The Opacity of “Transparency”

September 24, 2013
posted by Bob Bauer

Arguments about transparency have become hard to follow. Government can demand an accounting of money spent to influence politics or public policy; it can certainly compel disclosure of the paid, direct lobbying of legislators. But this is among the easier cases, after which there is disagreement—and confusion—about what the government has the power to do or members of the public have the right to resist.

David Keating and Senator Durbin had just such a difference of opinion. Durbin had asked the Center for Competitive Politics and other organizations (including the Cato Institute) to state for the record whether they had funded ALEC in 2013, and whether they had supported the organization’s “stand your ground” legislation. See, e.g., Letter from Senator Richard J. Durbin to John Allison, President and CEO of the Cato Institute (August 6, 2012). Keating disputed the request’s propriety. Letter from David Keating to Senator Richard J. Durbin (September 16, 2013). To his mind, the request was an act of intimidation and an abuse of office. Any association with ALEC was for political purposes, and Durbin, no friend of ALEC, was using official letterhead and a call for information to accomplish government intimidation of a political adversary.

The most interesting part of the exchange took place over the question of who might be obligated to divulge information about political associations.
Senator Durbin had previously suggested that if he, a public official, was required to comply with extensive disclosure obligations—laying bare his personal finances, reporting his campaign finances—then organizations funding ALEC should have no hesitation to live by the same rules. Keating rejects the parallelism here: “The purpose of disclosure is to allow citizens to monitor government, not to allow government to monitor citizens,” and so “citizens do not have to report their beliefs and activities to the government.” Keating letter at 1.

Durbin is arguing, it seems, that organized, well-financed pressure on the government is more akin to the lobbying activity about which the public is entitled to be informed. He seems to doubt that funders of ALEC, which he believes to be a lobbying powerhouse, can pass themselves off as “citizens,” if the reference to citizens is meant to suggest average everyday Americans writing to their congressman or kicking around their opinions with a neighbor. ALEC critics have argued that the organization runs on a highly sophisticated membership structure that brings dues-paying corporate members into a “partnership” with state legislators to develop and enact legislation. See, e.g., Eric Havian and Erika Kelton, Submission to the Internal Revenue Service Under the Tax Whistleblower Act (April 20, 2012). In other words, they claim that ALEC is very much in the lobbying business. (Note: Keating advises Senator Durbin in his letter that the Center for Competitive Politics is not a member of ALEC and did not fund it in 2013.)

The Keating-Durbin argument may be primarily about the means by which the Senator was seeking information about the relationship between ALEC and its funders. If the information the Senator wanted was not, rightly or wrongly, available by operation of existing disclosure law, then Keating objected to the use of the official-seeming inquiry, on United Senate letterhead, that might rattle recipients into responding only because of an unwillingness to risk the wrath of the authorities. Durbin, if he spoke to the point, might say, as does his letter, that he was only “seeking information,” and that he had acknowledged the “company’s right to actively participate in the debate of important political issues, regardless of your position.”

Behind all these types of differences is a deeply unsettled question of what it is precisely that the public “has the right to know.” Here the law has contributed its fair share to the tangled state of the discussion. The Courts have recognized that governments can enact disclosure obligations to protect the public’s “informational interest” in knowing who is paying for different political messages. See, e.g., Buckley v. Valeo, 424 U.S. 1, 66 (1976). In Citizens United, the Court affirmed again that compelled transparency “enables the electorate to make informed decisions and to give proper weight to different speakers and messages.” 558 U.S. at 310. The Court in that case, and in others, has granted that in some cases, the disclosure interest would have to yield to a demonstrated risk of harassment or reprisal, but this is a question it expects to be resolved in a specific case, as a particular exception to the general rule. From time to time, the Courts flinch and pull back, as in the case of Mrs. McIntrye who qualified as a fully “private citizen” entitled to prepare and distribute a handbill on a local issue without disclosing that she had authored and paid for it. McIntrye v. Ohio, 514 U.S. 334 (1994).

Disclosure requirements also apply in different forms and degrees across a variety of activities, reflecting different, and not always consistent or clearly reasoned, judgments about what the public has a “right to know.” In California, the Fair Political Practices Commission has recently shown broadly this right can be construed. By rule, political campaigns must now report what they pay for online content, such as “providing content for posting on a web site,” or “posting on a social media platform.” 2 Cal. Code Regs. §18421.5 (b)(1), (2). The rule applies to “favorable or unfavorable content about a candidate or ballot measure on an Internet site other than the committee’s own web site.” §18421.5 (a). Here is the informational interest at work: the rule’s purpose is to “prevent obfuscation of who is funding communications on the Internet, which is fast becoming a primary source of information.” Memorandum to Chair Ravel, from the General Counsel and Commission Counsel (September 9, 2013) at 2. The staff counsel included a citation to Citizens United. Id.

The “right to know” then can extend far and wide, from a landmark case establishing First Amendment protections of unlimited corporate independent expenditures to a state regulatory decision that relies on the authority of that same case to compel reporting of candidate payments for web postings. The uncertainty about how far “the right to know” can and should be stretched explains how David Keating and Senator Durbin can both take the positions they do about the proper scope of congressional inquiries, and in both cases, feel very strongly about it.

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