The first half of 2012 has thus far featured a bizarre and backward turn in the relationship between the state and its citizens. The Obama administration — an administration allegedly committed to “an unprecedented level of openness in Government” — is instead operating under a principle best described as “transparency for thee but not for me.”
Through the DISCLOSE Act, the administration is seeking unprecedented disclosures from private individuals, organizations, and corporations as the price of participating in public debate. But the administration and its congressional allies hardly need a statute to make public participation in civic life difficult for private citizens. The Obama Campaign and the Democratic Senatorial Campaign Committee have filed complaints against a major conservative social-welfare organization, Crossroads GPS, arguing it should be required to disclose it donors. Even worse, the IRS has responded to dozens of tax-exemption applications by tea-party groups with astonishingly intrusive document demands, seeking not only donor lists but also lists of volunteers.
In other words, the administration’s message is clear: Private citizens, in order to participate in public debate, must identify themselves to their government.
Now let’s contrast these transparency demands with the administration’s commitment to secrecy. President Obama’s recent assertion of the so-called deliberative-process privilege to protect key Fast and Furious documents from disclosure is a classic example of government officials’ claiming rights denied to private citizens. The privilege is designed to allow “government officials the freedom to debate alternative approaches in private.” Yet no corporation, partnership, or individual in America has such a blanket freedom to protect the privacy and quality of their decision-making processes.
The Obama secrecy obsession extends far beyond Fast and Furious. According to the New York Times, the Obama administration, “which promised during its transition to power that it would enhance ‘whistle-blower laws to protect federal workers,’” has been “more prone than any administration in history in trying to silence and prosecute federal workers.” Even worse, “the majority of the recent prosecutions seem to have everything to do with administrative secrecy and very little to do with national security.”
The double standard is clear, yet this double standard is inconsistent with our constitutional and democratic history.
Anonymous speech and anonymous association have a long and proud history in this country,. From Thomas Paine’s anonymous pamphlet, “Common Sense,” which helped rally Americans during the Revolution, to the debates of “Publius” in support of ratifying our Constitution, anonymity has enabled freedom in no small measure by protecting speakers from retribution.
In fact, not only was anonymity crucial in our nation’s founding, but it also played a key role in ending segregation. In 1958, the Supreme Court decisively rejected Alabama’s attempt to force the NAACP to publicly identify its “members” and “agents” as a condition for continuing its operations in the state. After the NAACP demonstrated that its members had been exposed to, among other things, “economic reprisal, loss of employment, [and] threat of physical coercion,” the Court held that “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.”
It’s a sad reality of our decayed political discourse that too many dissenting citizens face similar dangers even today. Since 2008, we’ve seen intimidation of religious organizations, death threats, and extreme economic reprisals after disclosures of financial support for allegedly offensive causes. In recent months, formerly anonymous bloggers have been targeted for “SWATings” (where someone calls the police to fraudulently report a violent crime at a person’s home, resulting in a potentially dangerous police intervention). And frivolous lawsuits against controversial speakers have become so common that more than 20 states have adopted protective legislation.
No doubt the Obama administration would condemn the intimidation tactics its reckless “transparency” efforts enable. Yet the government still bears responsibility for the harm that results. The Supreme Court recognized this simple concept: “It is only after the initial exertion of state power . . . that private action takes hold.” In other words, without the government-mandated disclosure, bad actors would be on a tighter rein and have fewer targets.
Liberty thrives when citizens enjoy their privacy and governments are obligated to transparency. The Obama administration follows the reverse course and is no friend of liberty.
— David French is a senior counsel for the American Center for Law and Justice. The ACLJ is representing a number of tea-party organizations in their efforts to secure tax-exempt status.