March 8, 2012  ·  Lessig

The great Rick Hasen tweets: 

Hey @Lessig, do you still support #AmericansElect given their transparency problem? t.co/cK2bt78E t.co/INgztOmh

I’ve spun through stages in my thinking about Americans Elect. As I describe in One Way Forward, at first I was not a supporter, because I didn’t (and don’t) believe that the problem with American politics is that we don’t have one more flavor to select on the spectrum between the Republican candidate for President and the Democratic candidate for President.

I’ve come around to support Americans Elect now, but only because I believe it could be a platform for a real reform candidate. If it doesn’t produce such a candidate, I won’t support supporting the candidate it produces.

But in this spin, I have never been too worked up about “their transparency problem.”

Here’s why:

First (and obviously) it would be much better if the donors to AE were known. The presumption for transparency is a strong one. I am a critic of AE to the extent it allows anonymous donations to support it. 

But second (and this should be obvious too), the concern about anonymity here is different than the ordinary concern about anonymity in elections. 

When we hear that an anonymous contributor has given $10 million to a superPac supporting a particular candidate, we are and should be concerned about that contribution. But that’s because of two distinct, and independent reasons: 

  1. We assume that even though we don’t know who the contributor is, the candidate will, AND
  2. We assume that the contributor’s contribution will lead the candidate to be responsive in ways that we won’t understand. 

If those two conditions are not met, however, our concern about anonymity should be different, and, in my view, much less significant.

For example, think about condition (1): Bruce Ackerman and Ian Ayres have shown us that if we could be absolutely confident that the candidate couldn’t know who the contributors were, there’d be little reason to worry about anonymous contributions. What could the contributor be getting if the candidate couldn’t know who the contributor was? (There’d be a much bigger reason to worry about whether anyone would contribute anything at all, as an experiment in Florida with anonymous contributions to support judicial elections showed: no one contributed).

The same is true about condition (2): If there is no plausible way in which the contributions would affect the work or the positions of the candidate, the cost of anonymity is different. 

This second point is why I don’t think #AmericansElect has a “transparency problem.” I can’t begin to imagine how the identity of the contributors could possibly matter to the positions that any candidate would take on any of the issues. AE is building a platform to select candidates. They are promising a process to get access to the ballot in all fifty states. Whether a candidate is selected to be on that ballot depends upon his or her winning in the primary/caucus process. A candidate’s alignment with or against the substantive issues of one of the anonymous contributors isn’t going to affect that candidate’s ability to get nominated by AE at all.

So then what is the threat? The candidate hasn’t been obliged to do anything because of the anonymous contribution that helped build the platform. The only substantive commitment the AE candidate must make is to have a running mate from a different party. How then is the secret money having any secret effect? 

I’m very keen to focus on the subtle ways in which money affects results. That’s the whole point of Republic, Lost. But I can’t see how this money would affect any substantive result. All this secret money does is give people a chance to get on a national ballot. And which person is on that ballot is unrelated to who gave what money. 

So again, while I would prefer it if the donors were all known (because, for example, it would make this sort of distraction unnecessary), I don’t see what harm it causes or could cause.

And I’d be eager for Hasen or someone else to point to it. In what way might the anonymous donations distort anything in the substantive positions of the AE candidate? Because I completely get (even if the Court does not) how “independent expenditures” by superPACs could and do distort the substantive positions of the GOP and Democratic candidates. 

Finally, I do see the benefit in permitting this kind of anonymity. As AE becomes more and more relevant, there will be an increasing clamor from both parties to delegitimize it. Partisans get very angry when you question the two party system. I’m sure there are many who loaned AE the money it needed to get going (and technically, these are loans) who thought it wouldn’t be worth it if their loan were to also earn them the anger it will certainly produce. Some were brave enough to withstand the anger — e.g., Peter Ackerman, the founder; Governor Christy Todd Whitman (R-NJ), a board member. But we should not expect that everyone who wants change also wants to suffer the personal attack this particular form of change will earn them. 

Bottom line: No doubt it would be better if it all were transparent. But what’s the theory about how this kind of anonymity will distort any AE candidate in any particular direction?