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Debunking the Wall Street Journal’s odd case against disclosure

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Wall Street Journal columnist William McGurn is a well-known champion of free market capitalism. As somebody who supposedly understands all the benefits of markets, it is strange to see him attack disclosure and full transparency, as he did in a Wall Street Journal column entitled “The Chick-fil-A War is Back On: Welcome to the new intolerance.”

McGurn starts off with some complains about how poor ol' Chick-fil-A is being treated. Apparently Mr. McGurn finds something intolerable about fast food consumers exercising their freedoms of choice and speech and using market forces to affect change. Would he feel the same way if they were complaining that the chicken tastes like rubber? Is not a boycott the most capitalist-friendly method of pushing change, with its pure reliance on market forces?

McGurn also has bigger chickens to fry. He also doesn’t like the market-oriented (again) way that consumers have been sending signals to corporations that belong to the American Legislative Exchange Council, a conservative group that writes model legislation in secret and has recently come under fire for pushing model “Stand Your Ground” legislation at the state level. And back in 2005, he didn’t like consumers pressuring Charles Schwab from supporting the libertarian Cato Institute.

And though he does not discuss campaign finance disclosure directly, it is hard to ignore that for the last few months, there is been an ongoing debate as to whether so-called “dark money” 501(c) groups should be required to reveal their donors. In July, Senate Republicans filibustered the DISCLOSE ACT, which would have required these groups to disclose their donors. Our best guess is that  just two dark money groups (Crossroads GPS and Americans for Prosperity) have already spent $174 million on this election. And that the total dark money figure could approach $1 billion.

McGurn apparently thinks all these contributions should happen behind the scenes, so that consumers and citizens can remain blissfully ignorant of the political agendas of the companies that they support in the marketplace. He writes that while transparency “may sound fine in theory, in practice these requirements can conflict with the right of people to come together in free association.”

The absurdity of his argument goes on. As precedent for keeping donations secret, he echoes Senator Minority Leader Mitch McConnell (R-KY) in citing NAACP v. Alabama (1958), in which the Supreme Court kept Alabama from forcing the NAACP to name its donors, as the proper analogue.

A bit of history is in order: In 1950s Alabama, civil rights supporters faced genuine threats of lynching, and local law enforcement could not be expected to come to their defense. In some cases, police were themselves the harassers. Is McGurn seriously suggesting that the donors he seeks to protect are the equivalent of the civil rights patrons of the 1950s – that they are supporting a cause so politically unpopular that they are risking their lives to support it? That they cannot count on the legal protections against harassment and intimidation afforded to all citizens? If this is so, should like-minded members of Congress then be protected by the anonymizing behind-the-black-curtain voice modulation usually reserved for whistleblowers the next time they take to the Congressional floor, because their ideas need that much protection?

Disagreement is far older than democracy. It’s true that sometimes words get harsh and angry, but politics without a heated argument would hardly be politics. And while neither party is immune from the vicious word, there are legal protections against words that are devoid of political content and only serve to harm and incite violence.

Perhaps it was Justice Scalia who put it best in Doe v. Reed (a 2010 case upholding a Washington state disclosure law): “Harsh criticism, short of unlawful action is a price our people have traditionally been willing to pay for self-governance… requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.”

What Scalia understands (and McGurn fails to) is that for self-governance to work, there must be a true marketplace of ideas, and that a true marketplace of ideas requires full information about where the ideas come from. Democracy itself is an act of civic courage. The Declaration of Independence wasn't signed by anonymous.