Mrs. Mcintyre's Persona: Bringing Privacy Theory to Election Law
McGeveran, William, The William and Mary Bill of Rights Journal
In 1995, the Supreme Court reversed the imposition of a one hundred dollar fine for violating disclosure requirements in Ohio election law.1 The case involved the late Mrs. Margaret Mclntyre, who had distributed homemade leaflets arguing against a proposed local school tax levy, some of which were signed only by "CONCERNED PARENTS AND TAX PAYERS."2 The rationale for the Court's decision was a robust understanding of privacy rights for political speech and association: "The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible."3
For a time, it appeared that Mclntyre might herald a more capacious understanding of the interests in anonymity when ordinary individuals engage in politically-related speech. Two later Supreme Court cases relied on the broad conceptualization of privacy in Mclntyre to invalidate state or local laws mandating disclosure: one required that people wear identification badges when gathering petition signatures in connection with ballot initiatives,4 and another mandated prior registration for door-to-door canvassers.5 Assessing these trends, I published a law review article in 2003 that suggested the Supreme Court might find constitutional problems with mandatory disclosure of modest campaign contributions.6
Boy, was I wrong. High Court rulings since then have consistently upheld disclosure requirements in election law.7 Last year the Court, by an 8-1 vote in Doe v. Reed, brushed aside personal privacy interests of people whose signatures referendum petitions would be posted online, and the majority opinion never even cited Mclntyre} These newer cases returned to an earlier understanding of privacy that requires proof of a "reasonable probability" of "threats, harassment, or reprisals" to raise constitutional problems.9 While the judicial branch relaxed its scrutiny, the other branches increased disclosure in elections by imposing more requirements, releasing more data, and enabling internet technology to spread the disclosed information more widely.10
Outside of government, some scholars and advocates have questioned whether this embrace of disclosure gives short shrift to privacy concerns. This symposium exemplifies the ongoing debate about privacy and elections within academia. Yet serious attention to political privacy remains relatively invisible compared to areas such as health care or social media.11 Judicial and scholarly analyses typically ignore the extensive development by privacy scholars of theoretical justifications for personal privacy and anonymity in many realms.
The time is ripe to reconsider the Court's cramped view of privacy in politics. Thanks to the internet, the intrusiveness of disclosure has grown greater than ever before.12 Besides, the current loophole-ridden regime doesn't even work: the recent midterm elections featured rampant circumvention of disclosure requirements by savvy big donors.13
This Symposium Essay updates what I wrote eight years ago about the costs of disclosure and applies the theoretical insights of privacy scholars to the full range of disclosure requirements in election law - especially in campaign finance, but also including petition signatures and even party registration.14 It argues that the interest in anonymous political participation should not be anchored only in effects-oriented reasoning that demands a danger of imminent physical or financial harm. Election law and policy should recognize a broader range of circumstances where disclosure may discourage political involvement, and also should respect personal interests in dignity and autonomy that animate much of privacy law and theory in other areas. Beyond j ust chilling effects, privacy law and commentary increasingly recognize that Mrs. Mclntyre has an interest in the integrity of her persona. …