It has just come to my attention that last week David Schultz, a Professor at the Graduate School of Management at Hamline University with whom I’ve previously had cordial relations, rather out of the blue “called me out” last week. In a post at Politics in Minnesota, Professor Schultz accuses me, by name (along with Attorney Jim Bopp and political scientist John Samples of the Cato Institute), of “hypocrisy,” and complains that we wish to “hide in the dark,” are “authoritarians,” and wish to “create a new plutocracy.” Indeed, he appears to say of all three of us that “they do not want anyone to know who they are,” a particularly odd claim since you would be hard pressed to find three more visible advocates of free speech and free elections. Presumably, it’s just sloppy writing and he meant to suggest that others fit that last bill.
Professor Schultz is known for his hyperbole – for example, in one recent article, he argues the perfectly defensible position that “the evidence being offered to support photo IDs [at the polls as an antifraud measure] does not justify the restrictions being imposed.” But he goes way over the top to claim that America is going through a “great wave of voter disenfranchisement,” (which seems odd since voter roles and turnout are at higher levels than they’ve been for some time) in which “the tools are not literacy tests, poll taxes, or lynch mobs, but rather the use of photo IDs.” In another recent post he calls the Supreme Court’s decision in McCutcheon v. FEC, which struck down aggregate caps on political giving, as “thuggery.” He’s not particularly nuanced or subtle. Still, when one is directly called out, a response may be in order.
Specifically, Schultz is upset because he feels free speech advocates have reneged on disclosure of campaign contributions. Proponents of deregulation, he says, “have argued that what they would like to see is simply a disclose-only regime.” He specifically names me, Bopp, and Samples as three who have “long supported disclosure-only.” But now, he says, “Smith, Bopp, Samples and others have been attacking disclosure, contending that such laws haze or chill the free speech rights of individuals.” “The biggest problem with advocates of disclosure-only,” he adds, “is their hypocrisy.” (If he thinks that is my biggest problem, my wife could give him an earful.)
This is all a bit strange, because it comes at a time in which we have more government mandated disclosure than ever before. And, except for arguments to modestly increase the thresholds for compulsory disclosure, there is no legislative effort to weaken or abolish compulsory disclosure laws in any way.
But this is worth responding to, because beyond the fact that Schultz calls me out personally, this argument of hypocrisy has become something of a canard among the “reform” community.
Let us start with the obvious – it is certainly true that in recent years that a great many in the pro-speech community – including me, and I think we can safely say, Bopp and Samples – have become increasingly critical of unchecked compulsory disclosure. But contrary to what Schultz says, speech advocates were never all-in for anything that David Schultz or other reformers might think people should be forced to disclose under penalty of law. I never recall broad disagreement – or indeed any disagreement at all – among speech advocates with the proposition that NAACP v. Alabama, NAACP v. Button, Bates v. Little Rock, Talley v. California, or Buckley v. Valeo were rightly decided in limiting the state’s right to compel disclosure of memberships and financial support for organizations that were not campaign committees or did not have the principle purpose of supporting candidates for office. I know of no piece by any thinker on the pro-speech side of these debates critical of Thomas v. Collins, or even a case such as Brown v. Socialist Workers ’74 Campaign Committee. Compulsory disclosure has always been a difficult issue.
Let’s focus on my own writings. The first public piece I ever wrote on campaign finance issues was a 1994 op-ed in the Washington Times in which I supported plaintiff/appellant Margaret McIntyre in her claim of a right to anonymously publish and distribute pamphlets opposing a school tax, the case that became McIntyre v. Ohio Elections Commission. Fourteen months later, in my first academic writing on campaign finance – “Faulty Assumptions and Undemocratic Consequences of Campaign Finance Reform,” 105 Yale L. J. 1049, 1071, n. 139 (1996)- I wrote, “[m]y own view is that disclosure laws raise serious First Amendment questions, and thus are not free from difficulties. Because disclosure laws do not have the same type of broadly “undemocratic” consequences as the other major tactical goals of the reform movement, this Essay does not address them.” (citation omitted) (I am not sure I would any longer agree with the first clause of the second sentence). In my 2001 book, Unfree Speech, after noting the broad public support for disclosure, I wrote that disclosure should nevertheless be viewed skeptically as it “does infringe on First Amendment liberties, even if the Court has found those infringements justified. Indeed, many of … the more outrageous incidents of campaign finance enforcement involve disclosure laws.” I quoted approvingly from Justice Stevens majority opinion in McIntyre at length, including this: “anonymity is a shield from the tyranny of the majority. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular.” I noted that “[f]orced disclosure holds the danger of government retaliation for unpopular speech…[n]or is the problem limited to official retaliation…. Given these problems, it may be worth reconsidering the rationale even behind disclosure laws…. Whether or not [there] is a strong enough government interest to justify a regime of disclosure, given the burdens that disclosure places on grassroots political activity and its infringement on First Amendment liberties, is hardly an easy question. It may be time to question whether even disclosure is worth the cost.” Unfree Speech at 221-224. In the first years of my term on the Federal Election Commission, I joined a 4-2 majority of the Commission in extending the exemption of the Socialist Workers Party from public disclosure. It is only in the heads of those in the reform community that I and others have done some sudden about face on disclosure.
Beyond the fact that the speech community has always been sensitive to the First Amendment ramifications of compulsory disclosure, there is a second element at play. As Professor Schultz argues in last week’s blast, “there is little sense of what disclosure-only means. What is to be disclosed, how, and when.” Quite true, and that – and not the idea of disclosure generally- is now at the core of the disclosure debate. As I noted, I (and to my knowledge Bopp, Samples, and most others) have never offered a blank check to the advocates of compulsory disclosure. Here again, some history is in order.
In the spring of 2002, opponents of the McCain-Feingold bill offered a legislative alternative that would have raised contribution limits and required more rapid disclosure of contributions to candidate campaigns and political parties – essentially, “real-time” reporting on the internet- during the final 90 days of an election. The “Citizen Legislature and Political Freedom Act,” (H.R. 1444) introduced by Rep. John Doolittle (R. Cal.) would also have increased disclosure on funds transferred between political parties, and done away with the “best efforts” provision of the disclosure laws for contributions over $200, thus requiring actual, strict compliance with disclosure laws of all contributions to candidates over $200. The reform community vigorously opposed the bill. But nothing in the bill required disclosure of contributions to organizations that did not meet the primary purpose test of Buckley. It did not require corporations to disclose dues to trade associations or donations to charitable and advocacy organizations; it did not require non-profit advocacy organizations to disclose their donors; it did not require independent spenders (express advocacy) to disclose their general membership lists – all things now routinely demanded by the crowd arguing that their opponents have somehow reneged on their position.
Schultz is also correct that the exact contours of disclosure – what, how, and when – never got much of an airing in the 1990s and early 2000s, but this is largely because the reform community rejected the “disclosure-only” alternative out of hand, as not even suitable for debate. What is clear is that what opponents of campaign finance caps, restrictions, and prohibitions offered was some more rapid and more rigorously enforced disclosure of contributions to candidates and to political parties – not to trade associations, think tanks, and charities, and not disclosure of donors to businesses, unions, and non-profits that did not have electoral politics as their primary purpose. This is in keeping with the speech community’s concern that compulsory disclosure is justified, if at all, to allow the citizenry to monitor government officials – not to allow the government, or other citizens, to monitor the citizenry.
So what has changed in the disclosure debate is not what the deregulatory advocates have agreed or not agreed to, but what the “reform” community is now demanding. And this has an ironic twist to it: in 2002, the reform community might have gotten agreement from their rivals on broader disclosure, not because the First Amendment concerns weren’t there, but simply as a matter of political compromise to get something else the speech community wanted – fewer restrictions on contributions. But reformers were riding high at the time, and wanted no part of such compromise. A decade later, after a series of defeats at the ballot box, in legislatures, before regulatory agencies, and most of all in the courts, the reformers are now demanding that their opponents not only offer up again the previously spurned offer (for which reformers offer nothing in exchange), but that they give up even more. Professor Schultz, in other words, moves the goal posts, then accuses his opponents of cheating.
All that aside, increased wariness of disclosure by speech advocates is merited. People can and do change their views as more information comes to light. What once may have seemed a valid compromise seems less so in light of the well-documented efforts of the last decade by the reform community and its allies to harass, boycott, bully, and all too often destroy the lives of individuals, both rich and not so rich, powerful and not so powerful, who hold unpopular political positions. This concern was also on display last week, when the liberal-turned-conservative commentator Charles Krauthammer devoted a column to criticism of compulsory disclosure. Noting that he had long supported a disclosure-only regime, Krautheimer expressed his change of heart: “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.” Krautheimer concludes, “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.”
In my experience, most Americans are not constitutional absolutists – at least not at first. They are willing to recognize, or at least concede, some infringements on constitutionally guaranteed liberties. They become absolutists when the regulators abuse the reasonable trust they have been given – i.e., when it becomes apparent that the regulators have an uncompromising idea of what is “reasonable regulation.” The NRA became a lobbying force, for example, and a strong Second Amendment theory came to the fore, only when it became apparent in the 1970s that the gun-control lobby – or at least a large segment of it- wanted much more than reasonable regulation – they wanted the guns, period. Similarly, Citizens United was the only choice the Supreme Court really had when faced with a law that prohibited even 1 penny of corporate spending on an election. And now McCutcheon is constitutional law, for better (as I believe) or worse (as Prof. Schultz believes), and he fears, unfortunately I think with too much pessimism, that even disclosure is now on the block.
But the reform community can probably nip the growing backlash to disclosure epitomized in Krauthammer’s column, simply by backing off their ever increasing demands and issuing some criticism of those who use (and abuse) compulsory disclosure in ways not related to its legitimate purposes. If history is any guide, however, this is no time to hold your breath waiting for that to happen. Rather we expect more unfounded charges of hypocrisy to fly, more silly rhetoric about “plutocrats” and “oligarchs,” and, we hope, more victories for free speech and free campaigns.