[EL] What were Stanford and Dartmouth supposed to do?

Wed May 13 10:57:32 PDT 2015

Good points all from Paul, but I question whether we should be using campaign finance laws to address them.

Campaign finance loves to swallow all in its path. When I was a Commissioner, I used to say, only partially in jest, that the FEC tended to see every expenditure of money - me buying groceries, you going to the movies, your friends picking out new clothes -- as an exception to the Federal Election Campaign Act. And indeed the FEC often saw complaints from people who were angry about other things; for example, a complainant might not like the aesthetics of a political billboard in town, and when the city said the billboard did not violate the town's sign ordinance, they'd come to the FEC. Now apparently, campaign finance law is supposed to take care of difficult social science ethics questions. Meanwhile, in Wisconsin campaign finance laws are used as a justification to investigate every organization that discusses public issues, with what are literally midnight and crack of dawn raids by SWAT teams on the homes of citizens.

And it works both ways. Most of us are aware of the campaigns to get the FCC and the SEC to regulate political disclosures. Very, very, few really believe, with a straight face, that these efforts are about regulating broadcasting in the public interest or assuring functioning securities markets. Rather, I think we all pretty well know that these efforts are about trying to limit political speech. Suddenly, Attorneys General in New York and California are claiming that they can't regulate charities without knowing all of their donors, though they've never needed that information before and can't explain why they actually need it. It seems like we're slowly trying to turn every agency into a campaign finance agency. Of course, the entire idea of the Administrative State is that agencies operate within areas of expertise, but the "goo goos" seem willing to toss aside such basic principles of good government in their quest. I think it is only a matter of time before we see columns arguing that the Federal Reserve can regulate political money, because, well, most transactions are paid for from banks regulated by the Fed, using checks that are proxies for Federal Reserve notes. I jest, of course, and yet...

Meanwhile, Peter Beinart, a respected liberal columnist, has recently written a column urging journalists - not opinion writers, but newsmen - to intentionally slant their coverage on campaign finance.  All across the country, we have people - usually but not always on the left - demanding that we "hold people accountable" for their speech. That seems to mean "harm them in a variety of ways until they stop voicing opinions we disagree with."

It was nearly 4 decades ago that the Wall Street Journal referred to the Federal Election Campaign Act as a Frankenstein's Monster, not doing what its creator[s] hoped, but causing damage and havoc everywhere it went.

I guess that it is going after researchers at Stanford and Dartmouth is among the least of our concerns.

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 Paul Gronke [paul.gronke at gmail.com]
Sent: Wednesday, May 13, 2015 12:28 PM
Cc: law-election at uci.edu law-election at uci.edu
Subject: Re: [EL] What were Stanford and Dartmouth supposed to do?

My bet is that this stops at the state prosecutor who decides not to proceed.  The statement of a violation will be punishment enough.

The issue of not treating citizens like lab rats is an extremely complicated one.  Let's take a different, only slightly hypothetical, example: suppose an academic researcher believes that by changing the way that wildlife resource "ownership" is allocated, they can generate income for impoverished areas of Africa and also stop illegal poaching of endangered species.  But the researcher is not sure that the program will work.

Is it not better to try out the program experimentally in partnership with a government, rather than just implementing the program wholesale and hoping for the best?

I realize that manipulating the information provided to citizens is a different situation, but the principle is very similar: if you have a program that you believe will improve the process of democratic decision making, some argue that it's actually more ethical to try it out experimentally rather than just implementing it.

Believe me, this whole controversy has sparked a lot of very productive introspection within the scholarly community.  Hopefully, the outcome won't be to push all of this work out of the world of peer-reviewed research, because believe me as well, these experiments will go on, funded by private entities, and out of public view.
---
Paul Gronke

Professor, Reed College and
Daniel B. German Endowed Visiting Professor, Appalachian State University

Director, Early Voting Information Center
3203 SE Woodstock Blvd
Portland OR 97202

EVIC: http://earlyvoting.net

<http://people.reed.edu/~gronkep/36E051EA.asc>

On May 13, 2015, at 2:56 AM, Thomas J. Cares <Tom at tomcares.com<mailto:Tom at tomcares.com>> wrote:

It's funny you mention that, because I found that quote (inserted below) pretty deranged and it made me contemplate submitting a piece to the Onion "Montana fines clouds for affecting election turnouts with inconsiderate rain"

"The most appalling aspect for many voters, the intent to manipulate vote totals that could potentially change the outcome of an election, was absent as a consideration in the process"

In all seriousness, the effects of voters having more information, are legitimate effects.

-Tom

On Wednesday, May 13, 2015, David Holtzman, Esq. <david at holtzmanlaw.com<mailto:david at holtzmanlaw.com>> wrote:
Not treat Montanans like lab rats?

The prosecution may be based on the assumption that changing overall turnout percentage changes results.   I think data suggest otherwise.  But a targeted mailing to a subset of voters raises questions about to whom and why.

I can't believe there was no human subjects review by an institutional review board!

  - dah

Sent from a mobile device.   Forgive me.

-----Original Message-----
From: "Thomas J. Cares" <Tom at TomCares.com<mailto:Tom at TomCares.com>>
To: Election Law <law-election at uci.edu<UrlBlockedError.aspx>>
Sent: Wed, 13 May 2015 12:47 AM
Subject: [EL] What were Stanford and Dartmouth supposed to do?

What could they have done, or how could they have reported the expenditure? It doesn't sound like they aid any candidate was "*too* conservative" or "*too* moderate" (sic) or "*too* liberal"

If there's no advocacy for or against a candidate, how can you report it/what would you report?

The only thing perhaps to apologize for was using the State seal, depending how it was done. It does seem very strange that, between both of them, ~$100k must have been spent on the apology letters, when it seems dubious they have anything to apologize for. It sounds like meritorious social science research. They should be proud, not sorry.

(Come to think of it, perhaps there is a mandatory option to report neutral spending as neutral. I think I recall this in California disclosures. Still there seem to be issues here with the line between media and campaign advocacy. If a newspaper delivered a paper to 100k voters with a piece measuring how conservative, or liberal, judicial candidates are, they wouldn't have to report it or apologize, but if universities do it...?)

Thomas Cares

“Montana: Stanford, Dartmouth mailers broke campaign laws”<http://electionlawblog.org/?p=72395>
Posted on May 12, 2015 11:21 am<http://electionlawblog.org/?p=72395> by Rick Hasen<http://electionlawblog.org/?author=3>

AP reports.<http://hosted.ap.org/dynamic/stories/U/US_SUPREME_COURT_ELECTIONS?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT>

<share_save_171_16.png><https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D72395&title=%E2%80%9CMontana%3A%20Stanford%2C%20Dartmouth%20mailers%20broke%20campaign%20laws%E2%80%9D&description=>
Posted in campaigns<http://electionlawblog.org/?cat=59>

--
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<http://electionlawblog.org/>

--

--

_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu<mailto: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/20150513/f8e2b1bf/attachment.html>