A right to remain anonymous

I’m Marc Charisse and I approved this message.

I don’t have much choice, actually, working as I do in a profession that puts a premium on standing behind what you believe in by putting your name on it. Most newspapers, like The Evening Sun, don’t publish anonymous letters to the editor. And with rare exceptions, we don’t quote anonymous sources in news stories, either.

After all, how much stock should readers put in what you have to say if you aren’t willing to put your name on it? Patriots, I like to say, should be made of sterner stuff.

The trouble with that rhetorical flourish, though, is that the Founding Fathers themselves favored pseudonyms when they wrote the Federalist Papers. So as a student of American history and our Constitution, I have trouble cheering Democratic efforts to require that donors to the so-called super PACs be made public.

Senate Democrats admit their continued late-night “debate” on campaign finance disclosure last week was an exercise in legal futility — designed more to score political points on campaign reform than actually get any new law passed. And indeed, nine votes short of the 60 needed to overcome a Republican filibuster, the measure went down to defeat again Monday night in a vote along strict party lines.

The bill would have required disclosure of donations to political action committees so that voters could see which special interest was paying for what attack ad. Sounds like a worthy endeavor, but on closer examination, maybe the Senate has more pressing things to do with its time right now.

Even if the Democrats were somehow to muster the necessary votes, there’s no guarantee the measure would pass constitutional muster in the Supreme Court. Justice Anthony Kennedy, author of the much-reviled Citizens United decision, has said disclosure, rather than limits on campaign spending, is the best constitutional safeguard against corruption. But there is also a historical and constitutional right to anonymity the justices would have to consider when evaluating any new laws.

When it comes to direct contributions to candidates, the court has upheld both funding limits and financial disclosure. Handing bags of cash to people running for public office raises the real threat of what the court calls “quid pro quo” corruption: I’ll give you X dollars for your vote on Y. The public interest in fair elections in such cases outweighs other considerations, even the First Amendment, the justices have ruled.

But that’s not the case in “indirect” contributions to organizations ostensibly independent from the campaign. Fearing a slippery slope to a tyranny that limits what citizens can spend on political discourse, the court in Citizens United ruled that in the case of “independent” political action committees, money equals speech and limits on speech are unconstitutional.

To me, that makes a certain constitutional sense. I get nervous when I hear politicians, and especially Supreme Court justices, say that is OK to limit the speech of some because it has a disproportionate effect on political campaigns.

That’s exactly what the minority said in Citizens United, and I’m not ready to embrace the political paternalism that we must protect people from political advertising for their own good because they can’t be trusted to figure out who’s telling the truth for themselves. Citizens in a democracy, I think, need to be made of smarter stuff.

Beside, there is good case law out there that suggests there is a right to remain anonymous, one that protects the liberties of us.

In the 1958 case of NAACP v. Alabama, investigators demanded the organization’s membership list, saying they were investigating it for un-American activities. I’d like to think the investigation itself would strike most folks today as un-American, and they’d agree with the court that a political organization could keep its membership list secret in order to keep its members safe from political retribution.

In another case, Talley v. California, the court in 1960 recognized the long history of anonymous discourse in American politics when it recognized a constitutional right to publish anonymous political pamphlets. As much as I distrust anonymous discourse, I trust government less. So I think those fundamental freedoms are at risk when we talk about requiring donors to political action committees be identified.

Besides, it’s a risk we’re being asked to take without much real reward. It’s already a simple enough matter of a google search to find out who is contributing what to which side.

Back in the day of the Federalist Papers, people who paid attention to political discourse had a pretty good idea of the real identities of Publius and Junius. And today it isn’t all that hard to figure out the identities of what Senate majority leader Harry Reid called the “17 angry old white men” who are bankrolling much of the Republican PAC effort.

I think people are smart enough to figure out who’s behind all this negative campaigning on both sides. And if some people don’t want to stand up and stand behind the ads they are paying for, well, as a journalist and a citizen, that tells me about all I need to know right there.