In deciding to tweet out the names and occupations of max-level donors to the Trump campaign, Representative Joaquin Castro (D., Texas), the brother of Democratic presidential candidate Julián Castro, simply made the dangerous logic of our modern campaign-finance laws more explicit.
The donors singled out by Representative Castro are mostly ordinary people — realtors, retirees, store owners, the owner of a barbecue restaurant. These private citizens were singled out by Castro, who accused them of “fueling a campaign of hate that labels Hispanic immigrants as invaders.” Set aside the truth value of the statement, which predictably and dishonestly ignores the difference between legal and illegal immigration, Castro’s ability to harass random donors to his political opponents is not a bug of our current campaign-finance laws but a feature. We can fix that “feature” only if America reforms its donor-privacy laws.
The 1974 amendments to the Federal Election Campaign Act force every candidate for public office to publicly disclose not just the names but also the addresses and employment information of donors who give more than $200 to his or her campaign. In many states, the dollar amount is even lower. The purported purpose of this measure was to identify those people who might use their money to exert undue influence on the democratic process. Whatever the wisdom of such an act might have been in 1974, its authors didn’t contemplate a world where such information would be publicly available to anyone with the click of a mouse.
National Review has a long and honorable tradition of fighting undue restrictions on campaign funding. Senator James Buckley, the brother of National Review founder William F. Buckley Jr., was the plaintiff in Buckley v. Valeo (1976), in which the Supreme Court struck some of the more egregious elements of the speech-stifling 1974 law.
Some might find it strange that the same news media that obsess about cost-of-living adjustments for minimum-wage or welfare laws have never been interested in even such a minimal step as updating the minimum-donation requirements for campaign-finance disclosure to kick in under laws that were set in 1974. A basic indexing of campaign-finance expenditures to inflation would bring the donation amount required to trigger disclosure to more than $1,000. The average cost of a congressional race was $5.8 million in 2018 (including independent expenditures). In that context, to indicate that $200 is somehow influencing is ludicrous. Furthermore, viewed on an inflation-adjusted basis, campaign spending has grown more than fivefold since the 1970s. That would suggest that to “buy” as much influence as you could have with a $200 donation in 1974, you would have to spend more than $5,000 today.
Janice Rogers Brown, a former judge on the D.C. court of appeals, cogently observed that the arc of campaign-finance laws has been ambivalent, bending toward speech and disclosure. But she recognized the inherent contradiction in this, noting that “these two values exist in unmistakable tension” with each other.
And the value of anonymous political expression is critical, something realized by our Founders, who regularly wrote under pseudonyms, as did later politicians, including Abraham Lincoln. Throughout American history, citizens, especially those supporting politically unpopular causes, have used anonymity to shield themselves. Even in granting legitimacy to campaign-finance disclosures, the Supreme Court has recognized the importance that the right of privacy has in extending free speech. Of course, that right can be balanced by other rights and societal considerations. Reasonable people can disagree on where the draw the line ought to be drawn, but arguably it should be drawn only at major fundraisers bundling donations worth $25,000, or $100,000 — a far cry from the current $200 limit.
But even disclosure of only the largest donors, bundlers, and fundraisers has underrecognized downsides. Democrats and Republicans alike have used big-money disclosure requirements to compile lists of politically active corporations and political-action committees, indicating that they had to pay up to play. At other times, nongovernmental organizations have culled lists of major donors to the opposition to send them threatening letters, an action similar to Representative Castro’s.
Such tactics are used most effectively against those supporting unpopular or controversial political causes — and the ability to preserve the privacy of supporters of such causes has long been legally recognized as a public interest. For example, in the unanimous decision in NAACP v. Alabama (1958), the Supreme Court upheld the NAACP’s rights to keep its membership rolls (and therefore its donors) private and to withhold them from the state of Alabama even in the face of a state subpoena.
In an excellent critique of disclosure laws in City Journal, Bradley Smith, a former chairman of the Federal Election Commission and arguably the leading conservative scholar of campaign finance, argues that the fetishizing of disclosure “has added to a political climate in which candidates are judged by their funders rather than their ideas.” Furthermore, as Smith contends, the notion that these smaller donors “need to be publicly disclosed to prevent corruption is a proposition that can scarcely be stated with a straight face.”
Disclosure laws are particularly useful to punish those whose ideas differ from those of elites. Even though Proposition 8 (against same-sex marriage) in California commanded majority support from the electorate, several donors to the campaign for it lost their jobs when their donations were disclosed. None had given at a level at which they meaningfully affected the election. All had their personal privacy invaded when there was no compelling public reason for their political donations to be made public.
Conveniently, the current system also serves as a perfect incumbent-protection racket, which is probably why it hasn’t been changed. It keeps people from donating to insurgents or challengers by allowing incumbents to find and punish anyone who would dare fund their opponents.
As Representative Castro’s shameful actions show, our current disclosure laws threaten public safety, allow political shakedowns, and punish those who are not in sync with the priorities of the political establishment. The sooner that laws are passed to protect donor privacy at both the state and the federal level, the stronger our political system will be.
The abuses by Joaquin Castro are scandalous, but we miss the more important point if we focus on his action alone. The real scandal is that we give politicians access to the names, addresses, and employers of their political opponents in the first place.