Censorship can be the practical result of removing anonymity from donations of political money

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Regulating political spending often harms the robust debate it's intended to protect
By Ken Braun, November 19, 2013

In a controversial vote last week, the GOP-led Michigan Senate moved legislation that would both double the maximum allowable contributions to state-level political candidates, and also allow independent expenditure “issue advertisements” - those not coordinated with any candidate or campaign - to remain mostly exempt from disclosing donor identities. 

Hours earlier, Republican Secretary of State Ruth Johnson proposed using her administrative authority to require donor disclosure of the issue ads.

The Secretary of State wins both the popular point and a good policy point by standing for transparency and against anonymous donors. But - though poorly understood - the Senate voted for a more important principle than Secretary Johnson’s good intentions.

There was also opposition to raising the maximum allowable donation limits. Senate Minority Leader Gretchen Whitmer, D-East Lansing, stated that “very few people on planet Earth think that we need more money in our political system.”

Sen. Whitmer is probably correct about the popularity of political money, but unpopularity isn’t a relevant concern. It’s just as likely only a tiny minority think more spending on pornography is a good thing, but our First Amendment protects unlimited spending on racy late-night cable TV movies and much else.

“Congress shall make no law …” 

While those words protect limitless spending to produce what’s in the pages of Playboy, they are not there primarily for that reason. Among the bedrock protections of the First Amendment is preserving political expression. A politician who thinks she knows of a line when spending on speech becomes “too much spending” is perilously close to missing the entire point of free expression.

The principled stand would be to remove all contribution limits on political donations. But since the current state limits haven’t been increased since 1977, it’s time to bump them upward.

The other point is issue advertisements, policy information or actions that do not specifically advocate a vote and do not coordinate with political campaigns. The U.S. Supreme Court gives these the broadest First Amendment protection and puts no limits on the size of contributions to them.

Pure issue advertisers may also conceal the identity of donors and the Secretary of State believes this should be changed for state-level campaigns. She makes a good point on the surface. As an example: If trial lawyers or oil companies spend big bucks attacking or defending a policy position that happens to be the subject of a political race, then there is value in knowing this before the votes are cast. After all, we require candidates and ballot committees to disclose who their donors are. 

But is there a negative side to this? What is lost when we silence anonymous speakers?

The NAACP was seeking fundamental and revolutionary policy changes when it used the donations of its members to carry out the Civil Rights Era fights in Alabama. Making NAACP donor identities public would have subjected them to the full fury of segregationists. Such disclosure is exactly what the segregationist government of Alabama demanded. The NAACP eventually maintained its right to secret donors in a landmark 1958 U.S. Supreme Court decision.

Similarly, the names of the authors of most of the Federalist Papers, “issue advertisements” for the Bill of Rights, were kept secret during the campaign for ratification. 

The political statements likely to make the most difference are often as unpopular as they are necessary. Much like the sanctity of the secret ballot, censorship can be the practical result of removing anonymity. We sometimes cannot fully save both when promoting transparency clashes against fully protecting unpopular speech. But there’s little doubt which is more critical. 
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