Briefing Report: The Dark Side of Disclosure

Is It Time to Once Again Rethink Campaign Disclosure Requirements?
Wednesday, March 14, 2012

“… Disclaimer and disclosure requirements enable private citizens and elected officials to implement political strategies specifically calculated to curtail campaign-related activity and prevent the lawful, peaceful exercise of First Amendment rights…”
- Clarence Thomas, Associate Justice of the United States Supreme Court

How Could Anyone Be Against Greater Transparency?

On May 26, 2010, the Senate Republican Policy Office published a report entitled, The Dark Side of Disclosure - Is It Time to Rethink Aspects of On-line Disclosure Requirements? This report serves as a follow-up, since this issue continues to be discussed two years later. 

In a recent Los Angeles Times editorial entitled, "Evil Lurks in Super PACs", the columnist, in arguing for a recent legislative proposal to expand campaign disclosure requirements, paints a narrative that anyone opposed to greater campaign disclosure requirements is part “of cynical forces who want to keep voters in the dark.” The editorial leaves the reader with the sense that there is only one correct and upright perspective on campaign disclosure mandates and that any other view is illegitimate because of evil motives.

Given the way that advocates for greater campaign disclosure often present the issue, it is easy to see how one might hold the above perspective. It is usually presented in an altruistic context as being simply about sunshine (which is said to be a disinfectant), accountability, transparency, and voter education. Who, we are asked, can be against that? Within this context, there is only one answer… those who have something to hide.

Is that it? Is that the only reason for opposing greater disclosure, or is it possible to be opposed to greater disclosure for legitimate reasons? The answer to this latter question is yes. Contrary to the narrative discussed above, which is convenient for shutting down debate and thoughtful analysis, patently unfair and one sided, and fails to consider potential ulterior motives of those advocating expanded disclosure mandates, there are legitimate reasons to oppose expanded disclosure mandates.

Who Really Cares?

While expanding campaign disclosure mandates seems to be a good idea in concept, it is important to be realistic about who really accesses and primarily benefits from this information, including the timing of its release, and the ease with which it is accessed. It is also important to recognize that existing disclosure laws in California are already quite expansive and onerous[1]. Moreover, due in part to what many consider already sufficient disclosure mandates in existing law, much of the information that disclosure advocates want included in political advertisements is already available in the public domain and online (e.g. top contributors and their logos). An inquiring mind only needs access to a computer and the internet.

While the public may at times benefit secondarily from this information (in that they may base their voting decision on the disclosure information, and/or they may be made aware of a contribution and the potential that the contribution has strings attached), more often than not, the information is accessed and used by political opponents (government officials, candidates, political consultants, campaign managers and political activists) for purposes that may not be in the best interest of the public at large (e.g. intimidation and harassment to discourage future campaign contributions and/or exact retribution). Unfortunately, the targets of such activities are usually on the conservative side of the political spectrum[2]. This is due in large part to the fact that conservative interests do not generally engage in these types of nefarious activities. To a much lesser extent, it may also be due to the fact that individual members of unions, the most powerful and influential of the liberal interest groups, are not disclosed when their union dues are contributed to political campaigns. As such, union members don’t have to worry about being the target of intimidation, harassment and retribution for their political activity.

Finally, despite arguments to the contrary, campaign finance reform is not a pressing issue to a majority of the public. This is in spite of the fact that there has been a lot of focus on the issue due to the rise of Super PACs. According to the Pew, “The issue remains on the back burner for most Americans. Just 28% say reforming the campaign finance system is a top priority for the president and Congress in 2012, and it is one of the lowest ranked issues across party lines. Somewhat more (40%) say reducing the influence of lobbyists and special interest groups in Washington is a top priority. There has been little change in the public’s focus on either issue compared with previous years.”

An Un-level Playing Field

Most of the proposals expanding disclosure requirements and many of the mandates in existing law favor liberal special interest groups and causes (hence, the reason that they are usually behind measures to expand disclosure mandates). This may be due, at least partially, to the stereotypical view that a significant number of voters hold as it relates to the various interests groups that participate in California politics.

Political campaigns often pit liberal interest groups which advocate for higher taxes and bigger government against conservative ideals such as lower taxes and smaller government. The current and proposed disclosure requirements can be and are exploited to reinforce the stereotypical narrative painted by liberal interest groups that a given campaign is a battle between “evil” as represented by corporations (including “Big” Oil and Tobacco and the insurance industry) and “good” as represented by teachers, fire fighters and police officers (unions). To make matters worse, some liberal interest groups do not have to disclose themselves for what they really are. For example, the unions who represent teachers, police officers, firefighters and who dominate California politics are not required and do not identify themselves as unions in ad disclaimers.

Accordingly, in the case of a campaign of dueling ads, individuals making decisions based solely on proponent and opponent ad disclaimers would more likely side with the liberal interest groups (e.g. the unions made up of teachers, fire fighters and police officers). This decision would be based upon the stereotypical narrative mentioned above and the fact that firefighters, police officers and teachers (without the union label) are generally seen as more trustworthy and altruistic in motives. For these reasons, labor unions do not oppose the kinds of expanded disclosure requirements both recently proposed and already found in existing California law.

Undermining the Sacred Right of Free Political Speech

Recent egregious examples of voter/donor intimidation, harassment and retribution as a result of disclosure mandates have called into question the constitutionality of these mandates. Associate Justice Clarence Thomas while concurring with the decision of the majority of the United States Supreme Court in Citizens United v. Federal Election Commission (Jan. 21, 2010), discussed the issue of forced disclosure. He writes that “the success of such intimidation tactics has apparently spawned a cottage industry that uses forcibly disclosed donor information to pre-empt citizens’ exercise of their First Amendment rights.” He cites an example in West Virginia where a candidate for Attorney General was told by donors that they could not contribute to his campaign for fear of retribution in the event that his opponent won the election. Justice Thomas also writes, “I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in “core political speech, the ‘primary object of First Amendment protection.”

Furthermore, the First Amendment, as interpreted in In McIntyre v. Ohio Elections Commission (1995), actually protects the right of individuals to distribute anonymous political materials.  In striking down an Ohio law that prohibited persons from printing or distributing election-related materials without putting their name and residence or business address on the material, the U.S. Supreme Court opined that, the Bill of Rights, and of the First Amendment in particular is designed “to protect unpopular individuals from retaliation - and their ideas from suppression - at the hand of an intolerant society.”

Finally, most disclosure mandates require the purchase of on air or in print ad space to provide for the increased disclosure. This increases the cost of the ads and the campaign. It also interferes directly with the ability to get a message across. Writing in opposition to AB 1148 (Brownley) [3], a bill introduced this year that would expand disclosure mandates, the California Broadcasters Association (CBA) notes that currently mandated disclosures now require up to 50% of a 30-second radio spot.  CBA argues that “if spots must also include more lengthy disclosures such as a web addresses, it will no longer be feasible for consultants to use that medium.”

Time to Rethink Aspects of Disclosure?

As clearly demonstrated above, the answer to the question of who can be against greater transparency is not as clear cut as advocates for greater campaign disclosure would have us believe. The answer to this question is not simply those who want to keep voters in the dark, though, no doubt, some may have this intention. There are legitimate First Amendment concerns related to who actually uses this information and how it is actually used. Furthermore, facilitating the harassment and intimidation of those expressing their First Amendment Rights and advantaging liberal special interest groups in political campaigns is not what the voters had in mind when they passed the Political Reform Act (PRA), with its disclosure mandates. Maybe it is time to rethink some aspects of campaign disclosure mandates?

For more information on this report or other election issues, contact Cory Botts, Senate Republican Office of Policy at 916/651-1501.


[1] In a report on the Political Reform Act (PRA) released in 2000 by the McPherson Bipartisan Commission on the PRA, commission members found that the complexities of the disclosure requirements are the “Achilles Heel” of the PRA. They further lamented that the PRA is so complex and burdensome that it badly needs comprehensive reform. They argue that policy makers should greatly simplify the statute or risk maintaining a system that is unfair to citizens interested in public service. Most of the proposed disclosure amendments to the PRA since 2000 would add further complexity and greater burden for anyone interested in participating in the political process.

[2] While the examples of conservative donors being targeted by political opponents are too numerous to mention here, the following two egregious examples come from the 2008 election cycle. 1) Individuals who donated a little as $100 to support Proposition 8, the measure that defined marriage as being between a man and woman in the California Constitution, had their names and addresses (with a map) posted on several internet websites. Many of them were then subjected to, among other things, intimidation, harassment, property damage, and some even lost their jobs. 2) A pro-Obama non-profit, Accountable America, was established with the stated goal of confronting conservative donors in ways that will make contribution to conservative causes unpalatable.  The group threatened legal harassment, unwanted and unflattering public exposure, and an invasion of privacy.

[3] AB 1148 (Brownley) introduced in 2011 would, among other things, require that all Independent Expenditure Committee (IEs) funded ads include a disclaimer at the end of each ad that displays, in a mandated format, the company or organization logos and names of top three contributors to the IE Committee paying for the ad.  This would mean that several ads in support of Proposition 25, the 2010 initiative that lowered the threshold to pass the state budget, would have to include the logo and name of the CTA, the CFT, and AFSCME. It would also mean that ads supporting Prop 26, the 2010 initiative that raised the vote threshold to raise fees, would have to include the logos and names of Chevron, the American Beverage Association and Philip Morris.