Avoiding Intimidation and Harassment

I’m just spitballing here, but anybody who donates a few hundred bucks to a Presidential candidate: 1.) poses no risk of bribing them (after all, Rick Perry has informed us his price is far north of $5,000) and 2.) doesn’t need a retaliatory landlord or her unreasonable boss to know about the donation (“Paula gave to Thaddeus McCotter?  How embarrassing.”).  Unfortunately, Congress seems to disagree, and as a result, such a donation gets your name and address posted on the Interwebs.

Fortunately, the Supreme Court has protected the right of donors to really unpopular causes from being exposed to the harsh glare of public scrutiny.  (Again, the McCotter donation does not count.)

Let’s say that we have an organization that is so unpopular and controversial, that the mere association of an individual with that group is enough to earn “threats, harassment, and reprisal” from members of the general public or from the government itself.  Since Buckley v. Valeo in 1976, these groups have been shielded from all government mandates that they disclose their donors.  Most case law supporting this constitutional principle focuses on the ever unpopular socialists, such as the Ohio Socialist Workers’ Party, a group which was hilariously infiltrated so thoroughly by the FBI that several Socialist Workers’ candidates for office were actually spies.

The Court’s rationale for protecting the unpopular is simple: they ought to have the chance to thrive in the marketplace of ideas. And given the groups’ low probability of victory at the polls, there’s little to be gained in the fight against corruption by disclosing who these groups receive money from.  All well and good.  

Meanwhile, everybody else who gives over $200 to a Federal candidate or political committee is forced to disclose their name, home address, employer, and job title to the government. (Some state laws are even more ridiculous, requiring so-called “first dollar” disclosure.)  The idea is pretty simple: fight the appearance of corruption with sunlight, which Louis Brandeis famously referred to as “the best disinfectant.”  

Sure, the end result of all this disclosure is mostly campaign theatrics.  Other campaigns can determine if challengers are dependant on out-of-state cash.  Opponents could determine who big money donors were and what industries they were involved with.  Totalling the smaller donors’ industries could give an approximation as to how much certain sectors of the economy support a candidate.  (Remember those accusations that John McCain received millions in contributions from oil companies?  He actually received that cash from people who work at oil companies, not from corporate general treasuries.)  But it’s not as if anybody’s privacy was really harmed by it all.

Unfortunately, that’s no longer the case.  Small donations to heavily divisive causes can inspire retaliation and harassment from private citizens.  In his dissent in Citizens United, Justice Clarence Thomas pointed out several examples of over-the-top reprisals against small funders of the effort to amend California’s constitution to prohibit gay marriage.  The Sunlight Foundation now has a Gmail widget that allows you to pull up the donations of every person who emails you, and sex offender style Google maps (“How Tea Party Is Your Neighborhood?”) cannot be far behind.  Thanks to the Internet and the fact that Americans are willing to take swings at people they disagree with, all small donors can become “Socialist Workers” now.  

It’s time for us to raise our contribution limit laws and the threshold for disclosure so that our system only catches extremely large donations.  The kind of donations that, in an era of multi-million dollar House and Senate races and multi-billion dollar Presidential contests, actually pose a risk of looking like quid pro quo corruption.  That way, Republicans in Marin County and Democrats in Uintah County, Utah can quietly help the candidates and causes they support speak in elections.  As the Second Circuit Court of Appeals once wrote, “a nation dedicated to free thought and free expression cannot ignore the grave results of facially innocuous election requirements.”   


  1. Brad Smith says:

    Nice post!

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