Info/Law

I’ve been thinking and writing again about the topic of my very first full law review article: the role of “sunshine” in our election system and the way it can compromise individual privacy. In the internet era, personal convictions and associations may be burned by too much sunshine. Of course, the public deserves to know about the big donors who effectively fund political campaigns. But knowing the identity of ordinary people who write small checks, sign petitions, or cast ballots doesn’t help inform voters, and it can squelch participation in politics — especially by those with unpopular views, and those who want or need to maintain an apolitical public persona.

Last week I testified before the Minnesota Campaign Finance Board, which is considering new disclosure rules. As I summarized it there, “When blind dates Google you, when employers conduct background checks, when advertisers target sales pitches, when neighbors visit websites that mash up campaign finance records with maps, they discover your political beliefs.” (I have reprinted my full five-minute statement after the jump below.)

While the Board did pass its proposal, the members and staff indicated that they will work with me and others to minimize privacy-related problems. (Of course, with Minnesota’s government shutdown, that work has not yet begun. Even the Board’s web site is offline.)

In addition, I just published an essay as part of a great symposium on privacy and election law held by the William & Mary Institute of Bill of Rights Law exploring these ideas in greater detail.

With another election looming, we are going to see the most extensive use yet of publicly disclosed political activity as a data point to be mined and indexed. I’m all for sunshine, but only if we protect privacy where disclsoure does more harm than good. (The testimony is after the jump.)

Testimony of William McGeveran
Associate Professor
University of Minnesota Law School
Minnesota Campaign Finance and Public Disclosure Board
June 30, 2011

My name is William McGeveran, I am a law professor at the University of Minnesota Law School. One of my specialties is data privacy law, and in that context I have studied disclosure requirements in election law. I’ve distributed to you two law review articles that I have written on the topic.

Thank you for permitting me to speak this morning. I apologize that I was not aware of your work on this issue before the previous meeting when you received other public comments. Hopefully my expertise will be useful to you.

Disclosure imposes serious privacy costs on individuals who donate money, sign petitions, or join groups. This is political engagement we should encourage, just as we encourage voter turnout.

The privacy costs can rise to the “threats, harassment, and reprisals” discussed in Buckley v. Valeo and its progeny. But in another case, McIntyre v. Ohio Elections Commission, the Supreme Court recognized a more robust understanding of privacy rights for political speech and association, declaring: “The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible.”

Thanks to ubiquitous online search and the multibillion dollar data mining industry, information about your political activity is now attached to your personal profile in diverse contexts. When blind dates google you, when employers conduct background checks, when advertisers target their sales pitches, when neighbors visit web sites that mash up campaign finance records with maps, they discover your beliefs.

On the other hand, the benefits of disclosure often are overstated. The courts have found no anti-corruption interest applicable to initiatives or referenda. That leaves only one justification for disclosure: providing information to voters. But modest-sized contributions from individual citizens — as opposed to those from organizations — tell the public very little about the merits of a ballot question.

With that background, I want to make four brief points about this proposal.

First: Personally, I am adamantly opposed to the upcoming marriage amendment and I expect to donate time and money to defeat it. But this does not change my long-term views about disclosure, privacy, and ways to encourage an engaged grassroots citizenry. The structural rules for political association ought to respect the privacy and speech interests of all Minnesotans, no matter their views or the current hot political topic.

Second: Your task has been framed simply as authorizing the maximum disclosure permitted by the Constitution. I’m not sure your discretion is as limited as that. But even if it is, that standard provides little guidance. There is no Supreme Court precedent on this particular issue. The tea leaves available from other decisions conflict with one another. Some cases praise anonymity, others transparency. Inevitably, this Board will choose the best disclosure policy for Minnesotans, not simply execute instructions from the Supreme Court. You must consider the privacy costs exacted by disclosure rules.

Third: If there is any informational benefit from disclosure, it applies only to donors who give a significant amount of money – the so-called “big fish” who bankroll campaigns. I am one of a number of scholars who has suggested that thresholds triggering disclosure ought to be much higher than they are now, perhaps as a constitutional matter but definitely as wise policy. I have a hard time imagining voters learning anything about a ballot question by knowing that John Smith gave a few hundred dollars to one side or the other. The best rule would not require disclosure until an individual contributed a total of at least $5000 to a particular referendum campaign.

Finally: You cannot ignore the very real problem of undesignated donations which in turn fund a campaign. As I read the current proposal, John Smith can donate to the Catholic Archdiocese, which in turn donates to the campaign for the marriage amendment, and Mr. Smith essentially will be treated as a donor to the campaign rather than a funder of anti-poverty work. That disclosure may misrepresent the individual’s views on a contentious issue and raises serious privacy concerns. Its enforcement also risks violating NAACP v. Alabama and its progeny, which protect the right of anonymous association. I hope you will limit disclosure only to those who gave donations for demonstrably political purposes.

Thank you for your consideration.

Filed under: Anonymity, First Amendment, Internet & Society, Minnesota, Politics, Privacy, Scholarship, Voting