The Turn Against Transparency in Campaign Finance

Is influential columnist Charles Krauthammer's new stance a sign of things to come on the right?

The most influential conservative newspaper columnist in America, Charles Krauthammer, believes that campaign contributions are protected political speech, but that money can be corrupting, and it's unfair that big contributors get special access. "For a long time, a simple finesse offered a rather elegant solution: no limits on giving—but with full disclosure," he writes. "Open the floodgates, and let the monies, big and small, check and balance each other. And let transparency be the safeguard against corruption. As long as you know who is giving what to whom, you can look for, find and, if necessary, prosecute corrupt connections."

At least, that used to be his position. In a shortsighted fit of pique, he is now abandoning it.

"I had not foreseen how donor lists would be used not to ferret out corruption but to pursue and persecute citizens with contrary views. Which corrupts the very idea of full disclosure," he explains. "It is now an invitation to the creation of enemies lists. Containing, for example, Brendan Eich, forced to resign as Mozilla CEO when it was disclosed that six years earlier he’d given $1,000 to support a referendum banning gay marriage. He was hardly the first. Activists compiled blacklists of donors to Proposition 8 and went after them. Indeed, shortly after the referendum passed, both the artistic director of the California Musical Theatre in Sacramento and the president of the Los Angeles Film Festival were hounded out of office."

Krauthammer's new opinion is that transparency in ballot initiatives is relatively unimportant:

Referendums produce the purest example of transparency misused because corrupt favoritism is not an issue. There’s no one to corrupt. Supporting a referendum is a pure expression of one’s beliefs. Full disclosure in that context becomes a cudgel, an invitation to harassment.

In his conclusion, he seems to favor a future of secret campaign contributions:

If revealing your views opens you to the politics of personal destruction, then transparency, however valuable, must give way to the ultimate core political good, free expression. Our collective loss. Coupling unlimited donations and full disclosure was a reasonable way to reconcile the irreconcilables of campaign finance. Like so much else in our politics, however, it has been ruined by zealots.

What a pity.

Writing at The Washington Post, Paul Waldman argues that Krauthammer's column is a portent of things to come, predicting that the right will soon embrace anti-transparency:

Krauthammer’s column today will stand as a marker, a clarion call to conservatives that the new correct position is to be in favor of campaign finance secrecy (a place where many have already arrived). What we’re going to see in the coming months and years is a steady stream of advocacy against disclosure, in the statements of politicians, on the pages of newspapers and over the airwaves in conservative media, and eventually, in the form of a lawsuit from an aggrieved donor who will say he has been subject to retribution over his political contributions. Once you see a case being handled by James Bopp, the right’s most aggressive and successful campaign finance lawyer, you can bet it’s been carefully chosen to make it all the way up to the Supreme Court.

The Court’s eventual reaction to all this is hard to predict. On one hand, disclosure came up repeatedly in the recent decision in McCutcheon v. F.E.C., which eliminated the aggregate limit on campaign donations to candidates. Many (including me) read Chief Justice Roberts’ decision as a prelude to a future decision eliminating the $5,200 limit on contributions, with disclosure as the rationale. As long as we know who’s giving to whom, the Court might argue one day, we won’t have to worry about the corrupting influence of money because we’ll know which politicians are indebted to which billionaires and we can monitor their activities. And therefore, disclosure eliminates the need for any limit on campaign contributions.

On the other hand, once there’s an active Republican campaign in motion against disclosure, the five conservatives on the Court may begin to consider disclosure the greater evil. Or they could simply forget what they’ve argued up until now, and eliminate both contribution limits and the disclosure that might tell us where the money’s flowing from. Campaign finance would be run on the honor system, where nobody knows where the money’s going, and ordinary Americans are left to rely on the virtue and restraint of the wealthy and the politicians whose gratitude they purchase not to subvert the public good. If and when it happens, folks like Krauthammer will declare it a triumph of liberty.

Waldman may be right. But I hope he is wrong, for Krauthammer's position is a wild overreaction to Eich's forced resignation, would likely make America a far more corrupt country, and undervalues how much is gained by knowing who supports ballot initiatives.

Voters weighing whether to vote yes or no often feel unable to judge the merits of a proposed law from its text alone, and understandably so: The full consequences of a law are often hard for citizens to discern even after diligent study. Knowledge of who is bankrolling initiatives often provides useful information. If asked to weigh in on the Surveillance Drone Regulation Act of 2017, California voters who don't have time to conduct an exhaustive study of the issue would do well to inquire as to whether the ACLU or the surveillance-drone industry is trying to pass it. If a ballot initiative calling for new prison construction is funded almost entirely by prison-guard unions and the private-prison industry, voters would be quite right to regard it with extra skepticism.

Given how rarely anyone is targeted for donating to a political campaign, I continue to favor total transparency. I suppose that I could live with a system that exempted small donors from reporting requirements. If you contributed less than, say, 1 percent of the dollars that funded a ballot initiative, you're not the money that society has a powerful interest in scrutinizing. And I don't see any need to list the addresses of any donors alongside their names and places of employment. But letting big donors give in secret, wielding huge amounts of power without anyone monitoring attempts at rent-seeking, would enable all manner of mischief. It's too high a price to pay to protect donors from a rare illiberal excess.