After critically examining Lawrence Lessig’s “dependence corruption” theory, Bruce Cain concludes with a few of his own suggestions. Bruce Cain, Is Dependence Corruption the Solution to America’s Campaign Finance Problems? (May 19, 2013). Available at SSRN: http://ssrn.com/abstract=2267187. One of these is meant to address the disclosure issues he sees presented by 501(c)(4) advertising to influence elections. As he has done before, Cain explores the grounds for compromise between those committed to disclosure and those who are afraid, and spirited in expressing their fear, that it invites political harassment and reprisal. His proposal is for full reporting but “semi-disclosure”: regulators would collect the information, reserving its use for enforcement purposes, and would provide the public only with data in the aggregate that is useful in identifying in broad terms the sources of candidate support and, perhaps, future officeholder indebtedness. Bruce Cain, Shade from the Glare: The Case for Semi-Disclosure, Cato Unbound (Nov. 8, 2010), http://www.cato-unbound.org/2010/11/08/bruce-cain/shade-glare-case-semi-disclosure.
This is a constructive proposal. It does what not enough such proposals do, which is to take seriously the concerns on both sides of the debate. Professor Cain, for example, acknowledges the claim that disclosure is often a second-best weapon for achieving regulatory objectives, like discouraging or penalizing independent spending, that cannot be achieved directly. And he respects the view that in a polarized, no-holds-barred politics conducted at Internet speed, there is a real risk that donors could find themselves harassed over contributions disclosed in considerable identifying detail.
But Cain does not see how the answer can lie in dispensing with meaningful disclosure. There are reasonable regulatory enforcement goals served by financial reporting—deterring corruption or its appearance, and aiding enforcement—and the public retains an interest in some information about the money behind campaigns. There is no reason to believe that this same public will abide for long the direction at present toward more money spent and a growing share of it undisclosed.
Of course, since Professor Cain first advanced his proposal, the role of government in collecting, storing and accounting for its use of sensitive information has made for lively controversy. The concerns that have developed in the national security sphere will carry over into the debate over what, under a proposal like Cain’s, the government can be trusted to do with campaign finance data. Already, when first presented, the Cain proposal drew criticism on just this ground—that having the government collect and hold the data, empowered in unspecified fashion to use it for enforcement purposes, would do little to reassure those anxious about the harassment of donors. Cain’s reference to the availability of the information for government “audits” added to the disquiet.
These are some of the questions, all fair, that the Cain proposal, when fully built out, would have to address. They help set the agenda for further discussion—but they ought not to cut the discussion off. There are no obvious or entirely right answers, no solutions to fully satisfy the various competing and often conflicting demands. Any reasonable discussion takes off from the point that no one unqualified position, “for” or “against” disclosure, will or should prevail; and it then most productively proceeds on the premise that there are legitimate concerns on both sides of the divide over disclosure and that each side has a contribution to make to a sensible “middle ground” policy.
So far in the Cain debate, and elsewhere in the discussion of disclosure, there is openness to the suggestion that the mandatory donor disclosure threshold now in the law for political committees, set at $200, is too low. Excepting from public reporting a larger number of donors by adopting a fresh definition of which of them are “small donors,” is one first step. It would offer relief to those troubled by how longstanding disclosure rules fail to account for privacy interests in today’s politics, and there has been recognition among reform advocates of the merits of this claim. For example, Rick Hasen has written that “it does make sense to raise the threshold for reporting individual contributions because there is little social benefit in public disclosure of the names of these contributors.” Richard Hasen, A Semi-Objection to Bruce Cain’s Semi-Case for Semi-Disclosure, Cato Unbound (Nov. 8, 2010), http://www.cato-unbound.org/2010/11/15/richard-hasen/semi-objection-bruce-cains-semi-case-semi-disclosure
Then there are two more difficult issues that come with the Cain proposal for addressing election-related spending that is now generally free of disclosure requirements. How would the aggregate donor data that he calls for be constructed, and under what legal conditions would the Government hold and, as necessary for enforcement purposes, use the individual donor data that is not made public?
An answer to the first of these questions depends, of course, on the further development of the proposal. Professor Cain has cited the example of census data, where “the income level or other sensitive personal information is aggregated at a level (tract, block, or block group) that protects individual privacy.” Judgments can made about the feasibility and utility of adapting this approach to the sphere of campaign finance, but there is no reason to rush to judgments before the work is done. There is also the option of adjusting the proposal so that very large contributions are publicly disclosed while all others are reported but only “semi-disclosed,” in the aggregate, in the manner Cain proposes.
The second and more sensitive of these two questions involves the design and management of the collection, storage and use of the data, and the establishment of credible public accountability for it. There are a host of issues needing work here—the way that the formal grant of authority is written and conditioned; the structure and role realistically expected of congressional oversight; and the various possible mechanisms of establishing public accountability. A public advisory body is one mechanism that might be fruitfully considered.
There is no way of knowing if a proposal like Bruce Cain’s can be worked through in all the necessary detail to a successful conclusion. Nor is there reason to decline the effort necessary to find out. For years, when there was disagreement about virtually every other major issue in campaign finance, there was general agreement about the value of disclosure—“normally,” as Cain writes, “the most widely embraced element of election regulation.” Now this agreement is unraveling. Rather than accept this unhappy state of affairs and the table-pounding that goes with it, it makes sense to re-think the issue and consider new approaches. Bruce Cain has suggested one such approach worth considering.