It is well-established law that political campaign contributions are a form of political speech. It is also well-established law that expenditures on political advocacy for a “cause” are also a form of political speech. When it comes to free speech rights in this country, in no other area is it more important than political speech. Yet, there are forces out there who would like to silence political speech under the guise of reform and “having the little guy have his say,” or “getting big money out of politics.”
This article deals with “dark money.” The phrase itself is designed to warn the listener that there is something nefarious and sinister afoot. If political contributions to candidates and/or groups that support certain causes is political speech, then there is actually a long history of anonymous political speech in our history. We can start with the Federalist Papers which were anonymously published under certain pseudonyms like “Publius” in order to hide the writer’s identity. Designed to explain the as-of-yet-unratified Constitution, Alexander Hamilton and James Madison are the acknowledged writers of these papers. Hamilton wrote anonymously given questions about his allegiances because of his foreign birth, while Madison did so for different reasons. Who knows- perhaps without the anonymity of the Federalist Papers, the Constitution may have never been ratified.
We can go throughout the political campaign history of the United States and except in some very rare instances (e.g., the election of Washington) there were anonymous backers of various candidates. Sometimes this crossed over the borderline into outright corruption. It is these fears that fuel today’s debate. And despite the Supreme Court’s 2010 decision in Citizens United and the Senate’s failure to pass the DISCLOSE Act, there are attacks at the state level on free speech rights, through federal agencies, and through the courts.
To some, they question what the problem is with full disclosure of donors. Consider Alabama in 1958, when the Democratic government of that state sought the list of members of the NAACP with the goal of harassing members of that civil rights group. A Supreme Court decision stopped the state’s actions. Consider the case of Mozilla CEO Brendan Eich who was forced to resign after 11 days on the job after a dating site revealed that he donated an insignificant sum of money to proponents of California’s Proposition 8 banning gay marriage (which passed, incidentally). Consider the case of Anne, a Wisconsin resident awakened in the morning by armed police with a search warrant seizing personal property and financial records because she supported Governor Walker’s Act 10 reigning in public worker unions. Consider a mid-level IRS official targeting groups, seeking and getting donor lists because they had the words “Tea Party” or “Patriot” in their titles and then auditing and harassing such supporters and donors. These are real world examples of an America that was never envisioned by our Founders.
Dark money refers to funds spent for political activities by businesses, unions, individuals and non-profits where the donors are not disclosed. The line defining “political activity” is an arbitrary one drawn by government. Depending on where that line is drawn, it can be the ACLU, a soup kitchen, or the local PTA. Any act that endorses or argues against a candidate and/or issue is considered an “electioneering communication.” Most existing laws require some level of disclosure. In fact today, there is more disclosure than any time in our past.
Yet, the Left wants more. In the 2014 midterm elections, about $5.9 billion was spent on federal elections. Roughly $173 million came from groups that are not required to disclose their donors. Only to the Left does 2.9% translate into “significant.” Going back to 2012, nearly all of the alleged dark money came from well-known groups- unions, the Chamber of Commerce, the Realtors Association, the NFIB, NARAL, the NRA or even the Humane Society.
The main attack has been at the state level when they have actually used the law. In 2013, Nevada amended their definition of a political committee to include any group that spent $5,000 or more on any election or ballot question. An individual in Arizona in 2011 who opposed a local ballot question was issued a “cease and desist” order for organizing a protest of 23 neighbors until she registered as a political committee. Minnesota recently considered a bill that would have required the name of every donor be disclosed under certain conditions.
This is a great tactic of the Left- to twist the language to make things sound like what they are not. “Pro-choice” is a nice phrase to describe killing human life in the womb. Likewise, these bills are dressed up as “ethics” legislation, “anti-corruption,” or “transparency” laws. Who doesn’t want choice, ethics, a lack of corruption and transparency in government?
Then there are the so-called “accountability movements” which are fostered by several groups like Acountable America. Founded by Tom Matzzie, a former member of MoveOn,org, they engage in letter writing campaigns against potential conservative donors. In these letters, they threaten public exposure, legal action, and a cadre of liberal watchdog groups poking through the lives of potential donors. Only in the perverted mindset of a liberal is this free speech.
Proponents of disclosure use two main arguments that illustrate the opposite ends of that spectrum. Some simply assert that disclosure overcomes what they believe is an inherent unfairness given the rich under Citizens United. At the other end of the spectrum are groups like ProgressNow with the professed goal of dismantling state-by-state conservative groups through public disclosure of their donors and then targeting them Eich-style.
The threats also come from the government and those with a political agenda. There is the aforementioned Arizona woman. In California, a woman lost her job as a restaurant manager when it was disclosed she donated $100 to proponents of Proposition 8. There are cases from Wisconsin and Missouri. The threat is very much real.
Forty years ago, the New York Supreme Court stated in the case of People vs. Duryea:
“Do not underestimate the common man. People are intelligent enough to evaluate the source of anonymous writing. They can see it is anonymous. They know it is anonymous. They can evaluate it’s anonymity along with the message, as must they be permitted, to read that message. And then once they have done so, it is for them to decide what is responsible, what is valuable, and what is the truth.”
The same holds true for political donations. The Duryea case was referenced positively by the US Supreme Court in McIntyre vs. Ohio Elections Commission. Unfortunately, that exclamation point on anonymous speech has been weakened by the very Court that brought you Citizens United. The proponents of full disclosure, when not hiding their true intent of chilling free speech, are again trying to protect us from ourselves.
As I have tried to illustrate in other articles on this subject, campaign finance laws are a sham any way. Generally, positions do not follow the money; the money follows the position. Does anyone really expect Tom Steyer to donate to Jim Inhofe in the hope Inhofe changes his mind about climate change? Does anyone expect Charles Koch to donate to [mc_name name=’Sen. Barbara Boxer (D-CA)’ chamber=’senate’ mcid=’B000711′ ] to get her to change her mind about the Keystone Pipeline? Regardless, if Tom Steyer or Charles Koch want to spend their money on what is basically a 50/50 crap shoot any way, and they want to remain anonymous doing it, one would think the Constitution protects that right. In races where money was expended by non-disclosing outside groups, excluding incumbents, their success rate is slightly more than 50%. That may just explain why no one has ever seen a dollar bill in a voting booth.