Subject: election law and civility
From: Rick Hasen
Date: 11/4/2005, 3:07 PM
To: election-law@majordomo.lls.edu

As you know, I have not taken a public position on Prop. 77, but on the narrow issue of the mailer, I do think it is unethical.  While it does not "imitate[] an official envelope," which would be unlawful, it is misleading, not only because the words "Jury duty" appear on the top in large letters (much larger than the typical innocuous meter message); it is accompanied by the phrase "Urgent message for U.S. citizens."  The unspoken implication is that this must be some kind of official mail (though not a summons) related to jury service, being mailed as an urgent matter to eligible U.S. citizens. The return address is in tiny type on the opposite side of the letter, making it harder to determine this as another piece of campaign junk.

But it may be that I am too sensitive to these things.  I thought the exchange of listserv messages among Dan, Ted Costa, and others was quite nasty, and I labeled as "vicious" last week's exchange between Fred Wertheimer and Bob Bauer, which began with a nasty and unwarranted attack by Fred Wertheimer on Bob Bauer followed by Bauer's response, which just dripped with sarcasm.  Others have written to me to express disagreement with my characterization of the exchange as "vicious." 

I also have strongly opposed personal attacks on Brad Smith (and those who even refused to shake his hand) when he headed the FEC.  I say this even though Brad and I agree on very little and I opposed his nomination to the FEC because I thought it was appropriate to take ideology into account and his ideology was incompatible with my vision of the FEC. 

 I think those (unlike me) who regularly participate in running political campaigns or advocating publicly for clients have a much higher tolerance for nastiness than I do.

Recognizing that "politics ain't beanbag," I don't expect civility in the midst of campaigns even if I would like it.  I do hope that on the list we can maintain a high level of civility, even in the face of having strong personal and political feelings on certain topics.  I always try to follow advice I was given as an undergraduate when I was an intern at a think tank in Washington.  When incensed enough to write a letter to the editor (or a message to the listserv) on a controversial topic, write it twice: first, for yourself, for cathartic purposes, then second, for public consumption, to make a well-reasoned and calmly argued point.



Rick

Lowenstein, Daniel wrote: 
      That is a good suggestion.  The mailers were sent to Republican households, so I did not get one.  However, I have obtained the pdf from the Committee for Good Government, which is the committee for whom Tom Kaptain has been sending out slate mail for many years.  It is attached, and now you can judge for yourselves.
 
      I hope it is clear that if there is any bitterness on my part, it is directed at the Bee for their defamatory attack on Judge Wapner and the committee that I chair.  False personal attacks have no legitimate role in politics, as the Sacramento Bee would ordinarily be the first to point out.
 
      I have no particular gripe against the pro-77 campaign.  It is a hard-hitting campaign, but I think both sides have been well within the bounds of ethical campaign behavior.  Of course, I think most of what they say is misleading, demagogic, or cynical.  They undoubtedly think the same of what we say.  That's how it goes in a campaign.  (The only exception I would make relates to the proponents' concealing of their knowledge that they had circulated the wrong version of the proposition until after the Secretary of State had certified it, but that was not part of the campaign per se.)  
 
      In particular, they have every right to attack Kaptain's envelope if they want.  I find it hard to believe that anyone is going to think it is unethical to put a teaser on the outside of an envelope, hoping to pique interest enough to get the voter to open it.  If it imitated an official envelope it would be unlawful, but it does not come close to doing that, as the AG spokesperson apparently said
 
        The envelope issue is part of the typical rough-and-tumble of campaign debate.  I would not have brought it up on this list, but I responded when Craig Holman did.  The defamatory editorial seems to me to be in an altogether different category.
 
          Best,
 
          Daniel Lowenstein
          UCLA Law School
          405 Hilgard
          Los Angeles, California 90095-1476
          310-825-5148

________________________________

From: Mike Krempasky [mailto:mkrempasky@gmail.com]
Sent: Fri 11/4/2005 12:07 PM
To: Lowenstein, Daniel
Cc: election-law@majordomo.lls.edu
Subject: Re: FW: [Fwd: Dan's letter to the Sac Bee]


How about one more, simple request.

Can someone email to the list - or email a link where we might find it - a copy of the ACTUAL mailer, with envelope? It's awfully difficult to have any sort of substantive discussion while relying on the he said/he said from each side of a rather bitter debate.


On 11/4/05, Lowenstein, Daniel <lowenstein@law.ucla.edu > wrote: 

	      It is a rather bowdlerized version of my letter.  It deletes my demand for an apology, deletes the Joseph Welch quote, and although it retains my affiliation as chair of No on 77, it deletes my identification as a UCLA Law School professor.  And just to be safe, it is buried near the end of the letters column, in the midst of three pro-77 letters.
	
	      The Fresno Bee, a sister newspaper, published the same editorial on Thursday, AFTER the company had received my letter on Wednesday informing them that the premise of the accusation against Judge Wapner was false.
	
	       This is a pretty good sampling of the fairness that the pro-reform, good government press is displaying in this debate.
	
	
	          Best,
	
	          Daniel Lowenstein
	          UCLA Law School
	          405 Hilgard
	          Los Angeles, California 90095-1476
	          310-825-5148 
	
	________________________________
	
	From: owner-election-law_gl@majordomo.lls.edu on behalf of Rick Hasen
	Sent: Fri 11/4/2005 10:07 AM
	To: election-law 
	Subject: [Fwd: Dan's letter to the Sac Bee]
	
	
	
	
	

  

-- 
Rick Hasen 
William H. Hannon Distinguished Professor of Law
Loyola Law School 
919 Albany Street 
Los Angeles, CA  90015-1211 
(213)736-1466 - voice 
(213)380-3769 - fax 
rick.hasen@lls.edu 
http://www.lls.edu/academics/faculty/hasen.html 
http://electionlawblog.org