[EL] 7th circuit john doe opinon

Mon Jul 20 14:11:49 PDT 2015

>>And as Mark pointed out, "polarization" is simply "creating an
unusually large distance in beliefs"<<

I don't really want to pursue this further, but note that you're not
quoting me when you say "unusually large distance." I don't think there's
any "usual" or "unusual" level of party polarization. Along with many
political scientists, I think the relatively smaller distance in ideology
between the two parties for most of 2d half of the 20th Century was at
least as "unusual," a historical accident traceable at least back to
Reconstruction, and that ideologically well-defined parties are the norm in
most countries and will be here. I believe we need to think about political
institutions that can operate effectively given a more polarized party
structure, but not that "reducing polarization" should be a major
objective. Still, our political processes are constructed, I would try to
avoid policies that clearly exacerbate polarization, or magnify differences
beyond where public opinion is.

Polarization is a clear concept, and measurable, but perhaps I agree with
Steve that there's no "baseline" for a normal level of polarization that we
should try to get back to. I don't see that as a major problem or reason to
ignore the phenomenon, though.

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 Mon, Jul 20, 2015 at 12:23 PM, Sai . <sai at makeyourlaws.org> wrote:

> > 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!
>
> Why would something not having an objective "baseline" prevent or
> cause an epistemological problem with measuring relative distances, or
> relative relative distances (i.e. how far apart people are on issue X
> vs on issue Y)?
>
> (To use a terribly geeky math / CS analogy…) You can do the latter
> with machine learning that has no concept of "baselines" and just
> extracts the eigenvectors of the n-space of political ideas.
>
> Gives you a perfectly reasonable way to measure *distance*, without
> needing any "baseline".
>
> And as Mark pointed out, "polarization" is simply "creating an
> unusually large distance in beliefs". (What is "unusually large" is
> also handled by the eigenvector thing. :-P)
>
> Sincerely,
> Sai
> President, Make Your Laws PAC/C4/C3
>
>
> On Sun, Jul 19, 2015 at 4:19 PM, Steve Hoersting <hoersting at gmail.com>
> wrote:
> > 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, New America
> >> 202/246-2350
> >> gchat or Skype: schmitt.mark
> >> twitter: @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, New America
> >>>> 202/246-2350
> >>>> gchat or Skype: schmitt.mark
> >>>> twitter: @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
> >>>>>> 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
> >>>>
> >>>>
> >>
> >>
> >> _______________________________________________
> >> 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/20150720/7771fe6d/attachment.html>