Why Conservatives Don’t Want to Identify Political Donors

They see disclosure requirements as a threat to their personal safety and liberty.

WASHINGTO N - O CTO BER 31: Chief Justice John G. Roberts (L) Justice Clarence Thomas (C) and Justice Sandra Day O 'Connor pose for photographers at the U.S. Suprem e Court O ctober 31, 2005 in Washington DC. Earlier in the day U.S. President George W. Bush nom inated judge Sam uel Alito to replace Sandra Day O 'Connor who is retiring once her replacem ent is confirm ed by the Senate.
National Journal
James Oliphant
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James Oliphant
Oct. 24, 2013, 5 p.m.

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.”

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