"Reforms" that aren't: Campaign disclosure
2000 July 28
The perception that special interests exert undue influence on public policy by their contributions to candidates and advocacy organizations has led to calls for reform, but as is so often the case, the measures reformers thought would reduce the problem have not only failed to do that, but have made the problem worse.
A manifestation of this law of unintended consequences are statutes requiring disclosure of contributors to candidates and advocacy groups. Both federal statutes and statutes in some states require such disclosure, often imposing severe penalties for failing to report contributions and expenditures in a timely manner.
These statutes were sold on the theory that if voters knew who was supporting candidates and legislation, they could make more intelligent decisions about who or what to vote for. However, surveys provide little support for the thesis that such disclosures, in themselves, are influencing the way people vote. What is apparent is that they have a chilling effect on support for less popular candidates and causes, resulting in solidification of the entrenched positions of established parties and policy positions. We even have reports of contributors to less popular candidates and causes being subjected to a variety of pressures.
The main effect on major party candidates seems to have been to discourage contributions from individuals, who are reluctant to be deluged by fundraising letters and phone calls, harvested from campaign disclosure filings. This has tended to strengthen the influence of political action committees (PACs) and other advocacy groups, as the contributors to them are anonymous, and they are organized to handle a flood of requests for donations. Being listed in a disclosure report tends to increase their influence, as candidates and advocacy groups find them in the disclosure reports from which they harvest their funding prospects. Many of the individuals who might otherwise contribute individually, come to prefer contributing through such PACs and groups, yet yield control to the group managers of the policy positions advocated, to which they might otherwise provide some individual input.
Advocates of such "reform" legislation should have been alerted by how easily they were able to get it passed. It wasn't because the establishment shared their concerns and wanted reform. It was because the establishment, better than the reformers, anticipated the real impacts of such legislation, and knew that it would strengthen their ability to suppress their competition.
Here are the candidates and causes being suppressed by disclosure statutes:
- Obscure candidates trying to become better known
- Minority or unpopular views
- Candidates or views that can be made politically incorrect by the media
Here are some of the pressures to which contributors are being subjected:
- traffic tickets
- tax audits
- surveillance and wiretapping
- more stringent regulatory enforcement
- nuisance lawsuits
- boycotts and threats from suppliers or customers to withdraw business
- loss of employment
- intimidation by strangers, and sometimes by officials
- harassment of friends, relatives
- criminal prosecutions or threats thereof
- death threats
Such pressures on the supporters of disfavored candidates and causes is nothing new in American politics. The British did it to the Americans during the War for Independence, when they could find them. The Federalists did it to the Jeffersonians in 1798, forcing Jefferson, Madison, and their supporters to resort to extreme secrecy, until they were able to win the presidency in 1800. If those reformers had had to report their supporters, and had complied, they might not have lived to become the third and fourth presidents, despite their stature as the authors of the Declaration of Independence and the Constitution.
Other movements in American history faced opposition that tried to discover the reformers' supporters and suppress them: the abolitionists, the labor unionists, the womens suffragists, the civil rightists, the anti-war activists, the environmentalists. The supporters of every one of them were harassed, sometimes severely.
Do we really need to ask what the outcome would have been in each of the police states of history if their freedom-loving opponents had complied with disclosure statutes and revealed their members and supporters?
The real blind spot on the part of citizen advocates of such legislation in the United States today is their failure to realize that we live in a police state, supported by large constituencies willing to resort to police state tactics. Just because the gestapo haven't broken their doors down yet doesn't mean it won't happen if they don't protect themselves and their allies, and you don't do that by supporting disclosure statutes or complying with them. A mafia in the majority or controlling the reins of power is still a mafia.
If you are trying to function in an environment in which such statutes have already been passed, then you at least need to organize your supporters into groups that can protect the anonymity of their supporters. That's what the opposition is doing. You can't afford not to play the same way.
There is, however, one last consideration: disclosure statutes are unconstitutional. Never mind that courts have supported them, as in the case of Buckley v. Valeo, 424 U.S. 1 (1976). Such courts are wrong. The right to speak and publish is the right to do so anonymously. It is not enough to rely on legislatures or courts to respect the prohibitions of the First Amendment, or any other right recognized by the Constitution. In the final analysis, people must be able to protect their own rights, and sometimes the only way they can do that is to operate secretly. That is why we have a Fourth Amendment. The only grounds for compelling disclosure is to prosecute a crime, and the Fifth Amendment forbids doing even that if disclosure might incriminate the witness or even damage his reputation.
The argument that general disclosure is needed to prevent or discover bribery or other forms of undue influence is specious. Real bribery is not going to be disclosed in a way that such reports would reveal. There are too many ways to evade detection. All the reports do is make it easier to suppress competition from vulnerable or unpopular candidates and views, which is diametrically opposed to everything we fought a revolution to secure.
Similar considerations apply to statutes limiting the amounts of contributions or expenditures. Forget the slogan that "money is speech". Money is press. It is the right to publish that is at stake here, and the right to publish is the right to contract with someone else to publish one's views, including a candidate for public office or an advocacy group.
So how do we reduce the undue influence of money in politics? We do it the way it was done when this nation was founded. We do it by arranging things so that someone can get a candidate elected, or a measure adopted, on his or its merits, without expenditures of money being able to affect the outcome. That will not happen unless or until people make the effort to inform themselves and decide who or what to vote for based on information and reason and not on the basis of the repetition of images or sound bites.
As long as money can influence outcomes, it will. We, the people, can change that any time we make up our minds to do so, by changing how we make decisions.
I have said it before:
Political corruption begins with every voter who votes his pocketbook
instead of for what's good for the country. There is little difference between
the selling of his vote by an elected official and the selling of his vote by a
voter, to whatever candidate promises him some benefit.
Jon Roland, speech during his campaign for Congress, 1974.
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