While the latest demagoguery over foreign money in campaigns is experiencing a mammoth backlash, well deserved, one has to ponder why the assertions had any traction at all. I think part of the explanation may be how easy it is to color a privacy interest as an admission of wrongdoing. How often have you heard something like – “Well, why won’t you just tell us? What do you have to hide?”
It just so happens that Daniel Solove, law professor at George Washington University School of Law, has thought carefully about the power of that kind of argument, and the dangers lurking within it. In fact, he has a book coming out in 2011 titled Nothing to Hide: The False Tradeoff Between Privacy and Security. But we need not wait uninformed for that date, as Solove has argued against the same characterization in other works.
In an essay posted on SSRN, Solove presents the problem of disclosure (or “privacy” but he talks about why “privacy” is a inexact way to describe it) as a challenge facing the individual and his or her control over what the rest of the world “has” of that individual.
But Solove also sees social value in protecting individual livelihoods from intrusion, and calls his perspective “pluralist”:
“Society involves a great deal of friction, and we are constantly clashing with each other. Part of what makes a society a good place in which to live is the extent to which it allows people freedom from the intrusiveness of others. A society without privacy protection would be suffocating, and it might not be a place in which most would want to live.”
Sure, Solove recognizes other interests – if we are discussing campaign finance disclosure, that interest is to thwart corruption and provide voters with useful information. Solove’s key insight, for me, is how poorly we weigh the costs of disclosure against those interests.
The real burden, it seems, is not what a person has to reveal on that day for that purpose – it is the loss of control over that information, forever. And that the information can be aggregated with other data from other places, to create a whole that a much greater than the sum if the parts. It isn’t just your name, address, occupation and employer when you contribute $201 to a federal candidate.
It is that information, blended with other information, that means you’ve lost control over what the world knows about your political values, or where you have lived and worked. And, honestly, what more does anybody learn about Senator Harry Reid from the fact my cousin contributed to his reelection. (FYI – I made this up. I respect my cousin’s privacy).
Moreover, the information the public gets may not be helpful. Suppose campaign finance reports disclose a rash of contributions from casino employees. The media and campaign finance analysis will report that “casinos and their employees” are giving unprecedented sums in this campaign cycle. This might have everything to do with the fact a big Senate race is taking place in Nevada, and nothing to do with “casino interests” as a beneficiary (or potential victim) of federal policy. Meanwhile, coworkers, shift supervisors, union reps, neighbors, and family all know something about that individual they didn’t necessarily know before. Control over that tidbit is lost, forever.
AHA – you say – the big debate this cycle is over secret money from corporations! You really do think corporations are people! Well, no. First of all, there have been secret money controversies related to individuals (recall J Street). And furthermore, how can one be so sure that, were the 501(c)(4) de jour required to disclosure donors to its general account, you wouldn’t be privy to information about individuals, or closely held companies that are essentially alter egos of those individuals.
AHA again! You say – we should know the sources of these millions . . . again assuming that there are a handful of big donors, and that identifying them will provide useful information to voters. If that is the genuine interest animating the “secret money” hysteria, then I want to see someone tailor a disclosure requirement that gets at the potentially really interesting and useful information. How about $100,000 donors? Then, at least, we wouldn’t see modest supporters of a group, say donors via a webpage or direct mail campaign, being outed as funders of an independent expenditure they’ve never heard of.
