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Friday, July 27, 2012

Baseline Hell and Campaign Disclosure Laws: Why Opposition to Disclosure of Campaign Contributions is Not a "War Against Facts"

Dahlia Lithwick and Raymond Vasvari have an interesting article decrying the Republicans' unwillingness to disclose facts relevant to politics. Their chief exhibit is Republican opposition to the DISCLOSE Act's requirements that the identity of campaign contributors be disclosed to the public. The gist of their argument is that norms of free debate require the disclosure of factually accurate information like the source of campaign donations. But Lithwick and Vasvari do not merely disagree with the idea that disclosures of one's campaign contributions might chill the contributors' willingness to donate: They deride the theory as an "argument that truth must be hidden because some people may be mean someday."

I find myself completely perplexed by Lithwick's and Vasvari's article on every level. First, I am perplexed by the underlying issue of privacy: As I have elsewhere noted, I do not think that we have any intellectually respectable theory about when and why people ought to be entitled to withhold truthful information. Second, I am perplexed by Lithwick's and Vasvari's jeering confidence that the Republicans' arguments against disclosure constitute a "war against facts" and a battle against truth-seeking. It is not that I disagree with them about the merits of disclosure: In a vague and visceral way, I am intuitively skittish about legal entitlements to withhold information. I just do not know how Lithwick and Vasvari distinguish between meritorious arguments for non-disclosure and frivolous ones. Would they deploy an equal amount of ridicule against arguments for the secret ballot? For an evidentiary privilege for journalists? On one hand, their uncompromising stance against non-disclosure of campaign contributions suggests a simple answer to every privacy issue: Require (or at least, allow) the disclosure of all accurate information, and let the marketplace of ideas determine the consequences. On the other hand, such a position seems so crude as to be an absurdum to which their "disclosure absolutism" leads by way of an obvious reductio. I am sure that they would use some exit ramp before they arrived at such an unpleasant destination: I just do not see which ramp they have in mind.

The problem, I suspect, is less in their article than in our much more general malaise regarding privacy: As I have noted elsewhere, we simply have no real consensus about when and why people should be entitled to withhold information about themselves. This lack of a theory for privacy "property rights" leads to what I have elsewhere called "baseline hell": Every assertion of privacy can equally be defended or attacked as either protection of an individual entitlement or invasion of a collective right (a "war on facts"!). After the jump, I'll suggest two antidotes to this impasse -- Less passionate rhetoric about rights and more passionate defenses of federalism.

1. First, consider a conventional efficiency-based reason for we might protect privacy. On one account, entitlements to privacy are justified by the same efficiency concerns about deadweight loss that can be invoked in favor of any other property right. By protecting the individual's power to exclude others from trespassing on his or her resources, one creates incentives for the individual to create more of the protected resource.

Lithwick's and Vasvari's article seems to proceed from the assumption that forced disclosure of information always increases the total amount of information available to the public. But, as any journalist who has ever tried to protect a confidential source will agree, this assumption is patently false: The prospect of forced disclosure can chill the selective revelation of information, actually reducing the total store of available information. This intuition is the justification for executive officials' common-law "deliberative process" privilege: If officials' deliberations are made public, then executive officials will not receive candid advice for their inner circle, leading to less informed decision-making. General forced disclosure deters selective voluntary disclosure resulting in less information, overall.

Could one make such a "deadweight cost" argument against forcing the disclosure of campaign contributions? Sure: There is not the slightest doubt that disclosure presents the non-frivolous risk that at least some contributors, at the margin, will be deterred by having their identities disclosed. (I know from experience in raising money for friends running for state office: Friends have told me that they do not want their identities disclosed for fear that a donation would hurt their chances getting an appointment in the Romney Administration). Lithwick and Vasvari might respond that campaign contributions discouraged by the prospect of disclosure have little value, because publicity discourages only those contributors who make donations so large or for such pernicious motives as to undermine rather than advance democracy.

If this is the response, however, then I'd like it to be spelled out in more detail. Is the theory that only big donors (e.g., those covered by the DISCLOSE Act) should have to disclose their identities but not the small fry, because the former make contributions that corrupt rather than advance democratic debate? Then how big is "too big"? Presumably, on this ground, they'd oppose disclosure of small donations (>$100) required by California law. Or is their theory the old Brandeisian saw that, "[i]f the broad light of day could be let in upon men’s actions, it would purify them as the sun disinfects"? On this ground, no harm can come from more information, because only scoundrels with bad motives are deterred by disclosure. But then Lithwick and Vasvari need to go much further and denounce the secret ballot: After all, would not voters benefit from being so "purified" by some beneficial "sunlight"? One might distinguish voters from donors on the theory that the former are more vulnerable to retaliation from bosses and other Bigs than the latter. But this response implicitly concedes that publicity can have costs as well as benefits, such that one needs a theory about when the marginal deterrent effect of publicity outweighs the immediate information-disclosing effect. Sometimes, in short, "the broad light of day" leads to sunburn rather than purification. I see not the slightest allusion to this problem in Lithwick's and Vasvari's eloquently single-minded stance favoring disclosure.

2. Second, consider how "waiver" can be deployed to sidestep -- dishonestly -- all of the tough questions about the scope of the privacy entitlement raised above. When one is in Baseline Hell, "waiver" is the preferred solution: Concede that individuals might have rights of non-disclosure (of grades, medical records, tax returns, political affiliations, etc), but then argue that waiver of the entitlement can be made a condition of some other activity to which one is not absolutely entitled. On this theory, for instance, Romney has the moral right to withhold his tax returns, but voters have an equal moral right to punish him at the polls if he does so, because he has waived his right to privacy by entering the political arena. If one cannot take the heat, stay out of the kitchen.

But such "waiver" argument lands one even deeper in Baseline Hell, because the argument requires one to define the entitlement to the underlying action being conditioned by the waiver as well as the entitlement to the right of non-disclosure being waived. If one owns the kitchen, then presumably one can insist on the lowering the temperature whenever one cannot stand the heat. Likewise, if one has an entitlement to cast a ballot for whatever reason one pleases, then one cannot be required to waive one's right not to disclose one's partisan affiliation as a condition for being allowed to vote.

So do contributors have a right to make campaign donations that cannot be made subject to conditions? Search me. The law here is rightly contested. Because the entitlement to the conditioned action (contributing money to campaigns) is so hotly disputed, it is hard to make headway arguing that one forfeits one's right to keep one's political loyalties a secret whenever one gives money to a campaign: Both the condition and the conditioned action are subject to such entirely uncertain entitlements that any argument for waiver will be an annoying mix of rhetorical hand-waving and a potpourri of contradictory citations to conflicting precedents. This is not to say that a First Amendment lawyer as able as Ray Vasvari could not cobble together a plausible brief for the proposition that campaign contributions can be conditioned on disclosure. I mean only to suggest that the existing so-called "doctrine" of unconstitutional conditions, when applied to First Amendment rights, is a godawful mess: From Rust v. Sullivan to Regan v. Taxation With Representation, the law is so notoriously incoherent and contested and malleable that any argument rooted in such doctrine will not persuade anyone who is not already persuaded for other reasons.

3. So what should one do when one lands in such a Baseline Hell?

First, stop shouting. The most infernal aspect of Baseline Hell is the interminable din. Admit that the underlying social norms defining the relevant entitlements are so uncertain that strong-minded rhetoric is out of place. The Republican Party is not conducting a "war against facts" when it attacks mandated disclosure of campaign contributions any more than Justice Douglas was conducting a "war against facts" when he dissented in favor of an absolute journalists' privilege in Branzburg v. Hayes. In Baseline Hell, there is a plausible account of an entitlement on either side of the dispute, so resolving that dispute will be more akin to threading a needle than scoring a goal: Less force, more finesse.

Second, federalism, federalism, and more federalism. As I have elsewhere argued, when the underlying entitlements are deeply uncertain, it is time to rely on political decentralization rather than centralized adjudication to work them out. A federal system can make room for both sides of a reasonable disagreement, showing equal concern and respect for each by letting each have their enclave. This is the best justification for Grutter on affirmative action in public universities, Locke v. Davey on public funding for religious speech, and a host of other decisions effectively delegating hotly debated constitutional issues to the states. I would do the same with the question of disclosure rules for political contributions, avoiding both judicial and congressional centralization.

Posted by Rick Hills on July 27, 2012 at 12:40 PM | Permalink


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Rick, I think I agree with your general argument that all this privacy rhetoric is or can be incoherent. I can also agree that it is not "crazy" to imagine that a donor might want privacy just because the donor prefers privacy. But obviously the intensity comes from Citizen's United (or from perceptions of what Citizen's United says). To a lot of folks the nefariousness arises in a formula like this: "The wealthy after winning the right to hijack the political process with money now don't even have to say who they are." To me, that's the vibe. (I'm not assessing the validity of the argument; I'm talking about perception). Of course, I might ask folks freaked out by that perception (or reality) what difference disclosure would make in any event. "The rich folks I thought were contributing I now know are contributing." So what?

Posted by: Michael Duff | Jul 27, 2012 1:25:09 PM

At the end of the day, the Democrats are only making this argument because donor lists give them ammunition for their Class Warfare -- "look, this is the candidate all the fatcats, bankers and corporations give to!"

Sort of like how Republicans are really only pro-voter ID because they know it helps their chances.

Posted by: Joel | Jul 27, 2012 8:40:23 PM

So that would be one reason to want privacy - to avoid confrontation. And I take Rick's point that if you cut that off you run the risk of getting less of that resource, if you think it is a resource. I also get that the "waiver from what" point doesn't get you out of "baseline hell." But if as Joel suggests this is motivated by class warfare ammunition I think the motivation is incoherent because we already know who the players are (more or less). There might be the random surprise I suppose. So in addition to the privacy confusion there are some real weird pragmatics going on - by both advocates and "resisters."

Posted by: Michael Duff | Jul 27, 2012 10:55:06 PM

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