[EL] The Federalist Papers and Anonymity
Steve Hoersting
hoersting at gmail.com
Tue Jun 5 15:26:43 PDT 2012
That's not *quite* the argument, Mark.
Your first paragraph is off base. What is new in the retaliation front is
that officeholders appear to be getting into the act. We are seeing
government-on-citizen retribution. This is what Kim Strassel is writing
about.
Whether that retaliation will rise to the level of warranting an exemption
to disclosure of independent speech is a matter for several district courts
to determine upon the application of several John Does with the civic
courage to file for an exemption -- and then a matter for few appellate
courts and, with any luck, a matter for the Supreme Court again.
You know, let me stop there: It is incumbent upon me to make the best
description of this theory I can -- whether I can fund the work, or not.
Let me get about the business of doing that: I need to put up or shut up.
(If you can find a donor to pay me the several thousand dollars to develop
the theory, I would be much obliged. I'll send you or anyone else the
forwarding information).
But there is no denying: this theory needs to be tested in the courts.
That is where the rubber meets the road -- and is the only place the
failure to grant the exemption can trigger review of the underlying
informational interest for non-corrupting, independent speech.
If some on the list are are okay with officeholders jumping on the
"accountability" crusade, that is one thing. But I have to believe you
won't find a uniformity of opinion in the district courts.
Government-on-citizen intimidation may be a difference in kind.
As to why the courts, think of it this way: It was the failure to respect
the issue-advocacy safety-valve to the electioneering communications
provisions authored by the Court in *WRTL v. FEC*, and ignored in the
two-part, eleven factor exemption test promulgated by the Commission. That
failure led to a repeal of the electioneering communications funding
restrictions in *Citizens United. *You see,* *no one ever got the
electioneering exemption provided under *WRTL.*
No one is getting the disclosure exemption under *Socialist Workers. *
More people need to ask it, and cite the latest evidence.
If no one gets the exemption then, what's a reviewing court to do?
Best,
Steve
On Tue, Jun 5, 2012 at 5:59 PM, Mark Schmitt <schmitt.mark at gmail.com> wrote:
> 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<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> 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<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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