Briefing Report: The Dark Side of Disclosure - Is It Time to Rethink Aspects of On-line Disclosure Requirements?

Wednesday, May 26, 2010

"Every donor has a story. I talked to a $100 donor the other day who had a note in his mailbox that said, 'I know where you live and you are going to pay.'" - Brian Brown, executive director for the National Organization for Marriage

Too Much of a Good Thing

While it is true that sunshine can be a disinfectant, it is also true that too much sunshine can be dangerous. This happens to also be true of current disclosure requirements in the Political Reform Act (PRA). Often described as "sunshine," the current and ever expanding disclosure requirements in the PRA are usually well intended. Supporters of the PRA in 1974 and numerous sponsors of measures to expand the disclosure requirements in the PRA, have argued that expanded disclosure requirements are intended to provide voters with information (like who is giving what to whom) that will enable them to make better informed voting decisions. It is often said the road to perdition is paved with good intentions. Unfortunately, these well intended "sunshine" measures are now being misused for nefarious purposes. Instead of being used to simply inform voters, the disclosed information is now being used to harass, intimidate, victimize and ultimately violate the First Amendment right of citizens who express their opinions through campaign donations, both large and small. This begs the question as to whether PRA disclosure requirements are now furthering the intent of the PRA. It also begs the question as to whether the voters would approve of the way that PRA disclosure information is now being used.

The Dark Side of Disclosure: The Proposition 8 Exemplar

While there are a number of examples of this misuse of disclosed information over many past elections, the most egregious examples occurred in the November 2008 Election. During this election cycle, radical gay rights activists targeted supporters of Proposition 8 (a measure amending the California Constitution to define marriage as being between one man and one woman) with a range of hostilities and harms. According to a Heritage Foundation Backgrounder titled, The Price of Prop 8, these hostilities and harms included harassment, intimidation, vandalism, racial scapegoating, blacklisting, loss of employment, economic hardships, angry protests, violence, at least one death threat, and gross expressions of anti-religious bigotry. According to this same backgrounder, much of the hostility directed against Prop 8 supporters was and continues to be facilitated by a California law that requires the disclosure of certain personal information of individuals who donate $100 or more in support of or opposition to a ballot measure.

Throughout the Proposition 8 campaign and in the months following, these activists collected the donor disclosure information (names, addresses and employers) for both small (as little as $100) and large donors from the Secretary of State's website. This information is made easily available because of PRA disclosure requirements. Once collected, this information was then used to create websites that use on-line maps to pinpoint the homes or office locations of all known Proposition 8 donors. In fact, the wife of at least one Republican Senate staff member has her name and the family's home address posted on one of these sites. Fred Karger, founder of "Californians Against Hate," acknowledged in a March 8, 2008 Washington Times article that intimidation is part of the political strategy. He is quoted as saying, "I want them to think twice before writing that check."

Who Really Cares?

Given the increased mistrust in government and government officials and the reality that the public wants a more open and transparent government, it is easy to see why expanding disclosure requirements seems like good public policy. This is actually the expressed reason that proponents give for introducing bills expanding disclosure requirements every legislative session. Nevertheless, it is important to judge public policy not on what it would appear to accomplish, but on what it actually accomplishes and whether what it actually accomplishes is consistent with the goals of the policy. Accordingly, we must be realistic about who really accesses and primarily benefits from this information and the ease by which it is accessed. While the public may at times benefit secondarily from this information (knowing who is giving what to whom), more often than not, the information is accessed by special interest groups, political activists, candidates, political consultants and campaign managers for purposes that may not be in the best interest of the public at large. Besides the Proposition 8 example above, there are a number of other examples where disclosure information has been misused. In fact, union activists often want to know in timely fashion who is funding a pro-business initiative, so that they can harass, threaten, intimidate and ultimately violate the First Amendment rights of any person or entity contributing to an effort for which they might be opposed (e.g. Prop 75 "the Pay Check Protection Initiative" from 2005).

The "Achilles Heel" of the PRA

Besides the misuse of disclosure information, there are a number of other problems and issues that arise as a result of the current disclosure requirements. These problems would be only compounded by further efforts to expand disclosure.

First, the existing disclosure requirements have convoluted the PRA. In a report on the 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.

Not only is it unfair, but the current disclosure complexities impose yet another disincentive to political participation. They are excessively burdensome to smaller campaigns. Average citizens have a much more difficult time running for a legislative office and establishing campaign committees because they have to navigate a complex campaign disclosure environment. This requires resources that they likely have to pay for, including campaign treasurers and/or elections lawyers who know how to navigate the complex system.

Second, policy makers have yet to be provided with a mandated report from the Secretary of State (SOS) on the effectiveness and impact of the current on-line disclosure requirements. Under existing law, the SOS is required to determine and publicly disclose when the on-line and electronic campaign disclosure systems are operating effectively. Despite the fact that legislation requiring the development of an on-line campaign disclosure system was enacted in 1997, the SOS has never made a public determination that the on-line disclosure system is operating effectively. The SOS did hold a joint public hearing with the Fair Political Practices Commission (FPPC) to determine whether the on-line disclosure system was operating effectively in September 2007, but that hearing was not followed by any public determination on the system's effectiveness by the SOS. Without such a determination, and in light of the abuses of disclosure information mentioned above, it may be time for the Legislature to reevaluate some of the existing disclosure laws while at the same time placing a moratorium on any new disclosure expansion efforts.

Third, while the SOS has deployed a free filing system as required by law, it is unclear whether that system is sufficiently user-friendly for the candidates, campaigns, and other filers that would like to use that option. Without that option, candidates, campaigns, and other filers have to contract with a private vendor, at a cost to them. In fact, the SOS reported to the Legislature in February 2007 that although the free filing option had been developed and implemented, "the forms . . . aren't nearly as 'user-friendly' as they should be."

Time to Rethink Aspects of Disclosure?

Increased on-line disclosure has been and will continue to be misused by political activists and special interest groups to harass, threaten, and intimidate donors (some of whom have given as little as $100) to politically controversial causes and candidates. Given the empirical evidence of widespread abuse and misuse of this information which is made available as a result of on-line disclosure requirements, and given some of the issues with disclosure mentioned above, it may be time to reconsider some of the existing disclosure requirements, including whether such information should be freely available on the Internet. Empowering political activists and special interest groups with an even greater ability to threaten, harass and intimidate opponents is not what the voters had in mind when they passed the PRA.


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