Some Americans want to limit political spending. They would limit how much candidates can spend and how much people can contribute. They would limit what third parties can do. And they would try to “level the playing field” so that one side wouldn’t win because it had more money to spend than the other.
Fortunately, the Supreme Court has said that most of these ideas violate the First Amendment. However, the Supreme Court does allow restrictions that are aimed at preventing corruption and the appearance of corruption. Therefore, the Court has allowed limits on contributions to individual candidates and the political parties.
Some of the people who would like to limit political spending realize that the First Amendment doesn’t allow it and that money, like water, will find a way. Therefore, they fall back on disclosure of contributions. If we can’t limit spending, they say, at least we can require contributions and spending to be disclosed. In the words of Supreme Court Justice Louis Brandeis (before he was on the Court), “[s]unlight is said to be the best of disinfectants.”
The question more recently has become, however, whether Americans can be trusted with the disclosure of campaign contributions and spending. Earlier this year, Mozilla CEO Brendan Eich was forced to resign because he had donated money to the 2008 California referendum (Proposition 8) that tried to ban same-sex marriage. (The proposition passed but California courts wouldn’t enforce it.)
“The Mormon church has had to rely on our tolerance in the past, to be able to express their beliefs. This is a huge problem for them. It looks like they’ve forgotten some lessons.”*
After the referendum passed, opponents of the proposition posted lists on the Internet of people who contributed to groups supporting it. Boycotts of businesses were organized. The artistic director of the California Musical Theatre had to resign because he gave $1,000 to a group supporting the referendum.
In April of 2011, James Huffman wrote in The Wall Street Journal about the problems he had trying to raise contributions to run for U.S. Senate against an incumbent in Oregon:
“The reality is that public disclosure serves the interests of incumbents running for re-election by discouraging support for challengers. Here's how it works.
A challenger seeks a contribution from a person known to support candidates of the challenger's party. The potential supporter responds: ‘I'm glad you're running. I agree with you on almost everything. But I can't support you because I cannot risk getting my business crosswise with the incumbent who is likely to be re-elected.’”
Similarly, the Republican candidate running against Eliot Spitzer for attorney general in New York had people tell her that they hoped she would win, but they couldn’t give her a contribution, which would be publicly disclosed, because they feared they might be Mr. Spitzer’s next target.
While these might seem extreme, consider Illinois. In October of 2010, Senator Dick Durbin wrote to the Commissioner of the Internal Revenue Service urging the IRS to investigate a Karl Rove-organized group that was putting out issue ads (not candidate ads) that Senator Durbin didn’t like. If Senator Durbin is going to do that, what’s he going to do when a contributor to the other side is up for a federal contract Senator Durbin has some influence on? Senator Durbin would assuredly say that it wouldn’t affect his decision, but given that he is willing to try to sic the IRS on his opponents, why should we believe him?
Recently, going after one’s political opponents has escalated. In Virginia, two UVa students filed a Freedom of Information Act request for the e-mails and correspondence of a professor who didn’t agree with their position on gay rights. In Houston, the City subpoenaed the sermons of five ministers who circulated petitions for a referendum to overturn the City’s new law on sexual and gender identity. The idea seems to be to intimidate those who disagree with you. Make them hire lawyers to defend their rights if they say something you disagree with; maybe that will shut them up.
“Imagine you lived in a country where there was no law saying you couldn’t criticize the President, but the authorities would just like a copy of it if you did. You think a lot of people wouldn’t just decide that it’d be easier to keep their mouths shut? The authorities might even be telling the truth if they said that they weren’t planning on pursuing any legal charges. It’d still make people avoid it, even if just to avoid the hassle of dealing with the government. That’s the whole idea of how a ‘chilling effect’ works.”
While sunlight might be the best disinfectant, sometimes disinfectants can be misused. In the 1950s, the State of Alabama went after the local branch of the NAACP. Among other things, Alabama wanted a list of the members of the NAACP in Alabama. Needless to say, the NAACP resisted. The Alabama courts had no problem explaining away their own prior decisions that supported the NAACP’s position, so they could order the NAACP to disclose the list.
The U.S. Supreme Court overruled the Alabama Supreme Court unanimously. The issue before the Supreme Court in that case was the right of association, another First Amendment right, but the reasoning of the Court on the right of association applies just as well to the right of free speech. As Justice John Harlan wrote in the opinion of the Court:
“It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as the forms of governmental action in the cases above were thought likely to produce upon the particular constitutional rights there involved. This Court has recognized the vital relationship between freedom to associate and privacy in one's associations. When referring to the varied forms of governmental action which might interfere with freedom of assembly, it said in American Communications Assn. v. Douds, supra, at 402: ‘A requirement that adherents of particular religious faiths or political parties wear identifying arm-bands, for example, is obviously of this nature.’ Compelled disclosure of membership in an organization engaged in advocacy of particular beliefs is of the same order. Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs. Cf. United States v. Rumely, supra, at 56-58 (concurring opinion).
We think that the production order, in the respects here drawn in question, must be regarded as entailing the likelihood of a substantial restraint upon the exercise by petitioner's members of their right to freedom of association. Petitioner has made an uncontroverted showing that on past occasions revelation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility. Under these circumstances, we think it apparent that compelled disclosure of petitioner's Alabama membership is likely to affect adversely the ability of petitioner and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate, in that it may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure.
It is not sufficient to answer, as the State does here, that whatever repressive effect compulsory disclosure of names of petitioner's members may have upon participation by Alabama citizens in petitioner's activities follows not from state action but from private community pressures. The crucial factor is the interplay of governmental and private action, for it is only after the initial exertion of state power represented by the production order that private action takes hold.”
I would never claim that the situation today, for proponents or opponents of any issue, is as bad as Alabama was for African-Americans in the 1950s. 1950s Alabama is not where we are today when it comes to harassment of people who support “the wrong side” of a political question. On the other hand, where we are today is a lot different from where we were ten or fifteen years ago.
It is interesting that the only Supreme Court justice who has been seriously concerned about this issue is Clarence Thomas, the only African-American on the Court. (See Justice Thomas’s opinions in McConnell v. Federal Election Comm'n (2003) and Citizens United v. Federal Election Comm'n (2010).)
A final comment. While any right to anonymous speech is viewed as unimportant by many commentators today, anonymous speech has a long and honorable history in the United States. When Common Sense was first published in early 1776, it was done so anonymously. Similarly, The Federalist Papers, perhaps the greatest work of American political philosophy, were published anonymously.
However, at this point, based on current Supreme Court decisions, the legality or constitutionality of disclosure requirements is not in question. What is at question, however, is whether we like the kind of nation we are becoming. Bradley A. Smith, a commissioner of the Federal Election Commission from 2000 to 2005, says this:
“[B]oycotts [have been] organized to harm [one party] economically so that [that party] would pressure the original speaker to, well, shut up. The power of ideas is abandoned for the power of economic coercion.
As one anti-Prop 8 activist cheered [in California], ‘Years ago [i.e., before aggressive campaign disclosure laws] we would never have been able to get a blacklist that quickly!’”
Mr. Smith agrees that “[p]eople have a right not to do business with companies and individuals”, but he argues that blacklists are not “a healthy part of political debate.”
More than political debate, I worry about the effect of this trend on the civil society that binds us together and on those “mystic chords of memory” that Abraham Lincoln spoke of in his First Inaugural Address. We are going in the wrong direction. We need to turn back.
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* It is unclear if the supervisor has heard of or knows about Joseph Smith.
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