Thursday, April 05, 2007

The problem with disclosure

As I blogged earlier this week, the supreme court race is likely to provide the occasion for another round of campaign finance "reform." Via Owen Robinson, I see that there is a proposal to ban independent expenditures during a campaign unless the donors are disclosed.

I am more sympathetic to disclosure than restrictions, but the Institute for Justice has released a study suggesting that disclosure requirements burden the exercise of first amendment rights of free speech and association while bringing little benefit.

According to IJ, disclosure requirements have a substantial chilling effect on the willingness of people to make contributions to organizations supporting ballot initiatives and has little impact on voters' assessment of those initiatives. Voters don't know they can find out who contributed, don't know who contributed and don't seem very motivated to find out.

It occurs to me that many of the strongest supporters of disclosure are among the strongest opponents of voter identification requirements because they fear its "chilling effect" on exercise of the franchise.

But if IJ is right, disclosure will also "chill" the exercise of rights of free speech and association. It will discourage people from pooling their resources to promote the public advocacy of issues they care about.


Dad29 said...

Well, yeah. Disclosure will "chill" potential donors.

So what?

Another way to put it is that 'disclosure will reduce funds for independent expenditure groups.'

Anonymous said...

Typically, I find common ground with my conservative friends on campaign finance issues. On disclosure requirements for independents, however, they are wrong.

And, Rick, it isn't about "banning" anything which we'd probably agree would be unconstitutional. The requirement would simply be to disclose who is paying for "independent" campaign ads. Like the other disclosure requirements, violation would lead to a fine, not banned speech.

The fact is that the independents have emerged in Wisconsin as the driving force in elections, often spending more than candidate committees. If the independents are not required to disclose, the current law's disclosure requirements for candidates is meaningless.

Finally, the fact that a corporation would, as a business decision, decide not to fund one or the other side of a electoral fight if it would be publicly identified as doing so, is the market at work, not a first amendment violation.

Anonymous said...

"So what?"

Are you kidding?

American courts have regularly acknowledged that the right to free expression includes the right to speak anonymously.

There are often good reasons to speak anonymously.

That's why the courts regularly uphold that right.

To say that "good if independent expenditures get chilled because I think it is destructive" is to adopt a dangerously consequentalist position.

Do you really want to go there?

Anonymous said...

Actually, the opinions on anonymous speech are more complex than you suggest. For example, no one really suggests that a campaign committee cannot be required to disclose its contributors. Why are independants - who currently dominate Wisconsin elections - so different?

And, the anonymity cases tend to concern reprisal for speech. And, I don't think that a company's business judgment that not publicly taking certain positions is better for business is not fear of "reprisal," its business.

Rick Esenberg said...

I agree that the anonymous disclosure cases are complex but they do suggest that, in at least some cases, the chilling effect of required disclosure is not simply the "market at work" (as in people in Alabama in 1959 not wanting to patronize people in the NAACP), but is constitutionally problematic.

I haven't done the work and don't know if these cases should apply to independent expenditure groups but, if they don't, it ought not to be because the groups are speaking during an election campaign, i.e., at precisely the time when the public is paying attention.

But whether or not the requirement would be unconstitutional, isn't it troubling from a policy perspective. Why do we want to dissuade people from contributing to causes they believe in?

Anonymous said...

"I'm afraid I'll lose business if people know that I have political beliefs and I put my money where my mouth is".

You're suggesting that's just a market decision, not fear of reprisal.

I'd have to say that's an illicit redefinition of what "fear of reprisal" means. If the company is an antique store in some small town in Wisconsin and the owner doesn't want everyone to know that she writes checks to organizations that support abortion rights candidates, I'd say she'd fear reprisal in a number of areas (loss of business, social stigma, etc.)

I don't see any justification for arguing that the monetary fears have less value than any other part of why she'd fear reprisal.

At any rate, if she has to have her name on a public report if she writes that check, that chills her tendency to want to support her causes.

I can't go along with that.