In 2008, West Virginians will go to the polls to fill two seats on the five-person Supreme Court of Appeals (the highest and only appellate court in the state). It's shaping up to be an ugly four-way race, with memories of the 2004 race still the topic of national attention. And now an out of state interest group is trying to cut down some of the reforms passed in the wake of that race.
Specifically, the Center for Individual Freedom, from neighboring Virginia argues:
that West Virginia's election laws - which require the group to disclose its donors if it buys political advertising - violate its free speech rights under the First Amendment.Anonymous political discourse has a long history in this country. Heck, the most famous of political debates - between supporters and opponents of ratifying the Constitution - was done largely by pseudonymous authors. And, as this discussion of a recent Supreme Court case notes, it does have First Amendment protection:
The Virginia-based organization asked U.S. District Judge David A. Faber to grant it an injunction allowing it to advertise in the upcoming state Supreme Court election without disclosing its spending or its donors. The state's primary election is May 13.
Anonymous speech is a weird little doctrine emanating from two weird cases: McIntyre v. Ohio Elections Commission, a 1995 case striking down an Ohio law prohibiting the distribution of anonymous campaign literature; and Buckley v. American Constitutional Law Foundation, a 1999 case prohibiting Colorado from forcing the circulators of ballot-initiative petitions to wear ID badges. In both cases the court talked about the importance of anonymous political speech, and both cases leave open the unsettling possibility that election-related materials can always be anonymous. Presumably this was the issue the high court planned to resolve today: Can a city force door-to-door solicitors to cough up a name (either to the mayor's office or to the solicitee) prior to being allowed to speak?The Court answered that question "no."
Does that settle the matter for our election laws? It looks that way. It certainly appears that the West Virginia law bans anonymous speech and thus falls clearly under McIntyre.
Which is kind of a shame, because you'd think that voters should have a right to know who is trying to sway them to vote for one candidate or another. On the other hand, it really shouldn't matter who is making the pitch - it's success should be based on the pitch itself, not who makes it. But I'm not sure that most voters care enough about elections to actually sit down and analyze things that way.