[EL] The Federalist Papers and Anonymity
Michael McDonald
mmcdon at gmu.edu
Fri Jun 1 08:36:26 PDT 2012
It is not credible that the author of the constitution needed to hide behind
the pen name Publius in order to deal with other people in a variety of
contexts and settings. Anyone who cared enough would have known about his
exceptionally strong support for the constitution.
============
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 Smith,
Brad
Sent: Friday, June 01, 2012 11:14 AM
To: law-election at uci.edu
Subject: Re: [EL] The Federalist Papers and Anonymity
The authors of the Federalists also wanted anonymity because of various
personal connections and the need to deal with other people in a variety of
contexts and settings, not only to force an argument away from ad hominemism
(if that is a word!)
The point Michael raises further emphasizes that one should not have to
justify one's reasons for wanting some level of anonymity. It is the state
that should have to justify some reason for invading privacy and demanding
the right to track its citizens political activity. Thus, when Rick writes,
"the potential of a boycott does not provide a basis to exempt anyone from
required campaign disclosures" (at least in his opinion), he's got the
burden of proof backwards. If the purpose of forced disclosure is to help
"hold people accountable," I think the statute fails to even pass a rational
basis test for interfering with the rights of citizens, let alone the strict
scrutiny normally applied to regulation of speech.
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
614.236.6317
http://law.capital.edu/faculty/bios/bsmith.aspx
________________________________________
From: law-election-bounces at department-lists.uci.edu
[law-election-bounces at department-lists.uci.edu] on behalf of Michael
McDonald [mmcdon at gmu.edu]
Sent: Friday, June 01, 2012 10:57 AM
To: law-election at uci.edu
Subject: Re: [EL] The Federalist Papers and Anonymity
The Federalist Papers were written in 1788, well after the American
Revolution victory over King George III's government. The phrase "sign your
John Hancock" is associated with the non-anonymous speech of signing the
Declaration of Independence, which was more likely to result in retaliation
by King George III.
The Federalists were arguing for a stronger government than what existed
under the failed Articles of Confederation, America's first constitutional
government, a weak government incapable of performing its necessary
functions. So, the Federalists were in some measure proponents of greater
federal government power, hence their name, Federalists. It was the
Anti-Federalists who were those that were more distrustful of federal power
and favored more power in the hands of the states and the people. Our
original constitution did not have a First Amendment protecting free speech.
The Bill of Rights was adopted in conciliation to the Anti-Federalists. The
authors of the Federalists Papers did not believe that the provisions in
what would become the Bill of Rights were necessary, including the First
Amendment Freedom of Speech.
The authors of the Federalists Papers were not in fear of reprisal for
authoring the essays. The three were well known for their support of the
proposed constitution; Madison was its author. The authors of the Federalist
Papers used anonymity so that Anti-Federalists could not make a connection
to the personal interests of the authors when rebutting the essays. Still,
at the time, many people correctly guessed who the authors were. Ironically,
in light of Jim's impassioned defense of anonymity, we might have had a
federal government with weaker powers if the authors had not written
anonymously under Publius.
There is a cogent argument that one can draw from the Federalist Papers
example about the value of anonymous speech to protect against ad hominem
arguments, but there is no basis to argue that the three authors feared
retribution from King George III.
============
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
From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of
JBoppjr at aol.com
Sent: Friday, June 01, 2012 9:38 AM
To: rhasen at law.uci.edu; law-election at uci.edu
Subject: Re: [EL] ELB News and Commentary 6/1/12
Things have certainly changed. The First Amendment contemplates that
the citizens are free to participate in their government and that the
government is thereby to be held accountable to the citizens.
Now, it is the government holding the citizens accountable for
participating in their government, as Rick says: "Those with power want to
wield it without being accountable for their actions." He wants speech only
if there are consequences to the speaker. I guess he wants the Founders
strung up for publishing the Federalist and Anti-Federalist anonymously.
Well at least King George III certainly did. And how about Mrs McIntyre, who
not even Justice Stevens wanted to be punished by the school board.
As this debate goes on, at least we now know plainly what the
"reformers" have in mind for those who dare to speak. Nothing about voter
information. No bogus claim that there will be no retaliation. But a
celebration of retaliation. And then what a great democracy we would have!
Only the rich and powerful, whose allies hold the levers of government
power, would dare speak. It would be helpful too if your allies control the
media. Humm, am I describing current America where liberals hold sway? Is
that why some liberals are all fired up to bring it on! Is this their last
desperate attempt to hold power -- threaten punishment of their "enemies"
for daring to speak out?
At least now, all the false facade has been stripped away and the brave
new world they contemplate has been revealed to all.
Actually, it is a brave old world -- see Gangs of New York if you want
to see a window to our future democracy. Jim Bopp
In a message dated 6/1/2012 2:21:47 A.M. Eastern Daylight Time,
rhasen at law.uci.edu writes:
"Citizens: Speech, no consequences"
Posted on May 31, 2012 11:20 pm by Rick Hasen I have just written this oped
for Politico. It begins:
You've got to feel bad for the rich and powerful in America. The U.S.
Chamber of Commerce and a variety of big business groups say if Congress
goes back to letting the American people know who is behind campaign attack
ads, businesses will face the "palpable" threat of "retaliation" and
"reprisals."
Former Federal Election Commission Chairman Bradley Smith warns in The Wall
Street Journal that boycotts based on political beliefs - made possible by
the public disclosure of campaign finance data - "endanger the very commerce
that enriches us all." Even the chief justice of the United States, John
Roberts, apparently is being "intimidated" (Kathleen Parker), "pressured"
(George Will) and "threatened" (Rick Garnett) by that most powerful force in
America (law professor and New Republic legal editor) Jeffrey Rosen.
On the right these days, the rhetoric is all about a liberal siege. Despite
Republicans' majority in the House, its filibuster power in the Senate, a
sympathetic Supreme Court and the great power of business groups - the
language of threats is pervasive. But look beyond the rhetoric and you can
see what's really going on: Those with power want to wield it without being
accountable for their actions.
Posted in campaign finance, Supreme Court | Comments Off "FEC Deadlocks on
Candidate's Request To Rule on His Plumbing Company's Ads"
Posted on May 31, 2012 11:16 pm by Rick Hasen Bloomberg BNA: "The Federal
Election Commission deadlocked late May 30 on an advisory opinion request
asking whether FEC reporting and disclaimer rules regarding "electioneering
communications" apply to ads for a congressional candidate's plumbing
company..The deadlock over the Mullin AO indicated that the FEC may have
trouble providing guidance to the regulated political community following
the recent court actions that beefed up reporting requirements for
electioneering communications."
Posted in campaign finance | Comments Off "The Corporate Disclosure Ruse"
Posted on May 31, 2012 11:14 pm by Rick Hasen Kimberly Strassel takes on
Bruce Free's Center for Political Accountability. This is apparently the
second attack in two days and the fifth in five months. Sensing a pattern
here?
Posted in campaign finance | Comments Off Will Tuesday's Recall Results in
Wisconsin Be an "Omen" for President Obama in November?
Posted on May 31, 2012 11:12 pm by Rick Hasen NYT explores.
Posted in campaigns, recall elections | Comments Off "Runoff Draws Big Money
and Heated Words"
Posted on May 31, 2012 11:08 pm by Rick Hasen NYT reports on Dewhurst-Cruz
in Texas.
Posted in campaign finance, campaigns | Comments Off "U.S. judge blocks key
parts of Fla. law regulating voter registration"
Posted on May 31, 2012 11:05 pm by Rick Hasen WaPo reports. MORE from NYT.
Posted in NVRA (motor voter), The Voting Wars, voter registration | Comments
Off "DOJ eyes Florida voter roll purge of non-U.S. citizens"
Posted on May 31, 2012 11:02 pm by Rick Hasen Politico reports.
Posted in Department of Justice, voter registration, voting, Voting Rights
Act | Comments Off "Candidates use lawyers for early battles'
Posted on May 31, 2012 11:00 pm by Rick Hasen
TribLive: "Pennsylvania candidates are increasingly turning to the courts to
settle election disputes - and vanquish opponents. State court
administrators reported on Thursday that Commonwealth Court, which deals
with election disputes involving candidates for a state office or higher,
has handled a record 131 election cases this year."
Posted in campaigns | Comments Off
"Coalition challenges voter ID amendment"
Posted on May 31, 2012 10:58 pm by Rick Hasen
AP: "Four groups petitioned the Minnesota Supreme Court on Wednesday to
remove from the November ballot a proposed constitutional amendment
requiring voters to present photo IDs at the polls, saying the language that
voters will see doesn't accurately describe the amendment."
Posted in election administration, The Voting Wars, voter id | Comments Off
"Holder's Chutzpah; Voter-ID laws are not about denying access to blacks."
Posted on May 31, 2012 10:57 pm by Rick Hasen Thomas Sowell has written this
article for National Review Online.
Posted in election administration, fraudulent fraud squad, The Voting Wars,
voter id | Comments Off WaPo on Edwards Posted on May 31, 2012 7:45 pm by
Rick Hasen Here.
Posted in campaign finance, chicanery, John Edwards | Comments Off NYT on
Edwards Verdict Posted on May 31, 2012 6:16 pm by Rick Hasen Here.
MORE: Another High-Profile Failure for a Justice Dept. Watchdog
Posted in campaign finance, chicanery, John Edwards | Comments Off "Edwards
case may have little effect on campaign finance"
Posted on May 31, 2012 6:14 pm by Rick Hasen The News and Observer reports.
Posted in campaign finance, chicanery, John Edwards | Comments Off "Justice
Department Demands Florida Stop Purging Voter Rolls"
Posted on May 31, 2012 6:10 pm by Rick Hasen
TPM: "The Justice Department sent a letter to Florida Secretary of State Ken
Detzner Thursday evening demanding the state cease purging its voting rolls
because the process it is using has not been cleared under the Voting Rights
Act, TPM has learned."
Posted in Department of Justice, election administration, The Voting Wars,
voting, Voting Rights Act | Comments Off "Is John Edwards verdict the last
straw for campaign finance?"
Posted on May 31, 2012 4:45 pm by Rick Hasen The CS Monitor reports.
Posted in campaign finance, chicanery, John Edwards | Comments Off Both
Sides Seem to Claim Victory in Florida Voter Registration Case Posted on May
31, 2012 4:40 pm by Rick Hasen See this AP report. But the fact that the
state may appeal is a good sign that this was more of a win for plaintiffs.
Posted in election administration, The Voting Wars | Comments Off Gerstein
on the Edwards Case Posted on May 31, 2012 4:38 pm by Rick Hasen Here.
Posted in campaign finance, chicanery, John Edwards | Comments Off WSJ on
Edwards Case Posted on May 31, 2012 4:35 pm by Rick Hasen Here.
Posted in campaign finance, chicanery, John Edwards | Comments Off "John
Edwards' Might've Walked But Trial Still A Warning For Politicians"
Posted on May 31, 2012 4:33 pm by Rick Hasen NPR reports.
Posted in campaign finance, chicanery, John Edwards | Comments Off "A Cad
Gets His Due; The world knows that John Edwards is loathsome. That's
enough."
Posted on May 31, 2012 3:34 pm by Rick Hasen Must-read Emily Bazelon on John
Edwards.
Posted in campaign finance, chicanery, John Edwards | Comments Off "'Bad
Kemo' riles the Sunshine State: Pre-emptive vote tampering threatens
majority rule"
Posted on May 31, 2012 3:17 pm by Rick Hasen Hugh Carter Donohue has written
this oped for the Tallahassee News.
Posted in election administration, The Voting Wars | Comments Off "Buddy
Roemer quits 2012 race"
Posted on May 31, 2012 3:16 pm by Rick Hasen Politico reports.
The underreported story so far of the presidential campaign: (Where) might
Gary Johnson make a difference?
Posted in ballot access, campaigns, third parties | Comments Off
--
Rick Hasen
Chancellor's Professor of Law and Political Science UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org
Pre-order The Voting Wars: http://amzn.to/y22ZTv
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