By Paul Sherman
Attorney David Marston and former Bush-administration official John Yoo wrote a recent op-ed in The Wall Street Journal making the case against the White House’s efforts to force federal contractors to disclose contributions, not just to candidates, but to any group that might run political advertisements. As readers of IJ’s Make No Law blog (www.makenolaw.org) are aware, this is a backdoor effort by the White House to achieve by fiat what it was unable to achieve in Congress, namely, passage of the so-called DISCLOSE Act.
Marston and Yoo’s op-ed is notable not just because it makes a strong case for the unconstitutionality of the Obama administration’s actions, but also as a mark of how much the debate over regulation of political speech has shifted in the past decade. When the now half-dead McCain-Feingold law was enacted in 2002, a major talking point among conservative elites was “no limits, full disclosure.” But increasingly—and quite correctly—opinion makers are beginning to recognize the significant costs that disclosure can impose on political participation.
So what has changed? Unquestionably, part of this change in elite opinion has been driven by high-profile incidents of political retaliation made possible by disclosure laws. But those incidents have received much more attention due to IJ’s effort to shed light on the burdens of disclosure laws. Indeed, when we first published Disclosure Costs: Unintended Consequences of Campaign Finance Reform in 2007, almost no one had bothered to study the impact of the laws on real people. We followed that study with many more, including: Campaign Finance Red Tape: Strangling Free Speech & Political Debate, Locking Up Political Speech: How Electioneering Communications Laws Stifle Free Speech and Civic Engagement, Mowing Down the Grassroots: How Grassroots Lobbying Disclosure Suppresses Political Participation, and Keep Out! How Campaign Finance Laws Erect Barriers to Entry to Political Entrepreneurs.
Other political scientists have now joined this debate. Professor Raymond La Raja of the University of Massachusetts, Amherst, recently released a working paper titled Does Transparency of Political Activity Have a Chilling Effect on Participation? His study measured “how individuals respond differently to making campaign contributions or signing petitions when provided with a subtle cue that the information will be made public.” His findings? Not only does disclosure have a chilling effect on participation, but the result is particularly pronounced for small donors and women.
La Raja concludes that his findings “should spur policymakers to reconsider the cost-benefit tradeoffs for disclosure policy, particularly for campaign finance.” Based on the growing number of voices questioning the conventional wisdom that more disclosure is always better, it seems that they might be. Here’s hoping that judges will follow suit.
Paul Sherman is an IJ staff attorney.