Supreme Court Justice Louis Brandeis’ famous maxim, that “sunshine is the best disinfectant,” has long been the basis for our nation’s government ethics laws requiring disclosure. This principle is not true in all contexts, however. Sometimes, sunshine can create a glare that distracts or blinds us from the really important issues. Such may be the case with issue advocacy groups, like the ones that have played such an important role in the current health care debate.
[IMGCAP(1)]Groups on both sides with innocuous-sounding names, like Health Care for America Now or Partnership to Improve Patient Care, have come under question for not being required to disclose their funding sources that allow them to run expensive ad campaigns. Unlike campaign contributions or lobbying, which must be publicly disclosed on detailed reports, most issue advertising is not subject to the same requirements.
This lack of disclosure for issue groups is not a “loophole,” as some self-styled government watchdogs or ethics groups would have us believe. Rather, there are several very good reasons why the law treats these activities differently, and we should reject any efforts for “reform” in this area.
First, as the Supreme Court has recognized, there is a constitutional right to anonymous speech going back to the beginnings of the republic, when the Federalist Papers were written under the pen name “Publius.” The Anti-Federalists, in turn, advanced their arguments under the names “Cato,” “Centinel,” “Brutus” and “The Federal Farmer.” (These 18th-century pseudonyms make today’s issue groups’ names seem downright descriptive.) The court explains that anonymous speech protects speakers from the threat of reprisal.
Far from being an academic consideration of jurists wearing black robes, the retaliation threat is in fact very real, specifically in the current health care debate. When the Obama administration earlier this year shut out the U.S. Chamber of Commerce and National Federation of Independent Business from a White House jobs summit, there was broad speculation it was because they had spoken out against Democrats’ health care plans.
The second reason the Supreme Court has recognized for anonymous speech is that it makes the audience focus more on the message itself, rather than on the messenger. This justification also can be illustrated in the present debate. As some people see it, our health care system is grossly inefficient and ineffective, is unfair to the poor, and burdens the economy. Others argue that the alternatives, whether it is a single-payer system, a public insurance option or an individual mandate, would increase costs even more, diminish care and trample individual freedom. These arguments are too important not to be considered on their merits, regardless of who espouses them.
While it is tempting to brush off ads by insurance companies and health care providers as self-serving, it is also possible that such sponsors might know something about the subject. On the other side, unions, which have also been major players in the debate, might be seen as genuinely advocating for their members’ interests. Alternatively, union bosses could simply be trying to achieve a government mandate for health insurance that they otherwise have to continually bargain over. The point is, going down this briar patch of second-guessing the speakers’ motivations is a distraction from the real issues: Is the status quo working? Is the proposed legislation better? Are there better alternatives not being considered?
Lastly, there is a fundamental difference between issue group disclosure and campaign finance and lobbying disclosure. Candidates are required to disclose the source of their contributions under the theory that they may become beholden to their donors, and thus the public should know the donors’ identities. But in an issue advocacy campaign, the end result is the only thing that matters. A single-payer health care system cannot be beholden to whatever groups advocated that position. A system of private health insurers cannot be “corrupted” by those who advocated for it, especially if those who sponsored the ads were the insurers themselves.
As for lobbyists, they are required to disclose their clients and spending under the theory that the public should know who is having private meetings with lawmakers and their staff and executive branch officials, and what issues they are discussing. In contrast, issue ad campaigns are conducted under the light of day in the most public forum; the whole purpose is to engage both lawmakers and the public on the issues in an open dialogue. Thus, the same rationales for campaign finance and lobbying disclosure simply do not apply to issue groups.
Politics has always been susceptible to being reduced to the personal instead of focusing on the substantive policies, and the health care issue is no exception. Just because this problem is inevitable, however, does not mean we should exacerbate it even more. Requiring groups running issue ads to disclose their donors would divert attention away from the messages to the messengers.
Eric Wang, a political law attorney, has advised clients on all aspects of government ethics laws. He can be reached at ericwang@alumni.princeton.edu.
