INTRODUCTION
About the only campaign finance issue on which there is a strong consensus is the belief that the law should force candidates to disclose the identity of their contributors. The Supreme Court in Buckley v. Valeo has signed off on such regulation as a means of deterring candidates from selling access and influence in return for contributions. Today there are calls for “instantaneous” disclosure via the Internet. Indeed, a growing group of scholars and advocates are coming to believe that mandated disclosure should be the only campaign finance regulation. For example, Representative John Doolittle has proposed “The Citizen Legislature and Political Freedom Act” which essentially would repeal all limits on political campaign contributions merely require immediate disclosure by candidates when they do receive contributions.1 This type of “pure disclosure”reform has garnered support from a wide spectrum of both liberals and conservatives -- including the CATO Institute, Sen. Mitch McConnell, and Kathleen Sullivan.2 People who want to repeal all campaign finance regulation save mandatory disclosure have come to believe that other restrictions are counterproductive because they tend to shift money to less accountable forms of political speech – such as “independent expenditures” and “issue advocacy.”
An set of enduring poetic images for the advocates of mandated disclosure was provided by Justice Brandeis:
Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.
But there exists in our polity a counter image -- the voting booth -- that stands against this cult of disclosure. Ballot secrecy was adopted toward the end of the nineteenth century to deter political corruption. "Before this reform, people could buy your vote and hold you to your bargain by watching you at the polling place."3 Voting booth privacy disrupted the economics of vote buying, making it much more difficult for candidates to buy votes because, at the end of the day, they could never be sure who voted for them.
A similar pro-anonymity argument can be applied to campaign finance. We might be able to harness similar anonymity benefits by creating a "donation booth": a screen that forces donors to funnel campaign contributions through blind trusts. Like the voting booth, the donation booth would keep candidates from learning the identity of their supporters. Just as the secret ballot makes it more difficult for candidates to buy votes, mandating anonymous donations through a system of blind trusts might make it harder for candidates to sell access or influence because they would never know which donors had paid the price. Knowledge about whether the other side actually performs his or her promise is an important prerequisite for trade. People - including political candidates - are less likely to deal if they are uncertain whether the other side performs. The secret ballot disrupts vote buying because candidates are uncertain how a citizen actually voted; anonymous donations disrupts influence peddling because candidates are uncertain whether contributors actually contributed.
So which is better mandated disclosure or mandated anonymity? Each holds the potential for disrupting political corruption. This article tries to imagine the effects of pure disclosure and anonymity regimes.4 If we were to repeal all contribution or expenditures limitations and were only going to regulate information, which should we prefer? I tentatively argue that mandated anonymity is preferable. It is a lesser restrictive alternative that is more likely to deter political corruption.
Critics are quick to point out that mandated anonymity is likely to convert some direct contribution into independent, “issue advocacy” expenditures (where anonymity cannot be required), but fail to see that mandated disclosure, if it were effective in deterring political corruption, would also likely to shift some direct contributions toward issue ads (where disclosure cannot be required). The simple reason why mandated disclosure is unlikely to hydraulically push money toward issue advocacy is that disclosing the identity of donors deters very little corruption. Disclosure regimes may make us feel good about ourselves but they probably don’t produce very different results than a true laissez-faire regime where contributors had complete freedom whether to remain anonymous or to disclose their identity to the candidate and/or the public. Thus, while the article nominally confronts the choice between mandated anonymity and mandated disclosure, in most cases this will be essentially the same as a choice between mandated anonymity and informational laissez faire. At the end of the day reasonable people could disfavor mandated anonymity -- for example, because of the predictable shift of resources toward less accountable independent, issue advocacy – but they should not particularly favor mandated disclosure because it generates substantial benefits beyond a regime which declined to mandate either disclosure or anonymity.
Several states have already experimented with prohibiting judicial candidates from learning who donates to their (re)election campaigns.5 The rationale, of course, is that judges don't need to know the identity of their donors: Judicial decisions should be based on cases' merits, not contributors' money. But there is no good reason why legislators or the executive needs to know the identity of their donors. An individual's power to influence government should not turn on personal wealth. Small donors are already effectively anonymous because $100 isn't going to buy very much face time with the President. n5 Mandating anonymity is likely to level the influence playing field by making small contributions count for relatively more. Anonymous donors can still signal the intensity of their preferences by marching on Washington - barefoot, if need be.
In what has become a post-election ritual, politicians wring their hands about the problem of campaign donors buying unwarranted "access." Candidates claim that contributions do not affect their political positions. Nonetheless, the suspicion that "access" leads to corruption persists. If candidates really want to stop themselves from selling influence or access, they should forego finding out the identity of their contributors.
The idea of mandating anonymity at first strikes many readers as a radical and dangerous departure from the current norm of disclosure. The metaphors of "sunshine" and "open air" are currently very powerful. But to assess the anonymity idea fairly, it is necessary to free ourselves from what might be little more than the happenstance of history. The public ballot was similarly accepted as a natural and necessary part of democracy for roughly half of our nation's history. This system produced "the common spectacle of lines of persons being marched to the polls holding their colored ballots above their heads to show that they were observing orders or fulfilling promises."6 These spectacles put such pressure on the disclosure norm that, ultimately, the secret "Australian ballot" caught on and spread like wildfire at the end of the nineteenth century.7 Readers need to consider whether the current spectacle of campaign corruption might be sufficient to overturn our deeply ingrained disclosure norm.
This article is divided into three parts. Part I compares how mandated anonymity and disclosure regimes might disrupt the market for political influence. Part II then describes in more detail how a system of mandated anonymity might operate. To avoid the "nirvana fallacy" of comparing an idealized reform to a real-world market failure, this part assesses whether the private efforts to evade anonymity - via "independent expenditures" or "issue advocacy" - undermine the usefulness of the proposal. Part III argues that mandated anonymity is clearly constitutional. Indeed, appreciating the possibility of anonymity may even undermine Buckley v. Valeo’s conclusion that mandated disclosure is constitutional.