Brown v. Socialist Workers', 458 U.S. 87 (1982)

Commentary by Jon Roland

This case represents a significant further erosion of the bad precedent set in Buckley v. Valeo, 424 U.S. 1 (1976), which left open a defense against disclosure — evidence that the party required to disclosure confronts a significant risk of harassment of itself or its supporters. The holding in this case was that the Socialist Workers' Party had a history of being harassed, and that, being a minor party, its First Amendment rights of nondisclosure outweighed the interests of the people in obtaining disclosure that might inhibit corruption.

This case has several significant implications. First, it would relieve any minor party of disclosure requirements, because any of them could be subject to harassment. However, second, by treating minor parties differently than major parties, the statute would be in conflict with the constitutional requirement of equal protection of the law. Furthermore, it can be shown by evidence that in situations where one of the major parties has an advantage in holding key positions in government or private enterprise, it is likely that supporters of the opposing major party, if they can be identified as such, as disclosure of their support would do, would be subject to discrimination in hiring, promotion, or contracting. Therefore, third, the disclosure requirements are unconstitutional for major parties and persons or committees affiliated with them as well, and therefore are unconstitutional for anyone.

In none of these cases has there been evidence offered in support of the theory that disclosure inhibits corruption or facilitates the detection of it. The theory has been accepted by legislatures and the courts as plausible, but the only evidence that anyone can offer as to how such disclosures are actually used by anyone are for harvesting lists of potential donors to solicit and for harassment of supporters of opposing candidates or policies. The hope that ordinary voters would be informed by such disclosures in the way they cast their votes has not been realized. Voters don't read disclosure reports. Only political insiders do, and they tend to use the information less to fight corruption than to find opportunities for it.

Political reformers who supported campaign disclosure statutes should have been more suspicious when they got support from elected officials for the adoption of disclosure legislation. As usual, the reform that seems most simple and direct turns out to have the opposite effect from that which was intended.

The precedent in Buckley was further eroded in McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995).

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