[EL] Weintraub: Loose the Hounds!

[Steve Hoersting]

I see Allen Dickerson has made the case against Commissioner Weintraub's
proposal. And, really, it cannot be written, or said, any better than
Dickerson says it.

But Dickerson's early points are an appeal to existing precedent. It is
only several paragraphs in that Dickerson gets to the heart of the matter:
Weintraub will loose the hounds *because she can*. And, if she cannot, due
to a lack of Commission votes, she is still betting she can get the several
States, the DoJ, or even the average in-house counsel to do her bidding.

In the long run, the legal recourse for any aggrieved corporation is
federal court, on the road America's final Federal Court -- to which
Weintraub's retort, in this 4-4 era, is almost certainly: *Make my day!*

For Weintraub knows that any corporate defendant making Dickerson's
constitutional arguments only increases the chance that a repeal of *Citizens
United*, if it comes, or any future restriction on independent speech or
minimizing of corporate personhood, will wear Weintraub's finger prints.

That is why Dickerson's later arguments, in his later paragraphs, are an
appeal to same tribunal to which MLK made his pitch, decades ago (no
fooling) -- a pitch to sanity, to his fellow citizens; in an act of shaming.

Dickerson knows he now finds himself in the backseat of a careening car --
and that the extent of the coming damage to political speech is, for the
interim future, in the hands of the Left.

The Left will have to decide what it thinks of free political speech. If it
is to be preserved, nihilists like Larry Lessig (my opinion, not
Dickerson's) will need to become pragmatists like Rick Hasen. Pragmatists
like Hasen will need to become positivists like Bob Bauer. And positivists
like Bauer will need to become Aristotelians like Randy Barnett.

Indeed, the long rays of hope (and light) in Dickerson's piece do not
emanate from the precision of his constitutional arguments. They emanate
from the fact he was able to place it in a Leftist publication, *The*
*Huffington
Post*.

Well done, Allen. Fingers crossed,

Steve




On Wed, Mar 30, 2016 at 12:22 PM, Steve Hoersting <hoersting at gmail.com>
wrote:

> I see Commissioner Weintraub is, with the prospect of a new Justice now
> all but inevitable, getting in on the fun we enjoyed (in the opposite
> direction) with the arrival of J. Alito.
>
> I am not shocked by the ingenious opportunism ... though I worry a bit for
> the future.
>
> Instead, I have two comments  and a quick question.
>
> Comment: We're supposed to be in a post-Kantian era. Hopefully Right and
> Left will soon dispense with the "Polls show that overwhelming majorities
> ... reject" when weighing (individual) rights policy.
>
> Comment: The pincer move is genius, and vintage Weintraub: "Perhaps," she
> says, "we [s]hould require corporations ... to verify that the share of
> their foreign ownership is less than 20 percent," because, last I checked,
> the twin planks of existing jurisprudence point to a zero tolerance
> policy....
>
> (The Hey, States, start suing! bit, however, sounds a tad more Ravel than
> Weintraub...).
>
> But now that the litigation backlash is inaugurated -- and no doubt
> Weintraub's piece is as good an announcement as any -- I have a question;
> seeing as how we're now all-in with the latest move to *purify our
> governing institutions*:
>
> Are the big donors that are no doubt being arrayed to fund the wave of
> corporate-source cases, sure to come, the very same fund managers who will
> be arranging the foreign purchase of domestic shares (in unsuspecting,
> future defendants)?
>
> Because I am not so sure an "overwhelming majority of Americans" are down
> with that.
>
> *
>
> I have a parting piece of advice for my friends on the other side; eager
> to get to work on the next phase of the Reform agenda -- no doubt worth the
> silica its written on: There were some case theories -- and particularly
> complaints predicated on existing statutes and jurisprudence -- that not
> even we would pursue.
>
> *
>
> Well done, Ellen. A brilliant piece of writing. And strategy. Kant (and
> Alinsky) would be... Well, I was about to say "proud."
>
> Brilliant; seriously,
>
> Steve
>



-- 
Stephen M. Hoersting
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