[EL] The Federalist Papers and Anonymity
Steve Hoersting
hoersting at gmail.com
Tue Jun 5 13:28:14 PDT 2012
Yes, they have: Therefore, *see* my quick reply to Bill.
On Tue, Jun 5, 2012 at 4:26 PM, Douglas Carver <dhmcarver at gmail.com> wrote:
> >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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> > http://department-lists.uci.edu/mailman/listinfo/law-election
> >
> > _______________________________________________
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> > http://department-lists.uci.edu/mailman/listinfo/law-election
> >
> >
> >
> > _______________________________________________
> >
> > Law-election mailing list
> >
> > Law-election at department-lists.uci.edu
> >
> > http://department-lists.uci.edu/mailman/listinfo/law-election
> >
> >
> >
> > --
> > 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
> >
> >
> >
> >
> > This body part will be downloaded on demand.
> >
> >
> >
> >
> >
> >
> >
> > _______________________________________________
> > Law-election mailing list
> > Law-election at department-lists.uci.edu
> > http://department-lists.uci.edu/mailman/listinfo/law-election
>
>
>
> --
> 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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--
Stephen M. Hoersting
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