SIMPSON: Disclosure abuse

By Steve Simpson | Tuesday, September 2, 2008

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COMMENTARY:

The Bipartisan Campaign Reform Act is known popularly as "BCRA" but those knowledgeable about campaign finance laws have a different description: "Before Campaigning, Retain Attorney."

The law is complicated, to say the least, and like all campaign finance laws, it contains enough legal pitfalls that no sane person would dare run a campaign before hiring an attorney. A new group, "Accountable America," is seeking to capitalize on this complexity for political advantage. The group shows that campaign finance laws present not only a legal trap for the innocent, but a weapon to be wielded by political antagonists eager to win elections by any means necessary.

Accountable America was created, according to its Web site, to oppose "right-wing and special interests in Washington." Using campaign finance disclosure reports, the group will send "warning" letters to Republican donors designed to create a chilling effect that will prevent them from funding independent conservative groups. The letter notes that the Internal Revenue Service is cracking down on nonprofits that speak out about issues in elections, that groups can easily violate campaign finance laws, and that donors could have their business and personal affairs "closely scrutinized" by the Federal Election Commission, the Internal Revenue Service, the media and watchdog groups. It ends by noting that Accountable America is offering a $100,000 reward to anyone who provides information that leads to the conviction of conservative groups for violating tax or campaign finance laws.

Is Accountable America breaking any laws? No, but it's actions are the predictable result of laws like BCRA that regulate political speech. Campaign finance laws enable efforts like these by erecting complex legal barriers to political speech and participation and by requiring groups subject to the laws to disclose their donors to the government and the public.

Indeed, by equating the desire to affect the outcome of elections with corruption, the laws virtually invite actions like Accountable America's. Thus, while the group's purpose is utterly appalling - they are, after all, trying to intimidate political opponents into silence using threats of legal liability - what they are doing is neither illegal, nor particularly surprising.

Indeed, most campaign finance laws can be used to intimidate and harass political opponents.

Two years ago, a small band of neighbors outside Denver, Colo., discovered this when they tried to persuade fellow neighbors to oppose annexation of their neighborhood by a nearby town. After distributing postcards and yard signs, they were sued under a state law that allows "any person" to file a private enforcement action against someone they believe has violated state campaign finance laws.

The complaint threatened them with sanctions for failing to register with the state and comply with disclosure laws and stated ominously that their actions might subject them and any collaborators to "investigation, scrutinization, and prosecution." Unsurprisingly, the complainants were the two proponents of annexation, one of whom was a lawyer and well-versed in the complexities of campaign finance laws.

Last year, the Institute for Justice, which represents these residents in a First Amendment challenge to Colorado's campaign finance laws, surveyed public attitudes about disclosure laws in six states. A majority surveyed opposed having their names, addresses and employers disclosed when contributing to ballot issue committees. When they were asked why, typical responses included, "I don't want other people to know how I'm voting," and "I don't think my information should be out there for fear of retaliations."

In another study of the complexity of disclosure laws, groups of people filled out state disclosure forms using a simple hypothetical scenario. No one filled out the forms correctly and most were unable to score better than 50 percent. Participants expressed frustration, saying things like, "Worse than the IRS!" and "Seriously, a person needs a lawyer to do this correctly."

In short, most people understand that public disclosure of their political affiliations and views can be intimidating. Worse, complex laws are easily violated and increase the costs and burdens of political participation. Indeed, that is exactly what Accountable America is counting on.

Fifty years ago, the state of Alabama tried to force the NAACP to disclose its membership lists. The case reached the U.S. Supreme Court, where the NAACP argued that an attack on its privacy of association was an attack on its ability to organize and exercise its rights to free speech.

The Supreme Court agreed. The court recognized something that today's campaign finance reformers, and even courts, all too often forget. If we arm individuals with the ability to intimidate their political rivals, many of them will be only too happy to descend to the occasion.

So by all means, blame Accountable America for establishing a new low in hardball politics. But blame campaign finance laws even more for allowing, and even encouraging, them to do so.

Steve Simpson is a senior lawyer at the Institute for Justice.

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