[EL] The Federalist Papers and Anonymity
Mark Schmitt
schmitt.mark at gmail.com
Tue Jun 5 12:51:18 PDT 2012
Here's what I don't understand: If there is a possibility of severe
retaliation based solely on a contributor's political spending/speech,
then wouldn't the same possibility of retaliation exist for each and
every person expressing the same viewpoint? In other words, if we truly
believe that someone is going to get "SWATed" or something, or targeted
for an IRS audit, because they supported a pro-Romney SuperPAC, then
wouldn't every Romney contributor or outside funder have the same claim?
If not, then there's obviously something unrelated to the political
speech that causes certain spenders to fear this retaliation while
others don't.
Socialist Workers holds this protection because everyone who affliates
with SWP, whether as a donor or party member, is far outside of the
mainstream of American politics and categorically subject to harassment.
(Or so it seems, from their FEC filing.) The same is not true of
supporters of Mitt Romney.
Of course, all of this is entirely a thought-experiment until there's
some evidence that people are actually facing this kind of violent
retaliation (as opposed to boycotts) because of their political spending.
Mark Schmitt
Senior Fellow, The Roosevelt Institute <http://www.newdeal20.org>
202/246-2350
gchat or Skype: schmitt.mark
@mschmitt9 <https://twitter.com/#%21/mschmitt9>
On 6/5/2012 9:56 AM, Steve Hoersting 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
> <mailto: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>
> [mailto: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 <mailto:JBoppjr at aol.com>
> *Cc:* law-election at uci.edu <mailto: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 <mailto: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 <mailto: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 <tel:703-993-4191> George Mason
> University
> (f) 703-993-1399 <tel:703-993-1399> Dept. of Public
> and International Affairs
> mmcdon at gmu.edu <mailto: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>
> [mailto:law-election-bounces at department-lists.uci.edu] On
> Behalf Of JBoppjr at aol.com <mailto:JBoppjr at aol.com>
> Sent: Friday, June 01, 2012 9:38 AM
> To: rhasen at law.uci.edu <mailto:rhasen at law.uci.edu>;
> law-election at uci.edu <mailto: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 <mailto: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 <tel:949.824.3072> - office
> 949.824.0495 <tel:949.824.0495> - fax
> rhasen at law.uci.edu <mailto: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 <tel:949.824.3072> - office
> 949.824.0495 <tel:949.824.0495> - fax
> rhasen at law.uci.edu <mailto: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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>
>
> --
> Stephen M. Hoersting
>
>
>
> This body part will be downloaded on demand.
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