Donors, Data and Speech: MashUp!
or
A Role of Web 2.0 in Deliberative Referendums
Referendums and Deliberative DemocracyEdinburgh Law School
7 May, 2009
Navraj Singh Ghaleigh
Lecturer in Public Law, Edinburgh Law [email protected]
Monday, 11 May 2009
New Technologies and Public Law
• New techs (ICTs) domain of private lawyers
• NTs as democratic tools
• NTs as generators of constitutional processes
• Particular role of Web 2.0 and its opportunity in DD
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UK and Referendums
• UK - 9 episodes but all ‘constitutional referendums’, none legislative/ordinary. Similarly for proposed referendums
• Referendums concerning formative constitutional issues
• Recognition that expertise arguments of RepDy are limited by ‘importance’ and ‘identity’? (Similar?)
• Identity, deliberation and speech
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A Government of Citizens’ Own
[D]emocracy requires that citizens experience their state as an example of authentic self-determination....citizens in a democracy experience their authorship of the state in ways that are anterior to the making of particular decisions. The participatory account postulates that it is a necessary precondition for this experience ... that a state be constitutionally prohibited from preventing its citizens from participating in the communicative processes relevant to the formation of democratic public opinion.
R Post, California LRev (2001)
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Issues
• Web 2.0 and Speech, Identity and Deliberation
• US 2008
• Proposition 8 (CA)
• Transferability and Scotland’s National Conversation
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Web 2.0
• Not about technology
• Not about blogging, social networking site (Facebook etc), wikis (Wikipedia), content distribution (YouTube)...
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Web 2.0
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Relational Web
Static Websites Web 2.0
Content produced by finite teams Infinite number of contributors
Strict editorial limits Users post anything/anytime
External users cannot contribute Sites encourage (require) external contributions
Information only - no communication tools
Variety of ways for users to communicate
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Web 2.0
• Routing around / glomming on
• Get and consume culture created elsewhere
• ‘Downfall’
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‘Downfall’
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US 2008
• MyBO, iPhone App, aggregators, YouTube
• subtitling, soundtracks - mixing multiple data sources to create new content - mashup
• “Democratic culture is a culture in which individuals have a fair opportunity to participate in the forms of meaning making that constitute them as individuals” Balkin, YLJ 1995
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Protectmarriage.com v. Bowen (2009)
Facts
Ballot measure to change CA constitution that marriage should only exist “between a man and a woman”
Pl. ballot committee established to support the passage of Prop 8
Political Reform Act (1974) imposes reporting reqts on CA to publish donor information above t/hold of $100
Pl. complained donors/supporters subject to threats, reprisals and harassment (boycotts, ‘buycotts’, property damage, death threats etc)
Pl sought void SoS’s statutory reporting reqt
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Protectmarriage.com v. Bowen (2009)
Arguments
Does CA’s compelled disclosure law violate 1st Amendt guarantees?
Impinges on freedoms of belief but can a legitimate governmental interest be shown?
“Disclosure provides the electorate with information as to where political campaign money comes from and how it is spent by the candidate in order to aid the voters in evaluating those who seek federal office...deter[s] actual corruption...record keeping, reporting and disclosure requirements are an essential means of gathering the data necessary to detect violations of the contribution limitations.” Buckley v Valeo 424 US 1 at 66-68
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Protectmarriage.com v. Bowen (2009)
Arguments
Disclosure even more important in California CIs where voters have faced ballot measures on ‘third strike’ criminal offenders, rendering illegal aliens ineligible for public services, banning affirmative action...
“California’s high stakes form of direct democracy is not cheap. Interest groups pour millions of dollars into campaigns to pass or defeat ballot measures. Nearly $200 million was spent to influence voter decisions on the 12 propositions on the 1998 ballot. Of that total, $92 million was spent on one gaming initiative.
“Knowing which interested parties back or oppose a ballot measure is critical, especially when one considers that ballot-measure language is typically confusing, and the long-term policy ramifications of the ballot measure are often unknown. At least by knowing who supports or opposes a given initiative, voters will have a pretty good idea of whostands to benefit from the legislation.” Getman I, 328 F.3d at 1105-1106.
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Protectmarriage.com v. Bowen (2009)
Disclosure requirements provide some of the most objective information on which the electorate can rely
In a Web 2.0 context, the information is communicated in a manner which is collaborative, open, responsive, enabling:
“individual subject to a collective decision to engage in authentic deliberation about that decision.” (Dryzek)
Protected speech despite risk of threats, harassment, reprisals
(Court’s threshold high - Brown v. Socialist Workers ’74 Campaign Comm 459 US 87 (1982))
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Transferability
Some attempts - WebCameron (morphed into Conservatives.com), Go4th, mysociety.org
Problems of party discipline - message adherence, centralised party systems (not candidate-centred)
Scotland’s National Conversation
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National Conversation (online)
• http://www.scotland.gov.uk/Topics/a-national-coversation NOT
• http://nationalconversation.co.uk (Tenant Services Authority)
• 489,857 hits (since launch in late 2007)
• 37,406 people have ‘read’ the White Paper online (?); 10,996
downloads of White Paper
• 4,447 comments posted on the blog (approx. 10% deemed to
breach the rules of acceptable comment)
• Edinburgh Law School: 1m + visitors p.a. / 5m page views
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Transferability - Legal Obstacles
Party Finance
PPERA 2000 - disclosure thresholds, £5,000 / £1,000
PPEB 2009 - may raise threshold for ‘administrative convenience’
Trend of huge donations, mainly from wealthy individuals, disincentivises small/ordinary donations.
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Transferability - Legal Obstacles
Data Protection
PPERA - disclosure regime for political donations
All data uploaded to Electoral Commission’s website and made available in Excel and SPSS (on request)
Only partial information - name and quantity of donation but not address (varying practices) and postcode
Unspecified data protection concerns. Required by the DP Act? Consistent with:
state be[ing] constitutionally prohibited from preventing its citizens from participating in the communicative processes relevant to the formation of democratic public opinion [?]
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Conclusion
1. Can NTs facilitate deliberative democracy?
2. Are these examples of general or specific relevance to DD?
3. Is the legal regulatory environment propitious?
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