Disclosure: whales and minnows

The push for robust disclosure of campaign donations is hardly new. The cycle between limiting spending and exposing who has donated has largely dominated the debate on campaign reform for roughly one hundred years. After the generally accepted failure of McCain-Feingold and the Supreme Court’s opinion allowing for corporations to spend directly from their treasuries on independent expenditures, the pendulum has swung back to disclosure.

The campaign regulation lobby typically finds disclosure to be a safe fall-back. The merits of disclosing donations have been widely praised by members of both political parties. Nearly every time the constitutionality of mandated disclosure has come before the Supreme Court, the justices have blessed the practice. The last time the issue came before the Court, in Citizens United v. Federal Election Commission, eight justices approved disclosure’s constitutionality.

Disclosure is typically touted by quoting Justice Brandeis’ aphorism from an article about the financial sector. “Sunlight is the best disinfectant, electric light the most efficient policeman.” And there is no doubt that disclosure can have political benefits. The accumulated amount of donations to Sen. John McCain from those employed in the oil industry became a talking point for the Obama campaign in 2008.  

When most policymakers and voters think of disclosure, this is what comes to mind: opposition campaigns (or perhaps good government groups) will ferret out which corporations or unions are really behind outside groups or funding political candidates. In McConnell v. FEC, the Court held that donor disclosure could counter “independent groups… hiding behind dubious and misleading names,” and thus “help citizens ‘make informed choices in the political marketplace.'” The McConnell majority specifically singled out a business-funded group called Citizens for Better Medicare and seemed particularly disgusted to learn that a group called Republicans for Clean Air was could more accurately have been called Two Republicans (Who Are Brothers) for Clean Air.

Just ten or twenty years ago, the Court’s ruling might have made perfect sense. Average citizens are not going to shuffle to a government office building and pour through stacks of campaign disclosure forms to see who has given a few hundred dollars to fund a pro-choice group or a candidate who is virulently opposed to gay marriage.

The nexus between the Internet and the Federal Elections Commission changed all that. Now, any person can run a search on their underlings at work, their dentists, their family members, and learn who gave money to which campaign or cause. The database is comparable to the many states that have placed criminal case files on the Internet, with one major exception.  

The Virginia General District Court’s case search function will allow me to pull up a case report, but it does not give the home address of the defendant, just their city and zip code. On the FEC database, searching for a person’s name automatically gives you the name, city and zip code of every donor with that name. Clicking on the file number pulls up a disclosure form with their name, full address, employer, and position (as well as a half-dozen individuals not connected to your search, but hell, who cares, right?)

Unsurprisingly, this information has been used to intimidate good-natured folks. The website knowthyneighbor.org, whose mission is to “protect children and families from anti-gay activists” has a searchable database of individuals who simply signed a petition to put marriage on the ballot in several states. Websites that collate donor information and use online maps to create child predator style tracking systems (“How Liberal Is Your Neighborhood”) cannot be far behind.  

Under current law, campaigns have to disclose the names, addresses, employers, and titles of anyone who donates over $200. Or, in other words, those who don’t wish to have their name, address, employer, and title published all over the Internet have a ceiling to their amount of speech. To save these people from economic reprisals and harassment, the law should be changed.  At a minimum, we should raise the amount one has to donate to a candidate or cause before their information is published, so that the net only catches whales and does not infringe on the rights of minnows.

The Center for Competitive Politics is now the Institute for Free Speech.