Campaign Finance Disclosure Rules Infringe on First Amendment Rights

About David Keating:

David Keating is the president of Center for Competitive Politics.

As we consider this question, consider an area where there is no disclosure in campaign finance—editorials and news coverage. This works exceptionally well, despite that fact that we usually don't know who even writes an editorial endorsing a candidate, nor do we know how much advertisers spent on ads in the paper that day, or whether news coverage or editorials were influenced by advertisers.

If we left speech laws up to the politicians, they'd probably ban editorials endorsing candidates. In the 1960s, Alabama passed a law aimed at ending "corrupt practices," which led to the arrest of newspaper editor James Mills for writing an editorial urging voters to approve a new form of city government. His crime? The editorial was published on Election Day, a day that electioneering on candidates or ballot questions was banned by law.

[Check out our collection of political cartoons on super PACs.]

Fortunately, the Supreme Court threw out this bone-headed law, but it took four years and editorials in Alabama went silent on Election Days during that time.

In the landmark case of Buckley v. Valeo, the Supreme Court wrote that "compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment." This is happening today with smaller donors. In the 1970s, contribution records were available only at the Federal Election Commission. The idea was to shine light on enormous secret donations to candidates. Today, you can use the Internet to search for your neighbor's $50 candidate donation. An employer can take a look at a job applicant's donation records. That's ridiculous.

The fact that this information is so widely available is giving a lot of smaller donors second thoughts about making any political contributions, especially in this time of high unemployment.

[See a collection of political cartoons on the 2012 campaign.]

When you give a total of $200 to a candidate, your name, address, employer, and occupation are published on the Internet. That amount has been frozen since 1979. Adjusting for inflation, this threshold would be over $630 today.

We should increase the threshold for publicly disclosing donations until they reach a cumulative total of, say, at least $1,000, and index it to inflation. That would allow someone to donate $50 a month for 20 months to a favorite candidate and keep his privacy. That's less than the cost of a daily small cappuccino.

Yet the benefit would be more small donations funding more speech by more candidates. Let's try it!

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