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Who Should Know about Your Political Contributions?

Friday, March 16, 2012

We view the secret ballot as a fundamental democratic principle. Without it, citizens could be subject to intimidation or reprisal. Why should we feel differently about political contributions?

In January 2010, the Supreme Court’s ruling in Citizens United v. Federal Election Commission overturned some of the prohibitions on corporate and union spending on political advertisements. The Justices split 5-4 on predictable conservative-liberal lines, but on one aspect of campaign finance law they were nearly unanimous: By 8-1 they upheld laws requiring corporations to disclose their political expenditures.

The lone dissenter on this issue, as in other campaign finance decisions, was Justice Clarence Thomas. Thomas cited incidents from the referendum campaign to enact California’s Proposition 8, which amended that state’s constitution to deny recognition of marriages between people of the same sex. California law required public disclosure of the names and addresses of anyone donating more than $100 to the campaigns. Briefs filed in Citizens United described how opponents of Proposition 8 created websites with maps showing the locations of homes or businesses of Proposition 8 supporters, who suffered property damage or threats of physical violence as a result.

Citizens United involved only disclosure of corporate expenditures. Nonetheless, we should give some attention to Thomas’s wider point.

We view the secret ballot as a fundamental democratic principle. Without it, citizens could be subject to intimidation or reprisal. Why should we feel differently about political contributions?

Perhaps companies won’t care whether their employees are giving to mainstream candidates and parties, but suppose you want to give to the pro-life, socialist, or drug legalization candidate. Can you be sure there won’t be repercussions? The Proposition 8 campaign indicates that retaliation for campaign contributions may not be a paranoid fantasy.

Suppose you want to give to the pro-life, socialist, or drug legalization candidate. Can you be sure there won’t be repercussions?

Granted, it serves a real public interest for voters to know what interests are backing a candidate. But currently anyone who gives more than $200 to a federal candidate will have his or her name posted on the Federal Election Commission’s website. (Want to know what your neighbors are up to? Just go to this FEC webpage.) Many states require similar disclosures in state elections, some (such as California) with lower dollar thresholds.

Even if there are sound public policy reasons for mandating disclosure of who is bankrolling a candidate, someone giving $200 isn’t “bankrolling” anybody. If we just want to know who is providing a candidate’s financial muscle, we can set the reporting threshold much higher. For the 2012 election cycle, individuals can’t give more than $5,000 to a federal candidate ($2,500 for the primaries and $2,500 for the general). Given the scale of the government’s activities and the conflicting interests at play, it’s doubtful whether someone contributing only those amounts could expect much more than an invitation to an Inaugural Ball; their contribution would be unlikely to influence any important matter.

We can argue about where to draw the line, but the current $200 reporting threshold is clearly too low, providing an invitation to intimidation and reprisal. A more realistic reporting cutoff would protect the privacy of small contributors, thus possibly encouraging more individual contributions, especially to fringe candidates and parties whose views might enrich the political dialogue.

Howard Darmstadter taught law at Benjamin N. Cardozo School of Law and philosophy at Barnard College, both in New York City. For several decades he was in-house counsel to the political action committees of a large financial services company.

FURTHER READING: Mark Cantora writes “Beyond Obama’s Assault on Free Speech.” Norman J. Ornstein contributes “Effect of Citizens United Felt Two Years Later” and “Blame Game on Lack of Super PAC Disclosures.” John Yoo and David W. Marston discuss “Overruling Citizens United with Chicago-Style Politics.”

Image by Darren Wamboldt / Bergman Group

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