George Will has written about the problems that state campaign finance laws present for little people—“small groups and individuals” going about their business and discovering when they dip their toes into political waters that those waters can be treacherous. See Justice v. Hosemann, No. 3:11-CV-138-SA-SAA (N.D. Miss. filed Sept. 30, 2013); see also Galassini v. Town of Fountain Hills, No. CV-11-02097 (D. Ariz. Sept. 30, 2013) at 1 (involving the “rights of an ordinary citizen [to] organize a protest”). The few hundred dollars these individuals and groups raise to express an opinion about a ballot initiative can subject them to a registration and reporting statute. They may find that they must put off their political project until they have complied with a law about which, only a short time before, they knew nothing. Some imagine, rightly or wrongly, that a lawyer has to be called, and eventually the call goes out—for a lawsuit. Will blames the errant course of the law on the insatiable appetite of “liberals” for “the regulatory state.”

But it is not certain that “liberals” or “progressives” who support reasonable campaign finance regulation would all applaud the results in these cases. They might well agree that there is a problem, one that arises from certain theories of enforcement and their application, not from core progressive commitments.

There are generally two arguments for broadly drawn rules that may sweep up small-scale activity posing no threat of corruption. One of these arguments is about separate benefits of disclosure—the “informational interest.” It is concerned with bringing to light the money behind any political activity in order to allow the larger public to evaluate the “interests” behind it. The Supreme Court has given it a broad reading and a narrow one. Under the broad reading, the voter is entitled to know who stands behind a political position because it is useful information. See, e.g., Citizens United v. FEC, 558 U.S. 310, 367-70 (2010). Under the narrow reading, the informational interest is connected to the concern with stymying corruption. The Court in Buckley v. Valeo straddled the two:

[D]isclosure provides the electorate with information ‘as to where political campaign money comes from and how it is spent by the candidate’ in order to aid the voters in evaluating those who seek federal office. It allows voters to place each candidate in the political spectrum more precisely than is often possible solely on the basis of party labels and campaign speeches. The sources of a candidate’s financial support also alert the voter to the interests to which a candidate is most likely to be responsive and thus facilitate predictions of future performance in office.

Buckley v. Valeo, 424 U.S. 1, 66-67 (1976) (emphasis added).

The information that “alerts” the voter to the interest “to which a candidate is most likely to be responsive” at least ties into the interest in preventing corruption. It does not supply justification for imposing registration and reporting requirements on a few hundred dollars’ worth of activity. The disclosure interest cannot rest securely on the goal of satisfying general curiosity. Progressives are certainly attentive to privacy issues—in recent times, very much so—and there is nothing in the progressive program to preclude sensitivity to those same issues in the field of campaign finance regulation.

The second argument for the expansively written and applied rule concentrates on the requirements for enforcing the campaign finance laws. In this view, the “average citizen” and the tycoon must be treated mostly alike on the principle that, in giving an inch in regulation, the regulator will be inviting a mile’s worth of circumvention and evasion. Small-scale political activity will simply become the loophole through which big-money designs will flow. Rather than spend millions all at once, the well-heeled interests will mobilize various individuals posing as “little people” who will put up small sums that in the aggregate reveal the true interests and the risk of corruption. Campaign finance laws established to control the influence of great wealth have been aimed, on this theory, at what is basically pocket change.

This “circumvention” has been a large cause of the woes of the campaign finance laws, because in this application, the essential purpose of those laws have been turned upside down. On hypotheticals about the evasive stratagems of big guys, the little guy gets caught up in a complicated system.

In all of these cases, the courts turn their attention critically to just this breadth and complexity and raise the overall question of whether effective campaign finance laws require them to be successful. The question is not an attractive one for supporters of the outcomes in cases like those cited by Will. If complexity is needed, then trouble lies ahead, because judicial tolerance for this complexity is limited and, as these and other cases indicate, it is running out. If the complexity is not needed, the law should be rewritten to be simpler and the protections for the little guy should be more reliable.

In Citizens United, the Supreme Court majority made critical note of the complexity of campaign finance laws and their effects on ordinary-course political activity. This is nothing new in the Court’s jurisprudence: judicial worries about complicated rules seeping into the grassroots shows up in cases like McIntyre v. Ohio, FEC v. Massachusetts Citizens for Life and Randall v. Sorrell. The preoccupation with circumvention, and the adoption of intricate mechanisms for stopping it, add to this problem of complexity and scope, which puts the campaign finance laws at risk of further erosion and loss of credibility. Unless the laws and regulations are reviewed and revised to address this problem, courts will trim them back, case-by-case, until very little is left. Progressives won’t think this is a good result.

Category: Disclosure

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