Disclosure as political armament

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Senators Ron Wyden (D-OR) and Lisa Murkowski (R-AK), unhappy with recent increases in political spending, have proposed sweeping new regulations to the federal campaign-finance system. The duo casts its prescription as an altruistic elixir designed to spare Americans from the anguish of too much political speech.

But their true motivation is thinly veiled. This proposal for increased disclosure of political spending, like all other such regulatory burdens, is designed to benefit entrenched incumbents, making it more difficult for their critics to speak.

The senators begin with predictable annunciations bemoaning the effects of favored boogeyman Citizens United v. FEC: “Unlimited corporate and individual spending is corrosive to democracy and undermines the political process.” Ms. Murkowski points to Alaska’s “innovative and far-reaching” laws implemented post-Citizens United as a federal solution to these supposed ills.

The “reformers” take as gospel the premise that unlimited corporate or individual contributions ruin our democracy and pollute our discourse. But scant empirical evidence backs up these contentions. Virginia and Utah, to give two examples, allow across-the-board unlimited contributions for state political campaigns. Is Alaska producing better governance and more informed citizens than these two states? In fact, prior to the Citizens United, 26 states allowed unlimited corporate political spending. Reports of the death of the republic at the hands of corporate malefactors have been greatly exaggerated.

The senators argue this extra money has made elections more “vitriolic.” Even taking this dubious claim as true, elections are not supposed to be polite debates over tea and crumpets. At stake is how the government will collect and distribute — and redistribute — a large portion of the nation’s wealth and productivity.

Negative advertising serves a useful purpose in campaigns: it gives a public more interested in sports and entertainment than policy debates quick-hitting bits of information about elected officials’ votes, records, and character. Studies have shown this strategy is particularly vital to challengers, who have to battle incumbency’s numerous advantages.

Stymied by the Supreme Court from limiting spending, reformers have now turned to increased disclosure as the way to “clean up” our elections.

For larger contributions, disclosure does have its place in providing the public with information. But for lesser amounts, that benefit is dwarfed by the costs of disclosure, which scholar John Samples outlined in “The Fallacy of Campaign Finance Reform.” Disclosure alerts elected officials to who participated in the effort against them, thereby setting up donors for potential reprisals. And it allows political opponents to publicly marginalize or even harass those supporting unpopular causes. These costs must be weighed against scarce evidence voters consider disclosure when making political choices.

The potential of disclosure to chill political speech was on full display in 2008 in the heated battle over California’s Prop 8, which defined marriage as between a man and a woman. Because of California’s disclosure laws, supporters and opponents of Prop 8 were able to find out which individuals and businesses donated to the Prop 8 campaign. Law enforcement officials investigated dozens of instances of Prop 8-related vandalism and violence, some of which was directed at individuals who had donated as little $100.

To be sure, the political marketplace can benefit from businesses taking political stands. Liberals learned from the Chick-fil-A debacle that harassment and intimidation tactics sometimes backfire. On the other side, Facebook and Starbucks have been upfront about their politics, giving conservatives clear choices about whether to continue supporting those businesses.

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!