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.

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.

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.

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.

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.

…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.

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.

(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?

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?

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?