Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
Designated Professor of Law
Capital University Law School
303 East Broad Street
Columbus, OH 43215
(614) 236-6317
bsmith@law.capital.edu <mailto:bsmith@law.capital.edu>
http://www.law.capital.edu/faculty/bios/bsmith.asp
<http://www.law.capital.edu/faculty/bios/bsmith.asp>
From: Joseph Birkenstock [mailto:jbirkenstock@capdale.com]
Sent: Friday, April 01, 2011 5:11 PM
To: Smith, Brad
Cc: Election Law
Subject: RE: [EL] WaPo op-ed on transparency
Hmm… As always, it’s at least as likely as not that I am missing the point,
but even if this is one of those times I don’t think it’s for the reasons
Brad lists below. As I wrote in a later post, I’m not concerned about the
influence of the advertising on the voters, and unlike Paul I don’t consider
that kind of influence undue.
I do think that selectively opaque funding of ads, where the sources of the
funding are known to candidates & officeholders but not to the general
public, do create opportunities for undue influence for those sources over
those candidates & officeholders.
Which I expect means I’m just missing yet a further and different point…
From: Smith, Brad [mailto:BSmith@law.capital.edu]
Sent: Friday, April 01, 2011 5:02 PM
To: Joseph Birkenstock
Cc: Election Law
Subject: RE: [EL] WaPo op-ed on transparency
I think Joe misses the point. The question is not whether advertising has
any effect, or whether that effect is trivial. Presumably it does, and at
least often it is not. I don’t know of anyone who has asserted that
advertising has only a trivial effect on voting, and one reason I support a
deregulated market is to increase accountability. So that is not the
argument.
The argument is whether people can make their own decisions after hearing
advertising and many different viewpoints without the guiding hand of
government, and whether the “will of the people” is best measured before or
after the advertising. Steve’s point, as I understand it, is that if you
don’t trust voters to hear advertising and then decide what is in their own
best interest, you’ve pretty much undercut the basis for self-government.
Because people are not governing themselves if some higher authority is
needed to monitor whether their judgments really reflect “their best
interests” and to determine what they ought to hear, and how often. One can
argue that voters (or at least some voters) would make better decisions if
deprived of the information that comes from advertising, or if forced to
gain the information in some other fashion, and this is, in the end, a
fundamental position of those who would regulate on the basis set forth by
Mr. Lehto. The problem is that this puts the government in charge of
deciding how the political debate will be conducted, and by whom. And that
seems fundamentally contrary to the idea of self-government, and to the
First Amendment, and fundamentally unwise.
On that I have to agree with Dan Polsby’s eloquent words from many years
ago, “Almost every country in the world, including those behind the iron
curtain, can display a constitution that guarantees freedom of expression to
the people – to the extent, of course, that the people’s representatives
deem proper. … [W]e can boast that our Constitution protects something far
scarcer in history than that sort of freedom. And with the knowledge of the
caliber of people who sometimes get their hands on our government, it is
well that this is so.” Polsby recognizes here not merely that freedom to
speak is a valuable part of personal autonomy (though it is), but also that
an unregulated market is the best system for assuring freedom, good
government, the “will of the people,” etc. The First Amendment is not merely
about autonomy, it is about governance, and it is a considered solution to
the long-term question of how to assure that accountability ultimately
remains with the people.
Joe is correct – advertising can persuade people. So can debates in the
faculty lounge, and sometimes even posts on this listserve. It is because
advertising can persuade that the idea of self-governance demands that
people be allowed to speak and to hear.
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
Designated Professor of Law
Capital University Law School
303 East Broad Street
Columbus, OH 43215
(614) 236-6317
bsmith@law.capital.edu
http://www.law.capital.edu/faculty/bios/bsmith.asp
From: election-law-bounces@mailman.lls.edu
[mailto:election-law-bounces@mailman.lls.edu] On Behalf Of Joseph
Birkenstock
Sent: Friday, April 01, 2011 3:47 PM
To: Steve Hoersting; Paul Lehto
Cc: Election Law
Subject: Re: [EL] WaPo op-ed on transparency
This point about the influence of advertising on voters isn’t so binary,
though, is it? Since it really is clear that even “repeated advertising”
and “propaganda” don’t actually eliminate the agency of each individual
voter, or of voters generally, does it necessarily follow that advertising
has no value at all, or none worth considering as a potential means of
exerting undue influence on the candidate or officeholder in question?
Put differently: if dollars-driven advertising has only a trivial effect on
voting and political accountability, why does every advocacy group,
candidate, and officeholder anyone has ever seen or heard of act like it’s
so important?
________________________________
Joseph M. Birkenstock, Esq.
Caplin & Drysdale, Chtd.
One Thomas Circle, NW
Washington, DC 20005
(202) 862-7836
www.capdale.com/jbirkenstock <http://www.capdale.com/jbirkenstock>
*also admitted to practice in CA
From: election-law-bounces@mailman.lls.edu
[mailto:election-law-bounces@mailman.lls.edu] On Behalf Of Steve Hoersting
Sent: Friday, April 01, 2011 2:37 PM
To: Paul Lehto
Cc: Election Law
Subject: Re: [EL] WaPo op-ed on transparency
This is absolutely wrong, Paul.
The real debate, as applied in campaign finance, is whether via the
power of money to buy repeated advertising, the power of propaganda is
or is not considered to be a corruption or distortion of the will of
the people. Granted that rationale was imperfectly theorized in
Austin, but it is still the core of the normative debate, as I see it,
within the camp of those who believe in self-government.
Your premise is that repeat advertising obviates freewill and independent
judgment.
Your point is an epistemological insult to men and women everywhere.
Your point, at bottom, even while you purport to propose the opposite, is
that individual men and women are incapable of self-government.
Nothing could be more... well, I'll leave at erroneous.
Steve
On Fri, Apr 1, 2011 at 2:27 PM, Paul Lehto <lehto.paul@gmail.com> wrote:
I think, however, that when "private" citizens temporarily take the
role of (sovereign) voters and via elections form "We the People" the
otherwise "private" citizens are acting as governors. See
Montesquieu's The Spirit of Laws. (Montesquieu is the most-quoted
political theorist both before and after the American Revolution).
This is why our system is called "self-government" and why Adams
referred to a people fit to be "their own governors." Certainly this
point is most clearly seen when voters vote on initiatives and
referenda, exercising direct law-making powers. But in regular
elections where citizens delegate their power to an elected
representative, the very act of delegating shows the citizens
(temporary, but critical) superiority of status. Thus, we often refer
to the elected as the "servants" of the public, or public servants.
All the way back to Montesquieu, it has been recognized that citizens
in a republic occupy two different statuses, that of a subject (nearly
all of the time) and that of a sovereign (in the process of voting or
exercising their suffrage, as Jefferson's copy of Montesquieu states
in his own handwriting, for emphasis...). So, when voting I think it
is fair to say that accountability applies in connection with voting
and also with voters. The government must be accountable for a fair
ballot count and election process, and the voters accountable to each
other to not so distort the process in any way such that a "free
election" is not had: free from force, fraud, undue influence or any
other corrupting influence or power that acts to distort the
measurement of the voice of the will of the People. I think this is
clearly what the guarantee of "free" elections means, at its core.
The real debate, as applied in campaign finance, is whether via the
power of money to buy repeated advertising, the power of propaganda is
or is not considered to be a corruption or distortion of the will of
the people. Granted that rationale was imperfectly theorized in
Austin, but it is still the core of the normative debate, as I see it,
within the camp of those who believe in self-government.
Paul Lehto, J.D.
On 4/1/11, Steve Hoersting <hoersting@gmail.com> wrote:
I agree with you on this point, Paul: no disclosure/transparency in *
government* is a problem. (Indeed, you might have penned the op-ed along
with the two journalists).
However, no disclosure/transparency in the affairs of private
associations
is the rule.
Disclosure/transparency of a private association's independent
expenditures
-- the exception to the rule for private associations -- cannot further
interests in "corruption," only the "informational" interest.
People on my side say that when are demanding disclosure under the
exception
to the rule for private associations -- to further the "informational"
interest -- it is important to consider the scope of disclosure. In
determining the scope we consider the cost.
Which gets us back to the point of the op-ed (and of my post): Even the
strongest proponents of IE disclosure, and I'd put Team Obama in that
camp,
see that there are *costs* in disclosure. Or at least their actions,
well
documented in the op-ed, suggest that they see do.
Best,
Steve
On Fri, Apr 1, 2011 at 1:42 PM, Paul Lehto <lehto.paul@gmail.com> wrote:
On 4/1/11, Steve Hoersting <hoersting@gmail.com> wrote:
The theme of their *WaPo* piece is that the Obama administration is
not
at
all keen on disclosure.
http://www.washingtonpost.com/opinions/wheres-the-transparency-that-obama-promised/2011/03/31/AFipwHCC_print.html
[snip] -- we get the sense that there may be
well something to at least two theories about disclosure, and that
even
disclosure's advocates get it:
1) that the burden of disclosure must be balanced against its costs
2) that disclosure, either demanded or provided, is often a tool and
accelerant for retribution
What I "get" is that without disclosure/transparency, accountability
is not possible. Who can really be in favor of un-accountability in
government?
What is being styled as "retribution" is at best a minor percentage of
the overall and critical process of accountability in government.
--
Paul R Lehto, J.D.
P.O. Box 1
Ishpeming, MI 49849
lehto.paul@gmail.com
906-204-4026 (cell)
--
Steve Hoersting
CENTER FOR COMPETITIVE POLITICS
124 West Street South
Suite 201
Alexandria, Virginia 22314
SHoersting@campaignfreedom.org
www.campaignfreedom.org
(703) 894-6800 <tel:%28703%29%20894-6800> phone
--
Paul R Lehto, J.D.
P.O. Box 1
Ishpeming, MI 49849
lehto.paul@gmail.com
906-204-4026 (cell)
--
Steve Hoersting
CENTER FOR COMPETITIVE POLITICS
124 West Street South
Suite 201
Alexandria, Virginia 22314
SHoersting@campaignfreedom.org
www.campaignfreedom.org
(703) 894-6800 phone
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