Wyoming Law Review
VOLUME 14 | 2014 | NUMBER 1
PUBLIUS WAS NOT A PAC: RECONCILING
ANONYMOUS POLITICAL SPEECH, THE
FIRST AMENDMENT, AND CAMPAIGN
Benjamin Barr* and Stephen R. Klein**
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.1
Anonymous political speech has been the scorn of entrenched powers and the saving balm of emerging voices throughout English and American history. In its simplest terms, anonymous speech is communication that does not identify the speaker or identifies a synonymous persona.2 Although for some, anonymous political speech is inherently negative, its value remains of highest constitutional import.
Unfortunately, modern campaign finance law eliminated many avenues for anonymous political speech in both federal and state arenas. Under today’s disclosure regimes, citizens who band together and spend as little as $1,000 criticizing or complimenting federal officeholders may be forced to register and report as a political action committee (PAC) with the Federal Election Commission (FEC).3 This includes identifying the group on advertisements and filing reports that include the names and addresses of the group’s donors with the FEC, which are then published online.4 Some state laws require such reporting from political bloggers who spend as little as $91.38 for internet hosting.5
Ironically, today one of the most important influences on the ratification of the United States Constitution would face civil and possibly criminal penalties if it failed to register and report as a PAC. Publius, the collective author of The Federalist Papers, would have to register if they discussed a political issue in numerous states.6 As disclosure expands under federal law, Publius might also be ensnared in federal regulations.7 Even if this were not burdensome in itself, disclosure would reveal the identities of Alexander Hamilton, James Madison and John Jay as the organization, and risk diminishing Publius’s effectiveness.8
Disclosure is, however, burdensome. Campaign finance disclosure not only eliminates important avenues for anonymous political speech, but replaces such free speech with cumbersome reporting regimes penalizing those who fail to comply and those who do not accurately report the minutest details.9 Often, these complicated and burdensome regulations inhibit free speech.10 Or as the Supreme Court anticipated, “[f ]aced with the need to assume a more sophisticated organizational form, to adopt specific accounting procedures, to file periodic detailed reports . . . it would not be surprising if at least some groups decided that the contemplated political activity was simply not worth it.”11
Today’s zealous push for all-encompassing disclosure—which replaces political anonymity with complex, detailed reporting—injures our system of selfgovernment and is highly burdensome for average speakers. Disclosure is often treated as an absolute good,12 with reformers claiming anyone scared off from participating is just a “sissy.” 13 Protecting anonymity is not an act of cowardice, but a principle central to protecting our rich, Western tradition of reasoned, public debate.14 We may achieve this protection without eliminating disclosure, instead restoring bright-line standards within campaign finance law and recognizing the need to achieve disclosure through the least restrictive means possible.
This article criticizes federal and state campaign finance disclosure laws on First Amendment and political privacy grounds and offers several suggestions for reform respectful of these concerns. Part II of this article offers a history of anonymous speech and suppression of political speech generally.15 It also illustrates the benefits of anonymous speech to political discourse and participation in the American experiment. Part III is a political speech primer, laying out the basic principles for protecting it constitutionally, and identifying the schism between free speech and campaign finance reform.16 Part IV discusses the difficulty and expense of complying with campaign finance disclosure. It also discusses efforts to expand campaign finance disclosure laws to reach practically all political speech.17 Finally, Part V discusses the paradox surrounding legal protection of anonymous speech, and offers various proposals to bolster political privacy.18