[EL] The Federalist Papers and Anonymity
Douglas Carver
dhmcarver at gmail.com
Tue Jun 5 12:10:19 PDT 2012
A sequel to the article I mentioned yesterday on the price of votes in
New Mexico -- alcohol for votes still a feature of Rio Arriba County:
http://www.kob.com/article/stories/S2643955.shtml?cat=500
Douglas Carver
Albuquerque, NM
On Tue, Jun 5, 2012 at 7:56 AM, Steve Hoersting <hoersting at gmail.com> wrote:
> Here, generally, must be the answer to Bill's question, else he is entirely
> correct that the standard is unworkable.
>
> A person seeking the exemption would:
>
> 1) first file an affidavit saying, a) "these groups or politicians have [as
> Bill puts it] 'burned other people's houses down' who have opposed them in
> the past. b) These people have the means of meaningful retaliation. c)
> These people have demonstrated a motive to retaliate.
>
> Then say, 2) "I want to speak in a way opposing these groups, and I do not
> want my 'house burned down' next."
>
> And most importantly, one must 3) trust the judicial process enough to file
> as a John Doe or Jane Doe until such time as the judge determines whether or
> not the applicant will get the exemption.
>
> If the exemption is denied, John Doe or Jane Doe will then decide whether
> they want to go ahead and oppose the "house burners" with their identities
> disclosed or seek review of the court's denial of the exemption.
>
> Steve Hoersting
>
>
> On Mon, Jun 4, 2012 at 1:28 PM, Bill Maurer <wmaurer at ij.org> wrote:
>>
>> Sorry I’m late to the game on this, but doesn’t Rick’s position create a
>> significant proof problem? How does a speaker know that their speech will
>> create severe retaliation? I’ve asked this before, but how does one show
>> that there’s a reasonable probability that someone will burn your house down
>> if you take a public stand on an issue until your house gets burned down?
>> Then the judge could say, “you know, you were right—your information should
>> have been kept private. By the way, you’re getting soot all over the
>> courtroom.”
>>
>>
>>
>> Thus, in reality, this standard is unworkable—you’re either too early to
>> get protection and so you don’t speak or you’re too late and the harm is
>> done. Welcome aboard the “Kobayashi Maru.” The only logical choice is to
>> not play the game as it is currently constituted, thus creating a
>> significant harm to the speaker, political discourse, and leaving the
>> political playing field to only those who are rich enough or powerful enough
>> to not care about potential blowback. I think a better standard would be
>> that a speaker’s anonymity should be the default position and that the
>> government should have to burden to prove (i) why the speaker’s information
>> should be released to the public, and (ii) that the release of the
>> information is unlikely to cause harassment and coercion.
>>
>>
>>
>> Bill
>>
>>
>>
>> From: law-election-bounces at department-lists.uci.edu
>> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick
>> Hasen
>> Sent: Friday, June 01, 2012 8:52 AM
>> To: JBoppjr at aol.com
>> Cc: law-election at uci.edu
>>
>>
>> Subject: Re: [EL] The Federalist Papers and Anonymity
>>
>>
>>
>> If you think that I want people to suffer severe retaliation for their
>> political beliefs you have not read my work closely.
>>
>>
>>
>> I have said repeatedly that when there is credible evidence people will
>> face severe retaliation, then they should be exempt from disclosure. In
>> recent cases involving gay marriage ballot measures in which you have been
>> involved, two federal district courts evaluated these claims in detail and
>> found no credible evidence of harassment of people who merely gave campaign
>> contributions or collected signatures for a ballot measure. Doe v. Reed, 823
>> F.Supp.2d 1195 (W.D.Wash. Oct. 17, 2011); ProtectMarriage.com v. Bowen, No.
>> 2:09-CV-00058-MCE-DA, ___ F.Supp.2d ___, 2011 WL 5507204 (E.D. Cal. Nov. 4,
>> 2011). See Richard L. Hasen, Chill Out: A Qualified Defense of Campaign
>> Finance Disclosure in the Internet Era, Journal of Law and Politics
>> (forthcoming 2012), draft available at: http://papers.ssrn.com/sol3/
>> papers.cfm?abstract_id=1948313.
>>
>>
>> On 6/1/12 8:44 AM, JBoppjr at aol.com wrote:
>>
>> Regarding: "The Federalist Papers were written in 1788, well after the
>> American Revolution victory over King George III’s government." Yes, I knew
>> that, but I liked the rhetorical flourish!
>>
>>
>>
>> In any event, my point was that Rick might want them strung up for
>> speaking out against the Articles of Confederation, since his point is that
>> anonymous speech is wrong since people don't get to punish them for it.
>>
>>
>>
>> And I believe that nearly all of the signers of the Declaration of
>> Independence did indeed suffer severe retaliation for doing so, which seems
>> to be a result that might please Rick.
>>
>>
>>
>> Jim Bopp
>>
>>
>>
>> In a message dated 6/1/2012 10:58:43 A.M. Eastern Daylight Time,
>> mmcdon at gmu.edu writes:
>>
>> 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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>>
>> --
>> 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
>>
>>
>> _______________________________________________
>> Law-election mailing list
>> Law-election at department-lists.uci.edu
>> http://department-lists.uci.edu/mailman/listinfo/law-election
>
>
>
>
> --
> Stephen M. Hoersting
>
>
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--
Dilexi iustitiam et odivi iniquitatem, propterea morior in exilio.
(I have loved justice and hated iniquity, therefore I die in exile.)
-- the last words of Saint Pope Gregory VII (d. 1085)
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