Trevor is using a euphemism when he calls the check-off a design flaw. It was an ill-conceived gimmick from the start, designed to veil the nature of the public funding system that should have been defended on its own merits. When Bob argues that 9% are not simply exercising their own autonomy but are committing the resources of the other 91%, he is right. But I believe that is just Trevor's point. This is a matter of public policy and should be determined legislatively, like other matters of public policy. I do not believe a case has been made here or elsewhere for treating presidential public financing differently from all other policy matters.
In the spirit of Churchill, representative government is the worst form ever invented except all the others. For that reason, pace Trevor, I think we should look at proposals to "remove from politics" decisions about electoral and governmental processes with grave suspicion. They are political matters and it is the representative branches that are uniquely situated to deal with them.
I recommend to anyone who has followed this thread with interest a read or re-read of Part IV of Schumpeter's "Capitalism, Socialism, and Democracy."
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 Trevor Potter
Sent: Wed 4/19/2006 8:34 AM
To: Bauer, Bob (Perkins Coie); Smith, Brad; election-law@majordomo.lls.edu
Subject: RE: Fulani and Tax Financed Campaigns
We seem to be ships passing in the night on this one. I am suggesting that decisions on funding of the Presidential campaign system be held to the same standards as every other funding decision, and not be singled out for "check-off " treatment. Congress adopted the current system by majority vote, and there have been unsuccesful legislative attempts over the years to change it. Congress can already be held accountable for these votes. I don't know what percentage of the population supports foreign aid, or all sorts of other programs, because we don't have an annual referendum on them on our tax forms. I believe uniquely subjecting the Presidential public funding system to this check off approach was a design flaw in the system Congress adopted.
The concern Bob raises with majoritarian line and rule drawing is a serious one for a democracy, and why I have generally worked for non-partisan or independent decision makers in the context of state election officers and, more recently, redistricting. See www.campaignlegalcenter.org/attachments/1460.pdf (need for independent redistricting commissions). I think the same arguments apply to the FEC, which should be comprised not of partisan appointees representing their political backers, but of persons as independent as possible from partisan interests. However, my recollection is that Bob has generally disfavored such approaches, arguing that is it wrong, and perhaps impossible, to take politics out of these processes.
-----Original Message-----
From: Bauer, Bob (Perkins Coie) [mailto:RBauer@perkinscoie.com]
Sent: Wed 4/19/2006 11:12 AM
To: Trevor Potter; Smith, Brad; election-law@majordomo.lls.edu
Cc:
Subject: RE: Fulani and Tax Financed Campaigns
It seemsto me, Trevor, that you are not addressing the question I
raised: are some rules different from others, in that we would expect
those fundamental to electoral choice to be determined with broader,
clearer public support. When Congress approves NEA funding, it must at
least answer to the public: and if a majority in the Congress support
this funding, then it presumably reflects some sort of majority
judgment. Here, however, we have some 9% of the population electing to
participate in--and by doing so, to perpetuate--a program with
signficant impact on the election of our national leaders, with the
other 90% declining to support it.
A variant of the disinclination to see these rules as a class apart is
the current state of campaign finance legislation, in which one party
rams it down the throat of the other. 51% is enough to change the
decisional rules, and, it now appears, with some frequency.
Over time, sooner rather than later, this will erode the credibility of
this kind of lawmaking. It is acceptable for many kinds of decisions:
it is not clear at all that it will be so for this kind. Many will find
that this state of affairs goes well beyond the limits of the principle:
"to the winner, goes the spoils."
-----Original Message-----
From: Trevor Potter [mailto:TP@Capdale.com]
Sent: Wednesday, April 19, 2006 11:01 AM
To: Bauer, Bob (Perkins Coie); Smith, Brad;
election-law@majordomo.lls.edu
Subject: RE: Fulani and Tax Financed Campaigns
Two quick responses to Bob's comments: if the proposal for a referendum
system on government spending is a valid one, then why should it not
apply to other budget items? I'd like to see a minimum percentage of
popular support for a whole range of government spending decisions. No
doubt my list will differ from Bob's, but it shouldn't be too difficult
to design a tax form that catagorizes programs to check levels of
popular support. Insufficient support for....Iraq; Amtrack; sugar
subsidies, the NEA, ...no funding. Direct democracy at work!
My point is not that such a sytem would be workable or desirable, of
course, but rather that it is unfair to cite low check off levels as
proof determinative that the public funding system should be ended,
given that is not the test we apply to any other public funding
decision.
Second, my description of taxpayers as "frazzled" comes from purely
personal experience--I'm glad Bob has a cool, calm, cheerful frame of
mind when completing his tax returns, but frazzled certainly better
describes my temperment this year....maybe even others.
Trevor Potter
-----Original Message-----
From: Bauer, Bob (Perkins Coie) [mailto:RBauer@perkinscoie.com]
Sent: Wed 4/19/2006 10:42 AM
To: Trevor Potter; Smith, Brad; election-law@majordomo.lls.edu
Cc:
Subject: RE: Fulani and Tax Financed Campaigns
I am splicing my comment into this point in the string, because
I am
quite struck by the suggestion that the taxpayers annually put
to this
choice are "frazzled." The suggestion Trevor makes, as I see
it, is
that they are too harried to make the choice reflectively or
sensibly--even though this is likely the least of their hard
decisions
or stresses in making out a return. And this suggestion seems
to borden
on an argument, often heard from the reform side of the
regulatory
debate, that those who make the rules understand their benefits
better
than those subject to the rules. Where the rules are ones
controlling
political choice--determining how elections are funded--this is
a
disconcerting view of how such rules should be made. Rules of
this kind
are entirely different in character from other legislative
choices that
may indeed support forms of speech and activity offensive to
some--as in
Trevor's example of the cost of financing Air Force One,
incurred to
enable the President to give speeches that some might disagree
with.
Yes, they might disagree with those speeches, but the law
providing the
money for plane is rather different in nature from the law
providing
money for the very election of its First Passenger.
Brad Smith is right that money is money, and so even if the
money is
only provided by those choosing to check it off, it is then used
by the
Government with major consequences for the conduct of
Presidential
politics affecting the 91% who did not wish to check-off dollars
for
this "system". So it cannot be said that this is a purely
"voluntary"
program: it is not at all "voluntary" to the extent that once
the money
is received, even from a small percentage of the population, it
is used
to influence strategic choices and other aspects of the
campaigns in
which the entire citizenry has a stake.
A simple amendment, recognizing this fact and putting the
program to the
test, would be this: providing that the money will not be spent
if less
than a specified percentage of the population participates.
This would
take into account widespread refusal to fund the program. The
money, if
not used, could be returned to the taxpayers.
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of
Trevor
Potter
Sent: Tuesday, April 18, 2006 11:04 PM
To: Smith, Brad; election-law@majordomo.lls.edu
Subject: RE: Fulani and Tax Financed Campaigns
Polls also show that "most americans" believe foreign aid is a
waste of
money too-but we don't hold an annual referendum on it. One can
easily
draw the conclusion that the mistake here is not funding
Presidential
campaigns, but rather putting that spending decision--and no
other-up to
a check-off poll by frazzled taxpayers every year. If it is
worth doing,
then it is worth funding the same way we fund other government
spending,
much of which our elected representatives believe is worth doing
even
though it might not survive a direct popula vote.
Trevor potter
-----Original Message-----
From: Smith, Brad [mailto:BSmith@law.capital.edu]
Sent: Tue Apr 18 22:57:49 2006
To: election-law@majordomo.lls.edu
Subject: RE: Fulani and Tax Financed Campaigns
It doesn't. This is not some all or nothing matter. People can
and
should make distinctions and defend the programs that they want
government to spend money on. Most Americans - if we believe
the polls,
and if we put any stock in the fact that most Americans do not
choose to
earmark funds to the presidential fund - do not favor this
subsidy. One
reason may be that they don't think their dollars should go to
fund
certain views. And Trevor is quite right - that is also a
reason many
Americans oppose many other government subsidies. Trevor
totally
misses the point - to take his argument seriously would mean
that no one
can object to any of the items Trevor raises below - and
countless
others - so long as we fund campaigns with tax money. If that's
the
argument for tax financing - that there is someone somewhere who
objects
to everything on which the government spends money (at least if
it can
be called speech) - well, what more needs to be said?
Look, this isn't some difficult, all-encompassing theory, as
Eugene and
Trevor seem to want to make it. This is a simple argument - we
have
better things to spend money on. Again, most Americans seem to
agree
with this practical, common-sense, good government argument.
Bradley A. Smith
Professor of Law
Capital University Law School
Columbus, OH
________________________________
From: owner-election-law_gl@majordomo.lls.edu on behalf of
Trevor Potter
Sent: Tue 4/18/2006 7:51 PM
To: Volokh, Eugene; election-law@majordomo.lls.edu
Subject: RE: Fulani and Tax Financed Campaigns
Brad says:
"Given that this leads to funding for many candidates that
Americans
think ought not
> be funded by government ....the question is whether or not tax
funding
of
> campaigns is good policy and a good use of tax dollars."
Isn't this argument equally true of the zillion other ways that
government spends money that some individual taxpayers think it
should
not? NEA funding of performance art, or academic research into
writings
about human sexuality, or funding for religious institutions for
abstinence teaching, or the President's travels on Air Force One
to give
campaign speeches: all of these are government funded speech
controversial to some. Surely there are endless examples of the
government funding speech which someone would find an
objectionable use
of his or her tax dollars--how does the Presidential funding
system
differ substantively from those?
Trevor Potter
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of
Volokh,
Eugene
Sent: Tuesday, April 18, 2006 7:14 PM
To: election-law@majordomo.lls.edu
Subject: RE: Fulani and Tax Financed Campaigns
I think there's much to Brad's argument, but let me
press him a
bit on this. The income tax deductions given for contributions
to
501(c)(3) organizations (as well as other tax exemptions for
nonprofits)
are -- from an economic perspective, and often from a
constitutional
perspective -- tantamount to subsidies; through them the
taxpayers
subsidize a wide range of speakers and actors, including many
that
express views we disagree with. Lenora Fulani could set up a
501(c)(3)
to convey harsh, even anti-Semitic, criticisms of Israel, and
our tax
money would essentially help subsidize it.
Likewise, the media mail postage rate (and the old
second-class
rate) is, I think, something of a subsidy. So are university
funding
programs for student groups (see Rosenberger). So are school
choice
programs in which the funds can be used at a wide range of
schools,
including ones that teach opinions that many disagree with.
To what extent should the possibility that some users of
funds
-- some 501(c)(3)'s, some media mailers, some student groups,
some
schools that get school choice funds -- will use them to spread
reprehensible ideas lead us to reject the entire funding
program? The
argument is actually often made as to school choice programs
("If we
have school choice funding, some jihadist or KKK or Nation of
Islam
school could use taxpayer money to teach their awful views to
children"); I find it unpersuasive there, especially if it seems
likely
that only a tiny fraction of the beneficiaries will express such
far-outside-the-mainstream views. It could equally well be made
against
the charitable tax exemption (at least as applied to educational
organizations), against the media mailing privileges, against
funding of
student groups, and so on. Are we persuaded by such arguments
there? If
not, then why should we persuaded by them as to taxpayer
financing of
campaigns?
Eugene
> -----Original Message-----
> From: owner-election-law_gl@majordomo.lls.edu
> [mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of
> Smith, Brad
> Sent: Tuesday, April 18, 2006 2:55 PM
> To: election-law@majordomo.lls.edu
> Subject: RE: Fulani and Tax Financed Campaigns
>
>
> It seems to me that people have totally missed any point of
> my article if they think I was suggesting that Lenora Fulani
> should be disqualified from federal funds for her
> anti-Semitic remarks (Michael Richardson's comments aside, I
> don't know how else one would describe them), or that it at
> all matters if she made these comments in the context of
> running for president or not.
>
> Fulani met the legal requirements for funds, and should get
> them. There is no point at which the government should
> discriminate in tax funding campaigns on the basis of the
> candidate's views, articulated or not. Given that this leads
> to funding for many candidates that Americans think ought not
> be funded by government (and given many other problems with
> tax funding, including the view of many that it doesn't
> seriously address either the equality or the corruption
> problem, especially as the latter is defined in Austin and
> McConnell), the question is whether or not tax funding of
> campaigns is good policy and a good use of tax dollars. My
> guess is that most academics think yes; polling data
> indicates that most Americans think no.
>
> Bradley A. Smith
> Professor of Law
> Capital University
> Columbus, OH
>
>
> ________________________________
>
> From: owner-election-law_gl@majordomo.lls.edu on behalf of
> Bryan Mercurio
> Sent: Tue 4/18/2006 3:37 PM
> To: election-law@majordomo.lls.edu
> Subject: RE: Brad Smith column is inaccurate
>
>
>
>
> Hear Hear.
>
> Getting back to the initial point though, my question would
> be what if the person may have made such statement in the
> past and later disavowed themselves of that position (for
> instance, KKK, Neo-Nazi, bigot, etc)? The point being, I
> suppose, is where do you draw the line when prohibited
> certain persons from receiving federal funds. Seems like a
> fine line, and one which can be manipulated or abused.
>
> Bryan
>
>
>
>
>
> -----Original Message-----
> From: owner-election-law_gl@majordomo.lls.edu on behalf of
> Volokh, Eugene
> Sent: Tue 4/18/2006 2:05 PM
> To: election-law@majordomo.lls.edu
> Subject: RE: Brad Smith column is inaccurate
>
> Well, when a country that is the most democratic in
> the Middle East, and that provides some of the strongest
> (albeit imperfect) protections for ethnic minorities of any
> country in the Middle East, is singled out for accusation as
> "mass murderers" -- when none of the neighboring countries
> that have engaged in comparable or greater killing or
> oppression of minority group members are -- one wonders
> whether the objection is just because of the country's
> alleged sins, or because the sinners are Jews rather than
Arabs.
>
> Eugene
>
> > -----Original Message-----
> > From: owner-election-law_gl@majordomo.lls.edu
> > [mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf
Of Bryan
> > Mercurio
> > Sent: Tuesday, April 18, 2006 7:22 AM
> > To: Michael Richardson; election-law@majordomo.lls.edu
> > Subject: RE: Brad Smith column is inaccurate
> >
> >
> > Michael, the comments are still offensive and not becoming a
> > politician or any upstanding member of society. I think you
fail to
> > understand the close association between Israel and the
> Jewish faith.
> >
> > Fulani went far beyond merely expressing 'distaste' for the
Israeli
> > military and any post-comment rationalisation does not
change the
> > meaning of the words/statement.
> >
> > This still does not answer your first question, which I do
think is
> > interesting.
> >
> > Bryan Mercurio
> >
> >
> > -----Original Message-----
> > From: owner-election-law_gl@majordomo.lls.edu on behalf of
Michael
> > Richardson
> > Sent: Tue 4/18/2006 9:17 AM
> > To: VOLOKH@law.ucla.edu; election-law@majordomo.lls.edu
> > Subject: RE: Brad Smith column is inaccurate
> >
> > Greetings!
> >
> >
> >
> > My appreciation to Eugene Volokh for his sleuthing on the
> context of
> > the sentence fragment that hangs like a cloud over the
electoral
> > efforts of Lenora Fulani. Professor Hasen will probably
> have to pull
> > the plug on this discussion thread as the "near urban myth
> status" of
> > the fragment makes this a never-ending story. However, I
will take
> > one last bite at the apple and risk getting tarred with the
> brush used
> > on Fulani.
> >
> > 1) No one has responded to my observation that the disputed
> > commentary was outside the scope of a political campaign
> and outside a
> > federally funded election contest which is where the
immediate
> > discussion began.
> >
> > 2) Now that we know the context for the sentence fragment
> was a play
> > review, by Fulani, of a play about Zionism written and
> produced by her
> > Jewish mentor Fred Newman I believe the anti-semitic charge
fails.
> >
> > 3) The "sell their souls" comment, in the context of a play
> review is
> > not an extreme statement but represents the poetic license
> often found
> > in performance reviews by many reviewers.
> >
> > 4) The "to function as mass murders of people of color"
comment is
> > not directed at people of Jewish faith, as the sentence
fragment so
> > often quoted would lead one to believe. Rather, if you
examine the
> > construction of the full sentence, it is a commentary on
> the actions
> > of a country, Israel. In other words, political commentary
on a
> > nation-state.
> >
> > One may not agree with Fulani's distaste for Israeli
militarism but
> > the charge of "anti-semitism" is overreaching.
> >
> > Michael Richardson
> >
> >
> > ________________________________
> >
> > From: "Volokh, Eugene" <VOLOKH@law.ucla.edu>
> > To: <election-law@majordomo.lls.edu>
> > Subject: RE: Brad Smith column is inaccurate
> > Date: Mon, 17 Apr 2006 15:10:10 -0700
> >
> >
> > I'm a big believer in trying to slay urban myths,
but
> > shouldn't the labeling as an "urban myth" or as a "near
urban myth"
> > follow discovery of the context, rather than preceding it?
> >
> > Here is the best source I could find, based on a
quick
> > google search, though I'd love to see more, of course. It's
> a column
> > by Ed Koch, and it purports to quote a response he got from
Lenora
> > Fulani on this very point; unless Koch is misquoting
Fulani's
> > response, the response does not seem particularly
exculpatory.
> >
> >
> >
>
http://www.newsmax.com/archives/articles/2005/4/19/162942.shtml
> >
> > Lenora Fulani is once again in the news. Last year,
> Abe Foxman,
> > national director of the Anti-Defamation League, wrote a
letter
> > published in The New York Times. Mr. Foxman wrote, "Ms.
Fulani has
> > stated that Jews 'had to sell their souls to acquire Israel
and are
> > required to do the dirtiest work of capitalism - to
> function as mass
> > murderers of people of color - in order to keep it.'"
> >
> > I was shocked at Ms. Fulani's clearly
anti-Semitic
> > statement and wrote to the chair of the Independence Party,
> stating in
> > part:
> >
> > "A Daily News article of December 7 written by Lisa
Colangelo
> > states, 'Party representatives have said the quotes were
> taken out of
> > context.' I would appreciate knowing the proper context of
Dr.
> > Fulani's remarks referred to by 'party representatives.' I
cannot
> > conceive of any context in which Ms. Fulani's comments could
be
> > perceived as other than anti-Semitic, but perhaps there was
> a unique
> > context which gave the remarks a benign rather than a
malignant
> > meaning."
> >
> > On December 16, 2004, Dr. Fulani wrote, "The
> context of
> > the remark quoted by Mr. Foxman in his April 20, 2004 letter
to the
> > New York Times is a theatre review I wrote in 1989. The
> play, No Room
> > for Zion, was written by Fred Newman and was produced that
> year at the
> > Castillo Theatre. The play was part memoir, part political
> critique of
> > the Jewish experience in the post-war period. My review
dealt
> > specifically with the issue of nationalism and its dangers.
In this
> > case I was remarking on how black America should learn from
the
> > tragedies experienced by Jewish people. I wrote:
> >
> > 'As I sat and listened I saw more deeply in
Fred's
> > teaching the historical pitfalls of nationalism. After all,
> according
> > to nationalistic ideology, the Jewish people have gotten
> the ultimate
> > - land, in the form of a nation state. The fact is,
> however, that they
> > had to sell their souls to acquire Israel and are required
> to do the
> > dirtiest work of capitalism - to function as mass murderers
> of people
> > of color - in order to keep it.'
> >
> > "Because my comment was about the play and,
more
> > importantly, because the production was an expression of
Newman's
> > views which have significantly shaped my own, I asked him
> to write to
> > you to provide the larger historical and intellectual
'context' in
> > which both the play and my review were written. I have
enclosed his
> > letter, which I hope will shed further light on the issue at
hand."
> >
> > Newman's letter stated: "'The dirtiest work of
> > capitalism - to which Dr. Fulani referred in her article -
'to
> > function as mass murders of people of color' is to act as
> its garrison
> > state in an increasingly hostile and unstable Arab and
> Muslim world.
> > The language is harsh. The reality, as we now see, is even
more
> > harsh."
> >
> > Mr. Newman closed with "Perhaps this brings us
to a
> > bottom line. It may be that my views - the views of a
leftist - are
> > distasteful to you and that you would choose to criticize
> me for them.
> > That, of course, is your prerogative." ...
> >
> >
> > ________________________________
> >
> > See if you've won, play MSN Search and Win
> > <http://g.msn.com/8HMAENUS/2752??PS=47575>
> >
> >
> >
> >
> >
>
>
>
>
>
>
>
>
>
>
>
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