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a claimed First Amendment right of anonymity for people who signed a petition to have a domestic partnership law repealed.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 I think that laws protecting same-sex domestic partnership shouldn't be repealed; they should be extended so that we have marriage equality.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.