[EL] Accountability and disclosure/The First Amendment is not for sissies!

[David A. Schultz]

Hi all:

My comments on the “accountability and disclosure” discussion may be late but I want to offer one observation–the First Amendment is not for sissies!

I read all the comments on disclosure and what struck me most were two errors on the part of those opposing disclosure.  First, there seems to be some belief that the first Amendment protects one against all social criticism.  Second, democracy is for the faint-hearted.

As far as I know the first Amendment is meant to protect us from government persecution of our beliefs.  We are to be protected from some petty or high official proclaiming orthodoxy and persecuting us for our political views.  Remember Justice Jackson’s great quote from Barnette: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”

However, even if the government cannot shun us, that does not mean that the public cannot too.  Within reason, if I hold strange views or take a stand on controversial issues, then the public has a right to shun me (not hurt me physically of course).  This is classic John Stuart On Liberty.  My simple point here is that the Constitution does not insulate us from criticism for our political views, including who we give money to.  Thus what seems to worry opponents of disclosure is what happened in Minnesota two years ago when Target Corporation gave money to support an anti-gay, anti-choice candidate for governor–the company go bad press and people boycotted it.  God bless America, that is what is supposed to happen if people disagree with you.  Here, Target paid the price for its views–the public held it accountable–and the First Amendment should encourage.

Second, opponents of disclosure here act like sissies!  They seem to assume that any dirty look or glance at  or criticism of a donor constitutes coercion and therefore we need to protect them.  Somehow I cannot image Justice Scalia going along with such a fainthearted view of democracy.  Democracy, as he argues repeatedly, is about robust debate where individuals should be ready to respond to criticism from others because of their views.  Somehow I think this is the market place of ideas.  If one wants to play the game of politics be prepared to play hardball and be accountable for your views, including who you give money to.  If you are not confident or proud enough to stand publicly–especially if you are rich or a corporation–for what you believe in, don’t play the game of democracy.  The First Amendment should not be in the game of hiding information but encouraging its dissemination. 

Finally, several years ago I wrote a piece for the Election Law Journal arguing that those who argued for no campaign finance limits were hiding inside a Trojan Horse in arguing for no limits but full disclosure.  I contended that eventually they would argue against disclosure too.


David Schultz, Professor
Editor, Journal of Public Affairs Education (JPAE)
Hamline University
School of Business
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Name of the inaugural 2012 Faculty Row SuperProfessors 
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