Additionally, early supporters of the Australian ballot were enthusiastic because they saw it equalizing the ability of all candidates to compete - no longer would one be able to gain great advantage from having the funds and organization to print and widely distribute "tickets" that voters could use to vote.  All would gain access to the ballot for free.  I discuss this a bit and cite prominent 19th century advocates of the Australian ballot in my 1991 article, Judicial Protection of Ballot Access Rights, in the Havard Journal of Legislation.   Early advocates sometimes suggested that as few as 2 signatures should qualify one for the ballot.  In light of this argument, it is ironic that, as Professor Lash notes, ballot access rules were quickly used to discriminate against and hamper underfunded and outsider candidates.
 
Bradley A. Smith
Professor of Law
Capital University Law School
Columbus, OH

________________________________

From: owner-election-law_gl@majordomo.lls.edu on behalf of Lash LaRue
Sent: Fri 4/28/2006 12:43 PM
To: Rick Hasen; Bruce Ackerman
Cc: election-law
Subject: Re: Op-Ed in Financial Times



Bruce & Ian's ideas have merits, but there are some caveats.

1) Having grown up in West Virginia, I can testify that buying votes was easy under the secret ballot. (a) One gives an unofficial ballot to a voter, and then pays the bribe (when I was a boy, a half pint of whiskey, until JFK ran, when the price rose to a pint) when the voter returns with a blank official ballot. (b) One fills out the official ballot, and gives it to the next voter who is willing to play. (c) The second voter deposits the filled in ballot, returns with a blank official ballot, and collects the bribe. (d) And so forth.

Perhaps this would not work in places other than West Virginia; I do not see why, so long as paper ballots are used; but I do not wish to be dogmatic. I also admit that the secret written ballot does make buying votes more difficult that the open ballot did. As Bruce & Ian would surely say, the cost of bribing has now gone up (a "good" organization is necessary), and therefore, ... .

And of course, voting machines change the possibility of this routine, but make other routines possible.

2) The Australian ballot was touted by reformers as a way of lessening corruption, but the insiders did not support it for that reason. Since the Australian ballot was an officially prepared ballot, it made possible the rash of ballot access rules with which we now live. As is well known, these rules favor the insiders. And in the South, the official written ballot was seen as a good way to discriminate against illiterates. (Who might still be able to vote, selectively, as should appear from (1) above.) (By the way, the selection of which illiterates could vote was made on the basis of race.)

3) Finally, there is the problem of the "independent expenditure." The National Rifle Association, the National Abortion Rights League, and so forth, do have the right (under current law) to spend their money for and against candidates. There are complications, of course, and the devil is in the details. But I do not expect this category of spending to go away. If it doesn't go away, then here is a bunch of money that the candidate will know about.

Best to all,  ..........    Lash LaRue


Lewis Henry LaRue
Washington and Lee University
School of Law
Lexington,  VA  24450-0303

email: laruel@wlu.edu
phone: 540-458-8513
fax: 540-458-8488

Bruce Ackerman <bruce.ackerman@yale.edu> 04/27/06 9:30 AM >>>

  Ian Ayres and I published an essay in today's Financial Times that, among
other things, tries to bring broader attention to recent campaign finance
reforms in Chile.
Bruce Ackerman


Financial Times

Secret political donations can end the secret deals
By Bruce Ackerman and Ian Ayres
Published: April 26 2006 19:52 | Last updated: April 26 2006 19:52

Tony Blair of the UK is following Brazil's Luiz In‡cio Lula da Silva and
Germany's Helmut Kohl in the long line of world leaders to become embroiled
in -campaign finance issues. There will be many more scandals in the future
unless reformers do some fresh -thinking.

Whenever a secret deal comes to light, the necessary reform seems
self-evident * force politicians to report all gifts to the public as
rapidly as the internet will allow. But this rests on the premise that
politicians should continue to know who is giving them money.

We reject this conventional wisdom. We think that each political party
should open a "blind trust" with the election authorities into which all
private donors must deposit their money. Politicians will no longer be able
to determine who has given how much. As a consequence, it will be
impossible for them to know who to reward with a peerage or, even worse, to
gratify big donors with special - interest legislation.

We call our system the "secret-donation booth", an analogy with the secret
ballot that originated in Australia during the 19th century. Until then,
voters cast their ballots in full view of the contesting parties, who
carefully monitored each decision. Corrupt vote- buying was commonplace. No
voter received his election-day turkey without casting his ballot before
the watchful eyes of the turkey's provider.

It was the secret ballot, not a burst of civic virtue, that transformed the
situation. Even if a voter sincerely intended to perform his side of a
corrupt bargain, vote-buyers could no longer know what actually happened
behind the curtain. Unsurprisingly, vote-buying declined dramatically once
party hacks could no longer figure out whether they got what they were
paying for.

We use the same logic in dealing with private contributions. In our system,
political parties get access to all money deposited in their blind trust
accounts. But there are many ways to assure that they will not be able to
identify who provided the funds. This will not stop lots of people from
telling party leaders that they have given vast sums. But none of them will
be able to prove it. As a consequence, lots of people who did not give
gifts will also claim to have provided large amounts, and it will be
impossible for politicians to know who is telling the truth.

The result will be similar to the secret ballot. Protected by the privacy
of the voting booth, you are free to go up to Mr Blair and tell him that
you voted for Labour in the last election * even though you actually voted
Conservative. Knowing this, neither Mr Blair nor you will take such
protestations seriously. The same "cheap talk" regime will disrupt the
special interest dealing we now take for granted. Just as the secret ballot
makes it more difficult for parties to buy votes, a secret donation booth
makes it harder for parties to sell access or influence.

The new system also protects contributors. It stops politicians from
threatening businessmen with punitive legislation if they do not make
"voluntary" contributions to the party coffers. And it protects
contributors from the appearance of impropriety if they do make a
contribution and then win a government contract.

The voting booth disrupts vote- buying because parties are uncertain how a
citizen actually voted; the donation booth disrupts influence peddling
because candidates are uncertain whether givers actually gave what they say
they gave.

The donation booth will not deter gifts from citizens who simply wish to
express their commitment to a candidate or a party platform, without any
expectation of special access or influence. These public-spirited gifts may
well be substantial in individual cases but the overall level of
contributions will decline dramatically, and without the heavy-handed
enforcement of legal limits. So long as donations are purged of
self-interest, the remaining contributions should be a mark of civic pride,
not a source of scandal. They will demonstrate that citizens care enough
about their country to spend some of their hard-earned money for their
political ideals.

Chile has enacted a variation of the secret-donation booth into law and has
now operated two important elections under the new regime. Perhaps it will
play the role of Australia in the 19th century and inspire the rest of us
to clean up one of modern democracy's more disgraceful practices.

Bruce Ackerman and Ian Ayres, professors of law at Yale University, are
authors of Voting With Dollars: A New Paradigm for Campaign Finance