Who’s Against Transparency in Government? A Guest Post

Peter Hain has resigned as the U.K.’s Secretary of State for Work and Pensions because he failed to declare “donations to his campaign for the Labour deputy leadership worth more than ?100,000.” But Bruce Ackerman and I think that the campaign disclosure law is misguided, and suggest an alternative in an op-ed that we wrote in The Guardian.

Transparency in government has a glorious tradition. Justice Louis Brandeis long ago said, “publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” But there exists in our government a central mechanism of democracy that stands against this cult of disclosure — the voting booth. Ballot secrecy was adopted toward the end of the nineteenth century to deter political corruption. Before the secret ballot, people could buy your vote and hold you to your bargain by watching you place that vote. Voting booth privacy disrupted the economics of vote buying, making it much more difficult for candidates to buy votes because, at the end of the day, they could never be sure who had voted for them.

A similar anti-transparency argument can be applied to campaign finance. We might replicate the benefits of the voting booth by creating a “donation booth,” or a screen that forces donors to funnel campaign contributions through blind trusts. Like the voting booth, the donation booth would keep candidates from learning the identity of their supporters. Just as the secret ballot makes it more difficult for candidates to buy votes, mandating anonymous donations through a system of blind trusts might make it harder for candidates to sell access or influence because they would never know which donors had paid the price. Knowledge about whether the other side actually performs his or her promise is an important prerequisite for trade. People — including political candidates — are less likely to deal if they are uncertain whether the other side performs. The secret ballot disrupts vote buying because candidates are uncertain how a citizen actually voted; anonymous donations disrupt influence-peddling because candidates are uncertain whether contributors actually contributed.

So instead of mandating transparency, we might do better to mandate a kind of non-transparency.

Adam Liptak recently reported on another study showing that the decisions of judges are biased in favor of their contributors:

In nearly half of the [Louisiana Supreme Court cases reviewed], over a 14-year period [that] ended in 2006, a litigant or lawyer had contributed to at least one justice, sometimes recently and sometimes long before. On average, justices voted in favor of their contributors 65 percent of the time, and two of the justices did so 80 percent of the time.

But instead of stepping away from the democratic advantages of judicial elections, it would be possible to mandate that contributions to judicial candidates be given anonymously — through something like a donation booth or a blind trust.

As it turns out, we’ve already experimented with donation booths in regard to judicial elections. The commentary to the 1972 Code of Judicial Conduct (“CJC”) stated that, “the [judicial] candidate should not be informed of the names of his contributors unless he is required by law to file a list of their names.” The CJC authors wanted anonymity to reduce just the kinds of corruption that Liptak discussed. A requirement of anonymous donation was subsequently adopted — and, to varying degrees, applied — in eleven different states (Arkansas, Colorado, Nebraska, North Dakota, South Carolina, South Dakota, Tennessee, Utah, Washington, West Virginia, and Wyoming). Post-Watergate, most of these states stepped away from mandatory anonymity when they passed across-the-board disclosure statutes.

But the rationale, of course, for the 72 code is manifest: judges don’t need to know the identity of their donors. Judicial decisions should be based on the merits of cases, not on contributors’ money. As such, there is similarly no good reason why legislators or executives need to know the identity of their donors. An individual’s power to influence government should not turn on personal wealth.

Bruce and I (and Jeremy Bulow and I) have been writing about the virtues of a donation booth for a while. You can learn how we respond to the “cashed check” problem, and even read a model statute in our book, Voting With Dollars. If you like the idea of a donation booth, or our related idea of contribution vouchers, you can learn more about how to make them a reality at http://www.citsov.org/.


paulwesterberg

What is to keep the operator of the blind trust from skimming off the top?
What is keeping those that donate large amounts from sending their receipts to the politician?
What is keeping large corporations or other countries from donating to the slush fund and illegally influencing the election? What keeps them from running attack ads that influence the election?

This is our current system an elected official:
1. receives a large contribution from the military industrial complex.
2. votes to increase defense spending, wage war etc.

Under the new system an Elected official:
1. votes to increase defense spending, wage war etc.
2. receives a large contribution from the military industrial complex.

I don't think that politicians would ever voluntarily give up access to their donor list.

I think we should mandate that TV and radio spectrum licenses require that candidate debates be aired. Congressional votes should be compiled in a database with online access provided so that constituents can easily see how votes were cast.

Campaign financing should be based on a checkoff boxes on your yearly tax form where a citizen could either choose to support their current elected official or to support challengers to their elected official. Either choice would not increase the amount of taxes paid. A citizen would not need to be a millionaire in order to campaign for office.
This would cut down on wasteful spending in government and make sure that politicians worked on behalf of all of their constituents and not just those wealthy enough to buy influence.

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Nick

Much like Zach, above, while I like this idea in theory, I think it will prove too easy to circumvent in practice, for anyone who desires to do so. Off the top of my head, if the candidate can see an itemized list of donation amounts, it would be trivial for a major donor to prearrange a checksum with the candidate in advance, and then pick donation amounts that conform to it. I.e., if the donor's number is 22, they might make a donation of $1,993.22 (the digits before the decimal sum to 22, which is the number following the decimal). The candidate could then simply scan the list for all donations ending in 22, and then check the value against the sum of the relevant digits. Any donations matching could be safely assumed to come from that donor. This particular problem could obviously be solved by making it illegal for the candidate to see a list of the amounts donated to them (if this is even feasible- I feel like there are probably justifiable reasons to see such a list, like verifying that individual donations don't exceed a maximum value), but I expect similar workarounds could be found for nearly any system. Anonymity protections only really work if the anonymous party WANTS to be anonymous - if they don't it will most likely be possible to come up with a way to prove identity.

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John Bigenwald

So to get rid of buying influence we need another government agency to dole out money to the candidates. How, where, when, who's eligible... there are a million different variables that we would expect government to control -- I don't know about you, but I don't have the greatest confidence that they will do it well.

A secret ballot protects the person casting the vote. A person likely values their own safety over an individual vote - so by protecting me from those prying eyes I can freely vote my conscience.

Playing a shell game with the money only serves to protect the candidates from having to explain/defend (or in Hillary's case, refund) donations.

Immediate publication of donors is the best way to know who is supporting a candidate -- and that is the way to know when something hinky is happening.

With hidden contributors Norman Hsu is still a friend of Hillary - even if he didn't have to find $2,300 in the couch cushions at every house he visited. With hidden contributions Ted Stevens' Bridge to Nowhere goes somewhere. I understand the idea that this would somehow break the quid pro quo of contributions, but that assumes a level of competence our government hasn't been able to muster since Apollo.

Rather than build a billion dollar bureaucracy, I'd rather tell the campaigns they need to publish their donors within 24/48/72/whatever hours. More information, not less, is the way to hold candidates accountable.

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Tucker

But are we preventing candidates themselves from fundraising? This seems reasonable for individual campaign donations and eliminates the problem of influential bundlers, but some of the fundraising is done by the candidates themselves. So either you can't have fundraising events (especially dinners) where the candidate is there and talking to/being influenced by people there or those people would be favored. This seems to be a pretty central hole in the problem.

grumpyoldlady

Not many private individuals really have the money to buy elections these days - the real problem is with the corporations and the unions and the trade associations and all of the "soft money" groups. So why not take the groups out of the equation altogether? How's this? Every dollar (including contributions in kind such as donated TV time) contributed to a campaign must come from a registered voter eligible to vote in the race being contributed to. That takes out all the pressure groups; it also eliminates the outside organizations that weigh in on state and local issues.

brad

#19 I'm not in the USA, so I'm not fully familiar with your system, but I like your idea.
I think a great wrong was done when companies were recognized as people. Yet, they can donate to campaigns, but can't vote?
As you say, only citizens should be able to influence a plebiscite, through voting or funding.

Bill Corbett

Proving Ian's point a week later (from the Washington Post, 2/14/8): "The National Association of Home Builders, one of the top 10 corporate donors to politicians, has stopped contributing to congressional candidates after it failed to get what it wanted in recent anti-recession legislation."

The full story is at http://www.washingtonpost.com/wp-dyn/content/article/2008/02/13/AR2008021303699.html

B K Ray

Not a bad idea at all, infact it is a very good idea. I like it.

Dave Thoman

Obviously a bit idealistic in it's presentation, but given the rut we're in right now I see no reason it shouldn't be given a good look.

santos

a similar idea is public financing. mandated public financing. this would, of course, require buckley be overturned or a constitutional amendment.

the flaw with your system though is what's to stop contributor X after having deposited $Y in legislator Z's blind trust from just having a dinner and saying "btw i gave money to your committee, here's the canceled check to prove it." even if you prohibited that type of communication it would be a nearly unenforceable prohibition. basically if this were to work the donors wouldnt be able to designate who the money is for but merely pay into some kind of general pot of money for all the candidates. but why would they do that? there wouldnt be enough money so it'd have to be subsidized. so we're pack to public financing. it's really our only option.

B K Ray

Ohh, I may be a bit of an idealist, but I still thing this is a good idea.

To chappy: It is unfair to reduce set up for a specific circumstance because it does not work for a circumstance it was not set up for.

to Zach: I thought that exact same thing, but if the politician can find that out, then it is not as blind a trust as is needed. Actually, is not to stop people from contributing to a candidate they believe in, but to stop the candidate from being beholden to people other than voters. I think if the trust were blind enough, it could be successful,, but politicians being the hustlers that they are,will find ways around it. If this is true, then we get what we deserve for electing hustlers and that is hustled.

to AaronS: Naah,The academy thing would give us a rather incestuous politic (of course we would not have gotten George Bush either) I like our current specs, natural born citizen over the age of 35. The specific amount of money would be good if we were electing CFO's but we are not. A president is not simply a fiscal policy, there are other issues that they have to deal with as well.

Micheal, if we can not trust the system, that is all the more reason to change it. It is hard to believe in our jaded and cynical times, but there are people who given the chance will do a good job.

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Daniel

Zach,

According to the plan in Voting with Dollars, money would be given anonymously to the FEC, and they would roll out your donation in random increments to the candidate of you choice. So in the case you described, it'd be impossible to tell where said money was coming from, because it doesn't resemble the specific amount you gave and it's being pooled into all the other contributions to that candidate.

The one thing I wonder about the Voting with Dollars system is would it be deemed unconstitutional in light of Buckley v. Valeo? The ruling, in my perhaps oversimplified interpretation, was that the contributions and expenditures of a political campaign was an expression of free speech and could therefor not be infringed upon (expenditures could not be limited in any shape, contributions could be limited within "reason"). Any legal experts care to shed some light on this? Would Buckley v. Valeo need to be overturned for this system to work? Oh, to dream...

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Holly

Why oh why would anyone ever donate to a politician if the politician doesn't know about it?
They wouldn't! I have worked in gov't, in campaigns and in elections. People donate to gain access - not to buy votes. There are other ways to gain access, but they require hard work and a valid sphere of influence - but that type of power is as vaid as the money kind. I can't think of anybody who would donate blindly. I believe in the system, love politics, love my country - but I'd rather give money to the church if it's gonna be anonymous!

David

The problem with transparency in the current system is that it isn't transparent to EVERYONE.

The politician knows how much each donor has given him and the donor knows how the politician has voted. However, the average citizen knows how the politician has voted, but doesn't really know how much money the politician has recieved from each donor. This makes it difficult for citizens to take corrective action (vote the politicain out of office).

Michael

Holly/post 12:

You might donate to a politician because you wanted them to win an election. Imagine the reasons you would give a politician your vote. If you're willing to vote for them, you're probably willing to slip them $20.

Well, personally there aren't any politicians I'd give $20 to. But I gather some people are pretty passionate about this stuff.

Likewise, if you were a business you might want to 'invest' in a politician as their policies would benefit your company. If you were General Motors, makers of the Hummer, you might prefer a politician who wouldn't enforce emissions/fuel efficiency standards, as making your product illegal would be bad for business.

Shan

I'd expect a policy like that to drastically reduce campaign donations. Many people who make large donations don't do it just because they think that their donation will make the world a better place... they do it because they want the candidate to be indebted to them.

yc

As many said above the idea seems to have a few loop holes... perhaps making it double blind could work - instead of donating to a particular candidate, the money goes to a general fund that all approved candidates will get equal access to, so not only the candidates don't know who the donor is, but the donor also can't place bet on a single candidate.

Ken H

I like it a lot! In all likelihood, contributions would go down due to the lack of direct exchange. (I can't be assured of a personal commitment by the candidate to my person agenda, so why give as much?)

Then, campaign spending would go down due to reduced funds.

Then, candidates would defer the start of their campaigns due to the resource limitations.

Then, we'd have shorter, more rational campaigns, perhaps more akin to those in the UK and other countries.

Yes, indeed, I do like it.

Doc Bellingham

When Evan Davis ran against Elliott Spitzer in 1998 for Attorney General of New York State he did exactly that: He asked for all donations to his campaign to be anonymous. His treasurer kept the record of donations according to election law but neither Mr. Davis nor his political staff was given the names of donors so that if elected, he could be totally independent of the pressure of large donors. Of course, Elliott Spitzer raised substantially more money because donors knew that large donations guaranteed, if not favorable treatment, at least access. And of course, Spitzer won.

chappy

Great idea in concept, but totally unreasonable in practice. Sure, take away the quid the pro and the quo, but unfortunately the reason people give in the first place is the fact that they want something in return.

For example why not get rid of tipping on your check at a restaurant and just have a blind pot? Well, the server wants some money and the patron would like good service. There really isn't as much incentive for either to pay if it is less direct.