EDWIN BENDER
Sunshine Week Columnist
Supreme Court Justice Clarence Thomas stood alone in his 2010 dissent in the Doe v. Reed challenge to Washington state’s law covering disclosure of signatures on ballot petitions. Such disclosure “severely burdens” political speech and association rights and chills citizen participation, he said.
With no evidence.
At a time when the Supreme Court has whittled away at laws designed to instill some order and common sense in our elections and campaign finance systems, such hollow attacks on disclosure should raise red flags for those concerned about undue influence in our elections and public policy processes. Disclosure is the last of the three “governmental interests” justifying election and campaign-finance regulation: enforcing campaign-finance laws, deterring corruption and providing information to voters (disclosure).
University of Virginia School of Law Professor Michael Gilbert argues correctly in his February 2018 essay, “Transparency and Corruption: A General Analysis.”
“We should not abandon transparency, but we need alternative reasons to support it.” Without new justifications, disclosure laws may soon fall to the relentless attacks from campaign-finance deregulation zealots.
New cutting-edge studies by scholars, including Abby Wood of University of Southern California and Douglas Spencer of the University of Connecticut, are beginning to provide the type of evidence Justice Thomas might have found useful before penning his dissenting comments. The pair’s 2016 analysis, “In the Shadows of Sunlight: The Effects of Transparency on State Political Campaigns,” concludes, “In short, the argument that disclosure chills speech is not strongly supported by the data.”
The positive effects of disclosure are many. At the National Institute on Money in State Politics, with 20 years experience, we hear regularly from people who have just discovered us; they are excited to learn that a nonpartisan voice compiles comprehensive political donor and candidate data from all 50 states. This free information helps everyone understand who is supporting which candidates in their state, and historically, what interests have played leading roles in state politics.
In addition to promoting accountability of our elected officials, transparency and disclosure can actually enhance first amendment rights.
With information about who is supporting or opposing campaigns, members of the public can more completely inform their speech in the discourse of debates. Additionally, transparency allows the public to more effectively assemble by making political relationships more clear. Transparency is necessary for citizens to make informed choices about which candidates they would like to align with. Another example is the work by advocacy organizations to use relationship maps or power maps (which require good information to be properly built) to effectively assemble and coordinate efforts with other members of the public and to speak effectively to our policymakers.
The strongest reason to support disclosure, though, is its signaling effect. It signals a political environment where accountability is expected and information for those debates is freely available. It signals that candidates are proud of who is lining up behind them to support their views and policy ideas. And it signals that donors believe they are making a meaningful statement about what’s right with the candidate they back.
Conservative Supreme Court Justice Antonin Scalia summed up the notion well in this 2010 opinion in Doe v. Reed: “Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously … hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.
Edwin Bender is the executive director of the National Institute on Money in State Politics.
