Virtually all commentators are critical of an organization engaging in political activities without publicly identifying the organization’s donors. The entire vocabulary of the discussion (e.g., “dark money,” “secretive” practices, and “shadowy” organizations) manifests this perspective.
I dissent from the majority view. As I see it, the benefits of disclosure are overstated, and the value of anonymous speech is too often ignored or minimized. This is significant because federal and state regulators are regularly reviewing policy proposals in this area of law, and our policy debate should reflect the realities of the situation and not an unthoughtful idealization of disclosure.
Disclosure Is Overrated
In thinking about the (over) value of disclosure, five points are noteworthy:
1. Disclosure chills political speech. Academic research has indicated that mandatory disclosure deters political contributions and expressive association Most readers of this newspaper probably know this from personal experience, having refused to contribute to candidates, or given less to candidates, to avoid being listed in campaign finance reports.
2. The ultimate goal of disclosure rules — less corruption — is still only a theoretical benefit. Despite decades of experience, research has not established a significant link between disclosure rules and reductions in political corruption.
3. Disclosure rules impose a tremendous burden on political campaigns and staffers. The amount of time, stress, and money poured into campaign finance reports is disproportionate to their modest benefits. And in an increasing number of cases, disclosure rules result in criminal prosecutions and incarceration — something that should be very sobering to First Amendment enthusiasts.
4. The information otherwise available to voters is more significant than the information provided by mandatory disclosure laws. Scholarly research shows that, after taking into account the other information available to voters, the information contained in campaign finance reports adds little value.
5. Even if we assume disclosure is generally important, our current disclosure rules are not sensible. Someone who donates $25.01 to a campaign (and presents virtually no risk of corruption) must be publicly identified in Arizona campaign finance reports. Meanwhile, someone who bundles $25,000 or hosts large fundraisers (and presents a significant risk of corruption) need not be publicly identified. That makes no sense. If we’re going to have a system of mandatory disclosures, this is the wrong way to do it.
Anonymity Has Value
While disclosure is overrated, the benefits of anonymity are almost always overlooked. Three issues are particularly worthy of discussion:
1. Many individuals, organizations, and causes have a legitimate need for anonymity. Federal courts have long recognized that certain First Amendment activities will not occur without an option for anonymous participation — and in our election law practice, we regularly encounter donors with bona fide concerns justifying anonymity. Individuals critical of powerful government officials, for example, are unlikely to engage in extensive expressive activities unless their participation remains confidential. In this sense, disclosure rules systematically favor the establishment and disadvantage dissenters by deterring the public from speaking truth to power and opposing inept and corrupt government officials.
2. As a practical matter, there is little risk that vehicles for anonymous speech will, in the near future, be overused. Creating and operating a politically active 501(c)(4) organization, for example, is expensive, legally perilous, and raises suspicions. Because the existing disclosure rules make anonymity costly and inconvenient, the use of vehicles for anonymous speech is naturally limited to individuals and organizations with a non-trivial interest in anonymity (such as a credible fear of retaliation by incumbents or electoral favorites).
3. Anonymity can clarify, rather than obscure, a message. Research shows that viewers become skeptical of political arguments based solely on the speaker’s identity. While the significance of this fact is disputed — some treat this as a reason to support disclosure rules — I tend to believe that the persuasiveness of an argument should be assessed without regard for the speaker’s identity. People we dislike, and people with a financial interest in a political issue, are sometimes right — and by distancing a funder from his or her message, the public is more likely to engage on the merits of an argument rather than fixate on the speaker’s personality or motives.
None of this means that disclosure should be abandoned wholesale — but these factors support a much more nuanced view of political disclosures. They recommend, specifically, reconsidering the categories of information political organizations are required to disclose, and a recognition that anonymous political speech plays an important role in the democratic process.
— Kory A. Langhofer is co-chair of the Political Law Group at Brownstein Hyatt Farber Schreck, LLP, where his practice focuses on election and constitutional law.