Congress Shall Make No Law...
April
11
5:10 PM
“The reality is that public disclosure serves the interests of incumbents”

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Like many people, professor of law and former congressional candidate James L. Huffman had always assumed that public disclosure of political contributions was a good thing.  But as Huffman recounts in The Wall Street Journal, his opinion changed when he ran for office as the Republican nominee for the U.S. Senate seat in Oregon in 2010.  As Huffman puts it, “The reality is that public disclosure serves the interests of incumbents running for re-election by discouraging support for challengers.”

 

How does it work?  By giving incumbents the power to intimidate even small-dollar donors:

 

A challenger seeks a contribution from a person known to support candidates of the challenger’s party.  The potential supporter responds:  “I’m glad you’re running. I agree with you on almost everything.  But I can’t support you because I cannot risk getting my business crosswise with the incumbent who is likely to be re-elected.”

.       .       .

Disclosure makes threats possible, and fears of retribution plausible.  Within weeks of a contribution of $200 or more, the contributor’s name appears on the public record.  Contributors know this, and they know that supporting the challenger can, should the challenger lose, have consequences in terms of future attention to their interests.  Of course no incumbent will admit to issuing threats or seeking retribution, but the perception that both exist is widespread.

 

The U.S. Supreme Court has become increasingly hostile to campaign finance laws that protect incumbents from competition.  At the same time, the Court has often been more forgiving of disclosure laws.  This is perplexing, because the argument for anonymity in political speech is the same argument that is widely accepted as a justification for the secret ballot:  It prevents public officials from intimidating citizens on the basis of their political activity.

 

It would be nice if courts expressed as much concern about “intimidation and the appearance of intimidation” as they do for “corruption and the appearance of corruption.”

 

Hopefully experiences like Huffman’s—along with the growing body of evidence that disclosure laws empower political elites by tying up grassroots activities in red tape—will cause the Supreme Court to reexamine the artificial distinction it has made between disclosure laws and other campaign finance laws.  Both burden speech, both protect incumbents and both are unconstitutional.

 

Hat tip to Prof. Jonathan Adler.