There’s a Good Reason Campaign Donations Are Public

(Bloomberg Opinion) -- Joaquin Castro’s tweet listing the names of maxed out Trump donors in the San Antonio area has come in for intense criticism, with multiple Republican congressmen sticking to the talking points that by publicizing these names, Castro was “targeting” private citizens. What is fascinating to me is the intuition that there is something inherently wrong with tweeting out information that is already mandated by law to be in the public domain. This feeling transcends partisan politics: Remember when Democrats were upset when Trump tweeted that special counsel Robert Mueller’s investigative team contained “13 hardened Democrats” based on publicly available voter registration information?

Is there, in fact, something wrong or worrisome about a public official actively publicizing this kind of information? Federal election law already requires public disclosure of all donations to candidates for federal office. It doesn’t matter whether you’re donating $200 or the current legal maximum of $2,800. If it’s over $200, you have to provide your name and address. And that information is publicly available—including to anyone who takes the trouble to Google it.

Yet despite the law, it’s undeniable that something about announcing the information feels weird. Let me offer a hypothesis.

We think of voting as deeply private. We think of donating to a candidate as an act similar to voting—the expression of our political support. Hence, we feel by association that our donations should be private, much like our votes.

One reason that I think this intuition has stayed with us despite the legal mandate of disclosure is that in practice, almost no one goes around publicizing lists of who has donated to what candidate. It’s not that creating such lists would be terribly difficult. Periodically, researchers gather data on political contributions such as university professors or flight attendants, data that they then publicize. Rather, what preserves our intuition of privacy is simply that until recently, no one got around to using this publicly available data to name individual donors.

And indeed, Castro’s language does suggest that Trump donors in his district should be shamed—or at least ashamed of themselves. He made it clear that he was “disappointed” by their donations. Of course, he did not call for the Trump voters to be boycotted or shunned at cocktail parties, but he unquestionably intended pressure them with the disclosure, or else why name them at all?

What we have here is the case of our social intuition of donor privacy lagging in combination with law and technology that enables donor publicization. Our instincts tell us one thing; legal and technological realities tell us something else.

That kind of a lag is not so unusual when it comes to privacy. I may think that its’s a private matter where I am driving, and who is with me in my car. But a combination of closed-circuit TV cameras plus photograph-based toll collection prove otherwise. The reality is that the government can find out plenty about where I’m going and who I’m going with.

Perhaps this is the moment when our lagging intuition can start catching up. From this moment forward, everyone who may make a political contribution will have to recognize what is already the case: the fact that their contribution can be used against them in tweets. Our false veneer of anonymity is now torn away.

I don’t think we should be very sad about this loss. The logic of campaign donation discloser has always been that the public benefits from knowing who supports what candidates. The courts have repeatedly upheld this disclosure generally on the grounds that it helps prevent quid-pro-quo problems. We believe that it’s good to know who gives money to politicians.

But it hardly matters whether I like it or not. The new reality is now with us.

To contact the editor responsible for this story: Sarah Green Carmichael at sgreencarmic@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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