Van Hollen v. FEC and the secret ballot for campaign donors

The evolving jurisprudence of campaign finance and political advertising raises questions about the relationship between publicity and accountability. A case working its way through the court system, Van Hollen v. FEC, should bring this question to the forefront. The plaintiff is a Democratic congressman challenging a Federal Elections Commission regulation he considers too narrowly defined to assure appropriate disclosure of the sources of funding for "electioneering communications" -- political ads that name a candidate but don't explicitly advocate his election or defeat. Yesterday, the Washington D.C. circuit Court of Appeals denied a motion from two "corporate-funded non-profit groups" to stay a lower court's decision in favor of Van Hollen requiring more thorough disclosure of donations. By a 2-1 vote, the appeals court ruled that the two groups had provided insufficient evidence for their argument that disclosure would subject their donors to threats. The denial of a stay doesn't end the appeals process itself, however, and this case will most likely end up before the Supreme Court.

Does the public have a right to know who pays for political ads of any kind? There's an implicit cui bono logic behind demands for disclosure, an assumption that material self-interest rather than principle motivates the political donor. But when does "who benefits?" become an ad hominem argument? The argument that anyone will benefit personally from policies he or she promotes through advertising takes on significance only when it is presumed, if not proven, that the donor will benefit at the public's expense. At its extreme, the argument against political advertising and unlimited campaign donations rests on an equation of donations with bribes -- but there's no basis on this assumption, apart from ideological bias, for distinguishing between donations and bribes. It's no less a bribe if an old woman contributes her widow's mite to a candidate who promises to increase her benefits than if a corporation contributes to someone promising lower tax rates. The best argument for curtailing campaign donations has never been to denounce donations as bribes, but to denounce the dependency on donations and fundraising that an unregulated market in political advertising imposes on politicians.

But if we don't equate donations with bribes there's less reason for donors to worry about disclosure. The most likely threat donors fear is that disclosure will subject their causes to the ad hominem or cui bono criticism I just described. If they fear boycotts or some other form of marketplace reprisal for the political stands they take, let them lobby for a law immunizing them from such reprisals and make their case to the general public. Fears of physical reprisal can't be taken seriously in the absence of a violent "left" in this country, given who fears punishment from whom. Fear of reprisal, of course, is the historical argument for the secret ballot, which was advocated by and for the working class so that bosses couldn't fire people after learning how they voted. People shouldn't be punished in any way for the way they vote, nor should people suffer reprisal for supporting candidates or controversial positions by any legal means, including monetary donations. Ideally, however, the more we impose safeguards against reprisal the less need there should be for secrecy. If people persist in insisting upon secrecy, it may be because, in their minds, knowledge and reprisal are inseparable. If one extreme of the argument over campaign donations goes too far in the ad hominem direction, the other extreme may well go too far in the direction of guilty conscience.