10/11/2010 03:42 pm ET Updated Dec 06, 2017

Chamber Argued That Public Skepticism Was Proper Price To Pay For Donor Secrecy

As it withstands withering attacks from Democrats for failing to disclose its donors, the U.S. Chamber of Commerce is responding by accusing its critics of launching a partisan witch-hunt. It's been effective pushback, echoed largely by conservatives who see the debate as further evidence of a White House hostile to the business community.

But if the Chamber is surprised at the treatment it's received, it shouldn't be. When the business lobby was arguing the very idea that donor disclosure isn't necessary, it made the point that balance already exists: those who fail to name donors face an intrinsic if not justified punishment in the form of public skepticism.

In the amicus brief it filed in the case of Citizens United v. Federal Election Commission -- which allows corporate expenditures in political campaigns -- the Chamber appears to have predicted the backlash it is now facing:

Moreover, it is common experience that, where the supporters of exempt speech are not disclosed, opponents can and do exploit the silence as a reason for discounting the speech. The fact that many speakers decline to identify their donors, even though doing so weakens the credibility of their speech, again confirms that required donor disclosure is burdensome and likely to suppress speech.


In this regard, it is offensively paternalistic for the government to simply assume that listeners are incapable of properly evaluating public speech in the absence of full disclosure of the speaker's funding sources. In their daily lives, Americans regularly discount speech to adjust for questions about its source. See generally McIntyre, 514 U.S. 334. That is doubly so in the area of political speech where speakers with opposing views are not shy in pointing out the absence of donor information.

The Chamber did not immediately return a request for comment. But "pointing out the absence of donor information" is, it seems, essentially what critics of the Chamber have done in recent weeks. The complicating factor is that critics have also accused the business lobby of using foreign benefactors to fund their election activities -- an accusation that the Chamber claims is being leveled blindly and with partisan purpose.

That said, the extent to which the Chamber noted to the possibility of a public backlash against non-transparent organizations as a rationale to have the option of remaining non-transparent is illuminating. The business lobby's legal team went so far as argue that those groups who choose not to disclose face an inherent disadvantage in the political arena.

"Such independent speech is not a plausible vehicle for quid pro quo corruption. To the contrary, this Court has recognized that independent speech actually may work against candidate interests. See Buckley, 424 U.S. at 47 ("independent expenditures may well provide little assistance to the candidate's campaign and indeed may prove counterproductive"). In fact, candidates for federal office have been denouncing and disavowing independent ads for at least the last two decades and continue to do so today for these reasons."


The Chamber's purpose, in filing its amicus brief, was to protect the type of disclosure (or non-disclosure) requirements that it currently enjoys. Requiring it to name names, the organization argued, would be a violation of free speech. Donors wouldn't donate unless they could do it anonymously. And since they did so as a form of speech (and without direct instructions as to where the Chamber was spending its money) there was noting nefarious about the act.

The reason no Chamber donors are disclosed is simple. Many of its members have made clear that they are not willing to be identified and will terminate or withhold support if disclosure becomes a risk. If the Chamber had solicited funds for the specific purpose of electioneering communications, or if donors had specified such a use, the FEC would have applied BCRA to require the Chamber to report the donation and the donor. See 11 C.F.R. § 104.20. Thus, the Chamber adopted a policy against soliciting or accepting donations for the specific purpose of exempt speech, and it repeatedly declined contributions offered to support specific speech.