Category Archives: regulation

Regarding my last post on the ill-fated DISCLOSE Act, commenter Ben Hoffman writes:

How the [expletive] is disclosure “abridging freedom of speech[?]” There’s nothing wrong with knowing who paid for an ad, especially when it contains lies.

Ben raises a good point, if not very tactfully. The answer to his question is that freedom of speech includes the right to make speech anonymously.

Politics is such a combative sport that even donors are viciously attacked by the other side. Think of how Republicans treat George Soros. Now think of how Democrats treat Charles and David Koch. They are punching bags.

This is a deterrent to speech. It has a chilling effect on people who want to have their say, but would prefer not endure those ad hominem attacks. Or in some cases, threats of physical violence. People like Soros and the Kochs have much thicker skin than most people to endure all the ad hominems thrown their way on a daily basis. Think of how many potential donors stay silent because of that. How much speech is left unspoken?

Supporters of California’s wrong-headed Proposition 8 to ban same-sex marriage feared physical retaliation for their political donations when some activists published the names and addresses of donors who supported the measure, along with unsubtle hints that they deserved retaliation. Opponents of same-sex marriage are wrong on the merits of the issue. But they do not deserve to be threatened for being wrong. For them, the right to remain anonymous is a key part of respecting their freedom of speech.

Mandatory disclosure actively harms the right to free speech. It would cause a lot of people to stay silent when they would rather speak. That is wrong.

But that isn’t commenter Ben’s only concern. He worries that anonymity would embolden people to tell lies in political ads. Would it?

After all, under today’s partial disclosure system, both parties already tell plenty of lies in their ads every election cycle. Partisanship trumps truth for Republican and Democrat alike. But that does not mean that therefore, more disclosure is needed.

Ads that contain the real names of donors are taken with added credibility by people. Anonymous ads are taken with a grain of salt. And sometimes for good reason. That means anonymity has a cost. People hold an anonymous message to a higher standard before taking it seriously. Shockingly, voters are smart enough to come to their own conclusions.

According to the law of demand, raising the cost of anonymity means there will be less of it. If an anonymous ad has less impact of an otherwise identical disclosed ad costing the same amount of money, any rational donors will disclose their names unless they place very high values on avoiding Soros-Koch-style attacks. And if they feel that’s a fair tradeoff for reduced credibility, that’s their right.

There are already plenty of regulations for truth in advertising, libel, and the like. Let’s try doing a better job of enforcing those instead of passing more restrictions on the right to free speech.