Following up on this explanation from Americans for Job Security on why they won’t disclose their donors, Joe Birkenstock has written the following guest post (based upon a post on the election law listserv):

In a fair and just world, I’m sure everyone would prefer that we all evaluate messages or arguments on their merits, and avoid name-calling and scapegoating as means of determining public policy. My objection to this objection, however, is that it’s really dangerously naive to think that there is only “an argument” or message being sent through a given ad or ad strategy, and that it’s one that can be found within the four corners of the public communication itself.
I don’t mean to suggest that subtext is all that matters, of course. There is “a message” that’s open and obvious and above the subtext – a message called “the text.” And I’m one who thinks that we’d all be better off if we could debate politics and policy as text instead of as subtext. We might even understand each other better, and engage in actual substantive back and forth about specific policy alternatives instead of trading sound bites.
But we’re kidding ourselves, aren’t we, to think that that’s the world we’ve actually got, or even one that’s within reach if only we stopped asking “cui bono” and quit “following the money” and all that? Think of it this way: the alternative to deeper disclosure of the funding of political advertising (independent expenditures and electioneering communications, specifically) isn’t anonymity – the alternative (or at least the alternative that we’ve currently got) is just selective anonymity.
If a donor gave a group like AJS ten million dollars a week ago, for example, but is never disclosed to the public on a Form 5 or Form 9 because the group (like the Republican FEC commissioners in the Freedom’s Watch MUR) accurately reads the scope of the FEC’s current regulations to require itemization of only those donors who gave in furtherance of “the reported” communications, does that mean that the officeholder mentioned in the ad – or his or her opponent – necessarily doesn’t know whose money the group is using? Consider: would it break any laws if they did know? It doesn’t seem to be coordination, such that the ad would be an illegal contribution instead of an unlimited expenditure, if a funder simply and privately said to a candidate “By the way, I’m the sole funder of the group that’s airing those ads you’re seeing in your district,” since that’s not “substantial discussion” or “material involvement” under the relevant coordination rules. It’s also hard to look at this set of facts as creating an illegal gratuity, unless we’re ready to start looking at independent expenditures and electioneering communications generally as potential gratuities, and to start criminalizing a broad swath of political activity in the process; and without connecting the ad or the FYI to a specific official act it doesn’t look like bribery either. If there are any other laws restricting this kind of “private FYI about political ad funding,” I’m not aware of them.
My point is that while of course there’s “a message” in the text of a given ad (e.g., “Phineas is a liar and a crook, vote for Ferb instead”), there’s also another message (or messages) in the subtext. “We think this race is winnable,” or “I think this too-cushy incumbent needs a shot across the bow,” or even “Please bear in mind once you’re in office that the group I funded undermined your opponents with $10 million worth of independent expenditures” being only a handful of examples. The question as I see it is whether anyone besides the funder & the candidate in question even gets to hear those messages, much less evaluate them on their merits.
So think about that last example as a case study: how can anyone evaluate “Please bear in mind once you’re in office that the group I funded undermined your opponents with $10 million worth of independent expenditures” on its merits if they don’t know who’s saying it? Or is the public supposed to be satisfied that the candidates or officeholders being supported or attacked in ads like these truly don’t know who funded them either – and if so, why?