PUBLIUS WAS NOT A PAC

II. Anonymous Political Speech in the American Tradition

Before discussing the burdens of campaign finance disclosure on political speech, it is important to establish the relevance of anonymous political speech. Even when disclosure laws are simple enough for the average citizen to understand, they foreclose most avenues of anonymity. Simply, this is because these laws require political speech to include disclaimers that identify the speaker and for certain organizations to report the names of their contributors to the government.19 Unlike political corruption, anonymity is not an evil to be cured. In fact, considering the role of anonymous political speech in American history, its benefits to individual speakers and political discourse at large far outweigh its negative effects. This article identifies three liberty interests in anonymity to secure: preventing prejudice, keeping the message central, and preventing retaliation from those in power. This section discusses prominent historical examples of anonymous political speech and describes various legitimate reasons why Americans have elected to voice their political opinions anonymously.

A. The Federalist Papers

Anonymous political speech played a defining role in founding the United States. Many citizens anonymously voiced their political opinions throughout the several states. A small sampling includes “An American Citizen” in Pennsylvania,20 “Agrippa” in Massachusetts,21 “Cato” in New York,22 “A Landholder” in Connecticut,23 “Civis Rusticus” in Virginia,24 “Civis” in South Carolina,25 and “A Freeman” in Rhode Island.26 In short, “American opinion writers used so many classical pseudonyms that their bylines read like the dramatis personae of a history play.”27 The most popular explication of the Constitution encouraging its ratification, however, was the joinder of Alexander Hamilton, James Madison, and John Jay under the pen name “Publius” to publish discourses collectively known as The Federalist Papers.28 The Federalist Papers were published almost exclusively in New York newspapers in 1787 and 1788.29

Anonymity was central to the success of The Federalist Papers. “No secret could have been more closely guarded than was the authorship of The Federalist Papers. Even Hamilton’s best friends did not know what he was doing; if he seemed busier than usual, it was ascribed to the flourishing state of his law practice.”30 A 1792 French collection of The Federalist Papers named the authors, but did not identify the respective essays of Hamilton, Madison, or Jay; such identification did not occur until 1810, and even today there is still debate over authorship of certain essays.31 Many expressed prejudice against Hamilton, thus explaining his use of the name Publius. Hamilton often received attacks “jeering at his foreign birth, his supposed racial identity, his illegitimacy and his putative links to the British Crown—attacks that set a pattern for the rest of Hamilton’s career. Since critics found it hard to defeat him on intellectual grounds, they stooped to personal attacks.”32 Gouvernor Morris, a fellow Constitutional Convention delegate, considered Hamilton “‘indiscreet, vain and opinionated.’”33 Even years after Hamilton’s death following a duel against Aaron Burr—the duel itself an indicator of Hamilton’s polarizing nature—John Adams quipped that Hamilton’s alleged “[v]ice, folly and villainy are not to be forgotten because the guilty wretch repented in his dying moments.”34 Whatever the merit of these criticisms, Hamilton had ample reason to remain anonymous and thereby prevent prejudice against The Federalist Papers. The events surrounding the Constitution’s inception also explain Hamilton’s desire for anonymity. He opposed numerous Constitutional provisions at the drafting convention, and then decided to support its ratification.35 Although media has changed greatly since the founding era, it is quite likely Hamilton would have faced criticism for his “flip flop” had he attached his name to The Federalist Papers so soon after opposing the Constitution.36 Hamilton’s anonymity meant to avoid prejudice and preclude obfuscation of his message, and these interests are still compelling justifications for speaking anonymously.

Unlike Hamilton, James Madison was not a controversial figure, but nonetheless he benefited from anonymity. Madison was a Virginian and given the localism of the time, his work would not have been as well-received under his own name in New York, nor might it have been published by New York newspapers.37 Furthermore, in joining with a more controversial figure such as Hamilton, Publius’s work might not have been well-received in Virginia either absent anonymity.38 Madison’s example is just as compelling as Hamilton’s, because it shows that anonymity is not merely a shroud for unpopular people, but is just as relevant for anyone seeking to present a clear message.

The Federalist Papers did not cause a sweeping ratification of the Constitution in New York, but they were a strong philosophical force. All nineteen federalist delegates to the New York ratifying convention came from New York City, including Hamilton himself, and were elected with the help of the papers.39 Entering the convention in June of 1888, however, the federalists were outnumbered by antifederalists two to one.40 Nevertheless, on July 26 after weeks of debate the New York convention adopted the Constitution after several
antifederalists switched sides.41 In state ratifying conventions and among the public at large, The Federalist Papers advocated under the single voice of Publius, combining two voices from different regions with very different interests. “In the two state conventions where the Constitution was most bitterly contested and where its fate hung most precariously in the balance, ‘Publius’ was a potent force on the Federalist side.”42 The Federalist Papers must not be ignored when considering anonymous political advocacy, for without its benefit, it is quite likely that neither the First Amendment nor Constitution would exist as we know them, and therefore no legal basis on which to hinge anonymous debate would exist.

B. Early American Experiments in Speech Retaliation

While it is important to avoid prejudice and keep a focused message as Publius did, the ability to carefully speak truth to power is perhaps the most compelling reason for anonymous political speech. As American history illustrates, during the colonial and post-colonial eras, speaking without the protection of anonymity sometimes brought about grave and unfortunate results. In 1753, Daniel Fowle printed the pamphlet The Monster of Monsters, in which he shared his strong negative opinions of some members of the Massachusetts Legislature.43 Due to suspicion of his authorship of this publication, Fowle was jailed for two days.44 Ten years later in New York, Alexander McDougall spent three months in jail for publishing a handbill criticizing the New York Assembly.45 In 1800, David Brown was sentenced to 18 months imprisonment under the Sedition Act for inscribing on a liberty pole in Massachusetts: “May moral virtue be the basis of civil government.”46 In the 1830s, James Fenimore Cooper, author of the Last of the Mohicans, decried the negative role of the press and brought fourteen libel suits against various newspapers to quell negative discussions of his political views.47 One theme remains constant: no one enjoys being criticized and, when given the opportunity, those in power will quell dissent.

In the early years of the United States, the Framers understood, somewhat imperfectly, that laws penalizing speech harmed a free society.48 Knowledgeable of the history of Tudor and Stuart England, the Framers sought to entirely forbid freewheeling speech licensing, regulations, and bans that were so common in Britain.49 Benjamin Franklin commented that whoever would “overthrow the liberty of a nation must begin by subduing the freeness of speech.”50 Richard Henry Lee explained that the freedom of press and speech were fundamental rights and that “bad men could easily abuse a law made by good men who believed that freedom of the press should be restrained because it disturbed the operations of new governments.”51 John Adams reasoned that both speech and the press were integral to freedom because people have a “right, an indisputable, divine right, to that most dreaded and envied kind of knowledge. I mean of the character and conduct of their rulers.”52 In sum, Americans generally understood speech might sometimes be disruptive, uninformed and uncouth, but efforts to control it suppressed liberty no matter the parade of good intentions behind such efforts.

To be certain, early aspirations for protecting speech were dashed—sometimes by those promoting its very virtue. For example, John Adams once proclaimed the importance of enabling citizenry to vigorously debate and discuss the qualifications of public servants. However, as president, he signed the Sedition Act,53 largely due to public criticism against the government and Federalists.54 Adams’s presidency favored punishing false, scandalous or malicious speech—if it pertained to him or his allies that is. The Sedition Act led to numerous investigations and convictions for controversial speeches attacking the character of John Adams or his administration.55

Although “[t]he protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people[,]”56 even in the colonial and founding eras around the drafting of the First Amendment the American government failed to respect the principle time and again. Anonymity is one way to hinder retaliation from those in power, and must be considered a component of free speech. This is arguably more important today for “[t]here exists in modern America the necessity for protecting all of us from arbitrary action by governments more powerful and more pervasive than any in our ancestors’ time.”57

C. Democracy: An American Novel

Perhaps the best example of anonymous political speech following ratification of the Constitution came about a century into the American experiment, and it combines all three interests previously discussed—preventing prejudice, keeping the message central, and preventing retaliation from those in power. Henry Adams, great-grandson of President John Adams and grandson of President John Quincy Adams, was a historian and political socialite living in Washington, D.C. Henry Adams wrote the book Democracy: An American Novel. It was published anonymously and opened the public’s eyes to political change centering upon a conflict of politics and morality, and effectively interrupted the career of a rising political star.58

Democracy, though fictional, was aimed at derailing the career of Speaker of the House James G. Blaine.59 In 1872, Blaine was accused of accepting $2 million of stock in Union Pacific railroad.60 Though a congressional investigation cleared him, “[o]n the basis of direct acquaintance, data obtained by word of mouth, and information in the public prints, [Adams] had come to think that Speaker Blaine was corruption incarnate . . . .”61 Adams feared Blaine would be nominated for president in 1876 or possibly appointed secretary of state under the nomination winner. Though Adams had been working on his novel for some time,

[t]he Blaine horror had acquired an urgency for Adams that would be hard to exaggerate. With Blaine in mind, Adams re-shaped Democracy to meet three requirements. The novel had to be so baited as to attract large crowds of readers. It had to be so barbed that if published in November-December 1876 immediately after a [Republican Rutherford B.] Hayes victory, it would stop Hayes from choosing Blaine to be secretary of state. And it had to be so barbed that if it was withheld while [Democratic candidate Samuel] Tilden served as president but was published in the spring of 1880, it would destroy Blaine’s chance of winning the Republican nomination for president in that year.62

Hayes won the 1876 election. However, controversy surrounding the win made publishing Democracy unnecessary at that time as the fallout ensured “[Hayes] would thus be placed on his best behavior and could not choose Blaine as secretary of state.”63 Blaine would cause other controversies in the meantime, but by 1880 he was again in the running for the presidential nomination after Hayes announced he would not seek a second term.

Adams published Democracy anonymously on April 1, 1880, two months before the Republican convention in Chicago. The novel’s antagonist, Senator Ratcliffe, mirrored Blaine in many respects, emphasized by his ambition and corruption. The novel’s theme centered on the importance of preventing Ratcliffe’s ascendancy to the Presidency. Although the Ratcliffe character could be associated with persons other than Blaine,64 Blaine cut ties with the book’s suspected authors soon after its publication.65 He also embarked on a quest to find out who was behind the book, and at one point pinned authorship on Adams’s wife Clover.66 The book was a “publisher’s bonanza”67 and played a role in forcing Blaine to end his candidacy and support the nomination of James A. Garfield.68 Blaine was secretary of state under Garfield and won the Republican presidential nomination in 1884, but never won the Presidency.

Commentators understand that anonymity was necessary for Adams to provide such a biting critique of Blaine: “The men and women he witheringly depicted in his novel, Adams knew, were not well disguised. So it was all the more important that he himself should be.”69 Not only did Adams protect himself from retaliation, but he elevated the impact of his work. “Adams kept his authorship secret for a reason relating to the novel’s power. Once the novel was published, its anonymous author all by himself would have . . . influence . . . and the author would continue to have influence as long as the public remained unsure about the authorship.”70 The public only learned the authorship of Democracy long after Blaine’s death, thirty-five years after its publication.71 In addition to avoiding Blaine’s powerful influence and protecting his career as a historian, Adams could rest assured that Democracy’s message spoke for itself.

American history offers many examples of the value and impact of anonymous political speech—whether published in a pamphlet like The Monster of Monsters, a series of articles like The Federalist Papers, or a full-length novel like Democracy. Anonymity serves several interests for free speech, but its widespread presence is equally notable. Indeed, that so many Americans have opted to speak about politics anonymously indicates it is an accepted practice, and one that continues today.

D. Anonymity Today

While rigorous debate continues over the propriety of anonymous speech in the political sphere, its use continues where it is available. American media—television, radio, and newspaper—rely on anonymous sources, while on the Internet anonymous speech is often more prevalent than named authorship. Although reporters usually identify themselves as authors of articles and editorial boards are easily identified in newspapers, both editorials and articles utilize anonymous opinions, especially in political reporting.72 The use of anonymous sources remains a hotly debated topic,73 but there is no serious effort to ban the practice. Indeed, the folly of such an effort is apparent: reporters exposed the most notorious political scandal of the 20th Century, Watergate, with the help of the famous anonymous source, Deep Throat, whose true identity was not revealed until 2005—more than 30 years after Richard Nixon’s resignation.74 The interest of protecting oneself while speaking truth to—or simply about—those in power remains as strong today as in generations past. Ironically, however, the Watergate scandal played a large role in influencing the creation of the Federal Election Commission,75 which began enforcing campaign finance disclosure in earnest, cutting off many forms of anonymous political speech. This problem will be discussed in the following sections.76

While institutional media utilizes anonymous sources, the best example of direct anonymous political speech occurs every second on the Internet in chat rooms, message boards, and social media. Internet anonymity is afforded a great deal of protection.77 Unlike traditional political speech, anonymity is a presumed facet of free speech on the Internet.78 Internet speech is often of questionable value, but its prevalence cannot be denied.

From The Federalist Papers to Democracy to modern Internet and press practices, the impact of anonymous speech is clear. The value of speech can greatly increase when the message is removed from the speaker. Furthermore, speakers often have a legitimate interest in shielding their identities from those in power and from their neighbors. These benefits of anonymous political speech must not be dismissed when considering campaign finance laws that abridge—or entirely restrict—anonymity.