134
>>>>> fax. (202) 842-3490
>>>>> ishapiro at cato.org
>>>>> Bio/clips: http://www.cato.org/people/shapiro.html
>>>>> Twitter: www.twitter.com/ishapiro
>>>>> SSRN: http://ssrn.com/author=1382023
>>>>>
>>>>> *Cato Supreme Court Review*:  http://www.cato.org/supreme-court-review
>>>>>
>>>>> Watch our 2014 Constitution Day Conference - Supreme Court
>>>>> Review/Preview:
>>>>> http://www.cato.org/events/13th-annual-constitution-day
>>>>>
>>>>> See me defend the right to keep and bear arms on the Colbert Report:
>>>>> http://www.colbertnation.com/the-colbert-report-videos/340923/july-08-2010/automatics-for-the-people---ilya-shapiro---jackie-hilly
>>>>>
>>>>>  *From:* law-election-bounces at department-lists.uci.edu [
>>>>> mailto:law-election-bounces at department-lists.uci.edu] *On Behalf Of *Eric
>>>>> J Segall
>>>>> *Sent:* Saturday, July 18, 2015 2:19 PM
>>>>> *To:* Smith, Brad; Rick Hasen; law-election at UCI.edu
>>>>> *Subject:* Re: [EL] 7th circuit john doe opinon
>>>>>
>>>>>  So, regardless of whether power (in the guise of enforcement
>>>>> of campaign finance laws) was abused in Wisconsin, and regardless of how
>>>>> much Walker himself was personally behind or not behind the various groups
>>>>> at issue, when well-funded and dark moneyed groups support judges with
>>>>> campaign money (and trips) and then those same judges don't recuse
>>>>> themselves in criminal investigations of those groups, we have a serious
>>>>> problem.
>>>>>
>>>>>
>>>>> http://talkingpointsmemo.com/cafe/the-inside-story-of-the-crony-court-that-deep-sixed-the-scott-walker-probe
>>>>>
>>>>> Best,
>>>>>
>>>>> Eric
>>>>>
>>>>>
>>>>>
>>>>>
>>>>>
>>>>>   ------------------------------
>>>>>   *From:* law-election-bounces at department-lists.uci.edu <
>>>>> law-election-bounces at department-lists.uci.edu> on behalf of Smith,
>>>>> Brad <BSmith at law.capital.edu>
>>>>> *Sent:* Thursday, July 16, 2015 3:37 PM
>>>>> *To:* Rick Hasen; law-election at UCI.edu
>>>>> *Subject:* Re: [EL] 7th circuit john doe opinon
>>>>>
>>>>>   Thank you. I rest that part of my case.
>>>>>
>>>>>  *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*
>>>>> *http://law.capital.edu/faculty/bios/bsmith.aspx*
>>>>>    ------------------------------
>>>>>   *From:* law-election-bounces at department-lists.uci.edu [
>>>>> law-election-bounces at department-lists.uci.edu] on behalf of Rick
>>>>> Hasen [rhasen at law.uci.edu]
>>>>> *Sent:* Thursday, July 16, 2015 3:21 PM
>>>>> *To:* law-election at UCI.edu
>>>>> *Subject:* [EL] 7th circuit john doe opinon
>>>>>  Since it has been referenced today, here's last year's opinion and
>>>>> an excerpt (with my emphasis):
>>>>>
>>>>> http://electionlawblog.org/wp-content/uploads/7th-john-doe.pdf
>>>>>
>>>>> The Supreme Court has yet to determine what “coordination” means. Is
>>>>> the scope of permissible regulation limited to groups that advocate the
>>>>> election of particular candidates, or can government also regulate
>>>>> coordination of contributions and speech about political issues, when the
>>>>> speakers do not expressly advocate any person’s election? What if the
>>>>> speech implies, rather than expresses, a preference for a particular
>>>>> candidate’s election? If regulation of coordination about pure issue
>>>>> advocacy is permissible, how tight must the link be between the
>>>>> politician’s committee and the advocacy group? Uncertainty is a powerful
>>>>> reason to leave this litigation in state court, where it may meet its end
>>>>> as a matter of state law without any need to resolve these constitutional
>>>>> questions. The district court thought that the Supreme Court will overrule
>>>>> what remains of Buckley, as some Justices have pro- posed. See, e.g.,
>>>>> Colorado Republican Federal Campaign Committee v. FEC, 518 U.S. 604, 635–40
>>>>> (1996) (Thomas, J., dissenting in part). If the Constitution forbids all
>>>>> regulation of campaign contributions, there is no basis for regulating
>>>>> coordination either. After all, the rationale for regulating coordination
>>>>> has been to prevent evasion of contribution limits and ensure the public
>>>>> identification of persons who contribute to politicians’ war chests.
>>>>>
>>>>> * Yet although the Court’s views about the proper limits of
>>>>> campaign-finance regulation continue to change, see Citizens United
>>>>> (overruling part of McConnell) and McCutcheon v. FEC, 134 S. Ct. 1434
>>>>> (2014) (overruling a portion of Buckley that dealt with aggregate
>>>>> contribution limits across multiple candidates), it has yet to disapprove
>>>>> the portion of Buckley holding that some regulation of contributions to
>>>>> candidates is permissible. Justice Thomas wrote separately in McCutcheon,
>>>>> 134 S. Ct. at 1462–65 (concurring in the judgment), precisely because a
>>>>> majority was unwilling to revisit that aspect of Buckley. The district
>>>>> court’s belief that a majority of the Court eventually will see things
>>>>> Justice Thomas’s way may or may not prove correct, but as the Supreme
>>>>> Court’s doctrine stands it is not possible to treat as “bad faith” a
>>>>> criminal investigation that reflects Buckley’s interpretation of the First
>>>>> Amendment. Nor does it help plaintiffs to accuse defendants of
>>>>> “retaliation”. That just restates the point that campaign finance
>>>>> regulation concerns speech; it does not help to decide whether a particular
>>>>> kind of regulation is forbidden.* Cf. Fairley v. Andrews, 578 F.3d
>>>>> 518, 525 (7th Cir. 2009).
>>>>>
>>>>> What we have said shows not only that an injunction was an abuse of
>>>>> discretion but also that all defendants possess qualified immunity from
>>>>> liability in damages. Public officials Nos. 14-1822 et al. 11 can be held
>>>>> liable for violating clearly established law, but not for choosing sides on
>>>>> a debatable issue. See, e.g., Wilson v. Layne, 526 U.S. 603, 618 (1999)
>>>>> (“If judges … disagree on a constitutional question, it is unfair to
>>>>> subject police to money damages for picking the losing side of the
>>>>> controversy.”). The district court thought the law clearly established
>>>>> because, after all, the First Amendment has been with us since 1791. But
>>>>> the right question is what the Constitution means, concretely, applied to a
>>>>> dispute such as this. The Justices forbid the use of a high level of
>>>>> generality and insist that law is not “clearly established” until “existing
>>>>> precedent [has] placed the statutory or constitutional question beyond
>>>>> debate.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011). See also, e.g.,
>>>>> Plumhoff v. Rickard, 134 S. Ct. 2012 (2014); Wood v. Moss, 134 S. Ct. 2056
>>>>> (2014).
>>>>>
>>>>> Plaintiffs’ claim to constitutional protection for raising funds to
>>>>> engage in issue advocacy coordinated with a politician’s campaign committee
>>>>> has not been established “beyond debate.” To the contrary, there is a
>>>>> lively debate among judges and academic analysts. The Supreme Court
>>>>> regularly decides campaign-finance issues by closely divided votes. No
>>>>> opinion issued by the Supreme Court, or by any court of appeals,
>>>>> establishes (“clearly” or otherwise) that the First Amendment forbids
>>>>> regulation of coordination between campaign committees and issue-advocacy
>>>>> groups—let alone that the First Amendment forbids even an inquiry into that
>>>>> topic. The district court broke new ground. Its views may be vindicated,
>>>>> but until that day public officials enjoy the benefit of qualified immunity
>>>>> from liability in damages. This makes it unnecessary for us to consider
>>>>> whether any defendant also enjoys the benefit of absolute prosecutorial
>>>>> immunity, which depends on the capacities in which they may have acted at
>>>>> different times. See Buckley v. Fitzsimmons, 509 U.S. 259 (1993).
>>>>>
>>>>> --
>>>>>
>>>>> Rick Hasen
>>>>>
>>>>> Chancellor's Professor of Law and Political Science
>>>>>
>>>>> UC Irvine School of Law
>>>>>
>>>>> 401 E. Peltason Dr., Suite 1000
>>>>>
>>>>> Irvine, CA 92697-8000
>>>>>
>>>>> 949.824.3072 - office
>>>>>
>>>>> 949.824.0495 - fax
>>>>>
>>>>> rhasen at law.uci.edu
>>>>>
>>>>> http://www.law.uci.edu/faculty/full-time/hasen/
>>>>>
>>>>> http://electionlawblog.org
>>>>>
>>>>>      _______________________________________________
>>>>> Law-election mailing
>>>>> listLaw-election at department-lists.uci.eduhttp://department-lists.uci.edu/mailman/listinfo/law-election
>>>>>
>>>>>
>>>>> _______________________________________________
>>>>> Law-election mailing list
>>>>> Law-election at department-lists.uci.edu
>>>>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>>>>
>>>>
>>>> _______________________________________________
>>>> Law-election mailing list
>>>> Law-election at department-lists.uci.edu
>>>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>>>
>>>
>>>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20150719/20f1bfe2/attachment.html>

View list directory