In an interesting Washington Post article, Professor Heather Gerken has proposed with co-authors a new strategy to advance  a core reform objective, the enhancement of transparency, as other options seemingly dwindle after CItizens United and McCutcheon. Heather is well known and well-respected for just such an insistence on thinking beyond the well-traveled, now largely exhausted policy choices. A good example is the Democracy Index, which she constructed to “harness politics to fix politics,” by generating political incentives for the improvement of performance on election administration through the publication of public rankings.

What she and her co-authors now suggest is that 501(c)(4)s and other organizations not publicly reporting their finances be required to disclose that they do not disclose. Public opinion would do the rest: politics would be harnessed to fix politics.   Suspicious that the advertisers won’t say who is paying for their messages, the audience would be mistrustful, the ads would have less value, and donors would have reason to doubt that their money is well spent.  Money might then flow to messages financed by disclosing organizations.  This mode of attack, Gerken et. al believe, might also help with the “whack-a-mole” problem: that regulators and lawmakers must chase ever-changing organizational forms, from “527” to 501(c) organizations. This new regulatory program would target the ads, irrespective of the type of sponsor.

It is an original suggestion but not one likely to move the debate beyond the critical question of the role government should play in regulating political activity.  Those  most troubled by how far we might allow elected officials to go will not be pleased with the Gerken et. al proposal.

We might assume that a government that enacts this law could pass one that imposed disclosure requirements directly.  But if this were not the case, the proposal could allow a government that is unwilling or unable to enact those requirements—an incapacity resulting from deep legal and policy disagreements—to resort instead to a form of “shaming.” The “ought” will be replaced by a “you don’t have to but really should.” And the government will be telling the public that it should take with a grain of salt any organization refraining from actions the law does not compel—even, some organizations would say, actions that they are entitled to take in exercising First Amendment rights.

But if we posit that the government could require disclosure but chose the Gerken et al version as an omnibus measure to solve the “whack-a mole” problem, strong and loud objections are still certain to be heard.  The disclosure disclaimer that Gerken et al propose is quite different from other such notices now required by law, and not clearly an improvement. Normally, a notice is meant to bring to the audience’s attention what they could not fairly be expected to uncover for themselves. That a medication should only be taken so many times every 24 hours, to cite an example from outside the world of campaign finance.  Or within that world, that an ad was paid for by a specific organization and not authorized by any candidate; or that its content was “approved” by the candidate.  Here, however, anyone interested to know whether an organization disclosed its donors could readily find out that it did not—because no such disclosure would be available, whether this became clear through Internet inquiry or a question put directly to the ad sponsor.  The purpose, then, of this proposal is not to establish as an affirmative policy that there is information that the public should have and that only government intervention can provide.   The proposal is crafted to suggest that there is information missing that should have been supplied and is being withheld.

On this theory, if Congress had enacted a “stand by your ad” requirement, it could have passed a law compelling organizations to state either that the candidate approved the ad or that “the candidate whose committee paid for this ad chooses not to state whether she approved it.”  The applications are arguably limitless and a little disturbing.  The kind of “nudge” this proposal envisions has the government disseminating its opinion of lawful disclosure policies that groups may adopt—equipping the government with an editorial function.  Putting the government on this path  stands little chance of helping to resolve the stalemate in campaign finance law and policy.

In any event, why should Congress not have to consider on its merits each and every form of disclosure as it affects different organizations? Political committees registered under the FECA, 527s and 501(c)(4)s do not all share the same purposes or engage in the same activities; not all of them have the same intent or effect in influencing voter choice under the terms of standing statutory or constitutional law. While  Gerken et al express confidence that disclosure is “constitutional,” they understate the doctrinal and practical complexity of applying disclosure requirements to various forms of speech financed by different types of organizations.  The continuing spat over what distinguishes “issues” advertising from campaign advertising has run on for years, with no sign of a generally accepted conclusion.  Perhaps the most challenging aspect of this proposal is the excuse it gives lawmakers to ignore the hard questions.

Still, Gerken and her colleagues have offered fresh thinking on reform and, in this field, that is reason enough to appreciate the contribution and to welcome the debate it may inspire about solutions shaped by her concept of “harnessing politics to fix politics.”

Meanwhile, there is another proposal out of Yale, from Professors Ackerman and Ayres, that would establish special contribution limits, including no contribution allowance at all, for those with different interests in public policy.  They suggest a ban on contributions for donors who benefit from Congress’s retention of tax breaks for “carried interest,” and a limit on contributions for those who pay a lower rate of tax on their income than the average American worker. What to say about this? First that it is based on the existing “ban” on federal contractor contributions, but not at all persuasively, because that limitation is narrow in scope and provides individuals and organizations with interests in federal contracts various means of participating as donors in the federal electoral process. Second, that it is a constitutional dead end, and not just because of the current composition of the Supreme Court.