Campaign finance regulation is an endless game of Whac-A-Mole. There’s always something popping up to respond to new rules, from soft money to 527 groups to super PACs. This year, the scrutinized group pouring tens of millions into races is the 501(c)(4). That clunky IRS alphanumeric refers to nonprofit social welfare organizations. Because of a loophole, they can also finance political activity. Their donors can give as much as they want, with no public disclosure.
Our reporting on campaign finance with PBS's Frontline got us thinking about a provocative question about anonymous donations. What’s the big problem with them, anyway?
Tackling the question is tricky because it’s so rarely asked. There are fierce arguments about campaign finance, of course, but they’re largely about who (or what) can give and how much. Few people publicly stick up for secret donations. The discourse is dominated by groups opposing secrecy, like Democracy 21, which is led by Fred Wertheimer.
"Secret money spent in elections leads to corruption and scandal," Wertheimer says.
Try to argue against that and one sides with sinister-sounding things: secrecy, anonymity, dark money. All while the opponent stands with open government, sunshine laws, transparency. The very language of the debate is arrayed against the argument before the facts are even presented.
But some do make the counterargument, like John Samples of the libertarian Cato Institute. Ask him about anonymous donations, and he doesn’t use the word secret.
“I think they’re private in the sense that people have a right to be free of sort of undue harassment,” Samples argues.
He wraps anonymous giving in the blanket of privacy. There’s an important distinction between secret and private. Notre Dame psychology professor Anita Kelly spends a lot of time thinking about these issues, though outside the political sphere. She specializes in information people hide from each other. Through the lens of her research, secret and private are totally different.
“Secret information is information that we hide from another person or a group of people and we know that they expect access to that information,” Kelly explains. “Private information is hidden information that we keep and we understand other people don’t expect to know that information.”
It all depends on the expectations of the people from whom the information is hidden. Imagine a banker concealing embezzled money. That’s secret, because his boss and the bank’s shareholders expect to know what’s going on. But if he doesn’t tell his boss that he’s cheating on his wife, that’s private. It’s just not his company’s business. (“But it wouldn’t be private regarding his wife,” Kelly points out.)
Kelly declined to rule on whether political giving is secret or private. Her field is psychology, not politics. But inviting political thinkers to work with her ideas produced some intriguing results.
“I think that’s a great framework,” says University of Chicago political philosopher Ben Laurence, who immediately knew which category he would place political donations in.
“Citizens have a right to know who is behind the attack ads,” he contends. “Given that they have this right to know, the campaign contributions cross that line from privacy to secrecy.”
Another political philosopher, Georgetown University’s Jason Brennan, disagrees, saying donors deserve the anonymity in the same way voters do.
“If you know how people spend their money just in the same way that if you know how people vote and then you have power, you can use that to retaliate against those people,” Brennan says.
Brennan is in the same camp as Samples with his belief that donations are private, not secret. Disclosing campaign giving draws a road map for people in power to retaliate against those who gave to other candidates. For them, a check written to support a politician or idea is as private as the checkmark made behind the drawn curtain of a voting booth. Think of political donations as private instead of secret and they don’t sound so obviously diabolic.
Presented with Kelly’s framework, Tufts University philosopher Lionel McPherson first said he thought donors could give privately as long as groups buying political ads provide information about their leaders and agenda. But in a move befitting one who thinks deeply for a living, after further reflection, he offered a different solution, based on magnitude.
“There’s a big difference between giving $50 or $100 and giving $5 million,” McPherson says. “A person who’s giving $5 million, even if it’s that person’s legal right, seems to me that they no longer have a claim to privacy. They’re no longer really operating as a typical equal citizen.”
Those big checks McPherson is concerned about add up. The Center for Responsive Politics says six years ago, campaign spending by groups that don’t disclose their donors was minimal. But in 2010, anonymous donations accounted for four in 10 dollars spent by outside groups.
They’re spending even more this year -- though how much won’t be fully known until after the election. And we still won't know who gave. As for the question of what the big deal is about those donations, how people answer depends on whether they consider the giving secret or private.