A lot of the yelling and screaming heard about McCutcheon has recently migrated into the debate about disclosure. Charles Krauthammer has complained that the zealots have ruined disclosure as a policy option by misusing donor information to launch attacks on them. And Brad Smith took to the webpages of the Center for Competitive Politics to refute the charge that on the question of mandatory disclosure, conservatives once open to transparency had reversed course, supposedly shifting with the winds now blowing against campaign finance regulation overall.

At least on this question of “hypocrisy,” commentators like Smith have the better part of the argument. It is not hypocritical for skeptics about reform to insist that disclosure policy has its complexities and might not be embraced wholesale. Yes, there was once a time when, in the face of a robust regulatory regime, offers were seemingly made to trade disclosure as a positive good for a liberalization of a complex system of funding limits and prohibitions. But there has always been a line of argument that we need to take disclosure seriously and not as a measure of minimal consequence: that there is no such thing as regulation without bite, even disclosure regulation. It does matter that individuals’ political preferences, expressed in the donations they make, are forced into the public view.

Nor is the concern here solely one about possible retaliation or harassment. Disclosure can also function as the first phase in a broader regulatory program, a “gateway” rule opening the way for more extensive regulation of campaign finance practices. Once political activity is “just” disclosed, it becomes vulnerable to more extensive regulation later, when disclosure is seen not to have quite done the trick. Robert Bauer, Not Just a Private Matter: The Purposes of Disclosure in an Expanded Regulatory System, 6 Election L.J. 38 (2007).

Anyone familiar with the best literature on campaign finance in recent years knows that conservative or libertarian fears about disclosure have been laid out in responsible and well-considered terms. A case in point is that of John Samples of the Cato Institute, apparently one of those recently (and indefensibly) charged with hypocrisy. Samples has written thoughtfully on the subject and has exhibited, in fact, admirable consistency. In The Fallacy of Campaign Finance Reform, he discussed the issues associated with mandatory disclosure, both the costs and benefits. John Samples, The Fallacy of Campaign Finance Reform 273-82 (2006). He showed how the evidence of the benefits has been oversold and the costs understated, and he included among those costs invasions of privacy and the exposure of reported donors to unfavorable publicity and possible harassment. Id. at 279.

But if the charge of hypocrisy is wildly misplaced, so, too, does Krauthammer go overboard in his suggestion that the uses of reported information discredit the disclosure project. It cannot be said that these abuses are widespread; it is not typical for the individual donor to face active public condemnation or retribution based on their reported campaign contribution activity. Selecting examples where this may have taken place, for the purposes of bringing the entire disclosure policy into question, does not amount to much of a case against mandatory disclosure. All  regulation in this field comes with a cost: one has to look no further than the statutory authorization of private party complaints that allege illegal conduct and urge investigations. Krauthammer’s line of argument, as lawyers like to say, proves too much: under his theory, no regulation would be feasible.

The Court in Citizens United, then again in McCutcheon, has averred that disclosure remains a regulatory option well within constitutional boundaries.  It almost seems that the Court is pushing the debate into this direction. At the same time no one can reasonably suggest that the debate should not take into account concerns raised about disclosure—even concerns raised more moderately, less zealously, than Krauthammer. After all, the protection of certain contributions from fully public transparency is already reflected in federal campaign finance law, as, for example, where nonexecutive employees solicited by the company PAC contribute under conditions intended to safeguard their anonymity and protect them from feared or potential job-related reprisal based on their making, or declining today, a contribution. 2 U.S.C. § 441b(b)(4)(B).

So we might as well have that conversation. Some have begun to think seriously about it, like the eminent political scientist Bruce Cain. We see some movement in this direction by commentators outside the academy. Whatever one thinks about the different ways that these concerns about the costs of disclosure can be accommodated, it is not a question in the end of whether to have or not have disclosure. It is difficult to conceive a politics in the country that accepts campaign fundraising and spending without any transparency. So it is better to talk about the policy alternatives and lay aside for the time being the determination of who is being a “zealot” and who a “hypocrite.”