[EL] The need for less disclosure sometimes

Fri Apr 4 06:41:52 PDT 2014

That's an interesting empirical question. It's also one that will become clearer over time.

There's another aspect though: this is a testable question precisely because, once the government compels disclosure, it can't restore a donor's privacy. This isn't something that can be put back in a box, nor is it something that necessarily conveys anything helpful years after the fact.

Take Mr. Eich's example. We know only that, in 2008, he opposed Proposition 8. Of course, in 2008, so did the Democratic presidential nominee (at least in substance). But Mr. Eich has been forced from his job, while we do not see a groundswell of support for the President's impeachment, even though they expressed an identical opinion at an identical time.

Of course, these are very different jobs. But I'd suggest there's another point as well: by virtue of his office, the President's thinking has been able to publicly evolve on this issue--as have the views of a substantial number of Americans, both in government and privately. But Mr. Eich is still defined by a contribution made in 2008. And even if Mr. Eich is a bad example, since he is a semi-public figure, certainly the 35,000 other contributors must include some individuals whose thinking has evolved but who will be judged by many solely on the basis of a contribution made in a very different time and place. http://www.slate.com/articles/news_and_politics/frame_game/2014/04/brendan_eich_quits_mozilla_let_s_purge_all_the_antigay_donors_to_prop_8.html (note: satire is involved).

To translate all of that into law: the government's informational interest is short-term (who is affecting this vote?) and the individual's privacy interest is long-term (how will this be viewed in future decades?) That's a serious asymmetry since we are far more likely to be able to guess the former than the latter. Perhaps we should be asking the effect on political participation if individuals are required to make lifetime bets on historical trends, the sort of public record that has traditionally been limited to explicitly public positions and official action. 

It certainly argues for far more care in drafting disclosure statutes. After all, disclosure thresholds are set low enough to capture individuals who could not weather a future storm as well as Mr. Eich is likely to. 

Best,
Allen

Allen Dickerson
Legal Director
Center for Competitive Politics
(703) 894-6800

________________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] On Behalf Of Larry Levine [larrylevine at earthlink.net]
Sent: Friday, April 04, 2014 1:42 AM
To: 'Smith, Brad'; 'Rick Hasen'; 'Josh Orton'
Cc: law-election at uci.edu
Subject: Re: [EL] The need for less disclosure sometimes

Isn’t the demonstrable likelihood of resultant boycotts so infrequent as to be called insignificant when measured against the public’s right to know the source of funding for candidates and measure?
Larry

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Smith, Brad
Sent: Thursday, April 03, 2014 9:04 PM
To: Rick Hasen; Josh Orton
Cc: law-election at uci.edu
Subject: Re: [EL] The need for less disclosure sometimes

But Josh completely misses the point.

Your original question: is there a free speech interest in boycotting? My point is that that is the wrong question.

Of course there is, and no one is proposing to limit that the right to boycott (though I have argued, and continue to argue, that generally it is a bad use of freedom). Rather, the question is, does the government have an interest in forcing people to divulge personal information so that others can boycott them? I presume that the answer to that is "no."

Josh says, in effect, but the state has other interests. I'll concede that. As I said, then it's a balancing matter, and you seem to agree, as does Josh. But it is not balancing the speech interest of boycotting with with the associational and privacy interests on the other side (or your answer to the question in the first paragraph would be "yes.") Rather, it is balancing whatever other "compelling" interest the government can come up with against the associational and privacy interests, and chilling effect on speech.

In other words, if you really believe there is a First Amendment interest in having the government force others to provide you with the information you need to boycott them, then you would presumably have no objection to forcing, under penalty of law, the publication of memberships, voting records, charitable contributions, and such.

Does the government have a compelling interest in encouraging private boycotts? Clearly not. It doesn't even have a rational basis interest in doing so, boycotting historically having been frowned upon as harmful to economic growth and civil society. But if you believe that there is a government interest in encouraging private boycotts on the basis of political belief and action, I don't see how you conclude there is not a government interest in encouraging private boycotts on the basis of voting records ("I do not want to do business with a person who votes Republican!"), charitable giving ("you give to the homophobic boy scouts! - you're fired!" "You support Planned Parenthood and killing babies!!! - I want nothing to do with you!"), memberships ("you're a Mason!!!!!!!??? My business goes elsewhere!"), and probably quite  bit more. Personally, I simply see no way that the state has a compelling interest in forcing people to divulge personal information so that others can try to harm them through boycotts.

So in balancing, we weigh the state's interest in disclosure (an informed electorate, prevention of corruption, enforcement of limits) against the individual/group's interest in privacy, association, and speech. On the government side, we should place zero value on the fact that it will help people launch private boycotts - indeed, that is an argument in favor of limiting disclosure.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: Rick Hasen [rhasen at law.uci.edu]
Sent: Thursday, April 03, 2014 11:29 PM
To: Josh Orton; Smith, Brad
Cc: law-election at uci.edu<mailto:law-election at uci.edu>
Subject: Re: [EL] The need for less disclosure sometimes
Brad,
I agree with Josh that the analogy to charitable giving is off the mark, because there is nothing to balance on the other side.
My own view is that for small donations, there should be a zone of informational privacy.  Revealing such information serves little public purpose and could deter some giving by small donors.  For larger donors, I think the privacy interest should give way to anticorruption and informational interests.
I develop these ideas in much more detail in: Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in the Internet Age<http://ssrn.com/abstract=1948313>, 27 Journal of Law and Politics 557 (2012)

It is also a little ironic, as a reader pointed out to me, that you kept the Libertarian candidate off the ballot recently in Ohio for failing to include employment information on collected petitions.

Rick

On 4/3/14, 8:17 PM, Josh Orton wrote:
Actually, the question is: is it clearly constitutional to legislatively require disclosure of potentially corrupting political contributions? This and previous courts have plainly said yes.

The comparison with private charity is completely faulty, unless you believe our government has literally no interest in acting to preserve the faith of its own citizens.

And speaking politically, I'm actually quite encouraged by the angry complaints about the exercise of informed economic freedom by peer corporations and consumers. It helps build momentum for further disclosure.

On Thu, Apr 3, 2014 at 8:25 PM, Smith, Brad <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>> wrote:
Totally wrong question. The question is: should the government be able to force people to reveal personal information that others will use to harm them? Is there any government interest, let alone a "compelling" one, the usual standard where first amendment rights are infringed  and if the government has some other interest, how strong must it be to overcome this first amendment interest?

Here's a question: would you favor a law requiring all charitable contributions to be placed on the web, so that citizens can boycott fellow citizens more easily? If not, I think you've answered my first question above.

Sent from my iPhone

On Apr 3, 2014, at 9:10 PM, "Rick Hasen" <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:
Do you see no protected First Amendment right to an economic boycott ?

Rick Hasen

Sent from my iPhone. Please excuse typos.

On Apr 3, 2014, at 5:49 PM, "Joe La Rue" <joseph.e.larue at gmail.com<mailto:joseph.e.larue at gmail.com>> wrote:
"The resignation of Mozilla CEO Brendan Eich over a personal $1,000 donation he made in 2008 in support of California’s Proposition 8 shows the dark side of campaign disclosure laws and how [some] are using them to intimidate, harass, and bully anyone who disagrees with them on social and cultural issues."

Sometimes the answer is not "more disclosure."  Sometimes the answer must be less disclosure, if we are to allow unpopular political speech to survive.  This is precisely what the Bopp Law Firm argued in Doe v. Reed.

Read more here. http://blog.heritage.org/2014/04/03/liberals-using-campaign-disclosures-intimidate-harass/

Joe
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