Three years ago, the Supreme Court entertained an appeal from an advocacy group that didn't want to disclose the names of signatories on a referendum petition aimed at overturning a state gay-rights law. The justices were not sympathetic. In an opinion written by Chief Justice John Roberts, and joined by seven others, the Court held that the state's public-records disclosure requirements didn't violate First Amendment protections of free speech. A lone justice, Clarence Thomas, dissented. The disclosure rule, he wrote, "severely burdens" constitutional rights of political speech and association and "chills citizen participation in the referendum process."
Thomas's view was an outlier. It broke with the then-prevailing consensus among conservatives on the Court that the First Amendment doesn't prohibit mandatory public disclosure. No less an eminence than Antonin Scalia, typically Thomas's brother-in-arms, wrote in a separate opinion that "requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed." And even in the pages of the highly charged Citizens United ruling, in which the Court's conservative majority loosened restrictions on corporate political activity, the justices wrote that "transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages."
That was then. Now Thomas's contention that public disclosure chills free speech is becoming an article of faith among the hard Right, which sees disclosure requirements as a threat to personal liberty. Ted Cruz, who knows a thing or two about standing up in public after his crusade against Obamacare on the Senate floor, is a subscriber. The Texas Republican is holding up the confirmation of Thomas Wheeler, President Obama's choice to chair the Federal Communications Commission, over the issue.
Specifically, Cruz is concerned that Wheeler will use the FCC's administrative power to compel groups that buy political ads on TV and radio to release the names of their donors. Under current law, "social-welfare groups" organized under Section 501(c)(4) of the tax code (American Crossroads GPS, created in part by Karl Rove and dedicated to electing Republicans, is one of many, many examples) can keep the identities of their contributors secret. The commission, Cruz argued at Wheeler's confirmation hearing this summer, lacks the authority "to regulate political speech." Wheeler demurred on the subject.
Like Thomas, Cruz was once in the minority among Republicans on this issue. John Boehner, the House speaker, used to be a champion of transparency, as was Mitch McConnell, the Senate Republican leader. "To have all of this unregulated campaign cash going to these organizations and allowing them to engage in campaign activities without any disclosure is—it's wrong," Boehner said back in 2006.
But Senate Republicans last year killed a bill, the Disclose Act, that would have required any group that spends more than $10,000 on political activities to reveal its donors. Joining a filibuster in the Senate was John McCain, historically a campaign finance reform hero. The Arizona Republican derided the bill as "political gamesmanship" and said it unfairly exempted labor unions. (The bill's chief Senate sponsor, Democrat Sheldon Whitehouse of Rhode Island, said it did no such thing.) Cruz fears that Wheeler will basically implement the Disclose Act through FCC regulations.
The roots of the shift among conservatives stem in part from the work of James Bopp Jr., an Indiana lawyer and activist who litigated the petition-disclosure case in Washington state. In that case, Bopp raised the specter of harassment. Gay-rights groups, he said, were targeting signatories of the referendum petition to, in a sense, "out" them as bigots.
This month, Bopp argued before the U.S. Court of Appeals in San Francisco that a California law that requires the disclosure of contributors' names to a group that backed Proposition 8, which sought to ban same-sex marriages in the state, should be declared unconstitutional. Bopp says evidence in the court record proves that fears of threats, intimidation, and harassment are real—and that disclosure requirements inhibit free participation in the political process. "Public disclosure of a person's political activity chills political activity," he told National Journal.
Bopp cites President Nixon's infamous "Enemies List" as an example of how campaign disclosure can be used as a weapon. (Nixon sought to have the Internal Revenue Service target prominent supporters of George McGovern's 1972 presidential campaign.) "The purpose of the First Amendment is not for the government to monitor the citizens," he says. "It's for citizens to monitor the government."
More recently, conservatives point to reports that the IRS unfairly singled out 501(c)(4) tea-party groups for scrutiny during the last election cycle as an example of government harassment in the campaign finance context (the administration's defenders argue the matter was overblown). In addition, they howled this summer when Sen. Dick Durbin, D-Ill, sent letters to corporate and nonprofit sponsors of the American Legislative Exchange Council, a conservative group that works with state legislators, asking them to disclose their positions on "Stand Your Ground" laws that were implicated in the killing of Florida teen Trayvon Martin. The Chicago Tribune's editorial board compared Durbin to—wait for it—Nixon. Durbin defended himself in the Tribune, saying, "Sunlight is better than secrecy when it comes to making laws."
There was a brief time, in the aftermath of Citizens United, when campaign finance reformers thought that, at the very least, some political consensus might be found on disclosure and transparency. But if Cruz's actions are any indication, that window has slammed shut. Let Scalia's opinion in the Washington state gay-rights case serve as the moment's epitaph. "For my part, I do not look forward to a society which ... campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from public criticism," he wrote. "This does not resemble the Home of the Brave."
This article appears in the October 26, 2013, edition of National Journal Magazine as (Don’t) Let the Sunshine In.