Let's say we wanted to set up one of those fake democracies in which a written constitution appears to guarantee "free and democratic elections," but where that basic right is effectively restricted by a variety of devices.
One such device that we might try would be to create a central governmental commission (let's call it the FEC) which would have the power to maintain dossiers on every group of people that in any way attempts to influence the outcome of elections or to influence public opinion on matters of governmental policy or concern. We could even include groups who do nothing more than publish candidates' positions on public issues, their voting records, or other public acts of public officials.
Every such group would be required to register with the FEC, to file regular reports with it (as many as 13 a year) and to include in those reports the full names and addresses of everyone who contributed more than $100 to the group. And, to tighten the screw one more turn, we could include the occupation and business address of each such contributor. In addition, if the group took in or spent more than $1,000 a year, it would be required to maintain, and produce upon demand, the full names and addresses of all contributors of more than $10. Also, in order not to miss those independent souls who might, on their own, print up and distribute $100-worth of handbills, they too should be required to register.
Our purpose, of course, would be not only to maintain political dossiers, but also to discourage political activity altogether. Accordingly, we should require that every such group must put on the face or front page of any of its literature soliciting contributions the following notice: "A copy of our report containing the names, addresses, occupations, and business addresses of contributors is filed with the FEC and is available for purchase by anyone from the FEC." If we do that, we can be sure that substantial numbers of people will be inhibited from contributing to political groups, particularly those supporting dissident viewpoints.
Another nice touch would be to give the FEC other large powers over political association and activity. The Commission should be able to conduct investigations and hearings, require any person to submit whatever reports and answers the FEC may prescribe, subpoena witnesses and documents, administer oaths, order testimony to be taken by deposition, seek injunctions against political activities of which the FEC disapproves, and, of course, write its own rules.
Don't look now, but 1984 arrived early this year. That extraordinary system of political data-gathering, maintenance, and disclosure has already been adopted by the Congress of the United States, in the Federal Election Campaign Acts of 1971 and 1974. The full name of the FEC is the Federal Election Commission, and it has the vast and chilling powers that I have described.
That perverse legislation derives from some perverse reasoning. In the course of the events known as Watergate, the political system worked so well that numerous instances of illicit contributions and expenditures were exposed, and large numbers of people, including even the Vice President, were prosecuted and convicted under laws already on the books. Obviously, therefore, what we needed were additional laws that would accomplish the same ends, but which, at the same time, would severely inhibit innumerable other people, who were doing nothing illicit, from getting actively involved in the electoral process. The maxim seems to be, "Don't support the candidates of your choice—it will only encourage them."
Of course, bribes will continue to pass and influence will still be peddled, despite the naive expectation that the bad guys will dutifully line up and file their reports along with the rest of us. At the same time, however, in the dubious name of "election campaign reform," we have managed to make a monkey out of the idea of free and democratic elections.
Monroe H. Freedman is Dean of Hofstra University Law School, a member of the National Board of the American Civil Liberties Union, and a former member of the Governing Board of the District of Columbia Bar.
This article originally appeared in print under the headline "Making a Monkey out of Free & Democratic Elections".