The Problems with Disclosure

We had a wonderful edition of “On the Issues” with Mike Gousha last week with my former partner, Mike Grebe, now CEO of the Bradley Foundation. Mike is a great guy who has had a wonderful career. Bradley is a generous supporter of the law school and has been a tremendous force for good in the community and nationally. (By way of full disclosure, Bradley funds the Wisconsin Policy Research Institute and I have a relationship with them.)

I could go on about Mike, but I’d rather disagree with him. In response to a question of the audience, he criticized the McCain-Feingold Act and other efforts to wring money out of politics.

I agree with that.

But Mike went on to say that he believes that the answer to concerns about undue influence is mandatory disclosure. We should all know who has given what to whom.

I used to believe that.

Now I’m not so sure.

The difficulty is in the politicization of what used to be nonpolitical. It is in the shrinkage of those spaces in which we could put our political differences aside.

Much has been written about efforts to publicize (and map the addresses) of supporters of Proposition 8 in California.  In our little part of the world, AALS engaged in a curious, ineffective and symbolic boycott of a hotel owned by a supporter of the Proposition.

This type of pressure is even placed upon lawyers engaged in pro bono representation. Locally,  an advocacy group bearing the ironic name of One Wisconsin tried to organize a phone campaign to pressure the employer of a young lawyer who was engaged in the pro bono representation of parties contending that the Wisconsin marriage amendment was constitutionally enacted.

And, I know, its not just the political left.  A Bush administration official suggested that corporate clients might want to drop law firms that had offered pro bono representations to Guantanomo detainees. Not cool.

Most of the time, the identity of a lawyer and her client will be public knowledge and nothing can – or should – be done about it.

But the willingness of partisans to engage in economic warfare against their opponents  suggests to me that disclosure of contributions is not am unmitigated good.

I appreciate that the frequently offended are exercising their first amendment rights. I appreciate that they think they are subjecting the politically active to the “test of the market place.”

They can do these things. I just think they shouldn’t.

The problem with making too much of life political is that it will inevitably result in escalation. If the left decides that the NFL must be pressured not to allow Rush Limbaugh as a team owner, then the right may feel compelled to agitate against Keith Olbermann’s participation in NBC’s Sunday night coverage.

And that will result in a substantial decrease in public participation. If people are going to boycott my place of business or otherwise seek to ostracize me because I have supported a particular candidate or cause (or represented an unpopular client), I may well decide that speaking out or acting as an advocate for something that I believe in or a client that needs representation is simply not worth it.

This will be particularly true for speakers who are in a business or profession that requires them to appeal to a broad spectrum of persons. Few businesses can decide to appeal only to conservative or liberal customers. The easiest course of action when someone complains about the political participation of its owners or employees is to shut up.

This Post Has 7 Comments

  1. Jessica E. Slavin

    Rick, I think I disagree. At the outset, I think I disagree with the premise that “The difficulty is in the politicization of what used to be nonpolitical. It is in the shrinkage of those spaces in which we could put our political differences aside.”

    I am no historian, so maybe I am just wrong, but it seems to me that the market has always been politicized, in precisely this way. Maybe even more so, in the past, than now. Boycotts (Capt. Boycott,, letter-writing campaigns, and other forms of social ostracism have long been used by interest groups to apply pressure in one way or another. Indeed, the idea that there should be a sort of “apolitical” area in or near the market seems to me a really new development. Again, maybe I’m just wrong about that, or have an unusual perspective on it. (I confess that both my Irish Catholic Democrat roots and my undergraduate studies in “Russian and Soviet Studies” probably contributed to the hairs standing up on my neck when I read the “making too much of life political” line.)

    In any case, it seems to me that most of this type of public shaming revolves around issues that some significant group of people consider “moral,” in the sense that one side of the debate or the other is morally repulsive. So, for instance, those who consider abortion to be the murder of a human being feel impassioned to apply such pressure in whatever way possible. Likewise, those who think that Proposition 8 is an expression of hate and bigotry feel justified to apply such pressure as needed to fight for their marriages, or for their friends’ marriages. Obviously, not all of the pressure is in service of those sorts of ends, but most of it (and perhaps the most effective?)is.

    Indeed, I think that, once in a while at least, these “put your money where your mouth is” efforts actually produce, or at least, help produce, exactly the desired outcome. E.g., the civil rights movement. The anti-apartheid movement.

    It’s true that those who sell stuff or services that they want to appeal to a “broad spectrum” find themselves in a tough spot. They have to either make a careful effort to depoliticize their public image, or decide to do and say what they think is right, morally. But what’s wrong with that?

  2. Richard M. Esenberg


    I thought about the historic uses of boycotts and your point is well taken. But I am a little older than you, so what counts as “recent” for me may be somewhat larger set than it is for you. I remember the older kids prattling on about how the personal was the personal. Talk about hairs standing up!

    By way of clarification, would you extend a general tolerance for the use of boycotts and economic pressure to something like OWN’s attempt to pressure the Whyte Hirschboeck firm described in my post?

    On the more general question, the reason that I think there ought to be an “apolitical” area in or near the market boils down to a concern for social peace and civil discourse. What I think is wrong with pressuring people to back down from political participation is that they will and our publlic conversation will be impoverished and distorted in favor of the preferences of the what may turn out to be highly politicized minorities (i.e., people who are willing to organize boycotts and the like to advance their views).

    I agree with your point about using public shaming around positions claimed to be immoral. Part of my problem, though, is the extent to which we define political differences as moral ones and the ease with which we brand our opponents as bad people.
    I understand the frisson of a moral crusade (when I was a kid, my Mom got a great deal of self satisfaction out of not buying grapes) and much good can come out of that. But there is danger as well.

    This isn’t to say that there might not come to me some things that require this type of response but I think – at least in a society like ours which does, believe it or not, have consensus around a number of core principles -they ought to be relatively rare.

  3. Ed Fallone

    I thought that this excerpt from Rick Perlstein’s book Nixonland is illustrative:

    “In March the ministers, priests and rabbis of Clergy and Laymen Concerned about Vietnam (CALCAV) sent out sixty thousand posters listing the numbers of Americans and Vietnamese killed in the war. Pastors led Eastertide marches: thirty thousand people in the rain in Chicago, forty thousand in San Francisco, one hundred thousand in New York. . . . When the CALCAV held its convention in Michigan, the president of Dow Chemical, Gil Doan, a devoted Episcopalian, invited them to his home. In 1967, in response to student riots over napalm, which was manufactured by Dow, Doan had responded, ‘As long as the U.S. is involved in Vietnam, we believe in fulfilling our responsibility to this national commitment of a democratic society.’ Now he told the divines that if they could demonstrate that napalm was primarily affecting civilians, he would try to get the company out of the contract. Soon after, Dow reportedly intentionally overbid for the Department of Defense napalm contract and stopped producing the weapon because it was hurting their recruitment efforts among students.”

  4. Jessica E. Slavin

    Thanks for thoughtful responses. I should probably take more “thinking time” myself (my five year old introduced that phrase to our household, I love it) before responding.

    But I can answer right away, Rick, that as to the OWN pressure, yes, my tolerance for this kind of (admittedly unpeaceful, disruptive, somewhat distasteful political action) does extend to that particular action. Because to my mind, the amendment being litigated there is precisely the kind of political issue that future generations will see moral terms pretty much as simple as the anti-miscegenation laws are seen now by virtually all thinking human beings in our society. (Actually, then again, there is that one justice of the peace in Lousiana who’s been in the news recently…but that’s Louisiana, not Wisconsin.)

    I suppose that analogy won’t be convincing to you, and that it is unconvincing or even offensive to some, but to me, it is an apt comparison, in an abstract way–i.e., the comparison being that in both cases, those opposing the law see it as far beyond mere politics, as an instance of a law so inherently opposed to authentic human experience and justice as to be shameful and despicable. I imagine you won’t be surprised to learn that the issue strikes me that way, myself.

    By way of further clarification, my tolerance would extend in the very same way to, say, a conservative group pressuring a prominent law firm to stop its lawyers from doing pro bono work in litigation efforts to support the availability of late-term abortion. Same reasoning: a point validly open to public shaming.

    In contexts like these (which, I agree with you, are fairly narrow), I think that attempts to create public ostracism around particular political issues are valuable and worthwhile, despite my general preference of less confrontational, more peaceful social and political discourse.

    I do agree with you that the great consensus and shared values and shared interests among people in our society gets too little attention these days. And speaking of consensus, you’re probably even right that over-proliferation of this kind of thing has a negative impact on social discourse.

    On the other hand, at least this is pressure “out in the open,” rather than from behind the scenes. Also, don’t most people find these kinds of things just sort of silly and irritating when they are done too much or for the wrong reasons? (For instance, my cheeks get a little red when I recall my participation in a protest, as an undergraduate, against tuition hikes. At least, I think it was tuition hikes…. Not my finest hour.)

  5. Sean Samis

    I do agree with Prof. Esenberg, disclosure of political contributions is unlikely to make a difference. I am sympathetic to the goal of McCain-Feingold, but they got the wrong target in their cross-hairs.

    The best approach (IMHO) is to recognize that although limiting campaigne contributions may implicate free-speech rights (it does), regulating free-speech is not novel: hence the law regarding obscenity.

    But better yet: regulating the ACCEPTANCE of campaign contributions does not clearly implicate any right; it is and should be regarded as bribery. The Framers of the Constitution and Bill of Rights clearly did regard bribery as an unprotected form of “expression”.

    Instead of putting the burden on the donor, put it where it belongs: on the politician (or would-be politician).

  6. Richard M. Esenberg


    Thanks for the response. As always, I appreciate your willingness to engage with intelligence, grace and good will. It certainly required some thinking time. It won’t surprise you to learn that I disagree.

    Here is my problem. On an abstract level, I can’t disgree that there may be some attitudes that are so outside of the mainstream that they make normal relationships difficult. If there is anything, I am not, it’s a moral relativist.

    But given our own infallibility and the difficulty in ever fully anticipating the consequences of our choices, I think we ought to be careful – extremely careful – about declaring what we don’t agree with to be beyond the pale.

    I understand that, with respect to an issue like same sex marriage, there are people who are passionately devoted to what they perceive to be the moral superiority of their own inclinations and tend to regard those who disagree as not entitled to the respect that we normally show those who disagree with us. Thus they may seek to put economic pressure on a young woman trying to do pro bono work or rally our allies to regard their neighbors as bearers of a scarlet letter. This happens on both sides of the question and those who do it sincerely believe that they are fully justified.

    This is why I have blogged about discussion of the issue in the university setting on Prawfs. I think that discussion of the issue (which I cannot – or at least do not – avoid in two of the four courses I teach) must be undertaken with care. I hope I’ve managed that.

    But it is precisely that concern which causes me to write what I do about the dangers of political ostracism. Let’s continue with the example of same sex marriage and to focus in particular on your suggestion that moral shaming by proponents is justified because, as I understand, that they are clearly right and opponents are taking a patently unjust and immoral stance. It seems to me that it takes an extraordinary amount of, at best, moral confidence and, at worst, moral hubris (take your pick) to believe that one is justified in reading out of polite society – or to dismiss as “not thinking” – a majority of the population following, in some sense, the position of the Abrahamic faiths, including the Church with which our university is associated. It seems to me that to assume that one’s opponents’ position is rooted in “hate and bigotry” requires one to ignore what they actually say, i.e., to assume that the arguments they make (which typically invoke neither hate nor bigotry) are spoken in dishonesty and bad faith. (I am not suggesting that you would do this, but it seems implicit in the position of the “shamers” and that’s the view that you are seeking to defend.)

    I understand the miscegenation analogy. No doubt it is persuasive to many and may ultimately carry the day. As a matter of elementary logic, however, there is hardly an inescapable syllogism leading from the result in Loving to an affirmation of same sex marriage. One might get there but it requires buying into a set of assumptions that are hardly inescapable. It is those assumptions, in my view, that the debate is about. Invocation of Loving simply assumes the controvery away.

    But our debate here is not about the particulars of same sex marriage. On the question of abortion, for example, I may think that many abortions protected by Roe constitute the taking of life in a way that is entirely incompatible with authentic human experience and justice, but I don’t know that I am prepared to say that my belief ought to require the shunning of those who see things differently. I don’t know, for example, that I ought to call for the boycott of any law firm that represents Planned Parenthood.

    In light of all that, I would make two observations. First, I think that the “moral shaming” approach is more likely than not to prove a poor political strategy. It seems to me that, to the extent it worked in the civil rights movement, it did only because the national (as opposed to the southern consensus) had already changed.

    But more importantly, I think it impoverishes political discourse. To allude to Ed’s citation to Perlstein’s book, it almost certainly did in the context of Vietnam with extremely unfortunate consequences for millions in South East Asia, not withstanding a variety of views on US involvement in Vietnam. (For many, oppostion to the presence of US troops elided into an indifference about the outcome.) The problem, it seems to me, is that it counsels an (often premature) refusal to listen to others in favor of what strikes me as what will be – in the great run of cases – a highly questionable moral certitude.

    And it also leads to escalation. Believe me, there are people who believe that treating people who they see as readily distinguishable prisioners of war as criminal defendants is objectively evil. It will result, they believe, in massive death and destruction without preserving a single civil liberty. They may be just as disgusted with the Guantanomo Bay Bar Association as OWN is with someone who disagrees with them on the application of the single amendment rule of Article XII, section 1 of the Wisconsin Constitution. In very substantial ways, I disagree with those folks, but they aren’t mouth breathers either. If AALS is justified in refusing to do business with a hotel owned by someone who supported Propostionv 8, then what do we say when a religiously affiliated law school chooses to oppose its own version of orthodoxy?

    There was a time when we could have cited the value of a diversity of points of view and of academic freedom. But to the extent that we ostracize those we think are wrong – even those we believe to be grievously wrong – that becomes difficult. The question has become reduced to which side has the power.

    So my own sense is that a round of humility is well advised. I can’t say that the route of shaming and boycott is never appropriate, but I do feel comfortable in saying that, in our political culture regarding the things that we disagree about it, it’s pretty close to never.

  7. Jessica E. Slavin

    Thanks, Rick. Having such an extended discussion in which the other party listens to and thinks about what you’ve said is gratifying.

    I have spent some more reading, thinking, and writing time on this myself. I have deleted and rewritten various responses, because the questions and conclusions that your statements raise in my mind are mostly just different ways of saying things I have already said. E.g., I agree that the ostracism technique is usually ineffective, and a poor exercise in judgment. And I agree that it works best, and is simultaneously most justifiable, when the public tide has already turned or is turning in favor of that position. And I agree that when used lightly or for the wrong reasons, it impoverishes discussion by causing some people to clam up (their mouths AND their ears).

    And I could not agree _more_ that a position of humility, of openness to all points of view, of critical thought aimed not only at others but simultaneously at one’s own points of view, are essential aspects of understanding each other and this life on earth that we are all living, and (therefore) of making good decisions. I definitely agree that we human beings are fallible, and I know for a fact that I, in particular, am.

    For instance, I really regret the “thinking human beings” phrase in my comment, which so obviously calls to mind the “thinking people” phrase, which has such an elitist ring to it. I imagine I chose “thinking human beings” instead of “thinking people” to try to move away from that proud, elitist tone, but it did’t work, at all. Fair enough to call me out on that.

    Still, before letting this drop, there is one point about my views that I want to clarify. You say that, “It seems to me that to assume that one’s opponents’ position is rooted in “hate and bigotry” requires one to ignore what they actually say, i.e., to assume that the arguments they make (which typically invoke neither hate nor bigotry) are spoken in dishonesty and bad faith. (I am not suggesting that you would do this, but it seems implicit in the position of the “shamers” and that’s the view that you are seeking to defend.)”

    That passage took me aback. To be clear, no, I do not think that my opponents on the issue speak in dishonesty and bad faith, nor did I ever say (nor do I think) that their _position_ is as you say, “rooted” in hate and bigotry.

    Instead, more precisely, what I said was that people like those pressuring the firm to stop the pro-amendment pro bono work may perceive _the amendment itself_ as an _expression_ of hate and bigotry. To my mind, a law and the position of supporting the creation of the law are two very different things. In other words, I don’t understand why the “shamers'” position, in this or any other example (e.g., the civil rights movement), implies that the shamers believe the other side to be dishonest or acting in bad faith. To take a different example, did women suffragists believe that the opponents of women’s suffrage were lying or acting in bad faith when they made the arguments about women’s inability to reason well, etc.? I don’t think so; from what I have read, they just thought their opponents were very, very mistaken.

    In fact, wouldn’t it usually be the opposite–doesn’t a moral crusade happen because of a conviction that the opposition must be mistaken, must not understand the true nature of what it is doing, would surely change its position if only it understood “the truth”? (Which is why, as you point out, these shaming/ostracism/moral pressure actions always do smack of moral hubris. By definition.)

    So, anyway, I can’t quite tell, but I think that you (conflictedly, maybe?) acknowledge that at least the civil rights era shaming actions were appropriate, at least to some extent. If that’s true, then it seems to me that at the bottom of all of this discussion, maybe we just disagree about whether the OWN example falls inside or outside of the “pretty close to never” category.

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