In the debates about campaign-finance regulation and the Supreme Court’s Citizens United decision of last year, there seems to be widespread agreement on one thing: public disclosure of political contributions is a good thing. That was my view as well, until I campaigned as the Republican nominee for the U.S. Senate seat in Oregon in 2010.
The reality is that public disclosure serves the interests of incumbents running for re-election by discouraging support for challengers. Here’s how it works.
A challenger seeks a contribution from a person known to support candidates of the challenger’s party. The potential supporter responds: “I’m glad you’re running. I agree with you on almost everything. But I can’t support you because I cannot risk getting my business crosswise with the incumbent who is likely to be re-elected.”
Sometimes he adds that he has matters pending before a federal agency. Or that he has been working with the incumbent on legislation that will benefit his company. Or that he has a government grant pending.
I heard these responses literally dozens of times in my campaign in Oregon. Sometimes I was told that someone on my opponent’s staff had called with a reminder that supporting me was not a good idea. Once the call came while I was having lunch with the person from whom I was soliciting support.
Jim Huffman, shown visiting with schoolchildren, ran for a U.S. Senate seat last year in Oregon as the Republican nominee. After delivering a serious challenge to Democratic incumbent Ron Wyden—Huffman collected 39 percent of the vote, Wyden 57—Huffman wrote on his website that “I ran for the U.S. Senate not to be a senator or advance my career, but to do what I could for freedom, the rule of law, and constitutional government.”
A few people went on to say that they would find some way to get a check to my campaign, perhaps through an employee or a member of their board. I have no way to know if they did.
Disclosure makes threats possible, and fears of retribution plausible. Within weeks of a contribution of $200 or more, the contributor’s name appears on the public record. Contributors know this, and they know that supporting the challenger can, should the challenger lose, have consequences in terms of future attention to their interests. Of course, no incumbent will admit to issuing threats or seeking retribution, but the perception that both things happen is widespread.
The reality of that perception alone should give us pause about disclosure requirements. And it would be naive to believe that the perceptions have no basis in reality.
Twenty-five years ago in Buckley v. Valeo, the Supreme Court concluded that disclosure requirements are constitutional if they provide relevant information to voters, prevent corruption, and facilitate data collection to enforce election restrictions. None of these ends is served by existing disclosure requirements. With individual contributions capped at $2,400, it is hard to make the case that the names of individual contributors are helpful or relevant to voters. Given the fears of retribution, disclosure does more to facilitate corruption than to prevent it. And enforcement of election restrictions can be accomplished by the less burdensome means of mandating reporting without public disclosure.
The only clear case for requiring public disclosure of contributions in the small amounts permitted by federal law is that, like many other features of our election laws, it promotes the re-election of incumbents. Regrettably, that means it will be difficult, if not impossible, to change. But take it from one who knows: the disclosure requirement makes the mountain to be climbed by most challengers even steeper.