Tuesday, November 17, 2009

Anonymous Campaign Donations Revisited

By Mike Dorf

In my latest FindLaw column, I examine a recent Ninth Circuit decision, Doe #1 v. Reed, that rejected a claimed First Amendment right of anonymity for people who signed a petition to have a domestic partnership law repealed.  I argue that the Ninth Circuit essentially missed the true strength of the plaintiffs' claim, but that the court may have gotten it right after all.  I nonetheless say that, as a policy matter, government ought generally to allow anonymous politicking.  The wishy-washiness of my position--tentatively against the constitutional claim but in favor of the policy claim--reflects what I regard as the difficulty of the question.

To be clear, I don't regard the underlying merits as difficult at all.  I think that laws protecting same-sex domestic partnership shouldn't be repealed; they should be extended so that we have marriage equality.  Indeed, as I've said many times before (e.g., in 2004, here, and in 2008, here), I regard the denial of the right to same-sex marriage as a denial of equal protection.  But of course the answer to the question whether there is a right to anonymous petitioning cannot be "yes" for petitions one favors and "no" for petitions one opposes.

So, why do I regard the anonymity issue as close?  As I explain in the column, partly because the constitutional law in this area is equivocal: Government can demand disclosure of the identity of campaign contributors (except for small unpopular parties whose supporters run a serious risk of harm if they are thus "outed"), but government must allow anonymous pamphleteering.  The column asks whether petition signing is more like pamphleteering or more like donating money to a campaign.

Here I want to add a note of normative skepticism about the campaign finance law in this area.  The basic idea is that government requires disclosure of the identities of campaign contributors to prevent corruption.  But at least in federal elections and state elections that utilize similar caps on contributions, this fear is often unrealistic.

In the 2008 election, an individual could contribute up to $2,300 per candidate per election (meaning $4,600 total if one gives to the same candidate in a primary and a general election), plus a maximum of $28,500 to a national party.  Taking account of the possibility of supporting multiple candidates in different races and of the stand-alone caps, an individual could give up to $108,200 over two years to candidates and PACs.  That's a sizeable chunk of change, and the public clearly has an interest in knowing who has given money at this level so it can monitor elected officials to see whether they are doing special favors for such big donors.

However, most people who give to political campaigns give smaller totals.  Do I really have an interest in knowing which of my neighbors gave $500 to Barack Obama, Rudy Giuliani, Hillary Clinton, or Mike Huckabee--as I can find out in a few seconds via fundrace.huffingtonpost.com?  There is really no likelihood whatsoever that the President, or even a corrupt House member, would do special favors for such relatively small donors.  Indeed, it seems that in order to get the sort of favors that one expects from, say, the Governor of Illinois, one needs to give money at well beyond the levels permitted for federal elections--and cash in brown paper bags does not get reported to the FEC in any event.  (Illinois does not cap campaign contributions for state elections, a policy that has been working wonders for the state, corruption-wise.  But I digress.)

Meanwhile, the HuffPo map can definitely chill political contributions.  Let's say you live in an overwhelmingly Democratic neighborhood but want to support a Republican candidate, or vice-versa.  Even if you don't fear violence, intimidation or a boycott of your business from your neighbors, mere social awkwardness could lead you to think twice before writing the check.  Sure, some hardy souls will want to state their dissenting opinions openly, but many will not.

To my mind, therefore, the only decent arguments for campaign finance disclosure even for small donors are administrative ones.  The FEC lacks the staff to anonymize contribution info before putting it into the public domain, even as there is an interest in such anonymized information.  E.g., how much money for Candidate X came from suburbs versus cities?  How much came from gun owners?  Etc.  Throwing the raw donation data out into the public is a form of crowd-sourcing that allows people to run their own data analysis.  But we shouldn't kid ourselves that it's costless: The possibility of chilling pocketbook political participation is real.

The potential political twist here is that conservatives tend to be more concerned than liberals about protecting campaign contributions as a form of political speech, but conservatives are also more skeptical of the ability of government bureaucracies like the FEC to perform their task competently and in a non-partisan manner.  So conservative instincts cut both ways here.  Meanwhile, liberals who don't overly fear that disclosure will chill campaign contributions are also more inclined to think that a government agency can act as an honest broker for information.  So the stakes on each side are lower for liberals, but there is no clear answer for them either.

Bottom Line: I am somewhat uncomfortable with the disclosure of small donors' info, even as I am somewhat uncomfortable with the idea of withdrawing from the public domain the raw donation data needed to answer legitimate questions about political influence.


Tom Lang said...

"Thus, Washington would do well to construe or amend its Public Records Act to protect the anonymity of the Doe plaintiffs. The shield that Washington's conservatives seek today could prove invaluable for progressive causes—including marriage equality—tomorrow."

You have GOT to be kidding me. We would not have marriage equality in Massachusetts if it hadn't been for name posting. The work of KnowThyNeighbor.org in 2005 exposing fraud and keeping the conversation going on marraige equality, but also the use of this strategy in 2000/01 by the Mass Gay and Lesbian Political Causus and the ACLU to post names of the signers of the mini DOMA in MA as well as the signers of a bait and switch petition for horsemeat in dog food which were being used to confuse signers to qualify for the ballot. If Mass had been hit by a mini DOMA, Goodridge would not have been allowed. This is about a social issue Mr. Dorf. and social issues can only reach public awareness with such actions as to force or place before the public social responsibility.

Paul Scott said...

I think your issue-specific thinking is clouding your judgment. If "outing" was essential to Gay Marriage rights in Mass, then to me that actually makes the issue less close than Mike is suggesting. It means, unequivocally, outing has a significant chilling effect.

While that might be good, today, for Gay Marriage (something I, and Mike, completely support), one can certainly see how the opposite would have been true as recently as 10 years ago.

Other important social issues may face opposite circumstance where the very chilling that benefited Gay Marriage in MA would act to stall these movements.

Howard Wasserman said...

Why isn't Doe v. Reed moot? The election is over. Is this capable of repetition-yet-evading-review? Is it likely that these individuals will sign petitions in the future for which they will not want their names disclosed?

Michael C. Dorf said...

Paul gave 1/2 the answer I would have given to Tom Lang. The other 1/2 is that to the extent that TL points to the availability of signers' names as a means of crowd-sourcing the checking of fraud, I agree that this is a good argument against anonymity--as I said in both the column and the blog post. Whether the crowd-sourcing claim is true in any given case and whether the interest in crowd-sourcing outweighs the worry about chilling political participation is, as I noted, what makes this a hard question.

In response to Howard Wasserman's query, so long as the state plans to release the names with a fear of reprisal by the signers, there is a live issue. The anonymity of signers is collateral to the merits of the petition.

C.E. Petit said...

I'm less worried about small donor/large donor anonymity than I am about potential voter/nonpotential voter anonymity. I do not believe that there's a very good policy or constitutional argument that a nonvoter attempting to influence a political question (whether we're talking about lobbying, a referendum, whatever) deserves any anonymity in these circumstances, whether we're talking about donations or petition signatures. For example, if individual members of People for Home Nukes who are actually registered to vote in the relevant jurisdiction wish to circulate and sign a petition supporting their, umm, preferences, that seems to fall within Professor Dorf's concerns. The organization itself, though, and NONregistered voters in that jurisdiction (obviously restricted to donations and ads!), simply do not have a proper interest in anonymity. That's not to say that they should be silenced or prohibited from donations; it is only to say that an outsider to the question cannot expect anonymity.

DavidMac said...

If the liberal POV is so correct, why is it that liberals insist that the most severe punishment one can inflict on a closeted gay Republican is public disclosure?

If being "gay" (i.e., being a homosexual) shouldn't be stigmatic, then logically homosexuality must be normal within society as a whole and therefore, criticism of homosexuality must be a non sequitor and it follows that heterosexuals should be perceived as "abnormal".

It then should appear that to the homosexual "community", being heterosexual is abnormal, so logically being gay is normal and therefore isn't deserving of any special consideration and that marriage between a man and a woman is abnormal.

All the above is tongue-in-cheek, of course. I'm not sophmoric and find the whole "same-sex marriage" controversy fairly amusing.

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Bruce in Jersey said...

Just saw a newspaper story about the Washington State petition anonymity case. Links led to your Nov. 2009 Findlaw article. I think a distinction can be drawn between petitions addressed to officials (who then may act or not) and petitions that result directly in referendums. The latter are more akin to legislating, and I think it should be up to the states to decide whether such activity can be done anonymously.

As a policy issue I think an analogy can be made with the "right to confront" in criminal cases. The referendum on Domestic Partnerships in Washington State (like Prop. 8 in CA) is an egregious case. But many political initiatives involve the attempt by one group in society to reduce, restrict or limit rights enjoyed by others. Zoning laws protect some property owners by limiting the activities open to others, for example. If someone or some group is going to push legislation that harms my interests, should I not have the right to know from whence this attack comes? How am I to mount an effective defense without this information?

To give an example of how this might work with respect to cases like Doe#1 - suppose I am a gay man, and learn from release of the names of the petition's signers that a close relative (my own uncle, say) signed the petition. Maybe he didn't understand what he was signing. Maybe he didn't know I was gay. In any case I now have the opportunity to talk with him and perhaps change his mind. Anonymity prevents this kind of healthy debate.

If there were a well-founded fear of illegal reprisal or harassment based on history (as of the KKK) then the protection of anonymity might be justified. But the gay-rights movement has no significant history of violence, and the fear of boycott does not deserve protection. To make an analogy, I don't see why an anti-Semitic shopkeeper shouldn't suffer a boycott from Jewish customers if he were to attempt to write his prejudices into law. You don't put money into the hand that slaps you, and the law should not allow anonymous slaps.

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Roedy said...

In the US elections, I see the overwhelming power of anonymous political “donations” to trick people into voting against their own interests. I suggest Americans give up the sham of being a democracy. Instead, they should hold a public auction where various cartels can buy politicians. The money from the slave auction would go to general revenue to reduce everyone’s taxes. There could also be a sort of stock market for daily buying and selling of politicians’ individual votes. The big advantage is who bought whom would at least be known, unlike now. It would also allow citizens’ groups and environmental groups to legally buy politicians too. At least the public then would know which corporations were funding the most evil and boycott them.

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