The Best Laid Plans of Roberts and the Regulators

Published on October 25, 2007
by Michael Darner

File Under: Disclosure

One of the few certainties in everyday life, both inside and outside the Beltway, is that our best-intentioned efforts rarely ever generate the exact outcome we hope for and, more often than not, trigger unintended consequences.  Case in point: the regulatory aftermath of the Supreme Court’s decision in Federal Election Commission v. Wisconsin Right to Life.  In WRTL II, as it is commonly referred to in the election law community, Chief Justice Roberts seemed to strike a decisive victory for political free speech.  By exempting certain grassroots funding of genuine issue advocacy from the general ban on union and corporate electioneering advertising immediately preceding an election, it appeared that grassroots activists would finally be free of the burdensome chains of campaign finance regulation that had silenced them.  Finally, these citizen-powered cogs of democracy were free to speak their minds and hold their elected officials accountable at the time when it matters most.

Unfortunately, unintended consequences are always looming around the corner.  In this case, the culprit has been Section 201 of the 2002 Bipartisan Campaign Reform Act, which requires that all organizations engaging in “electioneering communications” disclose the names of their donors.   It seems that in removing one set of chains Chief Justice Roberts has unintentionally allowed the FEC to clamp a different, but equally problematic, regulatory shackle on grassroots advocacy organizations – the shackle of disclosure.

For most ordinary citizens, the idea of additional disclosure doesn’t seem like such a bad thing.  After all, as Justice Brandeis stated, “sunlight is the best disinfectant.”  We already know who gives money to our politicians and their electoral opponents.  Don’t the American people deserve to know who gives to President Bush AND MoveOn.org?

In a word, no.  Most famously in its 1958 decision of NAACP v. Alabama, the Supreme Court recognized that individuals have a right to anonymously speak with each other about the burning public policy issues of the day.   The Court recognized that when the general public knows who has given money to a controversial political organization, both the donor citizen and recipient organization are suddenly vulnerable to a multitude of harms from their fellow citizens, or even the government.  An Oklahoma businessman may choose not to give to a gay rights organization because he fears that he may lose the business of his conservative customers, a Southern California Congressman may forgo a National Rifle Association lifetime membership because he thinks his liberal constituents may punish him at the ballot box, or a radical political organization may go belly up because people fear being publicly associated with its message.  It goes without saying that an Alabama resident living in the Deep South during the 1950s might literally fear for his life if his donation to a civil rights organization became public knowledge.  

All of this brings us back to the post-WRTL II regulatory landscape and the dilemma facing grassroots organizations today.  As a direct result of BCRA Section 201 being applied to them, organizations that choose to exercise their new freedom to advertise before an election are now subject to a chill on their First Amendment rights.  Ironically, by bolstering the rights of these groups to speak, the Supreme Court has unknowingly unleashed many of the ills it sought to correct nearly 50 years ago.

While the procedural posture of WRTL II doesn't lend itself to allowing the FEC to gut BCRA's disclosure requirements outright, this situation should stand as a cautionary tale about the dangers raised by the overregulation of constitutionally protected activity.  Courts can do their best to undo the damage wrought by a legislature when it goes too far, as the Chief Justice and the other members of the Court attempted to do here.  Unfortunately, more often than not, an unforseen and unintended consequence may stymie the judiciary's best efforts and, in the end, citizens may be left where they began: with their freedoms limited by government regulation that never should have existed in the first place.