August 04, 2008

posted by Daniel J. Solove

Searching for a person's name on Google will also often bring up Fundrace within the first few results. I'd imagine this could be problematic for job-seekers who might not want their potential employers to know their political leanings.

I don't think I buy the constitutional argument. But here are two thoughts on the broader issue:

First, I think it's right that having this info so widely available discourages some campaign donations. If you're going to give, you have to be okay with the idea of connecting yourself to that candidate in a public way.

Second, I don't think I follow how a government agency could vet the donations as an alternative to public disclosure. What agency? Vet how? For what? How would that work?

Orin -- The Supreme Court in Buckley recognized a First Amendment interest -- my quarrel is just in the way that the Court did the balancing. Do you disagree with the Court's recognition of a First Amendment interesting or just agree that it balanced properly by concluding that the interests I listed above were compelling interests and that the public disclosure requirement was narrowly tailored to achieve those interests? Your first thought appears to be sufficient to recognize a First Amendment interest -- this is a reason why the Court did in fact recognize such an interest.

Regarding your second point, a government agency (the FEC maybe) does already make sure that people don't give donations over and above the limit. There are corruption laws that prevent bribes. I guess I just don't understand what, exactly, public disclosure of John Doe's $100 contribution to Candidate Y really contributes to the fight against corruption or abuse? I don't see how these small contributions by individuals creates any kind of corruption issue or undue influence. For corporate donations/lobbying/etc., that's a different story, and I'm more comfortable with public disclosures. It's the contributions by individuals where I just don't see a compelling reason for public disclosure. Can you articulate one?

On your first point. The inclusion of names, combined with occupation/employer, is a good means to know which groups of interested parties donate to, and potentially have influence with, a particular candidate. (Trial lawyers with John Edwards, Oil execs with John McCain). Presumably, you could require the listing of employer/occupation without a name, but I think that would create the impression that the only reason individuals give is because of their occupational perspective. This may create an even more distorted view of who gives though and provide the public with less accurate, and therfore less useful information.

It seems to me, Buckley has two bad holdings:
(1) The government can cap donations to a candidate (now just over $2000 per election); and
(2) public disclosure does not violate the First Amendment.

It seems to me that the first holding is far worse than the second (maybe someone will care to disagree). It is a much greater violation of the First Amendment to limit the volume and size of speech then to require public disclosure of the speech's backers. Thus, if I had my way, the first holding would be overturned and we would return to unlimited giving in a campaign cycle. I can buy the loudest bullhorn/largest media buy in the world and proclaim any message I want, except running an ad telling people to vote for a candidate. It seems political speech should get more protection than general ranting, not less.

The problem with my dream scenario, however, is that unlimited giving could lead to a candidate beholden to a few wealthy donors. Thus the "disinfectant" of public disclosure would be needed. Prof Solove, do you argue in favor of unlimited contributions or against it? If so, isn't public disclosure a necessary evil?

Dan,

Why should the fact that something discourages donations make it unconstitutional? Exposure always discourages conduct. Of course, it may be that Buckley says it does, but then you seem to treat Buckley as having no weight, so I don't know why that matters.

As for the interest served by disclosure, I don't know if I have any arguments that would make you comfortable. There are a lot of arguments to choose from, certainly. For example, maybe publicizing disclosure by individuals makes it harder for corporations to hide donations by funneling them through individuals. But i wasn't trying to persuade you that the rule was something that you should be comfortable with; I was just pointing out that the agency alternative seems pretty questionable and undeveloped.

I'd go with unlimited giving (despite the fact that people like George Soros would then be unleashed) as it is your money and for the most part you should be able do as you please with it...
...and no disclosure (or does the right to privacy only extend to 14 year old girls who want abortions without their parents' knowledge).

I've never really seen the difference between this required disclosure and that outlawed in NAACP v Alabama...if the contribution limits are set so that they will not create undue influence then why do we need to know who is contributing the uninfluential amount. And if unlimited amounts do create such influences, it would be helpful for politicians to come forward and explain what their individual dollar threshold to be influenced is and/or identify those who they think are so influenced. Otherwise these limits are just theoretical musings.

Orin,

I don't say that Buckley has no weight or is completely wrong about everything. It is possible for a decision to be right about one thing and wrong about another. I'm quarreling not with its recognition of a First Amendment interest (which is fairly uncontroversial in terms of First Amendment jurisprudence); my quarrel is the way it came out in the balancing. I don't see why one must accept or reject an opinion wholesale. Certainly in the past you've agreed with parts of judicial decisions and disagreed with other parts, right?

When engaging in First Amendment scrutiny, it is typically incumbent upon the government to demonstrate how its goals cannot be achieved through other means. It is true that public disclosure of individual donors provides some transparency, but given campaign contribution limits, these already prevent one donor from having undue influence.

Ace -- if there weren't any limitations on how much particular individuals could contribute, I'd feel much more strongly that public disclosure would be an important anti-corruption tool. It would be important to know, for example, that John Doe gave $1 billion to a particular candidate and that the public should ensure that the candidate isn't overly beholden to Doe for such a large contribution. But with fairly strict campaign contribution limits, it strikes me as unlikely that any one donor will have undue influence; this is why I don't think that public disclosure is necessary.

Dan,

I suppose I'm just skeptical of the notion that the fact that disclosure may deter action means that disclosure has First Amendment implications. Take my case. I have felt my giving "chilled" based on the requirement disclosure: I generally won't give money to candidates for state or local office that I haven't vetted out of concern that the disclosure will associate me with the candidate and taint me with some goofball position the person has taken that I didn't know about. But I guess it never occurred to me that my "speech" was being infringed in these settings by the disclosure requirement. Perhaps I am internalizing the norm too much that giving to a politician is a public act, and therefor not one that can be done privately, but I guess I can't see what about the rule raises major First Amendment issues.

First, I find it bizarre to say that the constitution demands privacy in donations. The fact is that when the constitution was written, be it the original constitution or the civil war amendments, the vast majority of elections were not by secret ballot. Now we modern people think it is the only way to go, but as an originalist I can't support that; they just didn't understand the right to vote that way.

Second, as for the policy issue, I think the people have a right to know who, is helping whom. And however much we might argue that this is speech, its isn't just speech: it is help, too. In fact, I think we made a big mistake attaching it to the right of free speech in the first place. It is much better to think of this as freedom of the press. The difference between press and speech, classically, is that press requires infrastucture in order to be excercized. You need paper, a printer, etc. So if the government said you couldn't own paper, i think most of us would agree that was a violation of freedom of the press. The same goes for campaign commercials; it takes an infrastructure to put an ad on TV that ends with "I'm John McCain and I endorse this message." By contrast, at the time of the founding freedom of speech required nothing more than the ability to open your big mouth.

So if se look at this more from a press perspective, then the right to raise money becomes more obvious; you can't produce those TV ads without money, period. And it fits with the practice at the time, becuase back then newspapers were always openly partisan (instead of being partisan, but pretending they are not). They would be specifically founded to promote a certain party, or something just a specific candidate.

So frankly, I think the only constitutional solution is total freedom. If Bill Gates wants to give 33 billion to McCain, its his right. But we should have full disclosure.

The other thing that should be noted is that the database is not free of errors, there appears to be no way to correct them. For example, I donated to a campaign in 2000 and it was incorrectly attributed to my father, who shares a different political point of view and is a Vice President of a company in the same town. I would think that for such a database to be effective, it should be correct--or at least administrated by people willing to make corrections.

Dan, thanks for the shout-out to my article. Although the landscape is now somewhat altered by the subsequent McConnell decision, I hope it still makes a decent argument.

Orin, I think you are indeed internalizing the norm that a contribution is a public act. It bears more examination. Why should that be, necessarily? (Setting aside the constitutional point for a moment.)

Voting, of course, is not a public act. It was in most places until the late nineteenth century, when we changed our norms to favor a secret ballot. We could conceive of a private "donation booth," as Ian Ayres and Bruce Ackerman did in their 2002 book Voting With Dollars. There are many people who are private about their political views for a large variety of reasons. Many won't even tell you for whom they vote, after all, and in many circles it is considered rude to ask. Why not give these private people another route for engagement with politics by giving modest sums of money?

Put another way, I think the burden should be on a proponent of disclosure to justify it. And as Dan says in the post, the supposed justifications for disclosure of small individual contributions just don't work. Knowing that I gave $200 to John Kerry tells you about me, not about Kerry. My small contribution earns me no special treatment from Kerry except for more letters asking for money. (Those who give enough money potentially to buy influence are, perversely, the very ones who are not subject to disclosure).

Finally, absent public financing, private contributions are what allow campaigns to get out their message. I think we would prefer that money to come from individual citizens than from large entities. If disclosure chills those individual contributions, then we may have less money for campaigns overall and a larger proportion of it will come from large entities.

So why, exactly, should we have complex government regulation that discloses these contributions, with privacy costs attached? Returning to the constitutional point, the Supreme Court's inconsistency about the level of scrutiny applied to political contribution regulation makes it difficult to determine whether the current disclosure regime passes First Amendment muster. I think it does not. But even if it is constitutional, I don't think it is wise.

This is not new. Alot of organizations get this data from the FEC and state political regulators and mine it, put it on their websites, etc. Bearing in mind that political contributions are completely non tax-deductible, there is a simple but under-utilized solution if you don’t mind losing the ego strokes that come with getting a thank you letter (and an appeal for even more money) from your candidate.

Here’s what to do:

1. Download and print out the “contribute by mail” form from your candidate’s web site. Fill it out using phony info. “John Smith” and other obvious aliases are probably NOT the best choice.

2. Purchase a money order (using cash, of course) and endorse it to your candidate’s campaign committee.

3. Send it in.

Notes:
1. Yes, this IS illegal, but how will they catch you?

2. Use only for small contributions (i.e. > $200). Maximum contributions sent this way will raise red flags, and the MO will be returned to the dirt lot in the middle of nowhere that you used as your return address.

3. Act now. It is only a matter of time before SSNs will be required on contributions.