[EL] The Federalist Papers and Anonymity
Milyo, Jeffrey D.
milyoj at missouri.edu
Fri Jun 1 09:04:36 PDT 2012
Michal M. makes an excellent point against compelled disclosure. He argues that anyone who cared knew where the authors of the Federalist stood on the question of the Constitution; and as others have frequently pointed out, when the US Chamber of Commerce or NARAL engage in speech, it is simply not credible that we can't know the interests and motives of the speaker without detailed information about itemized expenditures and the home address or employer of contributors giving as little as $50 to support such speech...
Similarly the notion that we can't understand the Federalist papers without knowing who paid for the hay that fed the horse that carried Hamilton as he delivered his writings to the publisher is equally ridiculous (and to such claims, I say "neigh"). The Federalist and Anti-Federalist writings would meet the definition of "grassroots lobbying" under current laws in many states and would be subject to registration and disclosure requirements, as well as penalties for failure to comply. Disclosure laws, especially in the states and in non-candidate election contexts, look more like they are designed to make it harder to speak about political issues, not easier to understand the arguments being made, or even "who" is speaking...
This message approved by Jeff Milyo, who resides in Columbia Missouri and is employed by the state of Missouri. Milyo acknowledges the financial support of the taxpayers of Missouri who provided access to the intertubes used to deliver this message.
-----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: Friday, June 01, 2012 10:36 AM
To: law-election at uci.edu
Subject: Re: [EL] The Federalist Papers and Anonymity
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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