Free speech over full disclosure

Posted: Apr 01, 2007 12:00 AM
Free speech over full disclosure

Why did the state of Alabama, back in 1956, want to know so much about those contributing money to the National Association for the Advancement of Colored People?

Why did the state court slap the NAACP with a $100,000 contempt fine for refusing to turn over its membership list as demanded by the government?

Was it a high-minded desire for the public to have more information? Or was this an attempt to acquire an enemies list for waging a war of threats and intimidation against supporters of civil rights?

Does it matter? Had the motives of the ’Bama government been found to be wonderfully wholesome, but the result was the silencing of voices — for civil rights or any other cause — it would still have been bad policy. Extremely bad, because it thwarts what is so essential to our freedom: unhampered political discourse.

Yet today, nearly every voice in politics, pretty much across the spectrum, calls for “full disclosure.” Information is a good thing. I, too, like disclosure. In fact, I called for it just a few weeks ago. From government. Not from the people. Why? The relationship between the people and their government shouldn’t be equal.

You Aren’t Paranoid If They Are Out To Get You
I learned a few things while working to place term limits on politicians. Often a supporter would ask if a donation would be publicly disclosed, adding, “I don’t need every regulator and politician in the state out to get me.” The fear of political retaliation among contributors was real. And having worked around politicians, I knew this fear to be well founded.

I’m not a lone voice; others have also cried out about the dangers of forced disclosure. Just last week, the folks at the Institute for Justice, heroes in the battle against eminent domain abuse, released a public opinion study that sheds great light on the public’s desire for and fear of the legally mandated disclosure of campaign contributions.

The study, “Disclosure Costs: Unintended Consequences of Campaign Finance Reform,” looks at voter knowledge and opinion regarding the funding of ballot measures. Dr. Dick Carpenter, IJ’s director of strategic research, shepherded the survey of voters in six states — California, Colorado, Florida, Massachusetts, Ohio and Washington — conducted during the last weeks of the 2006 campaign, when public awareness would be at its height.

Initially, 82 percent of respondents said government should require disclosure of campaign contributions. But when asked about their information, 56 percent said their personal information should not be disclosed. Fully 71 percent said their employer should not have to be identified.

Dr. Carpenter explains:

First, while voters appear to like the idea of disclosure in the abstract (that is, as it applies to someone else), their support weakens dramatically in the concrete (that is, when it involves them). . . . When applied to them, respondents cited several reasons for disliking disclosure. . . . [F]ear of harassment or negative repercussions, particularly in their place of employment.

Perhaps most important of all, 60 percent of voters surveyed said the campaign disclosure laws would “make them think twice before donating money” for or against a ballot measure. That’s chilling.

Some might argue that the value of disclosing a measure’s financial backers is worth the intimidation of potential donors and the added burden on citizens. Not me.

As for the study, it found very little regard among voters for the information being disclosed:

The vast majority of respondents possessed no idea where to access lists of contributors and never actively seek out such information before they vote. At best, some learn of contributors through passive information sources, such as traditional media, but even then only a minority of survey participants could identify specific funders of campaigns related to the ballot issue foremost in their minds.

Carpenter says the survey’s results “hardly point to a more informed electorate as a result of mandatory disclosure, despite the importance proponents assert.” Disclosure laws don’t seem to give voters much in the way of information they deem useful.

Strike at the Root
Disclosure laws do have obvious negative effects, though: They unfairly burden “grassroot” organizations through expensive and costly reporting requirements and through depressing political support because of fear of intimidation.

They can also be used arbitrarily and ridiculously. A few examples:

• Karen Sampson and six other residents of North Parker, Colorado were sued last year for violating the state’s campaign finance laws when they got together to pass out flyers and put up some yard signs opposing annexation by the city of Parker.

• A Washington court ruled that when radio talk show hosts John Carlson and Kirby Wilbur of KVI-AM (in Seattle) spoke “on air” in favor of a referendum to block a gas tax increase they were making “a campaign contribution” that had to be reported. Furthermore, because of a $5,000 limit to contributions during the final three weeks of a campaign, the court ruling sought to limit them to speaking no more than 15 minutes a week about the gas tax.

• California’s campaign finance regime, the so-called Fair Political Practices Commission, is a nightmare even with the help of a battery of attorneys and accountants. The largest fine in the history of the state was leveled against a campaign committee seeking to recall the powerful Senate President David Roberti, which, fearing retribution against its donors, did not fully disclose donors to the FPPC. Though the committee just barely raised $100,000, they were fined a whopping $808,000! Intriguingly, fines for much more egregious violations by much better-heeled committees have been far less.

The arbitrary criminalization of handing out a flyer. Media muzzled. Voters intimidated right out of politics. It’s time to end the regulation of political speech by government.

Remember: Much public discourse was carried on anonymously during America’s revolutionary days. And remember, too: We have always cherished the secret ballot.

So doesn’t it seem strange that citizens in a free country must register with the local, state or federal government in order to participate in politics?

It isn’t free speech any longer when you have to register to speak.

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