Sunlight Is Still the Best Disinfectant
by Matt Cover
The recent public bullying of Mozilla CEO Brendan Eich seems to have caused some conservatives to flip-flop their positions regarding the disclosure of political donations. Most notably, Charles Krauthammer has joined the anti-disclosure camp, blaming left-wing “zealots” for making the conservative position untenable. “If revealing your views opens you to the politics of personal destruction, then transparency, however valuable, must give way to the ultimate core political good, free expression,” Krauthammer wrote in an April column in the Washington Post. It’s an elegant argument, one also advanced by Justice Clarence Thomas in his partial dissent from the 2010 Citizens United decision. Thomas argued that disclosure would empower bullies to target disfavored speakers with public pressure and ridicule. Thomas and Krauthammer are obviously correct that political disclosure has armed left-wing lunatics with the ammunition they need to persecute those whose opinions they want scrubbed from the public square. They are wrong, however, that the danger from these scoundrels outweighs the benefits of disclosure.
Political disclosure is a powerful tool, without which our system becomes more corrupt and less democratic. We know this because we’ve seen it firsthand. Our history is sadly riddled with examples: the ABSCAM scandal, Leland Yee, Bob McDonnell, the Keating Five, Jack Abramoff—and those are just from the past few decades. We shouldn’t forget the infamous Tammany Hall, or the countless backroom bribes that have been lost to history. Some would argue that disclosure doesn’t prevent corruption or that money doesn’t cause it. Both contentions are simply wrong. To assert that money doesn’t corrupt is to argue against millennia of human experience. Disclosure prevents corruption in the same way that locking your door prevents burglary. It won’t dissuade every schemer, but it acts as a deterrent and helps prevent government officials and politicians from subverting the very law that is meant to restrain them.
Money is the great enabler of modern politics, but it remains a distorting and corrupting force that shifts power away from the very people the Constitution was written to protect. A distinction must be drawn, however, between donations to candidates for office and donations to outside activist and issue groups. Officeholders can potentially dole out favors, contracts, and money from the public fisc to friends, allies, and donors. For this reason alone, campaign donations beyond the means of most Americans must be disclosed. The case for knowing when and from whom large sums are given to politicians is simply self-evident.
Activist groups are another matter entirely. On one hand they do not hold political power and so the argument for transparency seems not to apply. On the other, these groups clearly influence our politics, and not always for the better. Some would ban guns, others expand the ongoing slaughter of the unborn, still others raise taxes astronomically. What they advocate shouldn’t impact if they are required to disclose their donors, but conservatives should remember that not every outside group is a good actor. It is undeniable, too, that these groups impact our politics by seeking to sway voters—though they do so under the thin veneer of “issue-based education.” There’s nothing inherently wrong with this; in fact, it’s the exact type of political speech the First Amendment was written to protect. But requiring disclosure is not some unconstitutional restriction. Instead, it is an entirely prudential move to give voters the information they need to fully evaluate that speech. By allowing the public to see which groups represent sizable constituencies and which speak for the interests of a few activist billionaires, the American people can better weigh the messages sent out by these groups during elections. Should the interests of a wealthy few determine the results of elections that are binding on all? The Founders certainly thought not.
Madison wrote in Federalist 10 that a society’s “interests” must not be allowed to become unbalanced, and that the great advantage of the proposed government—our government—was that each part could keep the others in check. Disclosure serves Madison’s purpose by allowing citizens to see who is trying to influence the politicians who have the power to affect their daily lives and infringe their liberties. Donation disclosure requirements in fact help protect liberty by deterring the corruption of politicians who would steal it from us and undermine the integrity of our union.
The best argument against disclosure is the one advanced by Krauthammer and Justice Thomas: that left-wing bullies have succeeded in making the price of disclosure too high. Still, disclosure’s opponents abandon it too quickly. They hasten the day when boosters of campaign finance regulations will use a corruption scandal to enact a comprehensive new bill like McCain-Feingold, creating a new morass of rules and regulations that will restrict speech miles beyond disclosure. Further, they advocate a policy that invites corruption. We’ve seen far too often the nefarious and tyrannical things government does when it can act in the dark. Men aren’t angels, of course. But we shouldn’t give them any more incentive to act like devils.
If the cost of disclosure is that zealots have access to information on political donations—a bit more fuel for their rhetorical Molotov cocktails—then so be it. The bullies may have made engaging in political speech a bit more expensive, but it is still well worth the price.
Anonymity Is a Shield
by Lachlan Markay
In February 2009, the Huffington Post published a full list of donors to the campaign supporting Proposition 8, which defined marriage in California as a union between a man and woman, after a judge denied an injunction against the public release of that list. Prop 8 supporters brought the injunction after opponents published an interactive map of the home addresses of all donors to the group pushing the measure.
In the Huffington Post story’s comments section, user “John Bisceglia” wrote that all Prop 8 supporters “should fear retribution.” Damage done to gay families by the initiative, the user said, “is reason enough to put a bullet through someone’s head.” Opponents of the measure sprayed swastikas and other graffiti on pro-Prop 8 churches. Supporters had their homes and cars vandalized.
It is difficult to know whether the bullying had a chilling effect on future political donations—that is, whether those who saw this sort of harassment are now more leery of supporting controversial political measures that could earn them the wrath of similarly determined and radical groups. But certainly that is the goal of some on the left. Accountable America, a now-defunct left-wing activist group, was formed explicitly “to create a chilling effect that will dry up contributions” to conservative groups, the New York Times reported in 2008. Accountable America at the time was targeting a conservative group called Freedom’s Watch, whose spokesman assured potential supporters that, as a 501(c)(4) nonprofit, “all of our donors are entitled to complete anonymity by law.”
There are forces on the left, and increasingly on the right, that would strip independent policy and advocacy groups of that protection. “Our democracy is strengthened when all of us participate openly in the political process, and that when people are deciding to use money to try and influence voters’ decisions in an election, voters have a right to know who’s financing those, and there’s a very important public interest and public good advanced by those disclosure requirements,” Rep. Chris Van Hollen, the House Democrats’ leading campaign finance reformer, recently said. “Disclosure doesn’t prevent any individual or corporation or union from running a single political advertisement,” he insisted. But is that right? Certainly the folks at Accountable America would say that disclosure helps the left ensure that conservatives are less likely to donate to independent political groups, an activity protected by the First Amendment.
The Prop 8 campaign came up again this year after Mozilla CEO Brendan Eich was forced to step down because he donated $1,000 to the pro-Prop 8 effort. Never mind that some of Eich’s top critics themselves employed executives who donated to the same cause. Eich’s resignation came in the midst of an unprecedented campaign by leading national Democrats to vilify conservative political donors for the sole reason that they are conservative (hence the omission of any condemnation of wealthy left-wing donors).
Majority Leader Harry Reid has taken to the Senate floor virtually every day the chamber has been in session this spring to mock and deride libertarian philanthropists Charles and David Koch for having the temerity to exercise their First Amendment rights on a scale that Reid finds objectionable. Reid’s top lieutenant, Senate Majority Whip Dick Durbin, has undertaken a similar campaign, attempting to use his position to intimidate members of the American Legislative Exchange Council, another left-wing bogeyman. Does anyone seriously doubt that Reid, Durbin, and other segments of the Democratic power base would similarly vilify other conservative donors, if only they could demonstrate their support for groups the left dislikes?
We have already seen the lengths to which the Obama administration has apparently gone to silence conservative political groups and their leaders. Just ask Catherine Engelbrecht, founder of conservative groups True the Vote and King Street Patriots. “In July 2010 she sent applications to the IRS for tax-exempt status,” the Wall Street Journal’s Peggy Noonan wrote in a 2013 column. “What followed was not the harassment, intrusiveness and delay we’re now used to hearing of. The U.S. government came down on her with full force.” In the three years that followed, she was called on by the FBI more than a handful of times, audited by the IRS twice (personal and business returns), audited twice by the ATF (her business had a license to make firearms but didn’t do so), and audited by OSHA.
Anonymity in political speech is a protected right precisely due to the potential for this sort of harassment. The Supreme Court established that standard in the 1958 case NAACP vs. Alabama, which struck down an Alabama law requiring that the African-American civil rights group disclose all of its members on the grounds that such disclosure would lead to harassment and intimidation. It would later establish, in McIntyre vs. Ohio Election Commission, that the government’s “interest in providing voters with additional relevant information does not justify a state requirement that a writer make statements or disclosures she would otherwise omit.” Bottom line: The identities of individuals engaged in independent political speech are protected by the First Amendment.
It is important to note here the distinction between donors to a political campaign and donors to an independent group. The court noted in its recent McCutcheon decision that the state has a valid interest in regulating campaign finance in ways that reduce corruption. But while politicians can be (often are, some might say) corrupted, independent groups cannot be. They have no policymaking power that can be corrupted. Their only tool is information.
The dissemination of that information is, of course, protected activity, and any law that “abridges” that dissemination is unconstitutional. Whether it subjects speakers, defined broadly, to retribution by their fellow citizens or their elected officials, a law that compels the disclosure of donors to independent groups leaves those speakers vulnerable to a political backlash that will chill involvement in the political process by individuals whose political views are unfashionable. Disclosure is not harmless. Liberals recognize that fact. Conservatives should too.