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 andMcCutcheon. 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.