The Transparency-Privacy Trade-Off (or Bargain)

September 13, 2016
posted by Bob Bauer

The Brennan Center Report on the state of disclosure, “Secret Spending in the States,” usefully examines transparency policy issues presented by high-impact spending in low-information contests at the state and local level. It argues that dark money is not the only problem and focuses on the additional questions raised by “gray money” – –funding disclosed by reporting entities but received from organizations giving no indication of the interest or funding behind them. The Report then selects examples from various states of dark money and gray money controversies or issues. The Center sets out a program of reform and points to some progress made in the states.

The current divide over these reporting issues is so sharp that it is unlikely that the Center will immediately win over the usual skeptics. These skeptics’ complaint is that terms like “dark money” or “gray money” are highly charged but hopelessly vague, and that they are being used to justify proposed reforms that would impede the exercise of free speech rights. They are loathe to empower the government to do too much, and behind this is the conviction that government in the control of particular political interests will use disclosure to hound adversaries or subject them to public harassment.

But the skeptics might be surprised that the Brennan Center Report does not minimize the burdens and political risks of disclosure regimes. It argues for reasonable monetary thresholds, to keep the smaller contributions out of the public reports; for reasonable exemptions for especially vulnerable participants; and for “other reasonable accommodations” to allow donors to support organizations for charitable or social welfare purposes without falling within disclosure requirements that apply to the financing of political activities. In addition, the Center quite sensibly would have “[any] penalty for failure to disclose… fit the severity of the violation.”

If there is to ever be bipartisan accord about strengthened, modernized transparency, the conversation could profitably start there: taking serious steps to answer the growing concerns of donors about their exposure to invasion of privacy, public Internet shaming, or more direct reprisal. These are real concerns in this day and age, and cannot be simply dismissed as sham explanations given to fend off legitimate public disclosure.

Practitioners in the field of political law are now regularly asked about the availability of protections against disclosure. Of course, politically active or interest individuals or organizations have heard all this talk about “dark money” and they figure that if they have the option to avoid public exposure and its stresses, and to reassure potential donors on this score, they should take it. But they—and their donors–are also anxious about the viral distribution and potential vitriol of the commentary following publicity. This is not just a concern of Big Money or reform opponents.

The Center notes that Justice Scalia’s well-known statement in Doe v. Reed that citizens have to accept accountability for their political involvement—he chose to call it “civic courage”—or democracy would be doomed.   This is all well and good in the abstract, but it does not answer a series of hard questions, such as what is meant in the context of contemporary politics by “civic courage” and differences in vulnerability among citizens and groups—differences in the likelihood of facing real consequences and the capacity to withstand them.

There are limits the law already sets on what risks citizens must run to participate in the political process. These are all productively reconsidered, and their sufficiency closely re-evaluated, as a necessary part of the project of reconceiving the elements of effective transparency.

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