SMITH: Campaign Finance Law Should Do More To Prevent Donor Harassment

After a summer in which Americans were named, shamed, and harassed for their campaign donations, many are asking whether it’s wise to allow the government to publicize so much of our political activity. Advocates of tougher disclosure requirements, meanwhile, are arguing that this wasn’t what they bargained for. They don’t make a compelling case.

“The Castro thing was an aberration,” longtime disclosure advocate Fred Wertheimer said in reference to a tweet by Texas Rep. Joaquin Castro that listed names and employers of constituents who donated to President Trump’s reelection campaign. One of those donors later shared a harassing voicemail in which an anonymous caller told them, “you’re a scumbag and I f—ing despise everything you stand for,” and promised to spread their phone number across the internet for further abuse.

Lisa Gilbert of Public Citizen, an organization that supports more stringent disclosure mandates, said that harassment of donors was a “whole different, new issue and something that we are concerned about.”

The risk that donor information would be abused to fuel intimidation tactics, however, was always well-known. Concerns about privacy and harassment have been the leading argument against forcing Americans to report minor amounts of political activity to the government. To give one prominent example, Justice Clarence Thomas’ concurring opinion in Citizens United referenced numerous ordinary Americans who lost their jobs or faced retaliation for their campaign contributions.

“I cannot endorse a view of the First Amendment that subjects citizens of this nation to death threats, ruined careers, damaged or defaced property, or preemptive and threatening warning letters as the price for engaging in ‘core political speech, the primary object of First Amendment protection,’” wrote Thomas.

Meanwhile, on the floor of the Senate, Majority Leader Mitch McConnell has spent years warning that disclosure is a weapon in the wrong hands. In 2014, he warned that the DISCLOSE Act, which proposed expansive new disclosure requirements for groups that discuss legislation, would allow political operatives and activists to “go after the funding that amplifies the message. And they’ll do it the old fashioned way: through donor harassment and intimidation.”

These concerns were front-and-center again just earlier this year, when House Democrats passed a legislative package that would force many nonprofits and advocacy groups to expose their supporters. McConnell noted, “All this appears custom-built to chill the exercise of the First Amendment and give federal bureaucrats — and the waiting left-wing mob — a clearer idea of just who to intimidate.”

Those warnings appear prescient after the events of this summer. In addition to the Castro tweet, there were boycotts of SoulCycle and Equinox after the chairman of their parent company, real estate developer Stephen Ross, decided to host a fundraiser for Trump. A tweet asserting that Olive Garden was supporting Trump briefly went viral before being debunked. (Corporations are prohibited from contributing to candidates.) Actors Eric McCormack and Debra Messing were accused of trying to create a blacklist of Trump supporters after asking that attendees of a fundraiser be named publicly.

At a time when everyone’s contributions over $200 are just a few clicks away, disclosure laws created in a pre-internet era deserve a second look. Privacy needs more protection.

Some disclosure advocates may be starting to come around. Rick Hasen, an election law professor who runs an influential blog and listserv, told CNN “the internet has changed the calculus.”

“We might well raise the disclosure threshold to $1,000 or $2,000, so people of modest means who are making small contributions don’t get caught up in these strong policy debates in our very polarized society,” he said.

A viable path for reform would be to raise the $200 threshold for public disclosure, tie it to inflation, and end the reporting of donors’ employers. At the same time, we must defeat efforts to expand these laws to nonprofits and advocacy groups.

This summer’s rash of donor-intimidation was not a surprise or an accident. Free speech advocates and even government leaders predicted it would happen. Politicians pushed ahead anyway. Now it’s time for the pendulum to swing back the other way. We should expand privacy in politics to ensure every American can participate without being harassed for their beliefs and donations.

Bradley A. Smith (@CommishSmith) is chairman of the Institute for Free Speech. He served on the Federal Election Commission from 2000-05, including a term as its chairman.