Except there is, as I understand it, another set of actors in the election this time around, these 501(c)(4)s, the social welfare groups, which are not required to disclose, right?
Thats right. Advocacy groups are not required to disclose their contributors, and thank God for that, because otherwise they would be driven out of the process.
How so?
Well, because people are concerned about contributing. Generally speaking, people are very reticent to contribute to overtly political entities. Its much easier to raise money for the local charities or the hospital, Catholic Charities, whatever, than it is for political candidates. One of the reasons is associating yourself with political causes is much more controversial than giving to the local hospital.
So is that a good thing? Is secrecy in politics good?
Well, secrecy in government is not good, and secrecy about what politicians are doing is not good, but anonymity for citizens is [a] very important concept, because otherwise people wont associate with them. Look, this was established in the l940s, when the state of Alabama wanted the membership lists of the NAACP [National Association for the Advancement of Colored People]. Well, why do you think they wanted that? What do you think was going to happen when they got that? They knew that if they asked for it, people would be reticent to support the NAACP in Alabama.
Right. I get that, and youre taking an especially charged example with the NAACP in the South in the 40s and 50s. But let me back it up for a minute and get back to the Supreme Court. Justice [Antonin] Scalia is the guy who said, Democracy requires a certain amount of civic courage. Youve got to stand up and be counted.
Well, absolutely, and Im for people standing up and being counted. The problem is that a lot of people are not willing to do that, so are we just going to exclude them? Are we going to have some courage test now to support a candidate, to support a cause that youre in favor of? Or are we going to allow everybody to participate? Look, hes just wrong on this. Surely in the l940s, when the NAACP didnt want its membership lists to be disclosed, surely he would have supported them in that effort, because everyone knows what was going to happen. Number one, people were not going to associate with the NAACP unless they were prepared to get slammed by the local government, by citizens and the community, and thats not the way our politics needs to be run.
These 501(c)(4)s the social welfare groups that are not required to disclose the sources of their contributions doesnt it sort of become shadowy when these social welfare groups can get away with not disclosing where their money comes from?
No, theyre not shadowy. We know who the NAACP is. That is a social welfare group.
Why do you keep bringing up the NAACP? I mean, there are more organizations, right?
Oh, sure. Theres the Sierra Club; theres NARAL [Pro-Choice America]; theres a whole ton of advocacy groups.
On both sides of the political aisle.
Yes. And the reason I bring up the NAACP is because they did go to the U.S. Supreme Court and they did win, and they won a very important principle: that private associations are undermined by public disclosure, so only in the most compelling circumstances is disclosure of their contributors, their members justified. That principle has continued throughout our campaign finance law up to this day, to today, and it is a very important principle. What it means is that only when an organization is a direct political actor in other words, the test that the Supreme Court uses is, is your major purpose electing or nominating candidates? if that is so, you can be required to disclose your donor, but if its not your major purpose in other words, your major purpose is charitable activity or issue advocacy or lobbying then you cannot be required to disclose your donor.
So just to be clear that I understand where youre coming from, these 501(c)(4)s, these social welfare groups you dont believe that are operating in the political arena, you dont believe that theyre primarily political?
Well, again, see, youve painted with a broad brush. You said that are operating in the political arena. Well, what does that mean?
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Should voters know where all the money behind that advertising is coming from?
If its direct political actors, they already do. They are reported. If its a PAC, if its a political party, if its a candidate, they do, because its reported, if they care, and frankly the vast majority of people dont care. They dont give a damn.
If its issues, though, if its these 501(c)(4)s, the public shouldnt know where that moneys coming from?
The cost of the public knowing where that money comes from is too high, because it means people wont associate with those activities and those groups are not directly involved in politics, as we understand it; that is, campaign-related activity.
Its not involved as you understand it, as a student of these laws. Do you think the public understands it the same way?
Well, the public needs to make a distinction between campaign activity and issue advocacy, because theyre different. Theyre directed differently, and they should be treated differently.
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I want to get back into this issue of disclosure, because as you know, Western Tradition was involved in a case with the Montana Commission[er] on Political Practices a couple of years ago. The commission found that Western Tradition had violated Montanas regulations and laws about disclosure and registration, but one of the things that came out in that case was this set of documents from Western Tradition. It was a presentation that Western Tradition used to solicit funds, and what they were saying to their donors was, verbatim, If you decide to support this program, no politician, no bureaucrat and no radical environmentalist will ever know you helped make this program possible.
Now, I understand that you believe that these advocacy groups ought to have the ability to get donations anonymously. Doesnt it, though, when you see this kind of language, doesnt it sort of cast a shadow on what theyre trying to do?
No, not at all. Theres nothing in what they said that should trouble anybody. They were talking about issues. They were talking about their public policies. So, just like the NAACP can raise money anonymously to advocate their position on issues, so can this group, so can any group. So can all groups do that, when theyre advocating issues.
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So its interesting. You talked about politicians, and you talked about the Founders. What is campaign finance law supposed to do for citizens?
Campaign finance laws dont do anything for citizens other than stifle and limit them.
They dont help understand where the moneys coming from? They really dont do anything?
Not anything that they care about. People dont care about that. The average voter could[n't] care less whos funding a politician.
Really?
Of course.
Really?
How many stories have there been on Indiana, on whos contributing to [Republican gubernatorial candidate U.S. Rep.] Mike Pence and to [Democratic gubernatorial candidate] John Gregg? I mean, you could count them on one hand, even though millions of dollars have been raised. Now, it is true that newspaper people care a little bit and as a result write those stories, but the average person doesnt.. Could[n't] care less.
Is it a case maybe of not knowing what we dont know?
No, because you know everything you want to know about whos contributing to Pence and to Gregg, because its reported. You just dont care.
But the people who are running the ads that say this candidate supports gun control or this candidate is opposed to abortion. I mean, well never know where that money is coming from, will we?
Well, it depends on the context, but we may or we may not, but so what? That just means that people are not finding out something that they dont care about.
Do you think people should care about where this moneys coming from?
Generally no, because its the message. You know, you either buy the argument or dont buy the argument. Generally no, it doesnt matter. Truth doesnt change because of whos funding it.
I dont even know what to say. You actually think that?
I actually think that the truth doesnt change based on whos funding it. John Gregg is either a pro-life [candidate] or not. What difference does it make whos funding that? The truth doesnt change. What they say may change, but the truth of whether he is or not and by the way, he is pro-life hes a Democrat running for governor. Whether he is or not doesnt change by whos funding the message on that.
Should citizens in this country be able to find that information? Should they be able to learn whos funding?
Not generally. They dont care.
Thats not the question. Just because they dont care doesnt mean that they shouldnt be able to know, right?
No. Im sorry. Well, then are youre just patronizing them? Sorry, you ignorant Hoosiers, you should want to know this. Well, actually they could[n't] care less because its not relevant to them. Its not relevant.
Youre the one who said they shouldnt know because they dont care, right, and my question is
No, I said they shouldnt be told or shouldnt be disclosed. I forget how you put the question, but to be clear on what I meant, things shouldnt be required based on voter information, which is the only justification for disclosure thats ever been upheld, if they dont care. Its not relevant to them.