[EL] Anonymous candidates

Mon Jul 23 13:17:40 PDT 2012

Mark has identified another dimension that triggers disclosure: the level of
influence that a person may wield over the political process.

Wouldn't a person who is spending tens of millions of dollars advocating for
and against the elections of a large number of candidates wield more
influence over policy making than any single candidate? Keep in mind that
some minor party candidates have no hope of winning an election (no
disrespect intended towards these candidates, I hope I am just stating the
obvious). They are primarily attempting to influence the policy discourse by
offering voters alternatives and raising their issues through their
campaigns. Such minor party candidates have significantly less influence
over policy making than the deep pockets spender, yet they are forced to
disclose their identities even though some may put forth very unpopular
policies.

That there is a line to be drawn around influence, just as there is a line
to be drawn with the ease of disclosure, suggests that regulation may be set
regarding disclosure as determined by the political process.  

============
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

-----Original Message-----
From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of
Scarberry, Mark
Sent: Monday, July 23, 2012 2:57 PM
To: law-election at uci.edu
Subject: Re: [EL] Anonymous candidates

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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