[EL] Citizens United revisionist history: "banning books"

Mon Oct 12 17:00:10 PDT 2015

Trevor,

*California Med Ass'n v. FEC*, a case decided after both both *Pipefitters*
and *National Right to Work*, recognized that the "speech by proxy"
argument you're pushing is a failed one.  That you might speak for me, or
that I might speak for you does nothing to cure the injury enacted by a ban.

"CALPAC, as a multicandidate political committee, receives contributions
from more that 50 persons during a calendar year. 2 U.S.C. § 441a(a)(4).
Thus, appellants' claim that CALPAC is merely the mouthpiece of CMA is
untenable. CALPAC instead is a separate legal entity that receives funds
from multiple sources and that engages in independent political advocacy.
Of course, CMA would probably not contribute to CALPAC unless it agreed
with the views espoused by CALPAC, but this *sympathy of interests alone
does not convert CALPAC's speech into that of CMA*."

But wait, there's more.  Part and parcel of the First Amendment is the
right to decide how to convey and communicate your message.  *Hurley v.
Irish–American Gay, Lesbian and Bisexual Group of Boston, Inc*., 515 U.S.
557, 573 (1995); *Citizens United v. FEC*, 130 S.Ct., at 898;* Federal
Election Comm'n v. Wisconsin Right to Life, Inc.*, 551 U.S. 449, 477, n. 9
(2007).  The fact that government creates difficult hoops through which one
might exercise their First Amendment rights in some other way does nothing
to alleviate the injury or ban in the first place.

Then there's the best part of *Citizens United, *part of which I developed
in my amicus brief, which describes the complicated regulatory structure
(you know, the two-part, 11-factor balancing test) to be the functional
equivalent of a prior restraint.  Complexity and criminal sanctions
function just as effectively as a ban.

I know Justice Breyer & Co. would like to resurrect the idea that First
Amendment rights are fungible, hazy sort of commodities.  They're not, and
that argument, as noted above, is dead.

Forward,

Benjamin Barr

General Counsel

Pillar of Law Institute

On Sun, Oct 11, 2015 at 8:36 PM, Trevor Potter <tpotter at capdale.com> wrote:

> I have great respect for controlling precedent ( which remains
> controlling. until explicitly over- ruled) , which is why I am critical of
> Justice Kennedy's description of Pacs as separate from the entities that
> sponsor then:
> See: PIPEFITTERS LOCAL UNION NO. 562 et al., Petitioners, v. UNITED
> STATES, 407 U.S. 385 (92 S.Ct. 2247, 33 L.Ed.2d 11) (1972)
>
> See Also, Footnote 4 in FEC v. National Right to Work Comm., 459 U.S. 197
> (1982):
>
> “The separate segregated fund may be completely controlled by the
> sponsoring corporation or union, whose officers may decide which political
> candidates contributions to the fund will be spent to assist. The "fund
> must be separate from the sponsoring union [or corporation] only in the
> sense that there must be a strict segregation of its monies" from the
> corporation's other assets. Pipefitters v. United States, 407 U. S. 385<
> https://supreme.justia.com/cases/federal/us/407/385/case.html>, 407 U. S.
> 414<https://supreme.justia.com/cases/federal/us/407/385/case.html#414>-417
> (1972). See also Buckley v. Valeo,424 U. S. 1<
> https://supreme.justia.com/cases/federal/us/424/1/case.html>, 424 U. S.
> 28<https://supreme.justia.com/cases/federal/us/424/1/case.html#28>, n. 31
> (1976).”
> Sent from my iPhone
>
> On Oct 11, 2015, at 6:09 PM, Benjamin Barr <benjamin.barr at gmail.com
> <mailto:benjamin.barr at gmail.com>> wrote:
>
> Trevor,
>
> I do understand that a minority of folks believe controlling precedent is
> wrong. But you've lost that argument, so let's move on.
>
> Of course, you must understand that PACs are legally distinct from any
> corporate sponsor even if individuals wear "different hats," just like they
> do for IRS non-profit issues. Perhaps you just don't like that longstanding
> rule? Sure, there's an overlap of interests and perspectives, just like in
> the 501C3/C4 dual hat-wearer context, but that doesn't eviscerate the fact,
> and, well, precedent, that they are separate entities with separate First
> Amendment rights.
>
> It is equally silly to think that donors "no legal say" in how their
> contributions are spent. In a free society, you can decide if you want to:
> (a) keep investing in the corporation, (b) elect not to work for the
> corporation, or (c) not otherwise contribute to the PAC in question. No
> government program needed.
>
> Forward,
>
> B
>
>
>
>
>
> On Sun, Oct 11, 2015 at 5:55 PM, Trevor Potter <tpotter at capdale.com
> <mailto:tpotter at capdale.com>> wrote:
> The only problem with citing Justice Kennedy's statement about Pacs is
> that it was incorrect: the Court had long held that Pacs were creations of
> their corporate and labor sponsors and completely under their control.
> Corporations selectthe treasurer and officers of their Pacs and gave them
> whatever structure they decide- including none. Many corporate Pacs simply
> have a treasurer appointed by the VP of Gov't Affairs. Donors have no legal
> say in how their contributions are spent.
>
> Trevor Potter
>
> Sent from my iPhone
>
> On Oct 11, 2015, at 5:48 PM, Benjamin Barr <benjamin.barr at gmail.com
> <mailto:benjamin.barr at gmail.com><mailto:benjamin.barr at gmail.com<mailto:
> benjamin.barr at gmail.com>>> wrote:
>
> Dear Marty,
>
> Just because government might force others to speak for you doesn't mean
> your First Amendment rights haven't been abridged. Or as Justice Kennedy
> explained in Citizens United: "A PAC is a separate association from the
> corporation. So the PAC exemption from §441b’s expenditure ban,
> §441b(b)(2), does not allow corporations to speak." There you have it.
>
> You probably don't want me to speak for you. I don't want you to speak for
> me. You get it, right? Individual rights are individual, not fungible,
> aggregate hazy approximations (apologies, Justice Breyer).
>
> Corporations are neat things. They allow for people to associate with one
> another, pursue common goals, get rich, clean up the environment, enact
> social justice, and so on. Cutting off shareholders from effective advocacy
> is, well, a ban. I'll leave it to the literature hounds to determine if it
> rises to a Fahrenheit-451 level.
>
> Forward,
>
> Benjamin Barr
> General Counsel
> Pillar of Law Institute
>
>
>
>
> On Sun, Oct 11, 2015 at 5:32 PM, Marty Lederman <lederman.marty at gmail.com
> <mailto:lederman.marty at gmail.com><mailto:lederman.marty at gmail.com<mailto:
> lederman.marty at gmail.com>>> wrote:
> No -- even a (hypothetical) (non-MCfL-exempt) corporation without a PAC
> would not be "barred" from publishing a book. Even if the book contained
> express advocacy, the law permitted a corporation to publish it as long as
> it did not use shareholder funds to do so. That is to say, it would as a
> practical matter have to set up a PAC and collect funds for the purpose of
> publishing the express advocacy. This sort of source restriction (not a
> publication restriction) really wasn't such a shocking idea -- it was the
> legal regime that had been in place for 60 years, and -- understandably --
> no one thought that we lived in a Fahrenheit-451-like world in which the
> state "banned books."
>
> On Sun, Oct 11, 2015 at 5:15 PM, Jonathan Adler <jha5 at case.edu<mailto:
> jha5 at case.edu><mailto:jha5 at case.edu<mailto:jha5 at case.edu>>> wrote:
> Well, kinda.
>
> Pressed on the issue, he acknowledged that (under the government's
> position) a corporation could be banned from publishing a book unless it
> used PAC funds to pay for publication, so a corporate publisher that lacked
> a PAC, could be barred from publishing and distributing the book.
>
> Here's the transcript. The relevant exchanges occur at pages 28-30.
>
> JHA
>
>
>
> On Sun, Oct 11, 2015 at 4:37 PM, Marty Lederman <lederman.marty at gmail.com
> <mailto:lederman.marty at gmail.com><mailto:lederman.marty at gmail.com<mailto:
> lederman.marty at gmail.com>>> wrote:
> Just an aside, to address the oft-repeated canard that "the deputy
> solicitor defended government power to ban books at the first CU argument."
>
> Of course Malcolm Stewart said nothing of the sort. He said that if a
> corporation wished to publish a book containing express advocacy, the state
> could require that such publication not be subsidized by general corporate
> treasury funds.
>
> On Sun, Oct 11, 2015 at 2:56 PM, Ilya Shapiro <IShapiro at cato.org<mailto:
> IShapiro at cato.org><mailto:IShapiro at cato.org<mailto:IShapiro at cato.org>>>
> wrote:
> But there's no need to balance rights/values here. 200 people spending a
> lot of money on political speech don't inhibit anybody else's right to
> spend money on speech (individually or pooled) or to knock on doors, or to
> otherwise engage in political speech. There's not some zero-sum game with a
> finite amount of speech (or a finite amount of money to spend on it).
>
> Also, three points regarding some mistaken premises (not sure to what
> extent the rest of your argument stands or falls thereby):
>
> 1. Money is speech only insofar as bullhorns, laptops, printing presses,
> wifi, and other tools for facilitating speech are, no more no less. That
> really shouldn't be controversial -- though perhaps, like the deputy
> solicitor who defended govt power to ban books at the first CU argument,
> many people on this list are ok with restricting all those tools if they're
> used "too much" for political speech.
>
> 2. There's not a consensus that money shouldn't be used to allocate
> kidneys. There's a reason there's a shortage of organs and people die on
> waiting lists. And evidence from Iran, of all places, show that kidney
> markets can work rather well.
>
> 3. I'm not sure what "false" allegations about Planned Parenthood you mean
> -- I guess something different/earlier than the current scandal -- but
> surely it's not the government role to be some sort of fact-checker
> regarding public debates. See the Ohio law that was before the Court last
> year (you'll perhaps recall my satirical brief that PJ O'Rourke joined) and
> was struck down on remand.
>
> Ilya Shapiro
>
>
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>
> --
>
> Jonathan H. Adler
> Johan Verheij Memorial Professor of Law
> Director, Center for Business Law & Regulation
> Case Western Reserve University School of Law
> 11075 East Boulevard
> Cleveland, OH 44106
> ph) 216-368-2535<tel:216-368-2535><tel:216-368-2535<tel:216-368-2535>>
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> jha5 at case.edu>>
> SSRN: http://ssrn.com/author=183995<http://ssrn.com/author=183995>
> ><http://ssrn.com/author=183995<http://ssrn.com/author=183995>>
>
> http://www.washingtonpost.com/news/volokh-conspiracy/wp/author/adlerj/<
> http://www.washingtonpost.com/news/volokh-conspiracy/wp/author/adlerj/>
> ><http://www.washingtonpost.com/news/volokh-conspiracy/wp/author/adlerj/<http://www.washingtonpost.com/news/volokh-conspiracy/wp/author/adlerj/>>
>
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