Congress Shall Make No Law...
2:41 PM
“Political Privacy Should Be a Civil Right”

Attorney David Marston and former Bush-administration official John Yoo had an op‑ed in yesterday’s Wall Street Journal making the case against the White House’s efforts to force federal contractors to disclose contributions, not just to candidates, but to any group that might run political advertisements.  As Make No Law readers are aware, this is a backdoor effort by the White House to achieve by fiat what it was unable to achieve in Congress, namely, passage of the so-called DISCLOSE Act.


keep-out-report-1Marston and Yoo’s op‑ed is notable, not just because it makes a strong case for the unconstitutionality of the Obama administration’s actions, but as mark of how much the debate over regulation of political speech has shifted in the last decade.  When the now half-dead McCain-Feingold law was enacted in 2002, a major talking point among conservative elites was “no limits, full disclosure.”  But increasingly—and quite correctly—opinion makers are beginning to recognize the significant costs that disclosure can impose on political participation.


So what has changed?  Unquestionably, part of this change in elite opinion has been driven by high-profile incidents of political retaliation made possible by campaign finance disclosure.  But on top of this, we simply know more about the chilling effect of disclosure now than we did in 2002 because social scientists have, for the first time, started measuring it.  Indeed, the Institute for Justice has led the way, publishing multiple studies that examine the burdens disclosure places on grassroots political activists, including:


Disclosure Costs: Unintended Consequences of Campaign Finance Reform


Campaign Finance Red Tape: Strangling Free Speech & Political Debate


Locking Up Political Speech: How Electioneering Communications Laws Stifle Free Speech and Civic Engagement


Mowing Down the Grassroots: How Grassroots Lobbying Disclosure Suppresses Political Participation

Keep Out! Campaign Finance Laws as Barriers to Entry


Other political scientists have now joined this debate.  Professor Raymond La Raja of the University of Massachusetts, Amherst, recently released a working paper titled Does Transparency of Political Activity Have a Chilling Effect on Participation?  His study measured “how individuals respond differently to making campaign contributions or signing petitions when provided with a subtle cue that the information will be made public.”  His findings?  Not only does disclosure have a chilling effect on participation, but the result is particularly pronounced for small donors and women.


La Raja concludes that his findings “should spur policymakers to reconsider the cost-benefit tradeoffs for disclosure policy, particularly for campaign finance.”  Based on the growing number of elite voices questioning the conventional wisdom that more disclosure is always better, it seems that they might be.  Here’s hoping that judges will follow suit.