There is a fine line between requiring transparency in politics and creating opportunities for politically minded people and groups to be intimidated into silence. A new effort by two senators, Democrat Ron Wyden of Oregon and Republican Lisa Murkowski of Alaska, is in danger of crossing that line — to the detriment of political free-speech rights.
Back in 2011, the Obama administration drafted an executive order that would have forced government contractors to disclose any donations over $5,000 that the company or its executives made to outside political groups. Federal law already requires such disclosure for contributions to candidates and parties, but the order would have extended that requirement to independent-expenditure groups, a category in which conservatives outspent liberals for the first time in the 2010 election cycle.
The draft order was clearly highly selective in its approach. Federal-employee labor unions and recipients of federal grants, two highly liberal donor populations, were exempted from the disclosure requirements.
The Obama draft was eventually shelved after howls of outrage from federal contractors. It was clearly unnecessary because federal contracts are not supposed to be given out on the basis of which causes companies support. But such highlighting would allow left-wing groups — or at some future point right-wing groups — to strong-arm political opponents of an administration. As the Wall Street Journal pointed out; “Disclosure may sound nice, but the real point is to put companies on notice that their political contributions will have, well, consequences.”
When a congressional version of the Obama executive order called the DISCLOSE Act was introduced in Congress in 2010, its Democratic cosponsor New York senator Chuck Schumer was quite forthright in saying the bill was designed to “embarrass companies. . . . The deterrent effect should not be underestimated.”
Richard Nixon showed just what misuse selective forced disclosure of political activities can be put to. John Dean, the White House counsel who went to prison for his role in Watergate, drafted a memo on how the Nixon people could keep an “enemies list” that would “determine what sorts of dealings these individuals have with the Federal Government and how we can best screw them (e.g., grant availability, federal contracts, litigation prosecution, etc.).”
No one is suggesting that a return of Richard Nixon’s tactics to Washington is imminent, but every political weapon will eventually be misused by someone. Recently, the IRS “inadvertently” released the confidential donor lists of conservative nonprofits when replying to Freedom of Information Act requests from liberal groups seeking greater transparency. The groups were asked not to publish the information, but they did so anyway.
Such information is already being used at the state level to intimidate companies. In 2010, Target Corp. contributed $150,000 to an independent group running ads against higher taxes. But the same group was also backing a pro-traditional-marriage constitutional amendment. MoveOn.org, a left-wing activist group, threatened a boycott of Target stores and said it needed to be made an example of because the company’s so-called “anti-gay” political behavior would become “the tip of the iceberg.” Target immediately backed down.
Ever since the 2009 Citizens United decision by the Supreme Court swept away many restrictions on political free speech, liberals have tried to find a way to rein in independent groups that engage in politics. After the DISCLOSE Act failed to pass Congress and the Obama executive order was stillborn, liberal commissioners on the Federal Communications Commission began making noises last March that they might implement their own form of required transparency.
At a Senate oversight hearing, the FCC commissioners were asked by Democratic senators Bill Nelson of Florida and Jay Rockefeller of West Virginia if they would use their regulatory authority to require that the underlying funders of any political ads be identified. “You have the statutory power,” Nelson told them. “You don’t have to do what we failed to do four years ago, to pass the disclosure act.” FCC chairman Julius Genachowski called the idea a “First Amendment-friendly, powerful tool,” and said that the FCC should look into “going more deeply into who the actual funders are.”
Another attempt at forced disclosure is the new legislation by Senators Wyden and Murkowski. I believe both senators are sincere in their belief that “anonymous sleaze and innuendo” is lowering the level of discourse in American politics. Their bill improves on previous attempts at greater disclosure because it does not exempt nonprofits and labor unions. But it still infringes on key First Amendment rights. A new poll by McLaughlin Associates taken for the American Conservative Union shows that most Americans hold the right of privacy when it comes to being active in politics very seriously. A full 86 percent of those surveyed agreed that “American citizens have a right to privacy when they support any issue-advocacy groups.”
All of the attempts at forced disclosure of independent political efforts pose the same challenges to the First Amendment and can be used by political players to engage in “sleaze and innuendo” against views they disagree with. The left-wing group Media Matters, headed by a former staffer to Senator Schumer named Eric Burns, issued a strategic plan last year that spelled out just what it would do with greater disclosure. It said new disclosure data would be used to “create a multitude of public relations challenges for corporations that make the decision to meddle in politics. Working with allied organizations, we will utilize (our) database’s information to provoke backlashes among companies, shareholders, employees and customers, and the public-at-large. . . . When businesses back candidates, Media Matters Action Network will portray it as a complete endorsement of everything that given politician has said or done.”
How will that approach possibly improve the “level of political discourse” or “make it easier for voters to make informed decisions,” as Senators Wyden and Murkowski would have you believe their bill does? Disclosure is appropriate and needed, and we have a great deal of it today in politics. But it is not a goal to be followed blindly, because the consequences of turning it into a political weapon with which to bludgeon adversaries will not make our politics nicer or more honest.