WASHINGTON, D.C. - Until breakfast this morning, I thought I knew about all the variations of campaign finance reform.
Then I read an op-ed piece in The Washington Post that had a new and simple one: make all campaign donations and independent expenditures completely anonymous so elected officials and candidates cannot know who their donors are. That way influence can’t be bought and sold. Easy-peasy.
“The problem is not just how much money we allow into the system, or even how few individuals provide it,” write political scientists Bertram J. Levine and Michael Johnston. “An equally serious, and somewhat ironic, issue is that transparency makes the appearances problem worse. If incumbents could not know the sources of contributions to their war chests, they could not ‘thank’ their benefactors with policy ‘favors,’ nor could they extract contributions through intimidation. Donors wanting to support challengers — who are routinely out-spent by solid margins under the current system — would not need to worry about reprisals from incumbents.”
The idea does have an attractive simplicity but it can’t stand up
to a road test.
First, Congress would and could never pass such a law, for a million reasons.
For the sake of fun and argument, though, how would the great cloak of anonymity work in the real world? Say I make my contribution to Senator Hogwarts through an official invisibility mechanism, what’s to stop me from sending a note and copy of the check to the senator’s office? Would that be illegal and policed?
It is hard to imagine the Roberts Court letting such a law stand. The Supreme Court has said repeatedly that campaign money is the equivalent of free speech and can only be restricted for concrete and important reasons. Requiring all contributions to be anonymous is precisely the kind of regulation this court hates.
It is true that the Supreme Court in the past has protected the right of anonymous free speech. A 1995 case upheld an Ohio woman’s right to hand out unsigned pamphlets.
“Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation — and their ideas from suppression — at the hand of an intolerant society.”
In fact, this logic has been used to justify the kinds of anonymous contributions that the law does currently allow. The famous Citizens United decision allowed tax-exempt organizations to make campaign expenditures and contributions to those groups can be anonymous.
A spokesman for the Koch bothers, who back some of the biggest independent spenders, defended anonymity to Tom Edsall of The New York Times this way:
“The rationale behind donor anonymity, which is a form of First Amendment speech, is to protect against the threat of retaliation when someone or some group takes a stand, espouses their point of view or articulates a position on issues that may (or may not) be popular with the general public or the political party in majority power. There are many precedents to this: the Federalist Papers were published under pseudonyms and financed anonymously, out of fear of retribution.”
“Dark money” is the new phrase for post-Citizens United anonymous spending. It is growing quickly. So far in the 2014 Congressional elections, according to the Center for Responsive Politics, dark money has topped $50 million:
Of course, this isn’t what Levine and Johnston had in mind at all, it is probably the worst of both worlds – no transparency, no accountability and plenty of room for corruption.
The search for the Holy Grail of campaign reform continues.
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