Disclosure as political armament

The worst-kept secret about disclosure is that, like all other regulatory burdens on political speech, it favors incumbents, who use self-authored laws, a compliant Federal Election Commission, and numerous institutional advantages to bludgeon challengers.

The proof is ample and indisputable. Since the first substantive campaign restrictions (including mandatory contribution disclosures) went into effect in 1974, the advantage of incumbency has increased even as trust in government has declined from its peak in the 1960s.

Indeed, the senators give away the game by admitting the restrictions they seek have nothing to do with corruption or its appearance — the Supreme Court’s only acceptable government interest worthy of restricting First Amendment rights. Their concern instead is that, depending on their votes, people who disagree with them may speak — and speak loudly! — in opposition. They call this potential criticism of their records “sleaze,” but there is another word for it: democracy. Their job security is not worth impeding Americans’ First Amendment rights.

Paul H. Jossey is a lawyer living in Alexandria, Virginia. His interests include environmental policy and First Amendment issues. Follow him on Twitter!