In Dark
money reform now hinges on Assembly Speaker Coughlin (1/31/19), the New Jersey Star-Ledger editorialized in favor of a
pending bill to compel disclosure of contributors to political action groups:
The Senate is close to taking a big step towards cleaner elections
by approving a bill that would force secret donors to come out of the shadows
and identify themselves, a measure that Gov. Phil Murphy has promised to sign.
The bill was set for a vote on Thursday before a last-minute delay, but is
likely to win approval soon.
This one is a big deal. The long effort to contain political
spending has effectively collapsed, thanks to court rulings that protect
unlimited political donations to “independent” groups as a form of free speech.
The best we can hope for now is to throw open the curtains and let some light in,
so that we can at least see who is pulling the strings.
It is unfathomable that one of the biggest
benefactors of free speech, the press, would argue in terms like “contain
political spending.”
A couple of days before, on 1/29/19, the
Star-Ledger published my letter on this bill (as of this posting, not available
online). Under the heading Protect ‘dark money’ and its purpose, here is
my letter:
Proposed New Jersey legislation would force
“political organizations that raise money to influence elections and policy in
New Jersey” to disclose their donors’ identities (“A bid to bring ‘dark money’
into the light,” Jan. 20). But anonymity can be crucial to political advocacy,
and was used throughout history by activists to avoid harassment and intimidation
by governments, political opponents and thugs.
Revolutionary era advocates of independence
remained anonymous to shield themselves from British reprisals, as did
20th-century civil rights advocates to shield them from private and political
intimidation. And as your story reported, New Direction New Jersey, a political
activist group, refused to disclose its donors due to “attacks from powerful
special interests.”
Spending is integral to speech. Anonymous
spending equals anonymous speech. Anonymous speech has been sanctioned by U.S.
Supreme Court Justices John Harlin II, Hugo Black, John Paul Stevens and
Clarence Thomas. As the court ruled in NAACP vs. Alabama, “compelled
disclosure” impairs individuals’ “collective effort to foster beliefs” by exposing
them to “manifestations of public hostility,” violating fundamental rights to
free association and privacy thereof, free speech and due process. So-called
“dark money” is an expression of these rights and should be protected.
As to the 1/31/19 editorial, the Star-Ledger did
pay tepid lip service to the threat to free speech that the bill represents:
The bill is opposed
by several grassroots groups, liberal and
conservative, who feel they are caught in the crossfire as good governments
groups like the Brennan
Center and the Election Law
Enforcement Commission push to clean up the political system. Amol Sinha, the
director of the ACLU of New Jersey, worries that donors may be scared away if
they know their names will be disclosed. That’s echoed by conservative groups
like New Jersey Right to Life and Americans for Prosperity.
“We have a lot of high-level anonymous donors,” Sinha says. “We
don’t want our donors’ free speech rights to be chilled.”
In California, Sinha said, disclosure rules revealed the names of
donors to groups pressing for marriage equality, one of whom worked for the
Catholic Church. Wouldn’t that donor’s right to engage be infringed if his
political activity could cost him his job, Sinha asks?
It’s a reasonable concern, but it’s outweighed by the need to
protect our political system from the corrupting influence of dark money. We
already reveal the names of those contributing directly to a political party,
or to a candidate. Should those names be hidden as well?
I left these comments:
“A reasonable concern.” That’s all the Star-Ledger
can say about freedom of speech?
“Protect our political system” from what? From
the “corruption” of pesky private citizens spending their own money speaking
their minds in order to influence elections and policy? What exactly is our
political system, if not private citizens engaging through free speech? Who is
protected by compelled disclosure? Not the citizen activist. The politicians,
that’s who. Why should they be protected from private political activism?
Direct contributions to political parties and
their candidates--those who actually hold office--is one thing. Political
activism through free speech expenditures intended to influence the
officeholders is quite another. We’re not talking bribery here. We’re talking
First Amendment. It’s private citizens’ fundamental right to free speech that
should be protected. So-called “dark money” is not dark to those who do the
spending. They know it’s their money. They have every right to speak out
including when it comes to legislation that directly affects them, and to keep
their identities to themselves if they choose. Anything that inhibits people
from speaking out, whether through groups or individually, is an abridgement of
free speech. That’s not merely a “reasonable concern.” The proposed ban is an
assault on one of a free society’s foundational rights.
Spending is integral to speech. Anonymous
spending equals anonymous speech. Anonymous speech is free speech. Free speech
is a crucial citizens’ tool for keeping their political representatives
accountable. Compelled disclosure is just an intimidation tactic to silence
dissent and protect the political class, not the political system.
Kill this bill. It is un-American.
Related Reading:
The Intimidation Game: How the Left Is Silencing Free Speech--by Kimberley Strassel, especially Chapter 2, “Publius & Co.”
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