When Nobody Speaks: Disclosure and Campaign Finance

I’m Nobody! Who are you?
Are you – Nobody – too?
Then there’s a pair of us!
Don’t tell! They’d advertise – you know!

Emily Dickinson probably wasn’t writing about campaign finance when she penned these verses, but her words are very relevant.  What happens when “Nobody” wants to speak?  We should take the Nun of Amherst at her word.  Don’t disclose anonymous speakers because “They’d advertise – you know!” 

Federal Election Commissioners Hunter, McGahn and Petersen (along with support from Commissioners Walther and Bauerly) were attempting last year to move forward with FEC regulations about freedom of speech in light of Citizens United.  However, in mid-December, Commissioner Weintraub issued a statement claiming that privacy of speakers “cannot be good for our democracy.”  What Commissioner Weintraub fails to recognize is that the overregulation of campaign finance laws through unconstitutional disclosure is what is not good for democracy.   

 It was said that, “Inviolability of privacy…may in many circumstances be indispensable to preservation of freedom… particularly where a group espouses dissident beliefs.” So held the Supreme Court in NAACP v. Alabama.

Just by finding out disclosed speakers’ names, opponents of speech can (and have) intimidated speakers into silence.  In NAACP, the Court noted that the “recognition of possible unconstitutional intimidation of [..] free exercise” led to limiting the government’s authority to receive information about the identity of speakers when the state of Alabama sought the names of the members of the National Association for the Advancement of Colored People.  Opponents of the NAACP were just waiting for the identities of members of the group to be released and then they could begin intimidating them into silence.

Intimidation can take many forms, and today, backlash can take the form of negative response advertisements, boycotts, and protests.  John Samples, director of Cato’s Center for Representative Government, explains that “forcing disclosure will lead to a backlash by customers or shareholders against the relevant businesses or groups. If so, the leaders of the businesses or groups in question may decide to the costs of speaking out are too high and remain silent.”

Although the opinion emphasizes that there is a “close nexus between the freedoms of speech and assembly” long-recognized by the Court, NAACP was a case in 1957 dealing with freedom of association.    But the Supreme Court did speak on this issue in 1982 about a state election law, holding that, “The First Amendment prohibits a State from compelling disclosures by a minor party that will subject those persons identified to the reasonable probability of threats, harassment, or reprisals. Such disclosures would infringe the First Amendment rights of the party and its members and supporters.” See Brown v. Socialist Workers ’74 Campaign Comm.  In that case, an Ohio campaign finance law required disclosure of contributors, but was struck down as violative of the First Amendment.

We have a country that can be called “home of the brave” because it is first “the land of the free.”  We must not chill speech by excessive disclosure requirements that do not withstand constitutional scrutiny.  That’s an insight that we can only hope Commissioner Weintraub will take to heart.