Subject: [EL] Excessive disclosure
From: "Smith, Brad" <BSmith@law.capital.edu>
Date: 2/18/2011, 9:16 AM
To: Election Law

There seems to be a growing recognition of the cost of excessive disclosure requirements.  First, from the AP:

 

“The chairman of the black Alabama Democratic Conference is asking the Justice Department to review whether Alabama's new ban on transferring money between political action committees violates the 1965 Voting Rights Act. Chairman Joe Reed sent a letter to the Justice Department's Civil Rights Division seeking the review.

 

“He said Monday the new ban stops political candidates, political parties and PACs from giving to ADC's PAC, which is used to turn out minority voters for elections. He said the new law diminishes the impact of the Voting Rights Act by diluting black influence at the polls. ‘It would pretty much dry up our money,’ he said. Reed said the law would also impact money raised by labor organizations and the Alabama New South Coalition, another predominantly black political group, for their efforts to turn out voters.

 

“The law was part of a package of ethics and campaign finance bills the new Republican-controlled Legislature approved in December. It was designed to stop money being transferred multiple times between PACs to disguise who is giving to which candidates.”

 

The link: http://blog.al.com/wire/2011/02/alabamas_joe_reeds_asks_justic.html

 

This comes barely two weeks after Public Citizen went to court to argue:

“The right to engage in anonymous speech ‘is a well-established constitutional right. In fact, anonymous political speech is an especially valued right in this nation.’ [citations removed] From the literary efforts of Mark Twain to the authors of the Federalist Papers, ‘[a]nonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind.’ Talley v. California, 362 U.S. 60, 64 (1960). As the Supreme Court wrote in McIntyre v. Ohio Elections Commission:

 

“‘[A]n author is generally free to decide whether or not to disclose his or her true identity. The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible. Whatever the motivation may be, . . . the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry.’”

 

Public Citizen’s press release added, "The First Amendment protects the right to engage in anonymous speech, especially political speech. Koch should not be able to unmask its political critics just because it can hire lawyers and file a lawsuit.”  http://www.campaignfreedom.org/blog/detail/public-citizen-defends-anonymous-political-speech

 

What should be the contours of a healthy disclosure law?  I am inclined to think that at a minimum the federal and most state laws need to substantially raise the minimum thresholds for reporting individual donors.  Long, burdensome ad disclaimers should be jettisoned.  Also, if individual constitutional decisions to protect anonymity are to be made on an ad hoc, as applied basis, as suggested in Socialist Workers ’74 Campaign Committee and Doe v. Reed, what should be the burden of proof on the party seeking anonymity (or should it be on the government?) and must they wait for actual harassment, or is a reasonable prospect enough?

 

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

  Designated Professor of Law

Capital University Law School

303 East Broad Street

Columbus, OH 43215

(614) 236-6317

bsmith@law.capital.edu

http://www.law.capital.edu/faculty/bios/bsmith.asp