RNLA member Eric Wang published a thorough analysis of the state of the law on donor disclosure requirements and what the law should be under First Amendment free speech principles. "Staring at the Sun: An Inquiry into Compulsory Campaign Finance Donor Disclosure Laws" was published today as a Policy Analysis paper from the Cato Institute. Mr. Wang begins by pointing out the tension at the heart of any discussion of disclosure (footnotes omitted):
“Disclosure” is a term with warm and fuzzy connotations. When someone intersperses a “full disclosure” disclaimer in a conversation, we tend to credit the speaker for his or her candor. But privacy also is commonly regarded as a virtue in its own right. The right to privacy is held to be “fundamental” against intrusions by the government . . . . These competing interests of privacy and anonymity versus disclosure in the context of political speech are reflected in the Court’s tortured and tortuous jurisprudence.
After examining the Supreme Court's unrealistic and limited justifications for donor disclosure requirements, Mr. Wang says that other justifications are not better:
If one goes in search of better justifications for compulsory donor disclosure beyond the Supreme Court’s holdings, the landscape is still rather bleak. The arguments put forward for disclosure often are illogical on their face, contrary to actual experience, inconsistent with other First Amendment precepts, or downright invidious.
People United for Privacy just released this video about the chilling effects of donor disclosure requirements, including a disturbing moment when Senate Minority Leader Chuck Schumer admitted that the purpose of disclosure requirements was to deter citizens' speech about their government. Mr. Wang describes this and the constitutional problems with that position:
Every so often, compulsory disclosure supporters reveal their true intention of deterring speech. . . . This sometimes not-so-subtle effort to use compulsory donor disclosure laws to limit speech runs head-on, however, into what the Court has long held to be our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Not only that, but the deterrence of speech diminishes the public’s “right to hear, to learn, to know”—a right that also has been held to be fundamental.
Mr. Wang concludes by offering recommendations for disclosure laws that serve the legitimate purpose of disclosure while protecting citizens' constitutional rights, while pointing out how current laws often fall short of these principles:
Disclosure’s purpose should be to “allow citizens to keep tabs on their elected officials”— not for “the government to monitor its constituents.” The legitimacy of disclosure laws is at its zenith when they focus on government transparency. Open government is essential to representative government and holding officials accountable and responsive to the public. When disclosure laws’ purpose is to monitor private individuals and groups exercising their First Amendment rights, however, such laws become an authoritarian tool for intimidation, retribution, and the suppression of democratic debate.
Liberals and Democrats, in their ongoing quest to force more disclosure to deter citizens from speaking out about their government, would do well to pay attention to Mr. Wang's reasoned analysis of the dangers and proper role of donor disclosure. Free speech often demands the right to speak anonymously, especially in our politically charged era where threats of violence against conservative speakers are becoming commonplace.