Why federal campaign finance disclosure laws are unconstitutional

Why federal campaign finance disclosure laws are unconstitutional

This article originally appeared in The Hill.

Many on the left are campaigning to “overturn Citizens United.” By this they mean they want to reverse the portion of Citizens United v. Federal Election Commission in which the Supreme Court upended a federal ban on corporations participating in candidate elections independently of the candidates’ campaigns.

The effect of the court’s ruling is to allow citizens to utilize the corporate form when participating in politics. By an accurate reading of the Constitution, the ruling was correct—not merely because contributions are protected by the First Amendment, but for a more fundamental reason: The Constitution, as originally understood, grants Congress no power to govern political campaigns. Although it does grant Congress some authority over the mechanics of congressional electionsregulation of campaigns was reserved to the states.

But Citizens United included a second decision, one rarely mentioned. In this part of the case, the court upheld federal laws requiring contributors to political ads to publicly reveal their names.

Unlike the first ruling, the second was a constitutional mistake. Although the court has since reaffirmed its position, it should promptly reconsider.

At the heart of the court’s error is the assumption that political advertising is an example of what the First Amendment calls “the freedom of speech.” In fact, it is what the First Amendment calls “the freedom of the press.” The distinction is crucial.

When the First Amendment was ratified, freedom of speech was exercised in person, so the speaker’s identity was almost always known. Freedom of the press, was exercised through a medium that enabled the author to remain anonymous.

The founders did not have electronic media: Their media were pamphlets, letters, posters, handbills, and newspapers. But the nature of the medium is irrelevant to the meaning of the First Amendment: Its phrase “freedom of the press” inherently included the right of the author to conceal his identity.

We know this, in part, because the founding-era records contain statements explicitly saying so. Writers on freedom of the press staunchly defended an author’s right to privacy. They contended that privacy enabled an argument to be considered on its merits without regard to the popularity of the author. Privacy encouraged contributions from the timid and the vulnerable. Privacy protected authors and their families from retaliation. Privacy enabled a person to participate in public debate without public debate taking over his or her life.

We know this also from how freedom of the press was exercised during the Founding Era. Writers on political subjects almost always concealed their true names by using pen names or not signing at all. The Federalist Papers were the most celebrated example of the dominant custom.

There was really only one limit to the right to author privacy. If a text was defamatory, treasonable, or otherwise represented a crime or civil wrong, a prosecuting attorney could insist that the media outlet reveal the author’s name. Otherwise, the author’s identity was no one’s business.

An incident that occurred in 1782 is illustrative.

An author had placed an article in a Philadelphia newspaper criticizing state government. Hearing that the editor had revealed the name of the critic to the governor, another writer accused the editor of “treachery.”

In response, the editor explained that the governor had indeed asked the editor for the critic’s identity, but only (said the governor) “if you are at liberty to mention his name.”

In response to the governor’s request, the editor asked the author whether the editor had permission to reveal his identity. The author responded, “You are at liberty to give my name to his excellency.” Only then did the editor comply with the governor’s request.

So not even an editor—much less the government—could disclose the name of an author who wished to remain anonymous. And if the author had not been consulted, anonymity was assumed.

The founders would have found the congressional law mandating disclosure of contributors to political advertising to be a gross—and very dangerous—violation of the First Amendment. 

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