March 8, 2012  ·  Lessig

Rick Hasen responded to my response to his question. I return the favor here. 

Once again, and nicely summarized by him, I don’t like the non-transparency of AE. I have criticized it and I agree it should be criticized. But my point is about the kind of harm we should expect the non-transparency to produce. Or not produce, as I believe.

Rick has usefully identified some harms that I didn’t describe. I’ll discuss those below, but none strike me as fatal. He has also identified harms that I don’t believe are harms. But to see why, we have to be clear about what we’re describing here. 

AE is a platform. It will give one candidate a chance to get on 50 ballots, and challenge the Democratic and Republican nominee.

What will that candidate owe AE? Gratitude, no doubt. But is there anything in that gratitude that should lead anyone to worry that the candidate will bend one way or the other because of these secret funders

How could it? If the candidates don’t even know who the funders are (and I can attest with certainty that Roemer (who also is critical of the nontransparency) doesn’t), how is the position of the funder supposed to affect the candidate and his or her positions? 

Well, Rick suggests, maybe its through the selection mechanism. Maybe they’ll rig the ballot, or muck about with the votes. 

But that is a separate point from the question about the transparency of the funders. I completely agree that there has to be absolute confidence about the process for the AE candidate to have any credibility. If anyone could even wonder whether the ballot has been rigged (because of course, in real world elections, we never have to worry about such things), that’s a very good reason to be skeptical of whoever the candidate is.

So of course, the integrity of the voting process is a critically important issue, and I remain open to being convinced that AE hasn’t done enough to earn the public’s confidence about that.

But distinct from that question, I am still left wondering: how could the secret funders corrupt anything? Or more precisely, how could the secrecy of the funders corrupt anything? 

I reject Rick’s suggestion that this is anything like transparency in a ballot measure. Of course, knowing who funded which side of a ballot measure is a good indicator of what the ballot measure means. And I don’t doubt the big funders of AE have a desire about how their experiment will change the nature of American democracy (though I believe that is less about a particular substantive agenda and more about a frustration with these two parties). But assuming again no one can muck about with the count, what they’re funding is a platform on which Ron Paul or Ralph Nader or Buddy Roemer or Jimmy Wales all get to compete. And the question, still, in my view, not answered, is how   secret donors are going to steer this wide platform of potential competitors one way or the other (again, especially if they’re secret!).

Rick’s right to say that there are lots of ways the levers might be manipulated. (And he should know: He’s got a fantastic book coming out called The Voting Wars, which recounts lots of examples of levers being manipulated, though none involving AE).  But, again, that could happen whether or not the funders were known. And if that does happen (or if there is not enough reason to be confident that it hasn’t happened), that’s the reason to be skeptical or critical or nonsupportive of the AE candidate. Not because of a mysterious bias that comes from people the candidate doesn’t even know.