What are the intimidation charges raised by opponents of disclosure?
These charges came about largely as a conservative reaction to the liberal reaction to Citizens United. That decision allowed corporations to make independent expenditures in candidate campaigns, but nearly all the corporations that took advantage of it were tax-exempt nonprofits regulated only by the IRS. These groups are formally nonpolitical, but can engage in electoral politics as long as that remains secondary to their primary purpose. And as formally nonpolitical groups, they do not have to file disclosure reports with the FEC, which makes them an attractive way to make independent expenditures and keep their donors' identities secret.
Reform supporters call this new form of spending "dark money," and introduced a bill that would have required greater disclosure. Reform opponents call it "anonymous speech," and have said that calls for more disclosure are attempts to intimidate donors to conservative groups. Political science research has revealed reason for apprehension on the part of some small donors, but the recent claims of intimidation have come from sources that are anything but vulnerable.
The U.S. Chamber of Commerce, for example, said in 2012 that the push for disclosure is "all about intimidation. They want to intimidate people from participating."32 Two years later, the Wall Street
Journal said that the purpose of disclosure "is to set up donors as political targets for boycotts and intimidation so the costs of participating in politics will be too steep."33 Billionaire industrialist Charles Koch agreed: "We get death threats, threats to blow up our facilities, kill our people... . So long as we're in a society like that, where the president attacks us and we get threats from people in Congress, and this is pushed out and becomes part of the culture . why force people to disclose?"34
Claims that disclosure is intended to, and would be able to, cow the Wall Street Journal, the Chamber of Commerce, and denizens of the Forbes 400 into silence are simply not credible. What is worse is that they distract attention from the legitimate questions about who, what, and how much should be regulated that any regulatory scheme raises. How we answer those questions depends to a large extent on the character of the debate about them. The two sides in Buckley made valid arguments about disclosure that were based on factual evidence presented in court cases, and on sworn testimony. Revisiting that old debate, and basing it on recent research, would be a good place to start a reappraisal of disclosure.
