The reality is that public disclosure serves the interests of incumbents running for re-election by discouraging support for challengers. Here's how it works.
A challenger seeks a contribution from a person known to support candidates of the challenger's party. The potential supporter responds: "I'm glad you're running. I agree with you on almost everything. But I can't support you because I cannot risk getting my business crosswise with the incumbent who is likely to be re-elected."
Sometimes he adds that he has matters pending before a federal agency. Or that she has been working with the incumbent on legislation that will benefit their company. Or that he has a government grant pending.
I heard these responses literally dozens of times in my campaign in Oregon. Sometimes I was told that someone on my opponent's staff had called with a reminder that supporting me was not a good idea. Once the call came while I was having lunch with the person from whom I was soliciting support.
A few people went on to say that they would find some way to get a check to my campaign, perhaps through an employee or a member of their board. I have no way to know if they did.
Disclosure makes threats possible, and fears of retribution plausible. Within weeks of a contribution of $200 or more, the contributor's name appears on the public record. Contributors know this, and they know that supporting the challenger can, should the challenger lose, have consequences in terms of future attention to their interests. Of course no incumbent will admit to issuing threats or seeking retribution, but the perception that both exist is widespread.
The reality of that perception alone should give us pause about disclosure requirements. And it would be naïve to believe that the perceptions have no basis in reality.
Twenty-five years ago in Buckley v. Valeo, the Supreme Court concluded that disclosure requirements are constitutional if they provide relevant information to voters, prevent corruption, and facilitate data collection to enforce election restrictions. None of these ends is served by existing disclosure requirements. With individual contributions capped at $2,400, it is hard to make the case that the names of individual contributors are helpful or relevant to voters. Given the fears of retribution, disclosure does more to facilitate corruption than to prevent it. And enforcement of election restrictions can be accomplished by the less burdensome means of mandating reporting without public disclosure.
The only clear case for requiring public disclosure of contributions in the small amounts permitted by federal law is that, like many other features of our election laws, it promotes the re-election of incumbents. Regrettably, that means it will be difficult, if not impossible, to change. But take it from one who knows: The disclosure requirement makes the mountain to be climbed by most challengers even steeper.
Monday, April 11, 2011
From Today's Wall Street Journal: