Asked by a radio host about the Supreme Court’s decision in Citizens Unitedv.FCC, Newt Gingrich said something that I imagine many conservatives have always believed — that political contributions are a form of speech and as such should be unlimited, provided they are immediately disclosed on the Internet. That was my view.
But perhaps that was wrong. Not the speech part — thankfully even the Supreme Court has come to its senses on that score (the justices were reportedly scandalized to discover that the McCain-Feingold law permitted the banning of books under certain circumstances) — but the disclosure part. Perhaps we are paying too high a price in political freedom to avoid the appearance of undue influence.
Prof. Brad Smith, former chairman of the Federal Election Commission and a leading opponent of campaign-finance (or speech-limitation) laws, makes the case that disclosure, which most of us automatically associate with political virtue, may not be desirable after all.
Writing in City Journal, Smith begins with the following question: Suppose in its waning days, the Bush administration had proposed a Patriot Act II. “To prevent terrorists and foreign agents from influencing American governments and political parties, the act would require political campaigns and other groups to report the names, addresses, and employers of their supporters to the federal government, which would enter the information into a database. The act would also give businesses access to this database, enabling them to make hiring decisions, credit determinations, and other choices based on political activity. Can anyone doubt that Patriot II would be widely considered a gross violation of civil liberties?”
That’s putting it mildly. But Patriot II was not proposed by George W. Bush. It has been the law of the land for more than 30 years, ever since the passage of a McCain-Feingold precursor, the Federal Election Campaign Act. Even the most fervent civil libertarians never seem to get worked up over the massive invasion of privacy that act inaugurated. Like proverbial frogs in heating water, we have tamely accepted the idea that our political contributions must be disclosed. But don’t political views and activities deserve an expectation of privacy as much as book purchases, voting habits, and income-tax returns?