On McCain Feingold’s birthday, commentators marked it in various days.  Rick Hasen noted the contributions of "conservative" critics, but one of these, Jonah Goldberg, allies himself with a prominent progressive critic, Mark Schmitt, whose disillusionment with the law has received wide attention.  On both left and right, there are doubts. 

     Now the argument began, many years ago, with the question of whether campaign finance regulation controlled just "money" or also "speech."  It is an unresolved question for many, but it is also eclipsed by developments in the law which have come to be very much about speech.  A sterling example is McCain-Feingold’s stand-by-your-ad requirement, the purpose of which was to shame candidates into closely considering, if they were to have to publicly embrace, the ads run in their name.

     Which ads?  The negative ones, including those (as another McCain Feingold provision specifically provides) that "refer" to another candidate, i.e. their opponent.  This requirement that candidates own up to their ads is not about the corruption of officeholders, but about the corruption of speech, and its premise is that there is good and responsible speech much preferable to slanderous, negative utterances.  The stand-by-your-ad requirement is not the only expression of this complaint about rude and reckless speech.  The pre-election broadcast advertising bans—imposed on ads financed to any extent with corporate and union funds—were aimed in part at distasteful speech, an objective that legislators debating the measure frankly acknowledged.
 
      About political matters, people tend to speak with passion—often negatively, as it happens—and this speech is now migrating under regulatory pressure to the Internet (not that there is a shortage of it on the airwaves or in the mail).  Among observes keen to clean speech, this is a source of concern.  For the Internet’s advantages include the chance to speak anonymously and anonymity is a spur, it is feared, to "negativity."  Michael Scherer, writing for Salon, is incensed:  this is a "loophole" through which negative speech is escaping disclosure and control.  Scherer is desperate:  he sees temptation and opportunity in abundance for "hired political hucksters and hatchet men, dirty tricksters and campaign saboteurs."  We will have to anticipate, Scherer warns us, "online smear campaigns whose sources could be hard to trace." 

      "This has to be watched," Fred Wertheimer, reform leader, advises Scherer.  By whom?  Mr. Wertheimer, careful in his choice of passive construction, must be referring to organizations like his own that "watch" for this sort of thing—then devise legislative remedies appealing to politicians who are naturally distressed by negative speech, would like to stop it, and would insist toward this goal that its authorship be publicly exposed. 

      Since few aspiring censors will admit openly to their purposes, the appeal to "disclosure" has given them the moral authority, in public argument, that they need.  The stand-by-your-ad requirement is defended as a "disclaimer" requirement, a species of public disclosure.  Just as an ad must carry a statement that it was paid by the campaign, not by another, so now it must also notify viewers or listeners that the candidate knew and approved the content of the communication.  It is presented as nothing more than a "disclosure."  Its function, in fact, is to create disincentives for certain kinds of messages, negative in tone and content.  But "disclosure" sounds so much better.

      What does the general public, in whose names these measures are passed, think about all this?  The Institute for Justice has published a study of their attitudes, conducted in six states that require the disclosure of personal information about contributors to ballot initiative campaigns.  It discovered that disclosure is attractive in principle—unless it threatens to affect the individual engaged in the evaluation.  Some 80% of the more than 2,000 citizens sampled concur that government should compel disclosure of donor information, but more than half object to the publication of their own name and personal information—and an even larger majority oppose employer identification as part of any disclosure requirement. 

     The study’s author, Dick M. Carpenter, notes dryly that "support for disclosure wanes considerably when the issue is personalized."  Disclosure Costs at 8.  And these citizens don’t use this information; they don’t seek it out in "informing" themselves on the issues.

     Carpenter proposes that we leave disclosure to the choice of ballot initiative committees and thereby rely on political incentives and not legal compulsion.  It is an interesting notion; it is well worth serious consideration but it is unlikely to receive it. 

     This is because “disclosure” is a regulatory tool; it is meant to serve the government’s purposes, not only or even primarily those of individual citizens in need of information.  A proposal for "voluntary" disclosure cannot answer the need to compel or prohibit certain behaviors.  Hence, Sherer, in Salon asks: "Will those who secretly pay to produce the videos be able to hide behind YouTube, or will they be forced to come forward?" (emphasis added).  This is a large part of disclosure’s work:  to force outcomes, not principally to inform free voter choice.

     After all, voters keep responding to "negative" messages:  for better or for worse, they pay attention to them.  To some this is unacceptable, an example of malfunction in the marketplace for "deliberative democracy."  Since the voters can’t be changed but the law can be, reforms, including McCain-Feingold, strike at the source of the questionable speech with the goal of limiting its supply.

      It is only disclosure, reform advocates argue:  and what could be wrong with that?

Bob Bauer