Campaign Finance Disclosure – It’s good for what ails ya’

November 1, 2006   •  By Brad Smith   •    •  
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Worthless patent medicines used to be sold as all-purpose remedies.  Got a problem?  Not feeling well?  Try Dr. Smith’s Miracle Elixer. “It’s good for what ails ya’.”  Of course, Dr. Smith’s Elixer was probably little more than alcohol and syrup.  It didn’t really solve anything, but for a short time, at least, you got a pleasant whoozy feeling.

In campaign finance, disclosure is the Miracle Elixer.  Everyone supports disclosure of campaign finance information.  But does it really solve every problem, or does it just give you a pleasant whoozy feeling?

Even Americans who generally favor deregulating campaign finance tend to favor dislcosure.  In fact, “tend” may be too gentle a term – they are often the most ardent cheerleaders for disclosure.  We have expressed concern, however, that more disclosure is not always, in every case a good thing.  For example, disclosure of grassroots lobbying serves little purpose, and seems mainly designed to give lawmakers information to retaliate against citizens.  We question whether we really need to require a $200 contribution to the Log Cabin Republicans be disclosed.  And we note that we are hardly the only ones who point out that disclosure can chill free speech.  In fact, in contexts other than political speech, the Supreme Court has given much greater protection to anonymous speech.  The anonymity of pamphleteers for commercial boycotts (Talley v. California), door to door speech by peddlars and preachers (Watchtower Bible and Tract Society v. Village of Stratton), union organizers (Thomas v. Collins), and financial contributors to civil rights organizations (NAACP v. Alabama) have all been protected.  And almost certainly, the benefits of disclosure are oversold.

Nevertheless, “disclosure” still has a certain ring about it that makes it hard for anyone to ever question the benefits of disclosure.  Here’s an example of what we mean.  Rick Hasen, one of the nation’s leading commentators on election law, sees this story, and concludes that it “show[s] why campaign finance disclosure can provide valuable information to voters.”  We suspect that Professor Hasen didn’t spend a lot of time thinking about the story, but like the vast majority of commentators, simply assumed that disclosure might be valuable.  But we’re not sure it shows that at all.  Contrarians that we are, let us take up the cudgel.

The story concerns a group that put out a flyer discussing positions of Pennsylvania Senatorial nominees,  Democratic Bob Casey, Jr., and Republican Rick Santorum,  claiming that both Casey and Senator Santorum are,  “against gay marriage, stem cell research, and ‘common sense gun controls.'”  The flyer claims it was put out by the “Progressive Policy Council,” but the web site listed goes only to a placeholder web page, the flyer lists only a P.O. Box for an address, and the corporate registration only lists a registration agent, which won’t reveal the underlying principles.  At Talking Points Memo, which first raises the story, there is suspicion that this is a GOP effort to suppress Democratic votes, the theory being, apparently, that many Democrats don’t know that Casey is a pro-gun/pro-life/anti-gay marriage candidate.

Let us assume that if more disclosure was required, the individuals involved would follow the law.  That is, let us assume that, if required to disclose more information by the law, they would comply.  What would we learn?  Well, if the Progressive Policy Council it really a liberal group. we’d know that some liberals think Casey and Santorum are both “against gay marriage, stem cell research, and ‘common sense gun controls.'”   And if the Progressive Policy Council turned out to be a conservative group, we’d know that some conservatives think Casey and Santorum are both “against gay marriage, stem cell research, and ‘common sense gun controls.'”  And in this latter case, we might question why they would put out the flyer, and maybe even agree with Talking Points Memo.  But whatever we might learn, it wouldn’t really help us select our candidate – unless, in the latter case, we decided to vote for Casey in order to “teach them a lesson.”

But would that be smart?  In fact, Bob Casey is against what many liberals call “common sense gun control;” he is against embryonic stem cell research (which is really the only controversy – most everyone favors adult stem cell research); and he is against legal recognition of gay marriages.  And the same is true of Rick Santorum.  In other words, if we discovered the group was not really what we would consider to be “progressive,” and so discounted its recommendations, we would deprive ourselves of accurate information.  This piece – which you can see here – seems to us to be one of the most accurate pieces of campaign literature we’ve seen this fall – far more honest and straightforward in describing issues and the candidate’s positions than most candidate and party ads – even those messages that, we’re assured, candidates have actually approved.  This flyer is a model of citizen information, if you dislike bombast and negativity.  There is no name calling.  Each statement is documented.  It is calm, avoids inflammatory language, deals with real issues, and appears to be far more nuanced than most campaign pieces.  What “valuable information” would voters gain from more disclosure?  Knowing “who was behind” this flyer would tell us, well, nothing at all about the candidates and their issues.  Assuming this is really a right-wing group producing the flyer, we think this may be a case where anonymity actually enhances the value of the information to voters.  Voters will not discount accurate information because of its source.

We don’t think highly of people posing as things they are not, but we have no idea if that is the case here.  There are lots of liberal Democrats who were dissatisfied with Casey on these issues.  And there are many pro-choice voters who appear not to know that Casey is not pro-choice.  But frankly, we don’t much care who produced the flyer.  In the end, we think elections would be better if less attention were given to who paid for what, and more attention were given to what candidates actually think and propose to do in office.  And while we believe that in some cases disclosure can provide a valuable check on government, we are nervous when it is embraced without much thought.  Disclosure is not always good for what ails ya, it does come with a price in loss of privacy, and paying too much attention to names, rather than issues, can sometimes even make us less informed.

As for you Pennsylvanians out there, ignore this flyer from the Progressive Policy Council if you want.  After all, there are a great many carefully identified messages that are less accurate, and you can get your information from those ads.  There’s no reason you shouldn’t place your dislike of certain speakers over facts – a little alcohol and syrup goes down easy, and if it doesn’t solve your problem, it will at least give you a pleasant feeling for a time.

Brad Smith

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