Can Americans Be Trusted With Campaign Finance Disclosure? – An Update After the Brett Kavanaugh Hearings

Four years ago, I wrote a post asking “Can Americans Be Trusted With Campaign Finance Disclosure?”  I noted that, while some people want to limit political spending either by limiting how much people can contribute or by limiting how much candidates can spend, the First Amendment (at least as currently interpreted by the Supreme Court) doesn’t allow either of those.  Therefore, as I said back then:

“[T]hey fall back on disclosure of contributions.  If we can’t limit spending, they say, at least we can require contributions and spending to be disclosed.  In the words of Supreme Court Justice Louis Brandeis (before he was on the Court), ‘[s]unlight is said to be the best of disinfectants.’”

But, I asked, as I do again in the title of this post: Can Americans be trusted with campaign finance disclosure?  This question recently returned when a federal district court judge threw out a 37-year old Federal Election Commission rule dealing the disclosures that nonprofit advocacy groups have to make with respect to the names of their donors.  Without going into the technical detail of the case,¹ the judge’s ruling increases the number of people whose names have to be disclosed, even though the people aren’t making contributions to candidates, but just to groups that are making independent political expenditures.

Pro-disclosure groups were, of course, excited by the ruling.  Jessica Levinson, a professor at Loyola Law School in Los Angeles, said the decision, and the Supreme Court’s refusal to stay the ruling on an emergency basis, was a “huge win for the public.”  According to Professor Levinson, the FEC’s prior rule created “a huge gaping hole in our system and it allowed for so much undisclosed money to be pumped through our electoral system.  Disclosure is really all there is left.”

The purpose of this post is not whether the judge’s ruling was right as a matter of law.  Rather, my question is whether even more of this kind of disclosure is a good idea in the America of today; i.e., whether the American people, and particularly the American political class, can be trusted with this information.  Four years ago, I wrote about situations where people were harassed, and more, because of contributions they made.  It seemed, even then, that campaign finance disclosure was becoming less a matter of knowing where money came from and too much a matter of going after people who contributed to the wrong causes or candidates.

This question has become even more relevant in light of all of the controversy generated by Brett Kavanaugh’s nomination to the Supreme Court.  Regardless of who is right or wrong with respect to Judge Kavanaugh’s nomination, there are clearly a lot of people on both sides who are willing to do just about anything to either get Judge Kavanaugh confirmed or block his nomination.

In our current toxic political atmosphere, is disclosure of this information something we can safely do?  If the ends in politics are more important than the means, and following proper procedure is second in importance to winning, what is next?  If words are violence, which justify, or even require, actual violence in response, what might some people do when they see contributions made to the wrong side or cause?

In my post four years ago, I talked about the U.S. Supreme Court’s 1958 decision in NAACP v. Alabama, in which the Court held, unanimously, that the Alabama branch of the NAACP did not have to disclose a list of its members to the State of Alabama.  I think we can all understand why the Court came out the way it did in that case.  Justice John Marshall Harlan wrote in the Court’s opinion:

“Petitioner [i.e., the NAACP] has made an uncontroverted showing that on past occasions revelation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility.”

Four years ago, I said:

“I would never claim that the situation today, for proponents or opponents of any issue, is as bad as Alabama was for African-Americans in the 1950s.  1950s Alabama is not where we are today when it comes to harassment of people who support ‘the wrong side’ of a political question.  On the other hand, where we are today [i.e., October 2014] is a lot different from where we were ten or fifteen years ago.” 

Polarization in October of 2018 is worse than four years ago.  While everybody probably has their own theory as to why this has happened, it’s not just one reason or one person.  Every action by one side seems to require a greater reaction by the other side.

Which is my concern.  Given the deep polarization and partisan hostility that exists in the United States, where people who disagree aren’t just wrong but evil, should we really be publicly disclosing the names and addresses of people who contribute to one cause or another?  We already have people protesting outside the houses of politicians and high government officials and harassing people trying to eat dinner.  And we have politicians who say it is okay to do this.  When is it going to be okay to start doing these things to people who merely give a little money to the “wrong” side of one issue or another – and possible to do it because we know who they are and where they live?

While I understand the argument for disclosure, disclosure also requires a mature public and a mature political class.  I’m not sure we have either of those today.
----------
¹ It is really complicated.  For example, see here and here.