[EL] The Federalist Papers and Anonymity
Mark Schmitt
schmitt.mark at gmail.com
Tue Jun 5 14:59:04 PDT 2012
So the argument against disclosure goes as follows:
First, there are no actual victims of serious retaliation as a result of
disclosed political spending. So Smith/Hoersting/Strassel etc combine
some unrelated things, such as a psychopath who appears to have called
the police to a blogger-enemy's house, or someone requesting (but not
getting) a Super-PAC donor's divorce records, to suggest that there
/could/ in the future be such retaliation and that people subject to it
need to be exempt from disclosure.
When it's pointed out that that sort of case-by-case exemption doesn't
really make sense in the case of donors/spenders on behalf of mainstream
political candidates, the answer is, yes, that's exactly right -- the
exemption needs to be total.
And so we go in two logical leaps from solving a totally non-existent
narrow problem to a categorical argument against all disclosure. Very
impressive!
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 4:12 PM, Bill Maurer wrote:
>
> Mark,
>
> I think you understand the issue perfectly, which is why we believe
> that the norm or default should be anonymity, not anonymity only if
> you can show that you are subject to harassment. 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. Asking people to predict the future in
> order to exercise their First Amendment rights is not really much of a
> protection.
>
> Bill
>
> *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 12:51 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
> <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
> <http://amzn.to/y22ZTv>
>
>
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>
>
> --
> Stephen M. Hoersting
>
>
>
>
> This body part will be downloaded on demand.
>
>
>
>
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