At the first hearing of the House Judiciary Committee’s impeachment inquiry, House Judiciary Committee Member Tom McClintock asked law professors Pamela Karlan, Noah Feldman, and Michael Gerhardt to raise their hands if they voted for President Trump.  Professor Karlan, who expertly taught my constitutional litigation class, responded that she has a right to cast a secret ballot.  House Judiciary Chairman Jerrold Nadler then told the three legal scholars that they did not have to answer, but Rep. McClintock could still press the question.  Professor Feldman rightly noted that “not raising our hands is not an indication of an answer.”

Professor Karlan appeared to be alluding to a First Amendment right not to disclose her 2016 Presidential vote, in conjunction with a fundamental right to unfettered access to voting.  If experts must disclose their votes as a condition of offering testimony before Congress, this may compromise either their ability to vote freely or their desire to give their opinions on important matters.  Arguably, however, the three legal scholars’ views on impeachment are undermined by their antipathy towards President Trump, rendering their votes relevant to their Congressional testimony.  Federal law prohibits those who voluntarily appear before Congress to refuse to answer questions pertinent to the Congressional inquiry at issue.  So, is there some sort of right not to disclose one’s vote during Congressional testimony in which one’s vote is arguably relevant to the proceedings?  Unlike many areas of First Amendment law, the answer to this question relies on a balancing test that accounts for both the importance of the information to a legitimate Congress’s inquiry and the private interests at stake.

Protection of the secrecy of voting is a fundamental American value.  Many states have constitutional provisions guaranteeing secrecy in voting.  Safeguarding anonymous speech also has a long history, dating back to the Federalist Papers  – Alexander Hamilton and James Madison did not want their identities known because their presence at the constitutional convention made their writings supporting the constitution in the Federalist Papers less objective.

On the other hand, the virtues of the adversarial process, including cross examinations and the necessity to compel witnesses to tell the truth, are also fundamental American values.  Witnesses can be required to disclose embarrassing or secret details, if relevant to an official proceeding.  Generally speaking, only a witnesses’ Fifth Amendment right protecting refusal to disclose information revealing criminal activity, or perhaps an evidentiary privilege like spousal privilege or doctor-patient confidentiality, safeguards secrecy of those providing official testimony.  [Edit note:  Congress can recognize a common law privilege against revealing one’s vote, but it does not have to do so.] Discovery during civil trials is often so privacy-shattering that even defendants who believe they have done nothing unlawful will settle a case rather than be forced to reveal details of their private lives.  Prosecutors can use past speech against criminal defendants, including information about one’s beliefs and associations, such as being a member in a particular gang, if relevant to the criminal trial.

So although the Supreme Court has said that “[t]he Constitution protects against the compelled disclosure of political associations and beliefs,”  our interests in privacy of association and belief sometimes yield to other significant and compelling interests.  Certain campaign contribution disclosure requirements have been upheld, for example, based on the interest in enhancement of voters’ knowledge of campaign contributions.  A federal court in New Jersey also upheld a state law requiring those who voted illegally to disclose their vote, so it could be expunged, in part because there is no constitutional right to vote illegally.  None of these cases, however, deal with forced disclosure of an individual’s Presidential candidate of choice if relevant to voluntarily provided Congressional testimony.

Most cases dealing with legislative inquiries into political affiliations are not decided on First Amendment grounds.  In Watkins v. United States, the Supreme Court reversed the conviction of Watkins, who refused to answer questions relating to his involvement with the Communist Party during a Congressional hearing.  The Supreme Court reversed Watkins’ conviction for misdemeanor contempt because the Committee on Un-American Activities did not provide sufficient information about why Watkins was being asked these questions, or whether the questions were within the Committee’s purview – thereby violating Watkins’ due process rights.

Another close case on point, although its holding is also fairly distinguishable, is Sweezy v. New Hampshire.  In Sweezy, the Supreme Court held unconstitutional a contempt adjudication against a professor who refused to disclose details about a lecture he had given and about his knowledge of the membership in the Progressive Party.  The Attorney General, acting on behalf of the state legislature, was conducting an investigation into “subversion,” and Sweezy was also asked questions about his beliefs and membership in the Communist Party.   The Supreme Court overturned Sweezy’s incarceration for contempt, but on the grounds that the inquiries were too broad and unconstrained, and unrelated to the initial legislative inquiry, thus violating Sweezy’s due process rights.  In its opinion, the Supreme Court said, “[i]t is particularly important that the exercise of the power of compulsory process be carefully circumscribed when the investigative process tends to impinge upon such highly sensitive areas as freedom of speech or press, freedom of political association, and freedom of communication of ideas, particularly in the academic community.”

Sweezy and Watkins were asked wide ranging, intrusive questions about their activities and beliefs, but these activities and beliefs were also arguably the subject of the investigation (although the legitimacy of these investigations were in question).  Here, the legal scholars were asked one specific question they did not want to answer, but the answer would speak only to their credibility, not to whether they were engaged in unlawful activity or knew others who were.  Ultimately, if the legal scholars had been forced to answer the question, had refused, and then had been held in contempt, a reviewing court would balance the need for their answer with their privacy and associational interests.

Balancing tests are unpredictable.  These tests are known for being less analytically rigorous, precisely because they allow adjudicators discretion to weigh the competing interests.  My guess, however, is that if the legal scholars had been forced to disclose their votes and refused, any contempt adjudication would be overturned.  How the three legal scholars voted is fairly tangential to the proceedings at issue.  The question on their votes could be viewed as a way to shame the experts by a political adversary, although their distaste for the President may bias their testimony.  One’s interest in voting secretly is essential to a democracy, and likely on balance would prevail against McClintock’s question.  [And again, Congress could allow the common law privilege against revealing one’s vote, but the body need not do so.]  And yet, the actual answer to this question is less clear than I would like it to be.