[EL] The Federalist Papers and Anonymity

[Douglas Carver]

>From Bill's comment: "That is why I argue that the burden should be on
the government to explain why anonymity is not necessary, not on the
citizen to explain why they should be able to remain anonymous."

Haven't the courts repeatedly decided the government has met this
explanatory burden?

Douglas Carver
Albuquerque, NM

On Tue, Jun 5, 2012 at 2:09 PM, Sean Parnell
<sean at impactpolicymanagement.com> wrote:
> I’d think that some people are simply more vulnerable, for a variety of
> reasons, to retaliation spurred by disclosure. I ran across this recently:
>
>
>
> Emanuel walks out of news conference when asked about Ricketts and Wrigley
> renovation
>
>
>
> Oh, yes, Rahm Emanuel is going to milk this Ricketts family controversy over
> anti-Obama ads for all it's worth:
>
> Mayor Rahm Emanuel laughed and then walked out of a news conference on
> Wednesday when asked why he has not returned an apologetic phone call from
> [Tom] Ricketts after revelations surfaced about his father's involvement in
> a conservative SuperPAC considering a $10 million plan to attack the
> president by resurrecting the Rev. Jeremiah Wright controversy.
>
>
>
> The mayor also refused to say whether he believes the political controversy
> caused by family patriarch Joe Ricketts' SuperPAC would sabotage the Cubs'
> appeal for a $150 million taxpayer subsidy to help renovate Wrigley Field.
>
> Ricketts later told a radio interviewer that "the mayor's got a lot on his
> plate" and "I'm cool with whatever timing works," which makes it sound like
> he's prepared to take his lumps in public over this so long as eventually
> he's allowed back into Emanuel's good graces. The best bet here is still
> that negotiations over a Wrigley Field renovation — which, notwithstanding
> what the Chicago Sun-Times says above, could actually involve as much as
> $300 million in taxpayer subsidies — will eventually pick up where they left
> off.
>
> In the meantime, it would be nice if the Chicago media would use the added
> time to investigate how the renovation finances would work, how it would
> affect revenue for both the Cubs and the city, and what it would mean for
> the look and feel of Wrigley. But reporting on Rahm's daily hissy fit is
> more fun, and easier.
>
> Generally, wealthy people aren’t dumb. It takes no stretch of imagination
> for any other business leader, or someone with interests before the
> government, to understand the implication here – give to the wrong people,
> and you can kiss your business interests goodbye, at least those that the
> government has a say in.
>
> I guess this is what accountability looks like. Yay.
>
> Sean Parnell
>
> President
>
> Impact Policy Management, LLC
>
> 6411 Caleb Court
>
> Alexandria, VA  22315
>
> 571-289-1374 (c)
>
> sean at impactpolicymanagement.com
>
>
>
> From: law-election-bounces at department-lists.uci.edu
> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Mark
> Schmitt
> Sent: Tuesday, June 05, 2012 3:51 PM
> To: law-election at department-lists.uci.edu
>
>
> Subject: Re: [EL] The Federalist Papers and Anonymity
>
>
>
>
>
> 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
> 202/246-2350
> gchat or Skype: schmitt.mark
> @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> 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
>
>
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>
>
> --
> Stephen M. Hoersting
>
>
>
>
> This body part will be downloaded on demand.
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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)