Paradigmatic examples of invasions

of candidate privacy are disclosures about their sex lives or medical

ailments. - ART 7 SEC. 12 . in case of serious illness of the president, the public shall be informed
of the state of his health.

That privacy enhances democracy is a well-settled principle.

when it comes to candidates for public office, it is an equally settled democratic value
that citizens must be adequately informed about candidates. 37 Early
democratic theorists reasoned that the ability to adequately vet candidates
is the cornerstone of democracy.38 John Locke suggested two core pillars
in a democracy: first, that government cannot exist without the consent of
the governed, and second, that adults must be free to exercise informed
consent.3

James Madison wrote that the right to elect

members of government "depends on the knowledge of the comparative
merits and demerits of the candidates for public trust; and on the equal
freedom, consequently, of examining and discussing these merits and
demerits of the candidates respectively. 40 John Adams took this right to
the heavenly realm, writing that the people had a divine right to know the
"characters and conduct" of their rulers.4

The concept of an informed citizenry drove post-revolutionary leaders

to establish institutions that would ensure that citizens could actively
participate in democracy, including the free press, schools, colleges,
libraries, and learned societies. 42 Over time, especially as voting rights
expanded, the importance of an informed citizenry became even more
firmly rooted, establishing to not just the right to make informed decisions
at the ballot box, but also to information about the machinations of
government and officials managing it.43

Alan Westin, another "founding father" in the field of privacy law and
author of the seminal 1967 book Privacy and Freedom, argued powerfully
that privacy constituted a core pillar in democratic society in contrast with
totalitarian states in which citizens have none.56 Yet Westin too made
exceptions for candidates for public office (and government transparency
generally). He warned that "[p]ersons who venture into.., civic life
sometimes claim an unjustified right to privacy from fair reply or fair
criticism." 57 Westin acknowledged that there must be "enough privacy to
nourish individual creativity and group expression; [but] enough publicity
of government affairs to let the public know the facts necessary to form
judgments in political matters. ' "58

In cases dating from the early

1900s to present, courts have exhibited the same reflexive denial of
protection for candidate privacy that privacy theorists forwarded, citing
the value of an informed citizenry, waiver via the voluntary choice to run
for office, and the status of information about candidates as paradigmatic
"matters of public concern., 60 Facing these formidable headwinds, the
discussion below provides a sampling of privacy claims that candidates
have attempted.
Because of their public responsibilities, . . . candidates for...
office have almost always been considered the paradigm case of
"public figures" who should be subjected to the most thorough
scrutiny. In choosing those who are to govern them, the public
must... be afforded the opportunity of learning about any facet
of a candidate's life that may relate to his fitness for office.

Aside from the public figure doctrine, privacy tort elements may
require courts to weigh whether the relevant information is a matter of
public concern. 4 In the tort of public disclosure of private facts, for
example, even highly offensive disclosures are permitted if they are "of
legitimate concern to the public. '75 Already highly deferential to the
traditional media's concept of what constitutes "news," 76 private mailers
relating to candidates for public office are virtually always newsworthy

"qualifications of a candidate for public office is an

area of legitimate concern to the public and, therefore, a candidate loses
his or her privacy right to this information."80

the nature of
privacy for candidates and public officials, focusing explicitly on the
voluntary nature of running for office:
While public officials, of course, do not waive their constitutional
rights, they are nevertheless set apart from other members of
society in terms of certain rights, as the law on libel makes clear.
One who willingly puts himself forward into the public arena, and
accepts publicly conferred benefits after election to public office,
is legitimately much more subject to reasonable scrutiny and
exposure than a purely private individual.87

For the Wisconsin Supreme Court, the remedy to candidate privacy

incursions is not to run.88

privacy
interests of candidates against financial disclosure,
Plaintiffs in this case are not ordinary citizens, but ... people who
have chosen to run for office. That does not strip them of all
constitutional protection. It does put some limits on the privacy
they may reasonably expect ..... Financial privacy is a matter of
serious concern, deserving strong protection. The public interests
supporting public disclosure for these elected officials are even
stronger. We join the majority of courts considering the matter
and conclude that mandatory financial disclosure ... is
constitutional.91
REPUBLIC ACT NO. 6713
AN ACT ESTABLISHING A CODE OF CONDUCT AND ETHICAL STANDARDS FOR
PUBLIC OFFICIALS AND EMPLOYEES, TO UPHOLD THE TIME-HONORED
PRINCIPLE OF PUBLIC OFFICE BEING A PUBLIC TRUST, GRANTING INCENTIVES
AND REWARDS FOR EXEMPLARY SERVICE, ENUMERATING PROHIBITED ACTS
AND TRANSACTIONS AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF
AND FOR OTHER PURPOSES
SECTION 8. Statements and Disclosure. — Public officials and employees have an
obligation
to accomplish and submit declarations under oath of, and the public has the right to
know, their assets, liabilities, net worth and financial and business interests including
those of their spouses and of unmarried children under eighteen (18) years of age
living in their households.
(A) Statements of Assets and Liabilities and Financial Disclosure
In addition to bringing claims challenging financial disclosure
requirements, candidates have also attempted to shield juvenile or
expunged criminal records.

people shielding information about themselves.

long voiced concerns about privacy enabling fraud) was unmoved:

"[s]erious constitutional issues.., would arise if candidates for office
could use the concept of privacy to conceal their criminal records from
the electorate. 96 Other courts have reached similar conclusions on the
question of whether a candidate's right to privacy extends to concealing
past criminal convictions. 97

candidates for high office must expect the voters to demand

some disclosures about their physical, emotional, and mental fitness for
the position."'

"[c]andidates for public

office ... are subject to relentless scrutiny-by their peers, the public, and
the press. Their day-to-day conduct attracts attention notably beyond the
norm in ordinary work environments."' 0 9 If a candidate uses drugs, the
Court concluded, massive popular scrutiny of candidates for political
office is bound to unearth it."0 In his dissent, Justice Rehnquist wondered
how the majority could at once protect the privacy interests of candidates
while simultaneously acknowledging that candidates have none."

As this brief survey of court reactions to candidate assertions of privacy

reveals, candidates have largely been out of luck. Courts have echoed
privacy theorists' dismissal of candidates' privacy interests.112

 Privacy theory and judicial precedent consistently deny candidates

legal protections of their privacy interests. Two extreme shifts challenge
this instinctive denial: a profoundly changed information architecture and
the changing nature of who runs for office.

public has a right

to information about a candidate's criminal history-even when
sophisticated data and search tools limit practical obscurity candidates
may once have enjoyed. 129

Justice Antonin Scalia was undoubtedly right: democracy takes

courage.256 Becoming a candidate for public office means stepping into
the limelight and subjecting even private aspects of one's life to public
inspection.