The policy lesson from the case of Mozilla’s Brendan Eich, who was forced out as CEO of the tech giant he co-founded as a result of his support for Proposition 8—California’s ballot initiative that defined marriage as the union of a man and a woman—has nothing to do with either gay rights or tolerance for unpopular viewpoints. Instead, this episode showed the very real costs that donation-disclosure requirements inflict on civil society.
“Election laws exist so that the governed can monitor the government, not the other way around.”
That is, the only reason Eich resigned is because his $1,000 contribution to the Prop 8 campaign became public. Or rather he was outed, so to speak, by activists—whom liberal satirist Bill Maher called the “gay mafia”—who scour the publicly accessible donor database in search of high-profile targets with “incorrect” views. Eich is only the most recent victim of such targeting, but he’s unlikely to be the last.
I point all this out as someone who supports marriage equality and recognizes that there may have been a valid business reason for Mozilla’s board to demand Eich’s resignation once his views became known. Just as business owners ought not be forced to provide services to a same-sex wedding, a private company can have whatever litmus tests it likes. The issue isn’t equality under the law or First Amendment rights—there’s no government action or coercion here—but haggling over what kind of personal opinions disqualify a CEO.
Surely we can all agree that a neo-Nazi Holocaust denier—or a Klan member, or a Stalinist, or a Satan worshipper—can’t run a large company. The trust won’t be there, either internally or externally. On the other hand, most people seem not to have liked last week’s How I Met Your Mother finale, but surely disagreeing with that view (as I do) isn’t a disqualifier.
So the question that has consumed discussions of the Eich affair is whether someone who’s against gay marriage—or at least donates to that cause—is on the wrong side of the Satan-Scherbatsky line.* Not because that person is equivalent to a Nazi or Communist but because there’s a line somewhere.
It’s unfortunate that holding a position that President Obama himself shared until recently got Eich in trouble, but Mozilla’s decision was understandable if it read its economic climate correctly. Silicon Valley apparently doesn’t countenance opposition to gay marriage to such an extent that a business leader who holds that view can’t be effective even if his personal views in no way affect company policy. (That’s one reason why opposition to Arizona’s SB 1062 was misplaced; most businesses that refused to serve gays would take severe financial hits—regardless of whether courts upheld their religious objections.)
But lamenting the cultural dynamic that led to such hypocrisy is beside the public-policy point. The whole imbroglio could’ve been avoided with a tweak of disclosure rules.
Currently, the identity of anyone making a contribution of more than $200 to a federal political campaign—name, home address, employer—has to be disclosed to the government, which puts that information online. In California, the threshold is $100. The reason for collecting and disseminating this information is rather thin: to prevent corruption and enhance the perceived integrity of the democratic process. Yet small donors hardly corrupt the candidates they support—Barack Obama spent over $1 billion on his reelection—and how do you corrupt a ballot initiative?
Imagine that you had to notify a government official each time you attended a rally, or made campaign phone calls, or posted to a blog, or even talked politics with friends. Now imagine that this information would be made public by the government. Would your activities and conversations change? The question answers itself.
Brendan Eich’s position thus became untenable not because he made a politically awkward contribution but because election laws revealed that sensitive information to people whose interest had nothing to do with clean elections or corporate governance. But election laws exist so that the governed can monitor the government, not the other way around.
Thesolution is obvious: Require disclosures, if at all, only for those who give so much money that the interest in preventing the hypothetical appearance of corruption outweighs the very real potential for harassment—which amount would be far greater than the current per-candidate maximum of $2,600. Then the big boys will have to put their reputations on the line—as they do already; see Harry Reid’s crusade against Charles and David Koch (who are Cato CATO -1.56% donors)—while the average citizen won’t be exposed to retaliation.
Let the voters decide what a donation from this or that plutocrat means to them, rather than enabling vigilantes to police the Satan-Scherbatsky line.
* Robin Scherbatsky is a character on How I Met Your Mother, and her last name is the most euphonic/memorable of the major characters.
Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review.
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