About November 2010
This year’s elections were once again marked by widespread concern about the role of money in our political system. Regulations on how, when, and by whom money can be spent are perennially popular, but just as often they encounter legal obstacles stemming from the First Amendment’s protections on speech and the right of petition. Money also shows a frustrating tendency to flow around regulations, frustrating their enactors’ intent.
A key problem is how to balance several conflicting goals: holding a clean, and clean appearing election; allowing all citizens to participate in campaigns as they think best; allowing citizens to know who supports or opposes various candidates and proposals; and guaranteeing the personal safety of those who choose to participate in the process.
This month, lead essayist Bruce Cain makes the case for semi-disclosure of campaign-related spending. Under semi-disclosure, the public would have access to aggregate spending data for groups, as well as data about individual donors, albeit stripped of personal identification data. Semi-disclosure might work a lot like the census, in which data is made available, but privacy is still protected.
Will Cain’s proposed compromise work? Will it satisfy all sides in the debate? To find out, we’ve invited a panel of experts. Over the next week and a half, election law scholar Rick Hasen, the Cato Institute’s John Samples, and Common Cause’s Nikki Willoughby will each give us their thoughts on the future of campaign finance regulation, either with or without semi-disclosure.
Bruce Cain’s lead essay calls for a compromise on campaign finance disclosure. We want many things from our election law, he notes — the freedom to speak, a process that both is and appears to be just, a well-informed electorate, and protection for the holders of controversial opinions. Cain suggests semi-disclosure as a good way to get most of what we want. He advocates “the full reporting but only partial disclosure of campaign donor information.” Semi-disclosure of the type Cain suggests is already used in the release of census data, where individual privacy is respected even while demographers gain valuable information from the aggregate. Giving voters information about campaign contributions without giving them donors’ names would allow voters to consider the nature of a candidate’s or a measure’s supporters while shielding those supporters from personal attack, Cain argues.
In his response essay, John Samples notes that disclosure discourages people from participating in the political process. When someone decides not to do something, that decision is all but invisible to researchers who might wish to study it. Disclosure also shifts attention from the content of speech to the identity of the speaker, which is not necessarily the best basis for decisionmaking. The paternalism of disclosure is also a problem, as he sees it: the government appears to be trying to keep you from hurting yourself, even if you decline to fulfill your responsibilities as a citizen by examining the issues on their merits.
In her response essay, Nikki Willoughby argues that anyone who opposes full disclosure of donors’ identities probably has something to hide. Spending money isn’t speech; it’s a commercial transaction, and thus regulable under our law. Moreover, even if campaign finance were a matter of speech, some speech always has been subject to regulation, including slander, libel, and speech that incites imminent acts of violence. We should likewise regulate speech that imminently threatens our democracy, by mandating that sources of such speech are disclosed. Secrecy destroys trust in government, driving citizens away from political participation. Openness wouldn’t chill participation — openness would encourage it.
Richard Hasen offers some objections to Cain’s case for semi-disclosure. Cain’s plan doesn’t seem to appreciate sufficiently the benefits of disclosure; whereas public disclosure and analysis by independent watchdog groups can provide fairly sophisticated monitoring of campaign finance data, we shouldn’t expect the government to provide all the details about patterns of campaign contributions that we might desire. Further, he finds little benefit to demographic data about campaign finance shorn of names and public identities of major contributors.