[EL] Anonymous candidates

Mon Jul 23 11:57:02 PDT 2012

In elections for office we vote for the person who will be given a degree of power, not just for what the person says he or she will do. (We all know that what a candidate says often has little correlation with what the person does once elected; it matters very much who the person is to whom we are asked to entrust power, not just what they say.) With election speech it is quite possible to evaluate an argument that is made, or information that is provided, even if the speech is anonymous. 

Disclosure may be of some value in evaluating speech, but the identity of the speaker is not the point, as is the identity of a candidate. I suppose that to some extent the identity of those who support a candidate is helpful to us in evaluating who the candidate is and what he or she is likely to do, but the analogy to an anonymous candidate is not a close one. I suppose I'd also like to know who the candidate spends a lot of time talking to, who the candidate's confidantes are, which people and books have had an influence on the candidate, who works behind the scenes to get other public figures to endorse the candidate, and who may have persuaded competitors to drop out of the race in favor of the candidate. All of those questions are matters for investigation and for public discussion, but we do not require a candidate by law to give disclose those matters. 

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law

-----Original Message-----
From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Bill Maurer
Sent: Monday, July 23, 2012 11:02 AM
To: Bill Maurer; mmcdon at gmu.edu; law-election at uci.edu
Subject: Re: [EL] Anonymous candidates

Guess I should have read all my emails first, as Professor Gaddie beat me to it.  I blame the time-zones!

-----Original Message-----
From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Bill Maurer
Sent: Monday, July 23, 2012 10:45 AM
To: mmcdon at gmu.edu; law-election at uci.edu
Subject: Re: [EL] Anonymous candidates

I don't have an answer for Professor McDonald, but this has occurred before.  Frankly, I think it says more about the dangers of people with significant psychological problems getting involved in politics than anonymity, a situation that could be changed by giving the parties greater authority to determine who may represent them on a ballot.

http://en.wikipedia.org/wiki/%22Low_Tax%22_Looper 

-----Original Message-----
From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Michael McDonald
Sent: Monday, July 23, 2012 7:10 AM
To: law-election at uci.edu
Subject: [EL] Anonymous candidates

In 2002, a candidate for Pulaski County Kentucky Sheriff was murdered by his opponent at a campaign rally.

http://new.accessnorthga.com/detail.php?n=202457&c=7 

Murder goes well beyond the alleged harassment of campaign donors that we've heard so frequently on this list about. I am sure that with a little effort, we can compile more examples of candidates being harassed with physical violence, starting with Gabriel Giffords or any elected official who has received death threats. If we are going to insist that people who attempt to influence the political process must be protected by anonymity, then why stop at donors?  Why not protect candidates and elected officials? As has been frequently stated by those who support anonymity, only the message matters, the identity of the messenger does not. So, why do we need to know the identity of candidates? If we are going to protect donors with anonymity, I say let's protect anyone who wishes to affect public policy, from people who wish to speak about politics to friends and neighbors, to campaign volunteers and staff, to candidates. (It is not too difficult to find examples of volunteers be
   ing physically assaulted.) We can make available special political speech burqas equipped with Darth Vader voice modulators that people can wear if they wish to state political beliefs publicly. 

Some may counter that people who wish to engage in political speech have the right to create a free speech burqa of their own, even though my proposal was meant to reveal the absurdity of the idea. (Isn't that what lawyers do?
Generalize from extreme examples?) So, here is my real question for the legal minds on the list, which I hope will spark thoughtful discussion: Why should those who wish to use their money in political speech be granted mechanisms to protect their anonymity while others who wish to use their voice in political speech do not have comparable protections?

============
Dr. Michael P. McDonald
Associate Professor, George Mason University Non-Resident Senior Fellow, Brookings Institution

                             Mailing address:
(o) 703-993-4191             George Mason University
(f) 703-993-1399             Dept. of Public and International Affairs
mmcdon at gmu.edu               4400 University Drive - 3F4
http://elections.gmu.edu     Fairfax, VA 22030-4444

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