[EL] The Federalist Papers and Anonymity
Sean Parnell
sean at impactpolicymanagement.com
Tue Jun 5 14:19:38 PDT 2012
But the concept is the same - under the type of disclosure regime generally
being advocated (and indeed, under parts of the regime we currently have),
someone in Ricketts' position would almost certainly recognize that giving
money to a group that is going to speak out could have severe repercussions
for their livelihood.
Sean Parnell
President
Impact Policy Management, LLC
6411 Caleb Court
Alexandria, VA 22315
571-289-1374 (c)
sean at impactpolicymanagement.com
From: Peter Overby [mailto:poverby at npr.org]
Sent: Tuesday, June 05, 2012 4:59 PM
To: 'Sean Parnell'; 'Mark Schmitt'; law-election at department-lists.uci.edu
Subject: RE: [EL] The Federalist Papers and Anonymity
Mandated disclosure wasn't Joe Ricketts' problem. The document was leaked,
and he was named twice in the first 3 pages.
_____
From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Sean
Parnell
Sent: Tuesday, June 05, 2012 4:10 PM
To: 'Mark Schmitt'; law-election at department-lists.uci.edu
Subject: Re: [EL] The Federalist Papers and Anonymity
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
<http://www.fieldofschemes.com/news/archives/2012/05/4958_emanuel_walks_o.ht
ml>
Oh, yes, Rahm Emanuel is going to milk
<http://www.suntimes.com/news/metro/12724674-418/rahm-emanuel-laughs-walks-o
ut-of-press-conference-when-asked-about-cubs-ricketts.html> this Ricketts
family controversy over anti-Obama ads
<http://www.fieldofschemes.com/news/archives/2012/05/4954_joe_ricketts_an.ht
ml> 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
<http://www.fieldofschemes.com/news/archives/2012/04/4924_emanuels_wrigle_1.
html> 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 <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> 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
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