The Dangers of Disclosure

Would you support a ballot issue if it meant you would be harassed, have your life threatened or your business boycotted?  Faced with such prospects, most people would rationally refrain from speaking.  Because of California’s ill-conceived mandatory disclosure system—a system in which the government itself names names of those involved in a political movement—people must now ask themselves these questions. 

Like most states with citizen initiatives, California requires that ballot issue committees disclose individuals’ contributions.  This means that if you give more than $100 to an issue committee, it must tell the state your name, your occupation and even your home address and employer’s name.  These records don’t molder in some dusty back office.  Instead, the state government keeps all the information on a convenient, searchable website.  So, even after the election is over, the record of your contribution—and your personal information—lives on.

The problem is that ballot initiatives can be controversial things.  Often, some feel that those who disagree with them are “the enemy.”  But because of mandatory disclosure, that convenient and searchable state website can serve as an “enemies” list.  Soon after the November elections, those who contributed to committees in favor of Proposition 8 started receiving threats.  In addition, people began using the state’s website to target businesses where Proposition 8 supporters worked.  In one instance, Marjorie Christoffersen, the manager of the well-known El Coyote restaurant, resigned after disclosure of her $100 donation led to boycotts.  In another, the long-time director of the California Musical Theatre was forced out after his contribution was made public. 

Another major disclosure deadline is quickly approaching.  On February 2nd, the pro-Proposition 8 committees must file semi-annual reports that will reveal the identity of yet more contributors.  Fearful of having these undisclosed contributors subjected to threats, harassment and reprisals, these committees filed suit, asking that the court suspend the disclosure requirements and expunge the public records.

Unfortunately, the court recently refused to take these concerns seriously and protect the contributors’ privacy and safety.  The First Amendment is meant to encourage robust debate but mandatory-disclosure laws like California’s chill citizen participation.  One recent study by the Institute for Justice found that almost three out of five people would think twice about contributing to a ballot issue campaign if it meant their personal information would be released.  The most common reason given:  peoples’ desire to remain anonymous.  In light of recent events, that desire seems well-founded.

According to the court, “If there ever needs to be sunshine on a particular issue, it’s a ballot measure.”  But in truth, there are no benefits to these laws in the context of ballot initiatives.  The justification for disclosure of contributions to political candidates is because candidates can be corrupted.  But a ballot initiative can’t be corrupted; it’s nothing more than words.  Nor is there any reason to think disclosure leads to more-informed voters.  Most people learn about ballot issues from TV, radio and newspapers; they do not scour campaign-finance reports.  We don’t allow the government into the ballot box with us to see how we cast our votes; likewise we shouldn’t allow the government to have this sneak peak into our views on ballot measures.

We are a nation of debaters, and our campaign-finance laws should not act to stifle that debate.  The better approach is a system of voluntary—rather than government-mandated—disclosure, where an issue committee and the public together decide what information to make public, assuming there is a demand for such information.

Because of mandatory disclosure, though, it is ordinary citizens that end up hiding from the political process.  Former restaurant manager Christoffersen, who donated merely $100 to the “Yes on 8” campaign, said that due to the boycotts and harassment she endured, “I’ve almost had a nervous breakdown.  It’s been the worst thing that’s ever happened to me.”

Hearing that, would you enter the political fray, or would you just decide not to speak?  Any disclosure law that would lean you towards the latter has no place in American politics.

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Robert Frommer is a staff attorney at the Institute for Justice, which litigates nationwide against government-imposed limits to political speech and participation.