Nondisclosure Disclosure: Giving Lawmakers an Excuse to Ignore the Hard Questions

Authored by Heather Gerken, Wade Gibson, and Webb Lyons

On Monday, Bob Bauer offered a characteristically thoughtful and generous response to a “nondisclosure disclosure” proposal that we pitched in the Washington Post last week. The proposal was a simple one. Any advertisement funded directly or indirectly by an organization that does not disclose its donors must acknowledge that fact with a simple and truthful disclaimer: “This ad was paid for by ‘X,’ which does not disclose the identity of its donors.” By requiring organizations that do not disclose their donors to acknowledge that fact, we wrote, Congress could provide voters with a helpful shorthand and give donors an important choice: put their money into transparent organizations (like the parties or Superpacs), or fund groups that keep their donors hidden but risk running ads that may not persuade cynical voters.

The basic purpose of our proposal is to harness politics to fix politics, reducing the value of anonymous outlets and pushing money toward transparent ones. But it also solves what we call the “whack-a-mole” problem. Our proposal regulates the ad, not the organization. As we wrote in the Post, “it doesn’t repeat the mistake we’ve continually made in campaign finance: engaging in the regulatory equivalent of whack-a-mole by targeting the troublemakers du jour while leaving space for new organizations to emerge during the next campaign cycle.”

Bauer is skeptical. We take all of his points seriously and agree with many of them. We thought it might be helpful, however, to identify the main issues on which we disagree.

First, Bauer thinks that the purpose of disclosure is to “bring to the audience’s attention what they could not fairly be expected to uncover for themselves.” He agrees that it’s appropriate to disclose that “an ad was paid for by a specific organization” or that “its content was ‘approved’ by a candidate.” But, he insists, voters can figure out for themselves whether an ad is funded anonymously through an “Internet inquiry or a question put directly to the ad sponsor.”

We think the task for voters is a good deal harder than he suggests. Take a look at the websites for the “Ready for Hillary” Superpac (which does disclose its donors) and Karl Rove’s “Crossroads GPS” (which doesn’t). You certainly can’t figure out which organization discloses its donors from the sites. If you start doing Google searches, you’ll eventually figure it out because Crossroads GPS is the media’s favorite target. But for the run-of-the-mill 501(c)(4)? At the very least, you’d have to figure out it was a (c)(4) and then figure out what that means under the tax code. More importantly, a “transparent” shell organization can still be funded by organizations that fail to disclose their donors. “Americans for America” may disclose, for instance, that its funding comes from “Good People for Good” and “People for Puppies,” thus forcing voters to follow a money trail that even reporters find complex nowadays. We don’t think it’s fair to expect voters to go through that much work every time a 30-second ad flashes across the screen. Why not tell voters the simple fact of the matter? Some ads are funded anonymously. There’s no reason voters shouldn’t be able to sort between ads funded transparently and ads funded anonymously.

Bauer’s concern goes deeper. He worries that our proposal “is crafted to suggest that there is information missing that should have been supplied and is being withheld.” That might be the gloss voters put on the disclosure. But our proposal is essentially no different from the “stand by your ad” requirement. That requirement demands that the connection between the ad and a candidate is identified. Ours demands that the connection between the ad and an anonymous donor is identified. Even if Bauer is correct that our proposal has normative force, it conveys the same message as the (constitutional) “stand by your ad” requirement or, indeed, any (constitutional) requirement that certain organizations disclose their donors. Like Bauer, we think it’s acceptable to require 501(c)(4)s to disclose the names of their donors. But then surely it’s acceptable to require 501(c)(4)s to disclose the fact that their donors are anonymous. The greater includes the lesser.

Good lawyer that he is, Bauer does not merely chide us for going too far, but for not going far enough. He worries that our proposal would give legislators unable to enact disclosure requirements an easy way out. They could “resort instead to a form of shaming” with “the ‘ought’ . . . replaced by a ‘you don’t have to but really should.’”

Fair enough. This worry might have kept us up at night a few years ago. But now that Congress has proved itself incapable of enacting something as basic as disclosure requirements in the wake of the wildly unpopular Citizens United, we’d just be happy to give Congress an excuse to do something. To do anything, really. Perhaps we should take it as a warning sign that we are more cynical about politics than one of the most respected and clear-eyed campaign lawyers in the country. Or perhaps Bob is just a cheerier, more optimistic soul than any of us.

Finally, Bauer casts doubt on our “whack-a-mole” pitch. “[W]hy should Congress not have to consider on its merits each and every form of disclosure as it affects different organizations” and create separate regulations for each new organization that springs up? Bauer suggest that the “most challenging aspect of this proposal is the excuse it gives lawmakers to ignore hard questions.”

We think this is a feature of our proposal, not a bug. Political interests are shape shifters; they take new forms whenever they wish to get around a regulatory roadblock. When donors couldn’t give the parties soft money, they turned to issue ads, then 527s, then Superpacs, then 501(c)(4)’s. Congress and the FEC have shown themselves utterly incapable of keeping up. Given that the politics of the moment prevent regulators from answering Bauer’s hard question, we’re just hoping that they’ll be able to answer an easy one. Should anonymously funded ads disclose that fact? The answer should be yes.

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