A mysterious ad attacked a federal candidate with blistering ferocity, ominously distorting the office holder’s record. Shocked observers issued stark warnings that the backers of the ad must be outed. One “made the surprising remark that disclosure protects us against the risk of foreign interest influence over our elections,” according to an account by White House general counsel Bob Bauer.
Was Bauer writing about the 2010 campaign cycle and the “secret” funds gushing from the coffers of the U.S. Chamber of Commerce or American Crossroads?
No. Bauer, then the head of the political-law practice at the Perkins Coie firm, which represents mainly Democrats and liberal groups, was describing a parody of Apple’s famous 1984 ad — a parody that lambasted then-presidential-candidate Hillary Clinton as an authoritarian-in-waiting.
“Some had to know, then, who created this ad,” Bauer wrote on his now-defunct blog. He explained that self-styled campaign-finance reformers supported disclosure of the identity of political communications because they claimed that “this knowledge is useful in evaluating its truthfulness or judging merit.” As for Bauer, he had no time for such nonsense. “An argument is fully open to evaluation without attention to the person making it,” he blogged in March 2007. “In fact, this is evaluation on the merits; it is precisely to keep the argument focused on the merits, not judged by the appeal or reputation of the author, that some authors choose not to reveal themselves. It has always been remarkable that proponents of ‘deliberative democracy,’ with their emphasis on reasoned debate, will favor a style of argument that forces reason into the background while propelling personal authorship to the foreground.”
That was 2007, as the Democrats built momentum after taking over the Congress and Bauer’s client, a fresh-faced U.S. senator from Illinois, sought the presidency. In 2010, as Democrats face heavy losses in the House and Senate, the White House and Democratic leaders sport a different playbook.
“Everything was going great and all of a sudden secret money from God knows where — because they won’t disclose it — is pouring in,” said House Speaker Nancy Pelosi at a fundraiser with President Obama in Minnesota on Saturday.
“Right now, the same special interests who would profit from the other side’s agenda, they are fighting back hard,” President Obama recently charged at a rally in Seattle for Sen. Patty Murray (D., Wash.). “Just flooding the airwaves with negative ads. And they don’t have the courage to stand up and disclose the identity of the donors. They could be insurance companies. They could be Wall Street banks. We don’t know. We don’t know who it is.”
As it turns out, Bauer addressed this claim back in 2007. “Then there is the excuse that we need to hold ‘negative’ speech accountable,” Bauer wrote in the blog post, titled “1984.” “Would there have been such a stir, and a hunt for the author, if the ad had been a wholly positive piece about Obama? Of course not: it was ‘negative,’ an ‘attack,’ requiring the malefactors responsible for it to answer for themselves. Of course, one person’s criticism is another’s ‘attack.’ But no matter: by playing on the disapproval of ‘attacks’ — on the perception that a critic who does not speak openly is a coward who evades responsibility — the proponent of disclosure hopes to make the case.”
What a difference an election cycle makes. No longer in the position of challengers to the throne, the administration’s key operatives today argue that disclosure of donors is essential to the republic. Indeed, at an early October campaign rally in Maryland, President Obama went as far as to call undisclosed political spending “a threat to our democracy.”
That was apparently not the case in 2006, when key Obama adviser David Axelrod (then a political consultant) devised a group — dubbed the Consumers Organized for Reliable Electricity — to communicate Commonwealth Edison’s view favoring a rate increase to Illinois residents, warning of a “California-style energy crisis” if the rate increase wasn’t approved. But, breathe a sigh of relief: Political opponents found out and made great hay with the true source of the advertisements (because apparently it would have surprised Illinoisans to learn that the utility company wanted to collect more money).
“They say, trust us, trust us, everything is cool, everything is kosher, don’t worry about it, but we’re not going to disclose. Let me tell you something, [if] people don’t disclose, there’s a reason,” Axelrod said on CNN’s State of the Union in mid-October.
A week earlier, White House press secretary Robert Gibbs blasted political groups that declined to reveal their donors to the government and their political opponents. “Simply tell us who you are,” Gibbs demanded at his daily press briefing.
But, as the Daily Caller recently reported, Gibbs flacked for a liberal advocacy group in the 2004 presidential cycle. His outfit, Americans for Jobs, Health Care & Progressive Values, blasted then-presidential candidate Howard Dean with an attack ad in late 2003. The ad zoomed in on a photograph of Osama bin Laden and ripped Dean’s lack of military or foreign-policy experience. The group declined to reveal its donors until after the Iowa caucus in 2004, near the end of the road for the damaged Dean campaign.
This situational ethics on disclosure is not unique to Democratic incumbents.
“All these ads, these 527s, with billionaires funding campaigns, ought to be gone,” said Karl Rove, then an adviser to Pres. George W. Bush, in a Fox News interview with Bill O’Reilly in 2004. Bush was running for re-election against Sen. John Kerry (D., Mass.), and the White House sought to crack down on groups using “less stringent disclosure requirements than before campaign laws were overhauled [in McCain-Feingold],” as the liberal blog ThinkProgress gleefully noted last week. Rove now advises American Crossroads and its affiliate, Crossroads Grassroots Policy Strategies, two of the most active GOP-leaning groups this cycle.
Broad consensus exists that large contributions to candidates should be disclosed. But when the government seeks to mandate disclosure of independent political activity, the burdensome costs must be weighed along with the modest informational benefits. “Disclosure is a mostly unquestioned virtue deserving to be questioned,” Bauer, now the top White House lawyer, wrote in a 2006 post.
So why is the White House seeking to intimidate conservative donors into revealing their names this time around?
“Since few aspiring censors will admit openly to their purposes, the appeal to ‘disclosure’ has given them the moral authority, in public argument, that they need,” Bauer wrote in 2007. “This is because ‘disclosure’ is a regulatory tool; it is meant to serve the government’s purposes, not only or even primarily those of individual citizens in need of information. . . . This is a large part of disclosure’s work: to force outcomes, not principally to inform free voter choice.”
Now they tell us.
– Allison Hayward is the vice president of policy at the Center for Competitive Politics, a nonpartisan, nonprofit group dedicated to protecting First Amendment political rights.