The debate over campaign contributions is never-ending for a simple reason: Both sides of the argument have merit.
On the one hand, of course money is speech. For most citizens, contributing to politicians or causes is the most effective way to augment and amplify speech with which they agree. The most disdainful dismissers of this argument are editorialists and incumbent politicians who – surprise! – already enjoy access to vast audiences and don’t particularly like their monopoly being invaded by the unwashed masses or the self-made plutocrat.
On the other hand, of course money is corrupting. The nation’s jails are well stocked with mayors, legislators, judges and the occasional governor who have exchanged favors for cash. However, there are lesser – and legal – forms of influence-peddling short of the outright quid pro quo. Campaign contributions are carefully calibrated to approach that line without crossing it. But money distorts. There is no denying the unfairness of big contributors buying access unavailable to the everyday citizen.
Hence the endless law-writing to restrict political contributions, invariably followed by multiple fixes to correct the inevitable loopholes. The result is a baffling mass of legislation administered by one cadre of experts and dodged by another.
For a long time, a simple finesse offered a rather elegant solution: no limits on giving – but with full disclosure.
Open the floodgates, and let the monies, big and small, check and balance each other. And let transparency be the safeguard against corruption. As long as you know who is giving what to whom, you can look for, find and, if necessary, prosecute corrupt connections between donor and receiver.
This used to be my position. No longer. I had not foreseen how donor lists would be used not to ferret out corruption but to pursue and persecute citizens with contrary views. Which corrupts the very idea of full disclosure.
It is now an invitation to the creation of enemies lists. Containing, for example, Brendan Eich, forced to resign as Mozilla CEO when it was disclosed that six years earlier he’d given $1,000 to support a referendum banning gay marriage. He was hardly the first. Activists compiled blacklists of donors to Proposition 8 and went after them. Indeed, shortly after the referendum passed, both the artistic director of the California Musical Theatre in Sacramento and the president of the Los Angeles Film Festival were hounded out of office.
Referendums produce the purest example of transparency misused because corrupt favoritism is not an issue. There’s no one to corrupt. Supporting a referendum is a pure expression of one’s beliefs. Full disclosure in that context becomes a cudgel, an invitation to harassment.
Sometimes the state itself does the harassing. The IRS scandal left many members of political groups exposed to abuse, such as the unlawful release of confidential data. In another case, the Obama campaign website in 2012 published the names of eight big Romney donors, alleging them to have “less than reputable records.” A glow-in-the-dark target having been painted on his back, Idaho businessman Frank VanderSloot (reported the Wall Street Journal’s Kimberley Strassel) suddenly found himself subject to multiple audits, including two by the IRS.
In his lone dissent to the disclosure requirement in Citizens United, Justice Clarence Thomas argued that American citizens should not be subject to “to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in core political speech, the primary object of First Amendment protection.” (Internal quote marks omitted.)
In fact, wariness of full disclosure goes back to 1958 when the Supreme Court ruled that the NAACP did not have to release its membership list to the state, understanding that such disclosure would surely subject its members to persecution. “This court has recognized the vital relationship between freedom to associate and privacy in one’s associations … particularly where a group espouses dissident beliefs.”
A different era, a different set of dissidents. But the naming of names, the listing of lists, goes on. The enforcers are at it again, this time armed with sortable Internet donor lists.
The ultimate victim here is full disclosure itself. If revealing your views opens you to the politics of personal destruction, then transparency, however valuable, must give way to the ultimate core political good, free expression.
Our collective loss. Coupling unlimited donations and full disclosure was a reasonable way to reconcile the irreconcilables of campaign finance. Like so much else in our politics, however, it has been ruined by zealots. What a pity.
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