Authored by Heather Gerken, Wade Gibson, and Webb Lyons

Bob Bauer’s recent post on our “nondisclosure disclosure” proposal offers yet-another reminder why he was treated as an honorary member of the academic tribe long before he started teaching at Yale and NYU.  It’s not just because Bauer’s argument was smart and incisive.  It’s because his post embodies the best of scholarly values:  Bauer offers the most generous account of our proposal before criticizing it.  It seems almost churlish to respond given that Bauer was kind enough to suggest we’re taking campaign-finance reform in a new direction.  But his argument so cleanly and clearly sets up the central question about “soft law” reform like our own that we thought we’d offer our own take on the answer.

For those late to the conversation, in an editorial in the Washington Post, we suggest that 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.”   As Bob notes, because our proposal regulates the ad, not the organization, it helps solves what we called the “whack-a-mole” program – the dilemma Congress and the FEC face in keeping up with the emergence of new institutional players in each election cycle.

Bauer worries that that the government may be “effectively weighing in on the credibility of a political message.”  He asks whether there is “a material difference between the government mandating disclosure of facts, and the government inviting inferences in the absence of facts, in the First Amendment realm—particularly where the government is doing indirectly what it could, if it chose to do so, accomplish more directly by legislative mandate?”

We take Bauer’s concerns seriously and agree with him that it’s not enough for a state-mandated disclosure to be truthful for it to withstand scrutiny.  There’s a great example from a voting-rights case decided during the 1960s.  The Court invalidated a Louisiana law requiring that the photos of candidates appear on the ballot, recognizing it as a patent effort to invite voters to discriminate on the basis of race.  We’re especially grateful that Bauer has pushed on this point rather than let us simply invoke truth as a constitutional shield.  His prodding has made us think harder and frame our constitutional argument more precisely.

We still disagree with Bauer as to whether our proposal raises the First Amendment concerns he suggests, and here we think the doctrine is emphatically on our side.  The Court has made clear that transparency is an issue on which the government may provide voters information.  Citizens United, for instance, offered a ringing endorsement of transparency rules precisely because voters can and should find them useful.  If the government can mandate disclosure for these entities, then surely it can require entities to disclose the truthful fact of nondisclosure.  If the government can mandate disclaimers and “stand by your ad” rules, surely it can require entities to acknowledge when its donors aren’t standing by their ads.  Indeed, the fact that the government can mandate regulation in the first place is premised on the idea that it’s acceptable for citizens to have a view on transparency.  In light of that constitutional backdrop, we see little difference between this rule and other truthful nudges, like states’ routine practice of identifying which candidates are Democrats and Republicans on the ballot.

Bauer rightly notes that a lot depends on the background “architecture.” Many of the “Nudge” proposals, for instance, are enacted against a backdrop of pervasive government regulation, where the government must choose one default or another and the only real question is which is the right default.   It’s worth remembering, however, that our “nudge” would also be enacted against a backdrop of pervasive government regulation.  It’s a regime in which the government requires the vast majority of entities running political ads to disclose their donors.  When a voter watches an ad, in other words, he has had good reason to assume it’s been funded by transparent sources.  Our proposal simply alerts voters that this is not the case for ads being funded by dark money.  The government, then, is helping ensure that citizens don’t make a mistake.  You might even imagine an FDA analogy.  When consumers take a drug off the shelf, they assume that the drug has met FDA standards because the FDA pervasively subjects drugs to testing.  If the FDA were to exempt certain drugs from that regime, surely it would be constitutional for the FDA to require the manufacturers at least to acknowledge that fact.

Bauer worries about the government being “an active participant in political debates,” and rightly so.  But the government is no more or less an active participant in this debate here than it is when it mandates disclosures and disclaimers generally.  In each of these instances, as with our proposal, the government isn’t telling voters what to think.  It’s simply giving voters the tool to make up their own minds.  That’s precisely why the Supreme Court, which is deeply skeptical of government involvement in this arena, ruled 8 to 1 in favor of allowing government to provide citizens this important information. If our proposal works, then, it won’t be because the government is drawing an inference; it’s because voters are drawing one.