Should People’s Political Donations Be Public?

Daniel Solove
Founder of TeachPrivacy

Privacy of Political Donations

Pursuant to the Federal Election Campaign Act (FECA), people’s campaign contributions must be accessible to the public. I’ve long found this to be problematic when applied to the campaign contributions of individuals. Certainly, information must be reported to the government to ensure that campaign contribution limits aren’t exceeded. But I don’t know why it is the public’s business to know what candidates I’ve given money to and how much. Go to Moneyline CQ or Fundrace2008 or OpenSecrets.org and you can search for the campaign contributions of anyone. You can learn a person’s address, occupation, and the amounts he/she contributed and to whom.

I find this problematic for at least two reasons.

1. I believe that the disclosure of people’s campaign contributions violates the First Amendment. The First Amendment protects one’s right to privacy in one’s associations, and campaign contributions often reveal one’s political party affiliation. I disagree strongly with Buckley v. Valeo, 424 U.S. 1 (1976), the U.S. Supreme Court decision that holds that FECA’s public disclosure requirements satisfy First Amendment heightened scrutiny. The Court justified its holding based on the need to “alert the voter to the interests to which a candidate is most likely to be responsive,” to “deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity,” and to “gather[] the data necessary to detect violations of the contribution limitations described above.” The first function doesn’t strike me as relevant when it comes to individual contributions. Is the fact that Person X contributed $100 to Candidate Y likely to reveal interests to whom Candidate Y will be beholden? The second function — exposing corruption — could be done by a government agency vetting the contributions. Likewise for the third function.

Professor William McGeveran makes a persuasive argument that Buckley‘s holding should be rethought in light of modern technology, namely searchable databases like the ones I mentioned above. He contends that people might be chilled from making political contributions because of negative professional consequences or the stigma of being associated with unpopular non-mainstream candidates. William McGeveran, McIntyre’s Checkbook: Privacy Costs of Political Contribution Disclosure, 6 U. Pa. J. Const. L. 1, 19, 30, 38 (2003).

2. Another problem with making the data so publicly accessible is that it facilitates abuse by employers or others who might discriminate against people because of their political views. For example, the DOJ Report on the illegal and improper hiring practices based on political beliefs by Monica Goodling and others demonstrates how readily accessible information about political contributions can be used in nefarious ways:

We found that Goodling’s Internet research on candidates for Department positions was extensive and designed to obtain their political and ideological affiliations.

We determined that while working in the OAG, Goodling conducted computer searches on candidates for career as well as political Department positions. . . . At some time during the year Williams served as White House Liaison, she had attended a seminar at the White House Office of Presidential Personnel and received a document entitled “The Thorough Process of Investigation.” The document described methods for screening candidates for political positions and recommended using www.tray.com and www.opensecrets.org to find information about contributions to political candidates and parties. The document also explained how to find voter registration information.

 

Originally Posted at Concurring Opinions

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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.

Professor Solove is the organizer, along with Paul Schwartz, of the Privacy + Security Forum and International Privacy + Security Forum, annual events designed for seasoned professionals.

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