Different Realms of Disclosure

August 26, 2013
posted by Bob Bauer

Organizations required to register and report under New York’s new lobbying disclosure laws have begun to seek exemptions to protect their donors from anticipated reprisal or harassment. This concern for donor privacy was once most prevalent among conservative critics of political regulation, more on the “right” than on the “left,” or at least its articulation there has been most prominent. It was also once primarily an issue in campaign finance disclosure. See, e.g., Buckley v. Valeo, 424 U.S. 71, 74; Brown v. Socialist Workers, 459 U.S. 87 (1982). It seems, however, that the argument is finding favor across the political spectrum and has spread to the regulation of lobbying. Putting aside particular cases and their merits, it is a development with much to suggest about the confused state of mandatory disclosure policy.

Lobbying disclosure has long lagged behind campaign finance reporting. The reasons are not altogether clear, though in part the attention to “influence” accomplished through political spending tends to be drawn to campaign activity and to the special risks it carries of corruption or its appearance. In the standard view, because the politician who takes in a contribution is benefiting directly and personally, she is under pressure (or is motivated) to reward the contributor, and the transaction has something of the appearance of a “bribe.” On this account, transparency is needed and well justified. Lobbying works differently, it is thought: the lobbyist does not deliver the cash at her disposal into the hands of the legislator but finances arguments meant to win contests over policy. Of course, now and then the worlds converge, such as when lobbyists provide legislators with gifts or other personal benefits.

The function and sensitivity of disclosure in these two realms appear different if the question is the reasonable expectation of privacy the donor would have.

In campaigns, the citizen-participant lays claim to privacy of belief, the one most emphatically asserted as a voter entitled to the secret ballot and the protective enclosure of the polling booth. Anyone who has canvassed voters by phone or in person has encountered the voter refusal to reveal preference or even to discuss it: “that’s my business.” The law recognizes this interest in a variety of ways. See, e.g. 2 USC 441b (b)(4)(B). (Protecting the anonymity of non-executive employees solicited for contributions to the company PAC.)

This right to privacy applies in a materially different way to lobbying, when the donor is not so much expressing an individual political or party preference as she is conducting or funding an organized effort to move public policy on a specific issue. That there is a right to free expression of policy views is beyond doubt; however, there is further question, less easily answered, of how much privacy attaches to the act of financially supporting lobbying. In Doe v. Reed, 130 S.Ct. 2811 (2010), the Court discussed from different perspectives the extent to which the referendum process is a legislative process—that is, the extent to which the petition signer is more like a legislator casting a recorded vote and less like a “private” citizen expressing an opinion properly kept to herself, and those paying to influence this process are “lobbying” the voter-legislator. Id. at 2833 (Scalia, J., concurring) (“When a Washington voter signs a referendum petition subject to the PRA, he is acting as a legislator.”); see also California Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1107 (9th Cir. 2003) (“Voters act as legislators in the ballot-measure context, and interest groups and individuals advocating a measure’s defeat or passage act as lobbyists; both groups aim at pressuring the public to pass or defeat legislation.”) In this case, the disclosure policy may be more appropriately guided by a public interest in transparency than by personal interests in privacy.

Is the analysis necessarily different for simple contributions to a lobbying effort? It may be for the smaller contributions or the isolated individual action, minute in scale, like Mrs. McIntyre’s pamphlet against a school tax levy. But this would be because the contributor is a small contributor or the lone pamphleteer who craves anonymity. See, e.g., id. at 1104. Exceptions for the small donor rest in both campaign finance and lobbying disclosure on considerations of privacy connected to the size, not the purpose, of the contribution.

The subject is more complicated than this, of course, and there are reasonable arguments for exceptions to apply within the disclosure regimes that apply to lobbying. The federal government, for example, has declined to define lobbying to include “grassroots lobbying” directed to members of the public who are urged to call their elected representatives. Not all agree with this choice, but a difference is here recognized between public debate about issues, on the one hand, and those communications occurring behind closed doors.

What should be plain is that the interests in campaign finance and lobbying disclosure should not be confused. The transparency-privacy balance is not the same. Yet now we have the odd situation in which regulation is most intense in the campaign sphere, where the expectation of privacy is the highest, and this expectation is leaching into the field of lobbying activity, where the case for transparency is strongest.

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