By Brian Carnell

Monday, July 21, 2003

Back in April, in a little-noticed move, the Federal Elections Commission voted 4-2 to extend the Socialist Workers Party's exemption from laws requiring political parties to disclose the source of their political contributions. This month a Freedom Socialist Party candidate for office in Seattle has requested an exemption from state elections disclosure laws there. Do such exemptions make sense?

The Socialist Workers Party's exemption goes back to the Supreme Court's 1982 ruling in Brown et al v. Socialist Workers '74 Campaign Committee. Under Ohio's Campaign Expense Reporting Law, political parties were required to disclose campaign contributions. The SWP refused to comply with this requirement on the grounds that making its donor list publicly available would subject donors to harassment and thereby interfere with their right to freely associate with the party.

The Supreme Court ultimately agreed with this argument, ruling that not only did minor parties like this have a right not to report who gave them money, but they could also withhold who they gave the money to if they could show that there was a likelihood of harassment in doing so. Writing for the majority, Justice Thurgood Marshall wrote,

(a) The First Amendment prohibits a State from compelling disclosures by a minor political party that will subject those persons identified to the reasonable probability of threats, harassment, or reprisals. Buckley v. Valeo, 424 U. S. 1, 74. Moreover, minor parties must be allowed sufficient flexibility in the proof of injury. Ibid. These principles for safeguarding the First Amendment interests of minor parties and their members and supporters apply not only to the compelled disclosure of campaign contributors but also to the compelled disclosure of recipients of campaign disbursements. Pp. 91–98.

(b) Here, the District Court, in upholding appellees’ challenge to the constitutionality of the Ohio disclosure provisions, properly concluded that the evidence of private and Government hostility toward the SWP and its members establishes a reasonable probability that disclosing the names of contributors and recipients will subject them to threats, harassment, and reprisals. Pp. 98–101.

Justices Rehnquist and Stevens joined an opinion by Justice O'Connor that concurred with the exemption from donor disclosure, but dissented from the exemption for recipient disclosure.

I'm not a big fan of campaign finance laws to begin with, and this is a nice example of the way that campaign finance laws interfere with the First Amendment (I'd bet there are a significant number of potential donors to any number of candidates who are deterred by disclosure requirements). But this doesn't make much sense to me.

Imagine our socialist who wants to do his part for the revolution by picketing outside of a corporation that has been accused of union busting. But, our socialist worries, what if photographers from the local newspaper show up and his picture ends up on the front page? He might be subjected to harassment and derision afterward. Is that possibility then such a large deterrent to such actions that the media should have limitations placed upon it in order to better protect this protester's right to freely associate?

A bigger problem, though, is with the unintended consequences of requiring disclosure of donors in the first place. As something like The Center for Responsive Politics' excellent OpenSecrets.Org makes abundantly clear, once information about which donors gave to which candidate or party is public and widely available it has uses above and beyond deciding why candidate X might support some piece of legislation while candidate Y might oppose it. Things like this view of BASF's donations to political candidates and parties is just one example.

Why should minor party donors, be exempt from this so long as every other donor is required by law to have this information disclosed? Imagine, for example, that the CEO of BASF decided that he wanted to donate a large amount of money to the campaign of some minor party whose basic platform was white supremacist in nature. Why should that party be able to obtain an exemption and hide such donation's from public view simply because the ideas of the white supremacist party are unpopular (and would certainly subject the donor to likely harassment) -- while at the same time all of the donations to major parties would be revealed in a nice table layout on a web page?

Sources:

Socialists seek exemption from campaign finance laws. Fox News, July 16, 2003.

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