OPINION:
Super PACs have been the subject of intense scrutiny this campaign season, particularly regarding the sources of their funding. Many of these groups recently filed the second round of campaign finance disclosures with the Federal Election Commission (FEC). What have we learned after two rounds of disclosure? Nothing much of interest.
Surely, no one was surprised to discover last month that the pro-Rick Perry group Make Us Great Again got most of its money from wealthy Texans, or that the pro-Jon Huntsman Our Destiny PAC got most of its money from Mr. Huntsman’s wealthy father. Neither should anyone be surprised to learn that the pro-Mitt Romney Restore Our Future super PAC continues to receive large contributions from people in the financial industry.
However, it might come as a revelation that TV funnyman Stephen Colbert’s satirical super PAC Americans for a Better Tomorrow, Tomorrow raised a little over $1 million through the end of the January. Not bad.
The reform lobby, however, isn’t satisfied. They think it’s a scandal that - notwithstanding the fact that the information disclosed thus far has been mostly unsurprising and irrelevant to voters - we haven’t gotten more of it, and sooner. They already are attempting to revive last year’s failed Disclose Act, which would impose extensive new disclosure requirements on super PACs and nonprofit organizations.
The First Amendment generally protects the right to engage in anonymous speech and association, and such speech has been an important part of our national political dialogue stretching back to the Federalist Papers. Mandatory disclosure outlaws this important form of political participation. Given the stakes and the lackluster results of these recent rounds of disclosure, it’s time to start questioning the reformers’ mantra that more disclosure is always better.
There is little evidence that much of our current disclosure regime does any good. Under federal law, for example, the threshold for disclosure is $200. But does anyone really think the identity of a $200 contributor to a pro-Romney PAC tells voters anything useful? At best, disclosure at so low a threshold forces voters to wade through irrelevant information. At worst, it amounts to little more than voyeurism, enabling anyone with an Internet connection to spy on their neighbors’ political activities.
Furthermore, as this last round of disclosure showed us, even among large-dollar donors, there are few surprises. Billionaire Sheldon Adelson’s support of the pro-Newt Gingrich super PAC Winning Our Future was the stuff of headlines for weeks before it was required to be formally reported. Even if such contributions were surprising, there is the question of whether this information makes any difference to voters. Is anyone going to change their vote for or against Mr. Gingrich based on Mr. Adelson’s support of his candidacy?
Weighing against the questionable benefits of disclosure are some real costs. Groups are forced to devote substantial time and money to ensuring they comply with the law. Faced with byzantine disclosure laws, it is foolhardy to enter the political debate unless you also can afford to hire an attorney to assist with the disclosure laws.
Disclosure also harms donors. Many people want to be able to speak out on political issues, but would prefer to do so anonymously to avoid retaliation from their employers or their communities. Some simply don’t want their home addresses and employers’ names to be available in an online database, and with good reason. In the 2004 presidential election, for example, Gigi Brienza found her life threatened when an animal rights terrorist group used the FEC’s disclosure database to assemble a hit list of employees at companies that do animal testing. Ms. Brienza was in the database because she had given a mere $500 to John Edwards’ presidential campaign.
But perhaps the greatest overlooked cost of disclosure is the damage it does to political discourse. If anything, the reform lobby’s myopic quest to “follow the money” distracts from the real issues that people should be talking about. Disclosing the identities of people paying for super PAC ads is a sideshow - it may make for salacious headlines, but it tells us little about the merits of the arguments. Is it really better for voters to be discussing multimillionaire Foster Friess’ contributions to the pro-Rick Santorum Red White and Blue Fund than to be discussing Mr. Santorum’s qualifications for office?
The campaign finance reform lobby has a long history of promising much and delivering little. There is no reason to believe their calls for even more disclosure will benefit the public, and there are good reasons to believe it will further impoverish the political debate. But there is an alternative: We can stop focusing on who’s paying for super PAC ads and start focusing on what those ads are saying. Our elections - and our First Amendment rights - will be better for it.
Paul Sherman is a lawyer at the Institute for Justice.
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