Disclosure v. Anonymity in Campaign Finance, by Ian Ayres

Re: Disclosure v. Anonymity in Campaign Finance, by Ian Ayre

Postby admin » Wed Nov 06, 2013 6:01 am

B. Can Anonymity Be Maintained?

The metaprinciple of implementation is to allow nondonors to ape easily any signal that true donors might try to send. If nondonors can mimic the signals of donors, then donors will have difficulty credibly communicating their contributions. This principle explains the specific regulations regarding donor speech, check cashing, and cooling-off periods. Instead of prohibiting donors from speaking, the regime allows nondonors to use the same words. To undermine the credibility of a donor's canceled check, the regime gives nondonors the option of acquiring an identical canceled check by merely cashing a check with the blind trust. And to undermine the credibility of mailing a check in the presence of a campaign worker, the cooling-off period allows nondonors to publicly donate and then privately cancel.

There are, however, limitations to the mimicry principle. A poor person can not credibly mimic the representations of a rich person - saying that she donated $100,000, for example. But it is unlikely that ability to pay is a close enough proxy for willingness to pay to cause politicians to kowtow to rich people generally. For example, if a law mandated that sellers of Cadillacs could not learn the identity of their customers, sellers would not respond by giving Cadillacs to the universe of rich people. Even if wealth (ability to pay) signals something about whether a donor actually gave, the important point is that the signal would be much weaker than it is now. Similarly, it would not be credible for liberals to represent that they contributed to conservatives (or vice versa). In the shadow of a donation booth, Ralph Nader could not credibly represent that he had donated to the Republican Party. At the end of the day, rich conservatives are the only people who would potentially make large soft money contributions to the Republicans. Therefore, it is reasonable to ask who among this group would be willing to go to the trouble of becoming a faux donor - to noise up the system, for example, by making the ratio of canceled checks to net donations fairly high. My answer is that the current class of Republican contributors who either feel they are being extorted or think they are paying for favors are prime candidates to fake donation. Victims of extortion are likely to have few qualms about lying to avoid the political shakedown, and even those contributors who are trying to corrupt the system by buying political favoritism may prefer to get the same favoritism for a reduced price.

Although this proposal tries to undermine a donor's ability to communicate her contribution credibly, I am under no illusion that this (or any other) system of anonymity would be completely successful in keeping candidates uninformed. Some inventive donors, with the aid of inquiring candidates, will undoubtedly devise methods to credibly signal. For example, donors or candidates may bribe a representative of the blind trust to violate her fiduciary duty and disclose donor identities.34 Undoubtedly, incumbents will have an easier time than nonincumbents discovering the identity of their contributors because a previous history of giving provides a stronger basis for belief; nonincumbents often must start with no track record of fundraising. But simply relying on reputation will not suffice. A history of giving when donations were public does not create a very strong reputation for continuing to give once contributions become anonymous. Candidates will rightfully be concerned that even faithful contributors, once behind the cloak of anonymity, will decide to chisel on their past tradition of giving.

The most predictable and serious evasions of mandated anonymity is likely to be a substitution toward "independent expenditures" or "issue advocacy." The test for what constitutes independence turns on who controls the content of the speech. Independent expenditures - in contradistinction to "coordinated expenditures" - fund political expression that is not controlled by a candidate's campaign. Independent expenditures are made without "prearrangement and coordination." The test for "issue advocacy" turns on the content of the speech itself. Issue advocacy - in contradistinction to "express advocacy" - does not expressly advocate the election of a particular candidate.

Because the Supreme Court has shown greater willingness to protect political speech that it deems either "issue advocacy" or an “independent expenditure,” mandating donor anonymity for large gifts would undoubtedly cause more extensive use of these two end runs. And it is clear that independent expenditures and issue advocacy still pose some danger of corruption. "Candidates often know who spends money on their behalf, and for this reason, an [independent] expenditure may in some contexts give rise to the same reality and appearance of corruption.”35

Image

As shown in Figure 1, these two dichotomous categories create four permutations of control and content. Coordinated express advocacy, like candidate express advocacy, is the most regulated type of political speech. One might initially predict a hydraulic response if donor anonymity were applied to this category: Every dollar of direct contribution that the donation booth deterred might simply reemerge in one of the three other boxes - as an independent expenditure, an issue advocacy campaign, or both. Recent history has already provided ample evidence of substitution toward these three categories.36 What's more, because candidates are not accountable for "independent" ad campaigns, these campaigns are likely to be particularly negative and reckless. It is not surprising, therefore, that the infamous "Willie Horton" ads were independent expenditures.37

If mandated anonymity is likely to produce anything like a dollar-for-dollar hydraulic shift from direct contributions to independent expenditures or issue advocacy, the benefits of mandated anonymity reform would largely be lost. However, (1) mandated anonymity can be extended to reduce the possibility of an end run, and (2) where mandated anonymity is not constitutionally permissible, existing structural factors will ensure that independent or issue advocacy will not be a perfect substitute for corrupt, direct contributions. What would it mean to extend mandated anonymity? To begin, it is straightforward to cover coordinated issue advocacy. As a constitutional matter, coordinated speech can be regulated as much as direct candidate speech.38 And although there is currently a lively debate about whether current law regulates coordinated issue advocacy,39 there is little question that informational regulation (such as mandated disclosure or mandated anonymity) is constitutional.

Independent express advocacy poses a harder problem. This circumvention, however, could also be substantially reduced by requiring that such campaigns be funded solely by contributions from individuals (not corporations or unions) funneled through blind trusts.40 Under such a regime, organizations could establish committees to orchestrate independent express advocacy ad campaigns, but the funding for such campaigns would need to come from individuals' donations to blind trusts. As with the earlier anonymity proposal, individuals would be able to communicate credibly that they had contributed (up to $200) and thus, for example, have their names appear in a newspaper advertisement saying "we support candidate x." But such individuals would not be able to signal the amount of a large contribution.

Requiring that independent express advocacy be funded by individual anonymous donations would substantially reduce the viability of this circumvention. To be sure, some wealthy individuals would still be able to completely fund an independent express advocacy campaign.41 But given the costs of effective advertising, we predict that it would be difficult to raise individual contributions in the shadow of a blind trust. Those donors who are deterred by mandated anonymity from contributing directly to a candidate's campaign are unlikely to give to a blind trust that needs numerous contributions for effective independent express advocacy. And few individuals have the wherewithal to individually fund effective independent ads.

The most unyielding problem concerns substitution toward the upper right-hand box in Figure 1 - that is, substitution toward independent issue advocacy. This combination of content and control has proven constitutionally unregulable. Buckley v. Valeo suggests that mandated disclosure of speaker identity in this quadrant is unconstitutional, and mandated anonymity would fare no better. Still, some progress might be made by expanding the definition of what counts as express advocacy. The Supreme Court might accept a broader definition than the "magic words" test suggested in Buckley. The McCain-Feingold Bill attempts just this broadening by defining as express advocacy any advertisements picturing or naming a candidate within thirty days of a primary election or sixty days of a general election. But instead of capping such expenditures or requiring disclosure of the names of those people who fund such campaigns, mandating contributor anonymity would more effectively balance the government's interest in deterring corruption with the First Amendment interest in allowing unfettered discussion of political issues.

Even under the broadest imaginable constitutional definition of express advocacy, there will still be significant opportunity to use independent issue ads to affect the outcome of an election. But independent issue ads are not perfect substitutes for direct donations - especially donations made as part of quid pro quo corruption. As the Supreme Court has repeatedly emphasized:

Unlike contributions, such independent expenditures may well provide little assistance to the candidate's campaign and indeed may prove counterproductive. The absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.42


This quotation nicely underscores the procedural and substantive differences between direct contributions and independent expenditures. Procedurally, the absence of prearrangement and coordination makes it more difficult for candidates and contributors to agree on the terms of quid pro quo corruption. The inability of candidates to solicit these expenditures, in particular, is likely to reduce a candidate's ability to extort (extract rent from) potential donors. Substantively, the absence of prearrangement and coordination makes it more likely that the independent expenditure will be spent differently than the candidate would have spent a direct contribution. The Supreme Court is overly sanguine in suggesting that, "independent expenditures may well provide little assistance to the candidate's campaign and indeed may prove counterproductive." But because candidates would often use the money differently - for example, on express advocacy - candidates will tend to value $1,000,000 of independent issue ads less than $1,000,000 of direct contributions.43

Under a regime of mandated anonymity, candidates might still take positions in order to induce independent issue ads on their behalf (and vice versa), but the prohibition of both coordination and express advocacy acts as a tax on such indirect giving, tending to reduce its value to the candidate. Because mass communication exhibits dramatic economies of scale, it may be much more difficult for individuals who had been giving, say, $10,000 or $20,000 to the Democratic Party (and its candidates) to find an equally effective issue ad substitute. To be sure, independent issue ad organizations will start soliciting contributions, but these organizations are likely to find it more difficult to convince the erstwhile political donor to contribute.

While I concede mandated anonymity would lead to an increase in independent issue ads, I simultaneously predict that a regime of mandated anonymity would nevertheless reduce quid pro quo and monetary influence corruption by reducing the overall level of direct and indirect contributions - i.e., both independent expenditures and issue advocacy. A donation booth is likely to dramatically reduce the number of five and six figure “soft money” contributions. Moreover, mandated anonymity would prohibit the current practice of PAC bundling – whereby PACs gain influence with candidates by bundling together contributions from individual donors.

The predictable, hydraulic shift of contributions toward less accountable issue advocacy -- even if only partial -- is a reasonable grounds for ultimately opposing a mandated anonymity regime. But this hydraulic criticism perversely should also undermines the conviction that mandated disclosure by itself will be effective in deterring corruption. If mandated disclosure could deter corrupt direct giving, the hydraulic critics would have to fear that the same corrupt contributions would reappear as anonymous "issue advocacy" ads.44 Mandated disclosure might not deter corruption but merely shift it to less accountable independent expenditures. Proponents of mandated disclosure must admit either that finance regulation can sometimes deter unwanted direct contributions without creating an unacceptable substitution or that mandated disclosure is simply window dressing which is not really expected to deter unwanted contributions. My intuition is that the hydraulic response is not a concern when it comes to mandated disclosure because we don’t believe that disclosure deters very many direct contributions in the first place.
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Re: Disclosure v. Anonymity in Campaign Finance, by Ian Ayre

Postby admin » Wed Nov 06, 2013 6:02 am

C. Is the Game Worth the Candle?

This section will consider three additional drawbacks of the scheme -- beyond the shift of money to less accountable issue advocacy. While this essay has previously argued that a candidate had a legitimate interest in learning the identity of her contributors. the donation booth also denies identity information to voters and other donors. This section considers whether preventing these people from learning donor identities undermines the usefulness of mandated anonymity. But first the section considers an even more fundamental problem: whether anonymity would unduly limit a candidate's ability to speak.
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Re: Disclosure v. Anonymity in Campaign Finance, by Ian Ayre

Postby admin » Wed Nov 06, 2013 6:02 am

1. Less candidate speech.

The claim that mandated anonymity could cause a campaign-financing crisis must be taken seriously. Anonymity exacerbates the donor's paradox for large donors and might lead to a dramatic drop-off in giving. As a general matter, donors like to be recognized for their charity. The donation booth may have an overbreadth problem in that contributors who currently give, in part, to acquire status among their peers may be deterred from giving through blind trusts. Even donors who are not motivated by a desire to corruptly influence policy may thus be chilled by mandated anonymity.

Access to the media requires funding. A reduction in donations could mean a reduction in media access. In this regard, mandated anonymity could limit a candidate's ability to speak - and the public's right to listen. Indeed, the very uncertainty of the effect of mandated anonymity on contributions could give policymakers pause.

A related concern is that, by reducing the ability of candidates to speak, mandated anonymity will unduly increase the influence of other speakers, such as the media, unions, and rich, self-funded candidates. Media speech, the quintessential independent expenditure, will go unregulated under any reform proposal. We might worry about who will be next in line to influence the candidate corruptly if anonymity undermines the influence of large donors. Candidates unable to sell influence in exchange for contributions might begin to kowtow to the imagemakers of the mass media. It might be better to countenance the undue influence of large donors under the current system than to transfer this influence to an even smaller media oligarchy. Under this theory, the contributions of James Riady and the millions of other millionaires among us may provide a Jeffersonian counterweight against the potentially disproportionate influence of Citizens Hearst or Murdoch - or the even less accountable corporations and unions that bankroll issue ads.

Nevertheless, facilitating quid pro quo and monetary influence corruption is too high a price to pay for political speech. The Constitution doesn't require Congress to facilitate corruption in order to subsidize political speech. Prohibiting quid pro quo deals might also substantially reduce the ability of candidates to speak, but the First Amendment doesn't mandate generating money to produce a meaningless debate in which donors have already purchased candidates' positions outside the realm of open deliberation. If noncorrupt private donations do not sufficiently fund campaigns or offset the undue influence of media moguls, we should supplement private contributions with public money. A belief that mandated anonymity would produce far fewer net political expenditures than a mandated disclosure should be a signal that disclosure by itself would not be effective in deterring corruption.
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Re: Disclosure v. Anonymity in Campaign Finance, by Ian Ayre

Postby admin » Wed Nov 06, 2013 6:03 am

2. Less donor information for voters.

Mandated anonymity keeps voters - as well as candidates - in the dark about donors' identities. Denying voters this information could be problematic. The Supreme Court in Buckley identified two adverse effects:

[Disclosing the identity of a candidate's donors] allows voters to place each candidate in the political spectrum more precisely than is often possible solely on the basis of party labels and campaign speeches. The sources of a candidate's financial support also alert the voter to the interests to which a candidate is most likely to be responsive and thus facilitate predictions of future performance in office.45


The second advantage of donor identity is absent under a system of mandated anonymity: Candidates are not "more likely to be responsive" to donors if they don't know who their donors are. Moreover, it is unclear whether the first effect of donor identification - more precisely placing the candidate in the political spectrum - should be classified as an advantage. It might be more conducive to democratic deliberation for voters to learn about a candidate's positions on policy matters rather than to learn whether Jane Fonda or the NRA contributed to the candidate's campaign. Individual donors at times may have better information - possibly based on private conversations with the candidates - about a candidate's true intentions than could be gleaned from the public record. But because there are other avenues of gaining this information, the government's interest in contributor identity as a proxy for candidate beliefs is less compelling than its interest in deterring corruption.

The proposed regime of mandated anonymity also partially accommodates the voters' interest in donor identity. Under the proposal, a contributor would have the option of having the blind trust disclose the amount of her contribution up to $200. Given the pervasive interest of donors in identifying themselves, it is likely that the vast majority of donors would opt to be identified as having given something. Given that voter knowledge of donor identity is less important in a regime in which candidates as well as voters are kept in the dark, and given that some voter information about donor identity would be generated under the proposed system of optional partial disclosure, the public's interest in donation information does not ultimately militate against the proposed anonymity regime.
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Re: Disclosure v. Anonymity in Campaign Finance, by Ian Ayre

Postby admin » Wed Nov 06, 2013 6:03 am

3. Less donor information for PAC contributors.

Finally, mandated anonymity will make it more difficult for donors to monitor how PACs and other political intermediaries spend their money. Under the proposed system, PACs would only have the option of disclosing a donation of $200 or less to any one candidate. Prospective PAC donors would have more difficulty assessing whether the PAC had served their interests effectively.

For those who think PAC influence is a destructive force in our polity, disrupting donors' ability to monitor PACs is all to the good because potential PAC donors who are unable to monitor are less likely to contribute. One might argue that mandated anonymity goes too far in impeding the ability of insular groups to organize and influence government. But while mandated anonymity creates this potential harm, I believe this effect would be relatively minor. Restricting PAC donor information is unlikely to disrupt PAC formation because most PAC donors don't avail themselves of this information.46 Most donors give to Newt Gingrich's leadership PAC, for instance, because they trust his ideological and political instincts, not because they have microanalyzed the effectiveness of the way in which his PAC allocates its contributions. Mandated anonymity might disrupt PACs because donors would not be as willing to donate to an organization that can no longer corrupt/influence politicians, but this effect is a benefit rather than a cost of the proposal.
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Re: Disclosure v. Anonymity in Campaign Finance, by Ian Ayre

Postby admin » Wed Nov 06, 2013 6:04 am

III. CONSTITUTIONALITY

Mandated anonymity is clearly constitutional. It burdens speech less than mandated disclosure and is more likely to further the government’s compelling interest in deterring corruption. And while the Supreme Court upheld the constitutionality of mandated disclosure, appreciating the possibility of mandated anonymity calls into question whether a disclosure regime constitute the least restrictive alternative required by the First Amendment.

In locating the exact anonymity burden, we should begin by remembering what the proposal does not do. It does not affect how much a donor can contribute, and it does not limit the words a donor might say. the regime would even allow a donor to prove she had given up to $200. The only burden of the anonymity proposal is that donors could not credibly signal that they had given more than $200. The inability to prove a large contribution certainly burdens a donor's ability to communicate. Reducing the "expressive value" of a contribution might deter some large donors from giving.

However, the Supreme Court's jurisprudence suggests that the size of this burden is rather marginal, particularly because donors can prove they contributed $200. In discussing the burden of contribution limits, the Court in Buckley found that:

a limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor's ability to engage in free communication. A contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support. The quantity of communication by the contributor does not increase perceptibly with the size of his contribution, since the expression rests solely on the undifferentiated, symbolic act of contributing.... A limitation on the amount of money a person may give to a candidate or campaign organization thus involves little direct restraint on his political communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor's freedom to discuss candidates and issues.47


This analysis suggests that a donor's burden of proving that she gave Clinton $1000 instead of $200 should be considered only "a marginal restriction upon the contributor's ability to engage in free communication." The quantity of communication involved in proving that a donor gave a larger amount "does not increase perceptibly." And the effect of the restriction is mitigated by the donor's unrestricted ability to speak independently in favor of a particular candidate.

Ackerman's "brute property" argument48 correctly identifies a deeply held impulse in our polity: "It's my property and I have a right to use it to support any candidate I want." The donation booth accommodates this impulse while simultaneously restraining property's influence. The donation booth does not affect how property can be used, nor does it limit the words (or other signals) a donor may employ to describe her use. But because the ability to prove credibly how one uses her property is not a firmly established concomitant of ownership, the donation booth does not directly contradict the "brute property" impulse.

The constitutionality of mandated anonymity can most clearly be demonstrated by comparing the constitutional costs and benefits of the specific proposal to two other free speech restrictions that have passed constitutional scrutiny: mandated voter anonymity and compelled disclosure of donor identity (reporting requirements). By showing that mandated anonymity is less burdensome and more supportive of the government's interest in preventing corruption, these comparisons provide two a fortiori arguments for the constitutionality of anonymity regulation.

First, the constitutionality of the voting booth - i.e., mandated voting anonymity - suggests that mandated donor anonymity is also constitutional. The voting booth also burdens political expression. No matter how much a conservative wants, she can never prove she did not vote for McGovern, nor can a liberal prove he did not vote for Reagan. Since voting is the quintessential act of political expression, denying citizens the right to prove for whom they voted is surely more burdensome than denying citizens the right to prove they gave a candidate more than $200.49

Although the privacy of the voting booth is an innovation of less than 100 years' standing, we cannot conceive that the Supreme Court would strike down this form of mandated anonymity as unduly burdening voters' free speech rights. Opponents of mandated donor anonymity will be hard pressed to explain why a donation booth is unconstitutional, but a voting booth is not.

Second, the Supreme Court's willingness in Buckley to approve compelled disclosure of donor identity suggests that compelled nondisclosure is all the more constitutional. Mandated nonanonymity is more burdensome than mandated anonymity. The Supreme Court has traditionally protected the right to silence or anonymity much more than the the right to speak credibly. Plenty of cases can be found where the Supreme Court has struck down regulations requiring speakers to identify themselves.50 But it's hard to find cases where the First Amendment has been abridged because a statute won't allow a speaker to prove what he says is true. Indeed, the strong antilibel impulse enunciated by Justice Hugo Black and others makes it harder for speakers to signal the truth of their allegations credibly because false statements often do not expose the speaker to monetary damages. Mandated disclosure may deter potential donors from giving to unpopular causes for fear of retaliation or ostracism; in comparison, the chilling effect on those legitimate donors who want to prove they gave more than $200 should be considered only a secondary concern.

Mandated disclosure is also less likely to further the government's interest in preventing corruption. Even though the Supreme Court suggested that mandated disclosure could deter corruption, it has proved exceedingly difficult to prove either quid pro quo or monetary influence corruption from the mere knowledge of identity. As adumbrated in Part I, donor anonymity is more likely to deter corruption because uninformed candidates have less opportunity to peddle influence or change their positions in the hope of garnering greater contributions -- and this effect is likely to be stronger than any voter discipline caused by a mandatory disclosure regime.

Indeed, the possibility of mandated anonymity calls into question the constitutionality of mandated disclosure. The First Amendment requires not only that the effect of furthering the government's compelling interest outweigh the speech burden, but that government choose the least restrictive alternative for achieving its compelling interest.51 Buckley did not discuss this additional "least restrictive alternative" requirement in constitutionalizing mandated disclosure, probably for the simple reason that the Court thought that lawmakers’ only relevant informational regulatory options were mandated disclosure or laissez faire regimes. But as once we appreciate that mandated anonymity can provide a smaller speech burden and more strongly deters corruption -- it becomes difficult to characterize mandated disclosure as the least restrictive alternative.
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Re: Disclosure v. Anonymity in Campaign Finance, by Ian Ayre

Postby admin » Wed Nov 06, 2013 6:04 am

CONCLUSION

This article stands against the strong consensus in favor of disclosure, but then again, so does the secret ballot. The strategy of keeping the candidate as well as the public in the dark has a long pedigree. Maimonides long ago extolled the benefits of anonymous charity.52 We should remind ourselves why we chose to make voting a solitary act. Indeed, anyone opposing mandated donor anonymity needs to explain why we shouldn't also jettison mandated voting anonymity.

Mandated anonymity also provides a useful perspective from which to rethink whether mandated disclosure can be defended. In the end, reasonable people might reject the donation booth because of the likely increase in issue advocacy. If mandated anonymity induces even a partial shift of contributions toward this form of reckless and unaccountable speech, we might not want to extend the voting booth rationale to campaign finance. But mandated disclosure regimes - if effective - should give rise to similar hydraulic effects. The visceral sense that mandated disclosure would not create a similar shift probably stems from the sense that few corrupt donations would in fact be deterred by a disclosure requirement. For the CATO institute which favors the move to a pure disclosure regime largely on libertarian grounds, a pure anonymity regime foster arguably even more donor freedom. It is difficult to advance a priori arguments against mandated anonymity while at the same time advancing a priori arguments in favor of mandated disclosure.53 The donation booth is not a panacea, but it keeps faith with the simple and widely held belief that the size of your purse should not determine your access to government.
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Re: Disclosure v. Anonymity in Campaign Finance, by Ian Ayre

Postby admin » Wed Nov 06, 2013 6:05 am

Notes:

1. See Pete du Pont, Campaign Finance Defies a Complicated Solution, Tampa Trib., Sept. 7, 1997, at 6.

2. See, e.g., Kathleen M. Sullivan, Political Money and Freedom of Speech, 30 U.C. Davis L. Rev. 663, 688-89 (1997); Campaign Finance: Full Disclosure, More Options Might Help, The Dallas Morning News, col. 1, p.. 2j (Oct. 12, 1997).

3. Bruce Ackerman, Crediting the Voters: A New Beginning for Campaign Finance, 13 Am. Prospect 71, 71 (1993); see also Ashley C. Wall, The Money of Politics: Financing American and British Elections, 5 Tul. J. Int'l & Comp. L. 489, 503 (1997) (commenting that the Ballot Act of 1872 "brought into existence the secret ballot, which had long term effects on curbing bribery").

4. In a earlier article that forms the basis for much of the present analysis, Jeremy Bulow and I argued that mandated anonymity would be a useful complement to the current limitation on contributions. See Ian Ayres & Jeremy Bulow, The Donation Booth: Mandating Donor Anonymity to Disrupt the Market for Political Influence, 50 Stanford L. Rev. 837 (1998). The idea that mandating donor anonymity might deter corruption has been discussed previously by a number of authors. See, e.g., Saul Levmore, The Anonymity Tool, 144 U. Pa. L. Rev. 2191, 2222 (1996) ("It should not be surprising to find a system that made political contributions anonymous by channeling them to candidates through intermediaries ....") and sources cited in Ayres & Bulow at note 4.

5. The commentary to the 1972 Code of Judicial Conduct ("CJC") stated, "[T]he [judicial] candidate should not be informed of the names of his contributors unless he is required by law to file a list of their names." E. Wayne Thode, Reporter's Notes to Code of Judicial Conduct 99 (1973). This provision was subsequently adopted - and, to varying degrees, applied - in ten different states. Stuart Banner, Note, Disqualifying Elected Judges from Cases Involving Campaign Contributors, 40 Stan. L. Rev. 449, 473 n.130 (1988) (identifying the 10 adopting states as Arkansas, Nebraska, North Dakota, South Carolina, South Dakota, Tennessee, Utah, Washington, West Virginia, and Wyoming) 470 (1988); see also 1978 N.Y. St. Comm. on Jud. Conduct Ann. Rep. 63 (1979) ("The intent behind keeping a judge from knowing his contributors is obvious: to avoid the impression that, if elected, the judge will administer his office with a bias toward those who supported his candidacy."). See also Ayres & Bulow, supra note 4, at 870 for an assessment of the ultimate effectiveness of these judicial regulations.

6. Wayne Andrews, Voting, in Concise Dictionary of American History 989 (Wayne Andrews ed., 1962). The thesis that the Australian ballot was adopted in order to deter vote buying specifically - and cleanse the political system generally - is hotly contested. An alternative interpretation is that these voting reforms were motivated, at least in part, to dampen mass political activism. The "spectacle" of lines of voters marching to the polls with colored ballots in hand might not have indicated that their votes were bought, but instead that their votes were not for sale - a symbol of the solidarity between voters and labor or other mass political movements. See, e.g., Michael E. McGett, The Decline of Popular Politics: The American North 1865-1928, at 12 (1986); Walter Dean Burnham, The Changing Shape of the American Political Universe, 59 Am. Pol. Sci. Rev. 7 (1965). Even if this alternative reading of the Australian ballot is correct as historical matter, the donation booth (unlike the secret ballot) has the potential to dampen the political power of those with disproportionate wealth and thereby increase the incentives for wider popular politics.

7. John H. Wigmore, The Australian Ballot System As Embodied in the Legislation of Various Countries 1-57 (2d ed. 1889).

8. See Cass R. Sunstein, Political Equality and Unintended Consequences, 94 Colum. L. Rev. 1390, 1391 (1994) (identifying corruption as the "[f]irst and most obvious, perhaps," ground for campaign finance reforms).

9. See Daniel Hays Lowenstein, On Campaign Finance Reform: The Root of All Evil Is Deeply Rooted, 18 Hofstra L. Rev. 301, 302 (1989) ("[P]ayment of money to bias the judgment or sway the loyalty of persons holding positions of public trust is a practice whose condemnation is deeply rooted in our most ancient heritage.").

10. Sunstein, supra note 8, at 1390.

11. Ackerman, supra note 3, at 71.

12. Richard Craswell has also suggested in comments that it might be possible to use a modified version of the donation booth to give candidates information about voters' aggregate preferences, but not voters' identities. If the blind trusts solicited donors' policy preferences and revealed these preferences to the candidates - for example, if the trusts revealed that $300,000 of total donations support NAFTA - the mandated anonymity regime might reveal something more to the candidates about the intensity of the donors' aggregate preferences while still disrupting the market for quid pro quo corruption.

13. Letter from Janet Reno, United States Attorney General, to Rep. Henry J. Hyde, House Judiciary Chairman, reprinted in N.Y. Times, Oct. 4, 1997, at A9.

14. First National Bank of Boston v. Bellotti, 435 U.S. 765 788 n.26 (1978).

15. Op. Off. Gov't Ethics 93x21, at 93 (1993). See generally Kathleen Clark, Paying the Price for Heightened Ethics Scrutiny: Legal Defense Funds and Other Ways That Government Officials Pay Their Lawyers, 50 Stan. L. Rev. 65 (1997).

16. See Fred S. McChesney, Rent Extraction and Rent Creation in the Economic Theory of Regulation, 16 J. Legal Stud. 101, 102 (1987).

17. See Frank J. Sorauf, Inside Campaign Finance: Myths and Realities 60-97 (1992).

18. See Richard J. Mahoney, Letter to the Editor, A Corporate Mood, N.Y. Times, Jan. 30, 1997, A14.

19. See Fred S. McChesney, Rent Extraction and Interest-Group Organization in a Coasean Model of Regulation, 20 J. Legal Stud. 73, 85-89 (1991).

20. See generally Stephen G. Bronars & John R. Lott, Jr., Do Campaign Donations Alter How a Politician Votes? Or, Do Donors Support Candidates Who Value the Same Things That They Do?, 40 J.L. & Econ. 317 (1997); cite Levitt, xxx.

21. See Thomas F. Burke, The Concept of Corruption in Campaign Finance Law, 14 Contst. Commentary 127, 131 (1997)(arguing that Supreme Court decisions have identified "three distinct standards of corruption," which the author labels "quid pro quo," "monetary influence," and "distortion"). Thomas Burke shows how each of these effects has been characterized as a problem of corruption, although the last possibility - "distortion" - is more often described as the problem of inequality. See id.

22. For example, even market-oriented scholars such as James Buchanan and Gordon Tullock have argued that contributions might not accurately measure intensity of preferences because of "market imperfections". James M. Buchanan & Gordon Tullock, The Calculus of Consent: Logical Foundations of Constitutional Democracy 272 (1962).

23. The possibility of rent extraction also militates against using donations to register the preference intensity of voters. Politicians trying to extort donations under threat of harmful laws are likely to pass a retaliatory law from time to time in order to make their threats credible. An uninsulated system of monetary influence might therefore lead to worse policies than one that insulates candidates from the preference intensity of voters.

24. See generally Daniel R. Ortiz, The Democratic Paradox of Campaign Finance Reform, 50 Stan. L. Rev. 893 (1998). Moreover, citizens can credibly signal the intensity of their preferences by engaging in other activities, such as marching on Washington, that are more generally available to a large proportion of the populace. Even if citizens wish to signal the intensity of their preferences by spending money, it is not clear that donating money is superior, literally, to burning the money for a cause. It is one thing for a candidate to change positions because her constituents are willing to part with considerable money. Such behavior is consistent with the idea that politicians should faithfully represent the aggregate preferences of their constituents. But it is another thing to change positions in order to receive this money. Because there is no natural way to aggregate preferences, it is suspect for a candidate to choose an aggregation that self-interestedly increases her chance of election.

25. See Burke, supra note 21, at 148 ("[W]here contributor-influenced representatives predominate, legislative deliberation becomes a sham.").

26. David A. Strauss, Corruption, Equality and Campaign Finance Reform, 94 Colum. L. Rev. 1369, 1375-76 (1994).

27. See generally Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. Pol. Econ. 416 (1956).

28. David Donnelly et al. Going Public, 22 The Boston Review (April-May, 1997).

29. Strauss, supra note 26, at 1376 n.18.

30. Similar requirements have been imposed on trusts serving as corporate fiduciaries. See Cal. Fin. Code 1500-1591 (West 1989) (imposing requirements such as security deposits on trust companies); John H. Langbein, The Contractarian Basis of the Law of Trusts, 105 Yale L.J. 625, 638-39 & n.64 (1995) (describing modern-day, institutional trusteeships).

31. See Lawrence Lessig, The Regulation of Social Meaning, 62 U. Chi. L. Rev. 943, 1010-11 & n.225 (1995) (citing Jewish Museum, Kings and Citizens: The History of the Jews in Denmark 1622-1983 (Jorgen H. Barfod, Norman L. Kleebatt & Vivian B. Mann, eds., 1983)).

32. Under a regime of mandated anonymity, candidates are likely to spend less time fundraising because this activity would be less productive and because the candidate would need fewer funds to effectively compete with an opponent who faces similar constraints. There is the theoretical possibility - called an "income effect" - that if anonymity causes less giving generally, then candidates will respond by engaging in more fundraising. As an empirical matter, however, economists typically find that substitution effects dominate income effects - that is, when fundraising becomes more difficult, politicians are likely to spend less time on it (especially when their opponents' fundraising also becomes more difficult).

33. But as the Supreme Court has noted, contributing to yourself does not present the same risks of quid pro quo or monetary influence corruption. See Buckley v. Valeo, 424 U.S. 1, 53 n.59 (1976) (per curiam). Self-contribution, however, often exacerbates problems of inequality.

34. The FEC could be empowered to audit campaigns for compliance with the anonymity regulations. Much like Fair Housing tests, such audits could determine whether campaign officials are willing to conspire with purported donors or trust representatives to learn donor identities.

35. Sunstein, supra note 8 , at 1395 (citation omitted).

36. Both Clinton and Dole orchestrated the use of party soft money to fund coordinated issue campaigns. See Jill Abramson, 1996 Campaign Left Finance Laws in Shreds, N.Y. Times, Nov. 2, 1997, at 1 ("[T]he Democratic committee spent at least $32 million on early issue advertising. The advertisements, which began airing in mid-1995, were created by the Clinton-Gore team and prominently featured the President in patriotic settings."). Labor and business spent millions on independent issue campaigns in the 1996 election cycle. See Eliza Newlin Carney, Campaign Reform Debate Will Linger, 22 Nat'l J. 2026 (1997).

37. See Richard L. Hasen, Clipping Coupons for Democracy: An Egalitarian/Public Choice Defense of Campaign Finance Vouchers, 84 Calif. L. Rev. 1, 19 n.79 (1996).

38. See Colorado Republican Fed. Campaign Comm. v. FEC, 116 S. Ct. 2309, 2317 (1996) (plurality opinion) (indicating that the Court has treated coordinated expenditures as contributions, which Congress may constitutionally regulate).

39. See, e.g., Jill Abramson, Tape Shows Clinton Involvement in Party-Paid Ads: Legal Line Is Unclear, N.Y. Times, Oct. 21, 1997, at A1 (discussing television issue ads that "advanced the Democratic Party's agenda as well as Mr. Clinton's").

40. See Austin v. Michigan State Chamber of Commerce, 494 U.S. 652, 654-55 (1990) (prohibiting independent political expenditures from a corporation's general treasury is constitutional); Buckley v. Valeo, 424 U.S. 1, 80-82 (1976) (per curiam) (mandating disclosure with regard to independent express advocacy is constitutional).

41. For example, Michael R. Goland, "apparently motivated by the pro-Israel policies of Senators Paul Simon and Alan Cranston, funded large independent expenditure campaigns against their opponents." Hasen, supra note 37, at 19 n.79.

42. Buckley, 424 U.S. at 47.

43. An exception to this tendency might occur when the independent expenditure is used for purposes the politician supports, but doesn't want attributed to herself - for example, "going negative" by attacking her opponent. See text accompanying note 37 supra (discussing the Willie Horton ads). Yet the fact that independent expenditures are attributed to another speaker can often be a political liability. An independent ad campaign paid for by, say, Jane Fonda or tobacco interests might alienate as many voters as it persuades. Hence, independent expenditures by well-heeled but unpopular speakers would be much less valuable then direct contributions.

44. See Sullivan, supra note 2, at 690 ("[C]ompelled disclosure avoids a regime of absolute laissez-faire. Even this partial deregulation might have unintended consequences."

45. Buckley v. Valeo, 424 U.S. 1, 67 (1976) (per curiam).

46. Joseph P. Kalt & Mark A. Zupan, Capture and Ideology in the Economic Theory of Politics, 74 Am. Econ. Rev. 279, 283 (1984)

47. Buckley, 424 U.S. at 20-21.

48. See Ackerman, supra note 3, at 78

49. The government's interest in preventing vote as compared to donation corruption cannot easily explain why the voting booth would stand on a firmer constitutional footing than the donation booth. The danger of donation corruption is greater than the danger of voting corruption because wealth is much more concentrated than votes. The transaction costs of vote corruption are much higher because candidates would need to cut deals with many more people for vote corruption to have an effect.

50. See, e.g., McIntyre v. Ohio Elections Comm., 514 U.S. 334, 353 (1995) (striking down an Ohio statute that prohibited the distribution of anonymous campaign literature as a violation of the First Amendment); Talley v. California, 362 U.S. 60, 66 (1960) (striking down a city ordinance that forbade the distribution of anonymous handbills).

51. See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y., 447 U.S. 557 (1980). See generally Eugene Volokh, Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U. Pa. L. Rev. 2417 (1996).

52. See Moses Ben Maimon, The Laws of Hebrews Relating to the Poor and the Stranger 67-68 (James W. Peppercorne trans., Pelham Richardson 1840)

53. At a minimum, Congress should change the law to give individual candidates the option of using blind trusts to finance their campaigns. The first question candidates should be asked when they announce their candidacy is whether they will commit to donor anonymity. We hope that candidates would voluntarily comply in order to avoid explaining why they need to know the identity of their donors. But we fear the issue can be demagogued. Opponents of mandated anonymity are likely to respond, "What do the proponents have to hide? Why aren't they willing to reveal who their contributors are?" Of course, these same questions were asked of those early proponents of the secret ballot.
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