Shostack + Friends Blog Archive


Politics and Money: Transparency and Privacy

prop 8 donor map and privacy.jpg(Or, the presentation of self in everyday donations)

So I’ve had a series of fairly political posts about election finance, and in one of them, I said “I’d prefer that the rules avoidance be minimized, and I think transparency is the most promising approach there.”

Well, in the interests of transparency, I need to comment a little in the wake of a lawsuit in California over transparency and Proposition 8. Two stories: “Marriage Ban Donors Feel Exposed by List:”

“Some gay activists have organized Web sites to actively encourage people to go after supporters of Proposition 8,” said Frank Schubert, the campaign manager for Protect Marriage, the leading group behind the proposition. “And giving these people a map to your home or office leaves supporters of Proposition 8 feeling especially vulnerable. Really, it is chilling.”

and today, “Prop. 8 campaign can’t hide donors’ names.”

Setting aside all the irony of proponents of an initiative suing to overturn law passed under another initiative, the law was the law when they made their donations. What did they think was going to happen?

But it’s not all that simple. There’s a strong argument for allowing proponents of unpopular causes to organize themselves in a way which is free of reprisals. For allowing them privacy. There’s important privacy law in NACCP vs Alabama, about the right to associate privately for political change.

On the one hand, I think that privacy is an important right, and should not be subjected to harsh tests. (Had Alamaba prevailed, death by lynching was a likely outcome for at least some of the people on the list. I don’t want to see private association subject to a grievous harm sort of test.)

On the other hand, those who want to take away the rights of others should perhaps be asked to air their public policy beliefs in public. If they can’t take the heat, get out of the kitchen.

On the gripping hand, this raises a hard tradeoff. What should we do? (Whatever we should do, we should keep it civil as we discuss it.)

[Update: Part of the reason I reference NAACP vs. Alabama was to allude to the fact that sometimes the unpopular speech is speech against government. The NAACP fought to keep their membership private because they knew that the Alabama government was lousy with Klan members. Had the list been turned over, members would have been murdered. That in this case, we might see anti-harrassment laws enforced is not an argument against the general need for privacy for those with unpopular views.]

10 comments on "Politics and Money: Transparency and Privacy"

  • Andy Steingruebl says:

    This exact same debate is at the heart of campaign finance reform laws. There is an inherent tension between free speech and money corrupting the political process.
    What I find most fascinating about this specific free speech issue is that it tends to cut opposite many others. Usually the “law and order” crowd isn’t very in favor of free speech, and at least in my mind tends to be associated with a certain political party. But, on the issue of campaign finance, this same group is steadfastly against restricting campaign finance as it limits free speech.
    From the founding of our republic we had anonymous authors involved in politics – take the federalist papers as a prime example. Had they purchased the space in the newspaper rather than having it granted to them anonymously, in today’s world they would have been subject to campaign finance laws within 90-days of the election/ratification. Not really the result we’re looking for given our historical support for anonymous speech in this area.
    Because speech that reaches a wide audience generally has a large expense today, and because we believe that the money corrupts the process, we have disclosure laws. One option is to cut down on the cost of speech through free time on public airwaves, but that still leaves open the question of what to do when most people aren’t consumers of over-the-air TV anymore.
    As always, a sticky issue.

  • David Brodbeck says:

    This case gives me more mixed feelings than most because I feel strongly that the only way to eliminate prejudice is to expose it and make it socially unacceptable. If this had been a campaign against interracial marriage people would be a lot less sympathetic to supporters who didn’t want to be exposed.

  • Dan Weber says:

    People who agree with me deserve privacy.
    People who disagree with me do not.

  • Brons says:

    And, of course, there’s the whole question of whether money really is speech. Legally, in this country, it is at the moment. But should it be?

  • beri says:

    DAvid Brodbeck: The law which prevents other states from recognizing same sex marriage contracted in MA was originally written to allow states not to recognize an interracial marriage. But the intent is the same–to control who people can marry. It is not clear to me why anyone else should have the right to control who marries whom. This is in fact a good argument against civil laws about marriage. Why should the government be involved in marriage at all? But to the point of the post, it is indeed chilling when people threaten those who support a particular law.

  • David Brodbeck says:

    @beri: Yeah, hence my mixed feelings. I firmly oppose Prop 8, and I think it should be uncomfortable to stand for taking other people’s rights away. I have little patience for people who claim to be oppressed while holding a majority position. But I have to remember that this kind of chilling effect can work against things I support, too.
    Ultimately I think I have to come down on the side of anonymity.

  • charles says:

    Beyond the privacy issues which are important and tricky as outlined above, I’m interested in the data to see the demographics of the supporters. It may be surprising to see whether the “Mormons did it” line is true or if the bigotry runs deeper within other segments of the population. It may be more than a liberal/conservative issue. The data will help demonstrate this.

  • Chris Adams says:

    I share the concern but the ability to know who supported a political fact seems too valuable to give up. Tools like seem like the only way to attempt campaign finance reform and remain remotely constitutional, particularly since they only threaten anonymity as far as explicit support for specific people or propositions – you could still have published a treatise on the evils of gay marriage as long as you didn’t tell people how to vote.
    I’m not sure it’s adequate but I’d really like to see how far we could get with aggressive enforcement of harassment laws (has anyone credibly reported a threat?) and a huge helping of remedial education for the bigots who felt that they were still entitled to the support of people they voted against.

  • Cobb says:

    On the margins of a piece of paper that I seemed to have misplaced, I was able to prove that the very concept of a secret ballot is logically threatened by any justification of revelation. It doesn’t matter whether the question is rights, privileges, money, or crime – as soon as the judgment is made that judgment *should* be made about who politically supports what, personal transference is inevitable.

  • The Constitution Is Just a Piece of Paper, Part Deux? says:

    Weber nailed it. It seems like people want to be able to harass their political opponents for voting against their cause, then be allowed to keep their own privacy because their cause is “more just”.
    if some anti-gay group that was known to attack and harass homosexuals wanted a list of major Prop 8 opponent donors to annoy or assault, there would be NO questioning on this blog whether they should get the list or not.
    we have the secret ballot for a reason, and if donor lists start to become a politicized way to harass your fellow citizens, we should consider making them private or in other ways restricting access. Or just getting rid of them in general.
    that applies to every group and should apply to every issue. It shouldn’t be the cliched political football for everyone to suddenly start using to bother their opponents when they didn’t get their way in the election.
    (yes, I know the Constitution didn’t guarantee a secret ballot.. but it should have)

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