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Campaign Contribution Disclosure and Technological Change:

Paul Sherman of the Institute for Justice raises an interesting set of questions:

When discussing the Buckley and Brown holdings on disclosure, I think it's important to keep in mind that both decisions were written years before the Internet made campaign-finance data easily available to anyone with an idle curiosity in your political activity. In 1976 the average donor probably didn't have much to fear from having their contributions disclosed, because the cost of accessing that data was relatively high. But when that data can be accessed with just a few keystrokes, methods of retaliation that are already virtually impossible to detect or prove suddenly become very low cost. How can I demonstrate to a court, for example, that I was denied a job because I made a contribution to a disfavored candidate or ballot initiative? With employers routinely performing Google searches of job applicants, is it unreasonable to think this happens with some frequency?

I don't know the answers to these questions, or to the broader question of what should happen to campaign finance law in light of these questions. But I do think these are much worth considering.

For more from the Institute for Justice on this, see Disclosure Costs: Unintended Consequences of Campaign Finance Reform, and Campaign Finance Red Tape: Strangling Free Speech and Political Debate.

Thomas_Holsinger:
The marginal cost of political retaliation has gone down. This has increased the marginal cost of political activity.
11.13.2008 7:57pm
Thomas_Holsinger:
oog, change that to:

This has increased the marginal cost of political participation.
11.13.2008 7:58pm
Brian K (mail):
With employers routinely performing Google searches of job applicants, is it unreasonable to think this happens with some frequency?

given the vast amount information on anyone on the internet, the only way to remedy this would be to ban employers from using google (or any other search engine) or to end at-will employment.
11.13.2008 8:19pm
Andie (mail):
Just one anecdote:
I was going to contribute to the McCain campaign until I realized that he published all his donors including those under $200. I am a grad student in the humanities going on the job market in the next couple years. To me being found out as not a liberal or Democrat would negatively affect my job search and I decided not to take that risk. Wish this weren't so but while I kind of fear for unknown search committees, I am absolutely concerned that being found out would negatively impact the letters of recommendation from my department. My cohort is very competitive and with profs writing recommendations for various students to the same positions, I can't risk even a slightly less favorable recommendation.
11.13.2008 8:35pm
Bleepless:
Had Andie wanted to contribute any amount at all from anywhere in the world, it would have been easier to contribute to Obama, who disabled the software that kept illegal contributions from reaching the McCain coffers. Hopey-changey wins again.
11.13.2008 9:11pm
Oren:
I don't understand -- the point of free speech is the right to stand up and express your beliefs in order to convey those views to others. Now, you are complaining that others will know about the political views that you expressed? Of course they do, that was the entire point in expressing them to begin with.
11.13.2008 9:19pm
bob (www):
As far as I can tell, the law has been hostile to arguments that the ease of access to information provided by the internet represents a difference in kind, rather than a minor difference in degree. That's certainly been my impression in wrt searches. I think that's wrong, but I don't write opinions.
11.13.2008 9:25pm
Norman Bates (mail):
It would be relatively easy to get rid of all campaign finance laws, to remove the possibility of campaign contributions being used to buy influence, and to protect the confidentiality of all persons making campaign contributions. All that needs to be done is to set up one central system for collecting and disbursing campaign contributions and making any other form of delivering campaign funds illegal.

Persons wishing to make a contribution to a particular person, party or cause would just deposit their contribution into the system with instructions as to how the funds are to be distributed among candidates. After this is done, the system would destroy all records of the contributor's transaction. Candidates, parties, and causes would be able to withdraw funds from their accounts, but have no idea of who might have provided them.

The system would require methods to prevent parties and candidates calculating what individuals contributed to what accounts. Such methods might include randomly creating time intervals between the time of a donation and the time it is credited to various campaign accounts, spreading out the distribution of a large contribution to one canpaign account, etc. But all this is all well within the means of modern technology. Such a system would also require some fairly sophisticated safeguards to ensure that confidentiality is maintained and funds are distributed according to contributors wishes. But again I'm sure that such safeguards could be devised.

Does anyone know whether such a scheme has ever been suggested and, if so, why it was rejected? I'm honestly curious.
11.13.2008 9:29pm
miked0268 (mail):
I think it is clear that the disclosure laws ought to be changed since access to such information has become so much easier. Andie's anecdote above demonstrates this perfectly. Similar concerns might be raised by people with careers in teaching, entertainment, social work, etc. (oddly, I'm having trouble thinking of examples where it would work in the opposite direction - a person's career being damaged by donations to liberal candidates - but any examples you can come up with would just strengthen the case anyway).

Oren: I think you are right in a strictly logical fashion but as a practical matter, anyone deciding to express political opinions in private may well take into account their audience first. Donating to a political campaign is not quite the same thing. I don't see why citizens shouldn't have the right to facilitate someone else's political speech in their behalf without it becoming universally available knowledge that they have done so. What's the harm? It's not like such small contributions have any real potential to induce corruption anyway.
11.13.2008 9:38pm
SFBurke (mail):
Thomas and Andie: I think your posts highlight the main reason I oppose boycotts/retaliation etc. based on political viewpoints. In any given situation, the proponents of such activities will feel that economic retaliation gives them leverage and that inherent morality of their position justifies their actions. But over the long term, one finds that there are a vast number of issues that people feel strongly that they occupy the moral high ground on (wars, abortion, affirmative action, immigration reform etc.), so the long term effect is to discourage people from being political active. People shouldn't have to risk their livelihood to participate in politics, but public acceptance of economic retaliation forces them to take that risk.

Further more, the existence of publicly-announced boycotts/retaliations just raises the suspicion that their are unannounced ones going on and creates a climate where people feel that economic retaliation is an inherentpart of the political process.

The net result of these factors is to discourage political participation except by the more fanatical members of society who are willing to bear the costs. Such a tendency is not healthy for a democracy, particularly not a democracy like ours where getting people to pay attention to important issues is already difficult.

There probably is not a good legislative remedy for this problem. Just like there is not a good legslative remedy for people who wear T-shirts that make crude reference to Sarah Palin. But we can individually dissaprove of these actions and maybe make people reconsider the wisdom of advocating economic retaliation.

Oren: I think your free speech argument misses the point. yes we have free speech but we also have a secret ballot. The latter is value we are seeking to protect.
11.13.2008 9:56pm
MarkField (mail):

I don't understand -- the point of free speech is the right to stand up and express your beliefs in order to convey those views to others. Now, you are complaining that others will know about the political views that you expressed? Of course they do, that was the entire point in expressing them to begin with.


While I think Andie's concerns are overblown, there are times when the exercise of First Amendment rights needs to be protected from retaliation by public officials (NAACP v. Alabama). I'd really hate to see government agencies using Google to secretly blackball job applicants.
11.13.2008 9:56pm
Floridan:
This is so pathetic -- oh, boo hoo hoo, I'm afraid to donate money to a cause I believe in because someone might hold it against me.

Home of the brave, indeed.
11.13.2008 10:06pm
Katl L (mail):
In Venezuela , a presidential recall ballot was held in 2004.
3,000,000 signed the petition. One representative had access to the data of the people that signed it. The Electoral council allowed him to photocopy all it. he made a cdrom version that was sent to every government agency and company. The cd was available with street vendors too.many people some critics say in the thousand were fired from their jobs.Or were denied jobs not only in the executive but also in the independent judiciary and Public Minister .People was denied passports, personal identification card( In Venezuela without it you are a non entity, you can be jailed or deported( if you look like a foreigner) for not having it), credits.
It is called the Tascon file, last name of the MP.
Even americans and european companies fired people because they signed. They were threatened with the loss of contract if they failed to fire the signers.My sister was a university professor , she arranged a trip to the state oil company with her students. half of them were denied access because they had signed.
The electoral Council rejected 1,000,000 signatures and ordered a resign. The fgovernmente lifted the "sanctions" to the people thah denounced that their signature was forged or denied signing the first time.
11.13.2008 10:14pm
Joshua:
ChicagoBoyz had an interesting post on this issue just before the election. Its author referred to the problem as "swarm corruption".
11.13.2008 10:44pm
_quodlibet_:
>>485450

There probably is not a good legislative remedy for this problem.


Of course there is! Simply repeal the campaign-finance laws that already abridge the right to anonymous free speech.
11.13.2008 10:46pm
Milhouse (www):
Oren wrote:

I don't understand — the point of free speech is the right to stand up and express your beliefs in order to convey those views to others. Now, you are complaining that others will know about the political views that you expressed? Of course they do, that was the entire point in expressing them to begin with.

Tell that to "Publius", "Cato", and "Federal Farmer".
11.13.2008 11:07pm
Oren:


Oren: I think you are right in a strictly logical fashion but as a practical matter, anyone deciding to express political opinions in private may well take into account their audience first. Donating to a political campaign is not quite the same thing. I don't see why citizens shouldn't have the right to facilitate someone else's political speech in their behalf without it becoming universally available knowledge that they have done so. What's the harm? It's not like such small contributions have any real potential to induce corruption anyway.

Privately, say what you want and I assume your friend won't go to the press.

Want to influence a public election, you ought to welcome public scrutiny.
11.13.2008 11:33pm
Oren:


Of course there is! Simply repeal the campaign-finance laws that already abridge the right to anonymous free speech.

It's funny, because I never thought I had a right to anonymous public speech in any meaningful way.
11.13.2008 11:34pm
Oren:

Tell that to "Publius", "Cato", and "Federal Farmer".

If you are so cowardly that you won't venture you opinion on a public matter (except in front of friends) then I would question the strength of your convictions.

I own up to all my political opinions and donations, even in cases where I erred (in the sense of later changing my mind).
11.13.2008 11:36pm
Fub:
Paul Sherman of the Institute for Justice quoted by Eugene Volokh:
In 1976 the average donor probably didn't have much to fear from having their contributions disclosed, because the cost of accessing that data was relatively high. But when that data can be accessed with just a few keystrokes, methods of retaliation that are already virtually impossible to detect or prove suddenly become very low cost.
Two hundred years previous, information technology consisted of pens, printing presses and paper. Yet retaliation for controversial political speech was at least as commonplace, and often much more harsh than that of 1976, or today.

Today's political contributors want anonymity, in a nation founded because some fifty six people, well aware of likely retaliation, signed this statement and circulated it publicly:
And for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.
11.13.2008 11:42pm
Dilan Esper (mail) (www):
This technological point is true about many privacy/speech fact patterns (e.g., one can argue there's a stronger case for sealing sensitive court files when we are talking about people electronically searching them as opposed to looking through a physical file at a courthouse).

One thing to say about it is it is one more example of why originalism is a really dumb constitutional theory-- the balance of interests can change due to technology, but the originalist is still only concerned with what was true in the distant past.
11.13.2008 11:45pm
David M. Nieporent (www):
It's funny, because I never thought I had a right to anonymous public speech in any meaningful way.
See McIntyre v. Ohio Elections Commission.
11.14.2008 12:01am
MarkField (mail):

Tell that to "Publius", "Cato", and "Federal Farmer".


That wasn't the logic behind the use of pseudonyms at that time. In fact, the concern was exactly the opposite -- that readers would be influenced by the identity of the author rather than by the quality of the argument.

Before the Revolution, when English seditious libel laws were in force and treason was in contemplation, there were, of course, good reasons for anonymity.
11.14.2008 12:02am
Milhouse (www):


Tell that to "Publius", "Cato", and "Federal Farmer".


If you are so cowardly that you won't venture you opinion on a public matter (except in front of friends) then I would question the strength of your convictions.

I own up to all my political opinions and donations, even in cases where I erred (in the sense of later changing my mind).


So I take it you would tell that to the aforementioned gentlemen? Wow! Well, I guess there's no questioning the strength of your convictions, anyway...
11.14.2008 12:05am
David Warner:
Oren,

"If you are so cowardly that you won't venture you opinion on a public matter (except in front of friends) then I would question the strength of your convictions."

Strange, then, that you would not use your last name for your posts here. What could you possibly be afraid of? Hm?
11.14.2008 12:32am
Oren:

Before the Revolution, when English seditious libel laws were in force and treason was in contemplation, there were, of course, good reasons for anonymity.


Yes, I will grant that exception. Now that you can't be held to any legal account, that logic is no longer valid.

I was unaware of McIntyre, so thanks for the pointer.

David, it's a matter of not showing up on Google searches, which is a personal preference. While I don't believe in a legal right to remain anonymous, there's nothing wrong with people posting online and divulging as much or as little personal information as they please.

Of course, you are free to judge my posts by whatever silly criteria you like.
11.14.2008 12:38am
bbbeard (mail):
Have our courts <i>ever</i> held that there is a right to anonymous political donation? Why on earth would the concerns for corruption [see Obama 2008] that led us to the current policy be cast aside because some people are afraid of repercussions?

BBB
11.14.2008 12:40am
SFBurke (mail):
It seems odd the some posters downplay the negative impact of economic retaliation. They seem to think that if you care about your opinion, you should be willing to express it no matter what the consequences. And while the courage of the founders of this country is certainly admirable, do we really expect every citizen to posses the same courage? And is our view that if you do not have such courage then you should not participate in the public dialogue (in other words, your opinions are not worthwhile). It seems odd to take that position that only the courageous are worthy of hearing.

Ultimately, economic retaliation is a form of thuggery. It is not as bad as actual violence (though it can incite violence), but it certainly does not seem to be a sound basis for democracy. Do we really want our most important political decisions to be decided (or even influenced) on the basis of which side has a greater ability to inflict economic pain on the other side?

Again, this is not a matter of rights. People certainly have the right to behave in asinine ways that degrade our democratic process. But should we encourage that or should we look to ways to limit that (perhaps by allowing for greater confidentiality with respect to political contributions). And certainly, we can condemn those who would use economic retaliation to intimidate those with oposing viewpoints.

It is interesting that Oren is not able to respond to the argument that he certainly appreciates his anonymity on this board. Nor is he able to respond to my argument that protection from retaliation is precisely the reason we have a secret ballot. I think that some posters may not be as courageous as they demmand their fellow citizens to be.
11.14.2008 1:34am
David Warner:
Oren,

"Of course, you are free to judge my posts by whatever silly criteria you like."

Clearly the criterion to which you refer is not one I apply, or I would have to discount 90% of the people posting here, which would be, as you note, silly. It does, however, appear to be the one you suggest should be applied to others, hence my puzzlement.

Not the singular of data.
11.14.2008 1:34am
David Warner:
Dilan,

"the originalist is still only concerned with what was true in the distant past"

Only? I find that difficult to credit. In what sense, in the grand scheme of things, is the Founding truly distant? Would that it were and that this Republic had survived a few millenia. Then we can get cocky.

Perhaps this is closer to your meaning:

"Some are so very studious of learning what was done by the ancients, that they know not how to live with the moderns."

- Billy Penn
11.14.2008 1:50am
Tony Tutins (mail):
The price of supporting a cause should not be giving away one's privacy. A few years ago, filling a form online, I needed to put down the address of a close relative I did not live with. My uncle has an unlisted phone number, but googling him came up with a campaign finance website with his street address and long-form zip code.
11.14.2008 2:29am
martinned (mail) (www):

Brian K (mail):

With employers routinely performing Google searches of job applicants, is it unreasonable to think this happens with some frequency?

given the vast amount information on anyone on the internet, the only way to remedy this would be to ban employers from using google (or any other search engine) or to end at-will employment.
11.13.2008 8:19pm

Once again proof that there's nothing so crazy that it hasn't been suggested already somewhere. Last week, the Dutch privacy protection board suggested that employers googling prospective employees violated their privacy rights. As if we needed any more proof that they're idiots.
11.14.2008 7:24am
mgarbowski:
Oren:
"Privately, say what you want and I assume your friend won't go to the press.

Want to influence a public election, you ought to welcome public scrutiny."

Without, I expect, intending this result, you just argued against private ballots, for voting is indeed an attempt to influence the outcome of an election. It is also clearly expressive, and nearly always anonymous.

You may think that the rationale for treating voting differently from speaking to influence others votes is abundantly clear, but there doesn't seem to be much rationale for it.

Basically. given the practical realities of voting, to allow anonymity while voting, but not while discussing the subject of that vote, is to allow people anonymity in an area with minimal practical effect, but to disallow it in an area that has the potential (depending on the dissemination and effectiveness of your communication) to have a much greater effect.
11.14.2008 7:54am
LA denizen:
Look at the case of El Coyote in Los Angeles. There, one co-owner of the restaurant gave $100 to the Yes-on-8 campaign. The restaurant-qua-restaurant didn't give a single dollar, the staff didn't give a single dollar, the other co-owners didn't give a single dollar, and nobody has ever used the restaurant as a platform from which to oppose Prop 8. If anything, the restaurant has been a place enjoyed by people of all sexual orientations.

But none the less, last night there was a massive protest outside the restaurant and an ongoing boycott. The staff, which had nothing to do with one co-owner's private outside-of-work political speech, is being punished. The waiters, busboys, etc are all losing tips over this.

The goal, of course, is to intimidate business owners out of speaking their personal opinion.

If that's not thuggery, I don't know what is. It's probably legal, but it's still thuggery.
11.14.2008 8:59am
John Burgess (mail) (www):
Oren in brief: If you're not willing to put your livelihood (and that of your employees, supra) at risk, you should just keep your mouth shut on political issues.

Either Oren has balls of brass or nothing to lose, it appears.

Maybe one is willing to accept the risk for important issues, but less willing for less important issues. By Oren's Law, too bad for you: you lose your chance for political speech out of cowardice.

And this differs from 'If you're not a criminal, you don't have to worry about this law'?
11.14.2008 9:13am
DiverDan (mail):
This whole subject raises the often overlooked distinction between speech, including expressive conduct, and coercive conduct. So many posters here and in the related posts assume that things like boycotts in retaliation for political speech are fine, because the boycotts, or at least non-commercial boycotts (i.e., any that don't come within the scope of the Sherman Act) are themselves protected by the First Amendment. But one of the hallmarks of the freedom of speech is that, although everyone has a right to speak their mind, no one has the right to force anyone else to listen, and certainly no one has the right to force others to agree with their point of view. Free speech protects the power of persuasion, not coercion. Union picketers have the right to march outside their employer's place of business with signs expressing their greivances; but what if those same picketers blocked all public roadways and forced every passer-by to listen to their grievances? Abortion protesters may picket an abortion clinic (at least at a "reasonable" distance); but what if they stopped every woman who attempted to enter and forced her to watch videos of a live fetus being aborted? We won't tolerate union picketers blocking public roads, and we won't tolerate abortion picketers trying to force women to decide against abortion. So why should we tolerate politically motivated conduct which is not designed to persuade, but rather which is expressly intended to coerce conduct? There is a very sound reason that the Sherman Act prohibits commercial boycotts -- they are intended to and do coerce the target of the boycott. And economic boycotts engaged in for political reasons are no less coercive - the NOW boycott during the late 1970s intended to coerce businesses within states to support ratification of the ERA, and an organized boycott of businesses or individuals who supported California Prop. 8 both are effectively coercive - different in degree only, not in kind, from putting a gun to a person's head to convince him or her to accept the boycotters' political viewpoint, or, as in Stalinist Russia and modern China, simply refusing the vote (and employment, and food, and shelter, etc.) to anyone who won't join the Communist Party. If this type of coercive conduct, even to the point of allowing an employer to fire or refuse to hire someone for his or her political expression (as in the case of the Humanities Ph.D. candidate who supported McCain) is going to be tolerated, protecting anonymity in political activity seems to be critical to protecting any right of political dissent by a minority on any issue. We can all agree (I assume) that it's wrong to discriminate in employment or housing on the basis of race; but what if, in the early 1960s, every employer and every landlord in Georgia, Alabama, Mississippi, and Louisiana decided that they would not hire anyone or rent a home or apartment to anyone who supported the passage of either the Voting Rights Act or the Civil Rights Act? How is that any different in kind than boycotts targeted at supporters of California Prop. 8?
11.14.2008 9:17am
Adam J:
SFBurke - "Ultimately, economic retaliation is a form of thuggery. It is not as bad as actual violence (though it can incite violence), but it certainly does not seem to be a sound basis for democracy." Interesting, so I suppose you aren't truly an advocate of economic freedom. Apparently you think people should not have the freedom to take their business elsewhere. It's ludicrious to compare that to thuggery.
11.14.2008 9:52am
Bored Lawyer:
The technological point is sound. I recently needed to look up an address to subpoena a witness to testify in a case. I Googled his name, and about eight of the first twenty entries were references to listing on campaign sites of a prominent politician to whom he had contributed. So without my even trying I already know he is a repeat contributor to that politician.
11.14.2008 9:54am
Bored Lawyer:

The goal, of course, is to intimidate business owners out of speaking their personal opinion.

If that's not thuggery, I don't know what is. It's probably legal, but it's still thuggery.


The problem is that, on the whole, only one side of the political spectrum engages in this type of thuggery. So they see no downside in that behavior. If this were a two-way street, then perhaps people would think twice about putting someone's livelihood in jeaopardy merely for a political disagreement.
11.14.2008 9:57am
Sarcastro (www):
I like to equate what is legal with what is moral. Since this action within the law, anyone who condemns it must hate freedom!

Also, if you support protesting for one thing, you must support protesting all other ideas as well, or your some sort of moral relativist. Or moral absolutist. The point is, you're bad!
11.14.2008 10:02am
martinned (mail) (www):
This topic is one of those questions that are becoming increasingly difficult to discuss in the modern day US and EU. More and more, people seem to think that the only distinction that matters is between what is legal and what is not, forgetting that the former category contains both things that are "good form" and things that are not.

To some extent, you see that in the present thread as well. Some commenters are arguing that these kinds of boycotts for speach are "bad form", i.e. inappropriate in a country that values free and frank exchange of ideas. And then they are replied to as if they suggested making such things illegal.

This thread is not about whether certain behaviour should be illegal, but about whether it should be condemned as inappropriate.

P.S. Focusing only on the legal/illegal distinction is very dangerous to freedom, because it makes the lawmaker the ultimate and only arbiter of human behaviour. This leeds to increasingly detailed laws and regulations, because those are perceived as the only effective constraints on citizens. So instead of having a simple social norm about swearing on TV, we have an FCC regulation. Instead of trusting each other to act responsibly when it comes to campaign contributions (i.e. not try to get favours in return, and not agree to give any), we have increasingly detailed campaign finance legislation. The list goes on and on, and the underlying problem is one of increasing unwillingness to accept social norms of behaviour that are not law.
11.14.2008 10:03am
Adam J:
DiverDan- "an organized boycott of businesses or individuals who supported California Prop. 8 both are effectively coercive - different in degree only, not in kind, from putting a gun to a person's head to convince him or her to accept the boycotters' political viewpoint"

And what's wrong with non-violent coercion (besides blackmail that is)? If a company refuses to hire blacks should we still be forced to do business with them? If a individual commits a crime should we still be forced to associate with them? If my kid breaks curfew should I still be forced to give him an allowance? Heck, even giving $1000 dollars to Prop 8 was coercive- it created propaganda to try and influence votes. It's just wrong to conflate non-violent economic coercion with violent coercion.
11.14.2008 10:04am
LA denizen:

Interesting, so I suppose you aren't truly an advocate of economic freedom. Apparently you think people should not have the freedom to take their business elsewhere. It's ludicrious to compare that to thuggery.


Under the First Amendment, people have the freedom to walk around calling yes-on-8 supporters "bigots", and people have the freedom to walk around calling no-on-8 supportors "f-ggots", but I think that both would be in extremely poor taste and possibly a form of thuggery if done to intimidate or coerce.

Not everything that is legal is a good idea. See also Bruce Willis at the start of Die Hard: With a Vengeance.
11.14.2008 10:06am
Kevin P. (mail):
Finally, something martinned and I can agree about!
11.14.2008 10:19am
Kevin P. (mail):
Check out this Google spreadsheet that someone is maintaining on Prop 8 donors, including Mormons.

I was disappointed to see Prop 8 pass. But the reaction from the opponents of Prop 8 has been even more disappointing. If it continues at this rate, it looks like the silent majority will choose between gay rights and freedom of speech for all. That is not good.
11.14.2008 10:22am
Joe McDermott (mail):
1. There should be total transperancy in campaign finanace.

2. Why should (or is) a private employer refusing to hire someone based on political affiliation/contributions be illegal?
11.14.2008 10:24am
devil's advocate (mail):

IJ as quoted by Eugene

How can I demonstrate to a court, for example, that I was denied a job because I made a contribution to a disfavored candidate or ballot initiative?


I can't see what relevance IJ could imagine, to any truly liberal proceeding, of whether someone was denied a job on that basis. so what. you're not entitled to a job. of course of I feel the same way with regard to private employers and race, gender, etc. Just as I accept boycotts that operate as speech. The sense of speech as intimidation has to come from fear of indirect harm, e.g. losing business, but real fear for direct harm to life, liberty or property for actual coercion to exist.

My humble opinion, not making reference to the anti-trust standard.

Brian

PS adopted my latest nom de plume while ministering to the outbreak of Yoo Derangement Syndrome, the Marty Lederman goes Volokh threads on the conspiracy last April I believe. So it was a deliberate attempt not to hide my association with that reviled minority of those who didn't see the memo's as evidence of a hanging offense, literally or figuratively.

I'm ambivalent about the right to comment anonymously. Certainly where the threat to life, liberty or property exists it ought to be protected. Whether I think that extends right to anonymous speech extends to campaign contributions, closer call. But, as a practical matter, I have no problem with a different standard for voting than electioneering. The franchise deserves a different level of privacy. and should the lack of privacy in the electioneering realm limit the pool participating there to a smaller pool than those exercising the franchise, so what.

Brian
11.14.2008 10:28am
Bored Lawyer:

How can I demonstrate to a court, for example, that I was denied a job because I made a contribution to a disfavored candidate or ballot initiative?


The same way one demonstrates that one lost a job because of race, gender or religion in employment cases today. You muster the evidence the best you can, and it is up to the jury to infer the state of mind of the person or persons who made the employment decision.
11.14.2008 10:44am
another anonVCfan:
What seems to have been largely missed by many in this discussion is that this is not a question of whether employers (or anyone else) has the First Amendment right to discriminate against people who have expressed certain political views. The question is whether the government should compel individuals to publicly identify themselves with political views they might rather keep private. That's a different First Amendment question, a question of compelled speech. When assessing the costs and benefits of compelling that speech, we should look at all the costs to the person so compelled, even if there's nothing "illegal" about any of those costs. Private, legal retaliation is such a cost, and the Internet has likely made it more prevalent.
11.14.2008 10:48am
Connecticut Lawyer (mail):
This post raises a valid concern. My wife, who has a residential interior design business, refuses to make campaign contributions to anyone, even to politicians that she likes a lot, because she's afraid that the contributions will offend one client or another. Anyone who thinks that he might be in the job market some day either is worried about this or has his head in the sand.
11.14.2008 10:54am
Oren:


It is interesting that Oren is not able to respond to the argument that he certainly appreciates his anonymity on this board. Nor is he able to respond to my argument that protection from retaliation is precisely the reason we have a secret ballot. I think that some posters may not be as courageous as they demmand their fellow citizens to be.

I have never assaulted the secret ballot, which is absolutely integral to the democratic process. I reread my comments, which have absolutely nothing in them that suggests this. If anything I wrote did suggest that, then consider it only evidence of my poor writing skills.

On the other hand, I believe that it is perfectly right and proper for society to express its disapproval for speech that it doesn't like through the moral opprobrium of its freely acting individual citizens. That is, in fact, the only response that I feel is appropriate when other engage in speech that we disapprove of. It's a good thing that citizens feel strongly enough about their convictions to boycott businesses that oppose them -- it's a sign of a healthy democracy in action.

As to anonymity on this board, any feeling that we might have of anonymity is a joke. The VCers can pull my IP and get my identity in a morning.


The question is whether the government should compel individuals to publicly identify themselves with political views they might rather keep private.

The government isn't compelling anything. If you don't want to make a political speech or donation, don't. If you do want to make a public statement with the intent of influencing others, then you have accepted a fortiori that the purpose of your speech is to be publicly available, that being a necessary predicate of influencing others.


Under the First Amendment, people have the freedom to walk around calling yes-on-8 supporters "bigots", and people have the freedom to walk around calling no-on-8 supportors "f-ggots", but I think that both would be in extremely poor taste and possibly a form of thuggery if done to intimidate or coerce.

Agreed. Civility would be nice, but it's hardly the government's job to enforce some sort of standards of discourse.
11.14.2008 11:30am
pintler:

I don't understand -- the point of free speech is the right to stand up and express your beliefs in order to convey those views to others. Now, you are complaining that others will know about the political views that you expressed? Of course they do, that was the entire point in expressing them to begin with.


In today's world, admission to the marketplace of ideas has a steep cover charge - the price of TV ads [disclaimer 1]. It's not like in days of yore when anonymous leafleting was state of the art. Maybe you're living in the jim crow south and want the voice of a reformer to be heard - but not at the price of losing your job, having your house firebombed, etc.

It works both ways - as an employer, I'd would certainly look askance at someone who contributed to e.g. David Duke. I submit that the advantages of broad participation in the marketplace outweigh the disadvantages of anonymous contributions.

I am intrigued by the proposal to *only* allow anonymous contributions. I like the prospect of businessmen telling their congressman 'I gave $20K to your campaign' - and the congressman wouldn't know if it was true or not.

[disclaimer 1]I don't watch TV, and don't think TV ads are a good method of reasoned debate, but they are what shapes opinion in modern America.
11.14.2008 11:31am
Senator Joe McCarthy:
I WAS RIGHT!
11.14.2008 11:34am
Oren:

Maybe you're living in the jim crow south and want the voice of a reformer to be heard - but not at the price of losing your job, having your house firebombed, etc.

You could just as well be a racist business owner wanting to support the KKK but wary of losing business to the boycotts -- boycotts that were a very successful tool in the hands of civil rights advocates. See, e.g. the 1965 AFL All Star Game.


I am intrigued by the proposal to *only* allow anonymous contributions. I like the prospect of businessmen telling their congressman 'I gave $20K to your campaign' - and the congressman wouldn't know if it was true or not.

This gets floated every once in a while. The proper answer is to say "Congressman -- I gave you $2^15" ($32k + change), which he can easily verify by decomposing his total balance into powers of 2.
11.14.2008 11:49am
ForWhatItsWorth:
"...It's funny, because I never thought I had a right to anonymous public speech in any meaningful way...."

Ok, then why is giving money to a candidate not private? Would you appreciate it if you had to disclose that a friend loaned you some money? Would the friend? So let's make it that ANY financial transaction at all, including me putting a dollar in your hand, subject to public disclosure.

Quite frankly, I think campaign finance reform is dead as a doornail and the democrats killed it this time. The obscene amounts of money collected and spent by the Obama campaign won't be a lopsided affair ever again, if the repubs have ANY common sense at all.

At any rate, my giving ANYONE money should be a private affair. It is MY money and where/how I use it is MY business alone....... as long as I am not breaking any laws doing so. If intrusive laws exist that get in our knickers, we should have them struck..... period! It is none of ANYONE's business who or what I donate to..... again, as long as the transaction is a legal one. Unless you are the person checking to ensure it was a legal transaction, you have zero business knowing anything about it or that it even occurred.
11.14.2008 11:57am
martinned (mail) (www):
@Oren: Anonymous donations could work, if you put a trust in the middle somewhere. (Everybody donates to a trust, which is adminstered by a lawyer with no other ties to the party/candidate/campaign, and once a week the trust transfers the total amount to its intended recipient.) It seems a bit of a drastic solution, though.
11.14.2008 12:03pm
Adam J:
LA denizen- I'm not sure I catch your drift... are you saying that all economic coercion is "in bad taste." Of course it sometimes is in bad taste... it depends on the justification for economic coercion does it not? Right below the section you quoted I listed a number of occasions where I thought economic coercion is completely proper. Do you disagree with these examples... are they "in bad taste"?
11.14.2008 12:11pm
Adam J:
ForWhatItsWorth- "Ok, then why is giving money to a candidate not private?" Because we don't want you to easily buy the candidates vote on something. A little transparency goes along way there.
11.14.2008 12:18pm
Adam J:
martinned - Do you really think it would be that difficult for contributors to prove their contribution to the candidate?
11.14.2008 12:19pm
David Drake:
Adam J said:


And what's wrong with non-violent coercion (besides blackmail that is)? If a company refuses to hire blacks should we still be forced to do business with them? If a individual commits a crime should we still be forced to associate with them? If my kid breaks curfew should I still be forced to give him an allowance? Heck, even giving $1000 dollars to Prop 8 was coercive- it created propaganda to try and influence votes. It's just wrong to conflate non-violent economic coercion with violent coercion.



In the 1950s, White Citizens Councils got the names of black voters and then distributed them to area busineses. As a result, the voters lost their jobs and their houses; they could not buy groceries or gas. See, eg. http://www.crmvet.org/tim/timhis59.htm

Was that acceptable even though it was only economic and not violent (although much actual violence was employed as well)?

Federal litigation and, eventually, the Voting Rights Act put a stop to this, at least to a large extent.
11.14.2008 12:26pm
LA Denizen:

Right below the section you quoted I listed a number of occasions where I thought economic coercion is completely proper. Do you disagree with these examples... are they "in bad taste"?


If a restaurant were refusing to serve black people, I would not go there. If a restaurant was calling its gay patrons "f-ggots" then I also would not go there.

But there is a sharp distinction between the private political conduct of an employee and the restaurant itself. What the employees do on their own time outside of work is none of my business -- I would not refuse to patronize a restaurant because some of its employees decided to have gay sex on their own time outside of work, nor would I refuse to patronize a restaurant because some of its employees decided to oppose gay sex on their own time outside of work.

The staffers, waiters, busboys, and others who work at the restaurant had no way to know of the $100 contribution to the campaign, but they are now being punished for it. In fact, some of the waiters are themselves gay and have now been denied a living in tough economic times.

The First Amendment recognizes that vibrant political discourse is an important part of American democracy. And the First Amendment's prohibition on government coercion exists to make sure that people feel free and un-chilled to speak their opinion on controversial topics. From that vibrant discourse, eventually we'll find our way to a better form of government.

But private conduct can chill speech too. Here, members of one group want to silence the private political speech of another group by blacklisting and boycotting. Even if their ends migth be noble*, trying to silence opponents through intimidation and threats is not the right way to go about making poltical change in America. Everybody has the right to speak their mind about political issues like Prop 8, and should feel free to express their views without fear of coercion by the government or by vigilante action.

Democracy itself is hurt when private political speech outside of work becomes a basis on which to attack an entire business. We lose the vibrant debate that is crucial to democracy when people on either side of an issue are coerced into silence. That's not a price worth paying for any issue.

* I opposed 8, and hope the next ballot measure in 2010 fixes the situation.
11.14.2008 12:32pm
LA Denizen:
To be clear, I'm not proposing government action to stop these stupid blacklists and boycotts. I'm instead suggesting that nobody support them, nobody give social approval to them, and nobody repeat their (possibly innaccurate) allegations. Shunning (not boycotting) the supporters of the blacklists is the only remedy, but it will be effective.
11.14.2008 12:35pm
MarkField (mail):
Consistent with Oren Kerr's Law, I see that those who supported the party which screamed bloody murder about Obama's failure to disclose the names of small donors are now adamant that political donations should be anonymous.

And vice versa.
11.14.2008 1:06pm
MarkField (mail):
Oops: Orin, of course. Apologies.

What we really need to do is shun posters named Oren because they confuse us. Even if they are on our side.
11.14.2008 1:07pm
Thomas_Holsinger:
Connecticut Lawyer has a point. It looks more and more like making ALL campaign contributions a matter of publically available record is a bad idea.

Political participation is a public good in a democracy, and one which has a higher priority than complete knowledge about campaign contributions. The latter goes only to an informed electorate. There is little informed electorate value in contributions by individuals save for mammoth contributions to candidates for office.

So this discussion and, in particular, the sharing of useful personal anecdotes, is informative and useful. Tnank you.
11.14.2008 1:20pm
Xanthippas (mail) (www):

Ok, then why is giving money to a candidate not private? Would you appreciate it if you had to disclose that a friend loaned you some money? Would the friend? So let's make it that ANY financial transaction at all, including me putting a dollar in your hand, subject to public disclosure.


And this demonstrates why the conclusion of Buckley v. Valeo, that money is the equivalent of speech, is untenable, at least as we understand it. That ruling made little sense at the time, and it makes less now. What person would imagine that when they donate money in private, using their own private funds in a transaction that they would expect no one to know about short of them telling others themselves, would think that they are exercising "speech" in anyway? Is it not rational for a person who wishes to support a cause, but is prevented or uncomfortable with the idea of supporting it publicly and vocally, to make a contribution in the expectation that their contribution will not be known to others?
11.14.2008 1:23pm
Steve in CA (mail):

At any rate, my giving ANYONE money should be a private affair. It is MY money and where/how I use it is MY business alone.


Not if you give it to an elected official, or a candidate for office. The public has a right to know that, so we can keep an eye on that politican and make sure your donation doesn't amount to a bribe.

On the other hand, I can't really come up with a good justification for mandatory disclosure on ballot propositions.
11.14.2008 2:42pm
pintler:

You could just as well be a racist business owner wanting to support the KKK but wary of losing business to the boycotts -- boycotts that were a very successful tool in the hands of civil rights advocates. See, e.g. the 1965 AFL All Star Game.


Sure - it removes some of the downside for advocates of all fringe opinions, good and bad. I think that's a feature, not a bug. In a democracy, you can't defeat the KKK by suppressing their message - only by convincing a majority of the population that they are wrong. Let all the wacky ideas get thrown in the mix, and trust the majority to sort out the right ones.

If this was 1800, most of us would be farmers. If we advocated an unpopular position, we might be shunned, but we wouldn't lose out job. In 2008, though, most of us work for an employer. When I hear that people are afraid to contribute to candidate A or cause B because they reasonably fear they will become unemployable, that doesn't sound like a democracy that is functioning well.


This gets floated every once in a while. The proper answer is to say "Congressman -- I gave you $2^15" ($32k + change), which he can easily verify by decomposing his total balance into powers of 2


Can you explain the math in more detail? I tell my congressman 'I gave $256'. Even if his balance is $256, he doesn't know if that was one $200 and one $56 donations, or some other combination. If there was some clever technique to leak information about contributors, then randomly round the amounts up or down a few percent.
11.14.2008 3:08pm
SFBurke (mail):
AdamJ wrote:

Interesting, so I suppose you aren't truly an advocate of economic freedom. Apparently you think people should not have the freedom to take their business elsewhere. It's ludicrious to compare that to thuggery.



Actually, if you had bothered to read my comments at all, I was quite clear that this was not a question of rights, but what we think our democracy should look like. Attacking strawmen is easy but silly.

My position is that a democracy where people are afraid to speak up because they fear retaliation (economic or otherwise) is not long going to be a viable democracy. That is why we have a secret ballot. And that also provides a strong argument for greater confidentiality with regards to campaign contribution (balanced, of course, by concerns about corruption). Oren seems to feel that is good that people are so passionate that they want to engage in boycotts. But why is that good? Passionate people can involved in politics without resorting to boycotts. If their arguments are persuasive, why do they need to economically coerce people? If Proposition 8 was overturned because the proponents caved into economic coercion, would we feel that democracy was served? And, finally, it is indisputable that widespread economic coercion will cause some people to withdraw from political activity. How can that be a good thing?

As I said before, this is not about rights. There is probably no good legislative way to stop economic retaliation just like there is no good way to stop people from spreading lies or half-truths about political opponents. However, both of those things are destructive to democracy. A prudent person would choose not to exercise their rights in that manner and might choose to advocate against those that do.
11.14.2008 3:12pm
road warrior99 (mail):
I don't really have answers to these question either but it blows my mind everytime i think about how much was spent on this election. Was it really won or bought? The liberal illuminati could have said anything, they had the most money, i fear that's what it came down to, and that doesn't seem right my friends.
11.14.2008 3:47pm
Oren:

Can you explain the math in more detail? I tell my congressman 'I gave $256'. Even if his balance is $256, he doesn't know if that was one $200 and one $56 donations, or some other combination. If there was some clever technique to leak information about contributors, then randomly round the amounts up or down a few percent.

The idea goes like this -- suppose the candidate can read his report daily. He tells his large donors to donate a different power of two each day. E.g. Monday, Bob donates 2^10 and Bill donates 2^11 while Joe donates 2^8. At the end of the day Monday, he reads his report and sees $3328 = $256 + $1024 + $2048, so he knows that Bob, Bill and Joe donated.

You are correct that you break this by having an intermediate that drips the money in randomly, keeping some of Monday's dollars for Tuesday or just skimming the money for himself.
11.14.2008 4:21pm
Gary McGath (www):
There are websites that make it easy to find out what political contributions your neighbors are making, and encourage you to do exactly that. I've run into two such sites, and curiously both appeared to be run by "left-wing" types who would normally complain about invading the privacy of people who participate in the political process.
11.14.2008 4:49pm
Anonymous Speech Fan (mail):
Oren, your idea is no different than the Candidate telling people to donate $2117, $599, or any other unlikely amount. If the only thing you get is the lump sum at the end, you cannot for certain know that any total over 2^x was from one donation or several. If your key requires that I give 2^4=16, and someone else gives 20, you would have $36 (100100) in the fund, with no evidence of the donation is question. Similarly, using the same key of 2^4=$16, if three people all donated $7, the total would be $21 (10101), which would trigger the key, even though no donation of that amount was registered.

The real way you would break the anonymous donation scheme is for the benefactor to present his cancelled check or credit card receipt showing the donation.
11.14.2008 5:11pm
Thomas_Holsinger:
There does seem to be a recent trend in retaliation for political participation - it is by leftist Democrats against Republicans, and includes retaliation by public officials against individual voters.
Six Agencies Searched for Data on Joe the Plumber
Posted by John at 4:15 PM

I'm guessing this is the final count: no fewer than six different Ohio agencies dug through their records, looking for dirt on Joe "the Plumber" Wurzelbacher. Why? The Ohio Tax Department says it was so they could "turn [it] over to the national media." The moral of the story, I suppose, is that if a Presidential candidate ever accosts you in your yard, you should flee. If he's a Democrat, anyway.

If the Democrats here have evidence of recent (within the past four yeares) right-wing and/or Republican retaliation against political particpation by Democrats, particularly by GOP public officials, now is the time to speak up.

A point to bear in mind here is that one side has guns and the other doesn't. Given the alternative, official protection of political participation by individuals is very much in the interest of the side which doesn't have the guns.
11.14.2008 5:37pm
Choices_have_consequences:
@DiverDan :

The difference is when you make a *choice*, there are consequences. Race and gender are not choices... hence the protected class.

I own a business of about 80 people, and I don't hire smokers, because their increased health-care costs and absenteeism hit my bottom line. I don't hire people with bad credit reports because it shows irresponsibility. Same with people who have bad driving records. I have no qualms at all firing someone for supporting political causes that are similarly detrimental to my bottom line. What's the difference? I also have no complain if a customer chooses to do business with someone else, because of my policies.... they are my *choices*.
11.14.2008 7:29pm
Dick King:
Anonymous Speech Fan:


The real way you would break the anonymous donation scheme is for the benefactor to present his cancelled check or credit card receipt showing the donation.


This problem could be solved by allowing any donor a 1-day cooling-off period where they could get the money refunded, no questions asked. Proving to a bribee that you had made the bribe would then involve presenting your receipt and proving that you hadn't had it refunded.

Another partial solution would involve not having the name of the candidate show up on the receipt, so you could donate to one candidate and call in a favor on both, but that's less compelling because there are large contributers who would only reasonably contribute to one side.

-dk
11.14.2008 7:51pm
Doc W (mail):
What's the purpose of making publicly available the identities of donors? Is it so we can see when deep-pockets special interests are contributing large sums in the hope of favorable treatment? Is it so we can make a judgment about when politicians are responding to those contributions rather than the merits of issues?

How about drawing a line at, say, 20% of per capita GNP. Below that line (several thousand bucks, no?), contributions are anonymous. Above, they're not. So the little guy can chip in a few hundred bucks without worrying about retaliation, but if you're a big guy, or want to act like one, then you have to stand up and perhaps stand out.

I'm not all-in on this idea, but it seemed worth considering.
11.14.2008 8:58pm
Kevin P. (mail):
The escrow idea above does seem intriguing. It would be cool if one of the states could try it out for local and state elections and see if it worked.

Of course, there would have to be some good accountability for the escrow agency.
11.14.2008 9:30pm
David Warner:
Markfield,

"Consistent with Oren Kerr's Law, I see that those who supported the party which screamed bloody murder about Obama's failure to disclose the names of small donors are now adamant that political donations should be anonymous."

I fear I've run afoul of your law.

Oren,

"This gets floated every once in a while. The proper answer is to say "Congressman -- I gave you $2^15" ($32k + change), which he can easily verify by decomposing his total balance into powers of 2."

Unless you find a way to repeal the Fundamental Theorem of Arithmetic, this doesn't work.
11.14.2008 10:18pm
Steve in CA (mail):

no fewer than six different Ohio agencies dug through their records, looking for dirt on Joe "the Plumber" Wurzelbacher. Why? The Ohio Tax Department says it was so they could "turn [it] over to the national media." The moral of the story, I suppose, is that if a Presidential candidate ever accosts you in your yard, you should flee. If he's a Democrat, anyway.


I don't understand the complaints about this. If the information was public record, and the media asked for it, then the state agencies had a duty to turn it over.
11.14.2008 10:58pm
Chester White (mail):

If you are a small business owner and you don't like the policies Obama is going to cram down your throat, be sure to lay off his supporters first, or don't hire them in the first place.
11.15.2008 7:15am
Oren:



I don't understand the complaints about this. If the information was public record, and the media asked for it, then the state agencies had a duty to turn it over.


The officials dug through the records improperly (they are not allowed to just pull up a file because the guy is on the tee-vee) and disclosed private information that was not public (automobile records, etc...).
11.15.2008 11:03am
Sammy Finkelman (mail):
>> How about drawing a line at, say, 20% of per capita GNP.

Right now the line (for federal Presidential campaigns) is $200. McCain disclosed the names anyway. Obama did not. Obama also apparently set up his web site to take money from anybody using any name just so long as the credit card was valid. If the owner complained they tried to get the owner to agree to make the contribution (possibly a lot of thsose cases involved children or other family members making contributions using their parents' credit cards or other

Now clearly the disclosure level in California for preopositions is too low.

By the way disclosure most of the time is pretty useless as a misdeeds preventative. It never affected Bill Clinton's prospects very much.
11.16.2008 9:39pm
Loren (mail):
>> How about drawing a line at, say, 20% of per capita GNP.

Right now the line (for federal Presidential campaigns) is $200. McCain disclosed the names anyway. Obama did not.



So any lower limit allows persons with intent to deceive to make their contributions just below the limit, and make multiple contributions.

The solution to make sure politicians aren't being bought is full sunshine: all contributions, regardless of size, need to be disclosed.
11.17.2008 2:19pm