NJ’s ‘Dark Money’ Bill an Attack on Intellectual Freedom

A New Jersey Star-Ledger guest column urged the defeat of a bill, which later passed, that forces political activist groups, under the guise of “dark money,” to disclose their donors. In Let’s expose ‘dark money’ without threatening free speech, advocates say, David Keating, president of the Institute for Free Speech, and Amol Sinha, executive director of the American Civil Liberties Union of New Jersey, wrote:

The way to counter corruption and check the influence of entrenched power is not to pry open the donor files of organizations, but to increase participation in democracy – including by protecting the identities of people involved with advocacy organizations. Rather than discourage giving to nonprofits, the state should consider making it easier for New Jerseyans to support the causes of their choice.

The most significant social movements of the last century – for civil rights, racial equality, and LGBTQ rights, to name just a few – were powered by the ability of like-minded people to join and support groups, and to do so privately. Our society would not be where it is today without this fundamental right.

The equation for democracy is government transparency with individual privacy. Let’s work hand-in-hand to ensure the right balance.

My emphasis. I left these comments under the article:

“Government transparency with individual privacy”: A great phrase in a great article.

The term “dark money” inverts that principle. It is a term of statism, not freedom. The money is not “dark” to the person spending his own money on his own expression. What is truly dark is politicians trying for force disclosure. Short of any direct or imminent ties to criminal activity, neither the politicians nor the public at large have any right to know who is financing what speech if the spender doesn’t wish them to know.

The fundamental individual right of free expression does not come with the condition, “as long as you sacrifice your privacy.” It will be a dark day if this bill becomes law.

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The Star-Ledger previously published my letter on the bill, on January 29, 2019, under the heading Protect ‘dark money’ and its purpose. It is available only in the print edition:

To the editors,

Proposed NJ legislation would “force . . . political organizations that raise money to influence elections and policy in New Jersey” to disclose their donors’ identities (Susan Liveo, N.J. lawmakers ready to change law that lets ’dark money’ donors keep their identities secret). 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 Liveo 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 Supreme Court justices John Harlin II, Hugo Black, John Paul Stevens, and Clarence Thomas. As SCOTUS 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.

Sincerely,

Michael A. LaFerrara

As noted, the bill passed. The alleged purpose of the bill is to prevent “nonprofit groups spending money on U.S. elections to hide contributions from foreign sources.” It is illegal in America for certain foreign sources, such as governments, to interfere U.S. elections. Spending on elections is considered interference. But this is a straw man. Foreign spending should be handled like any other criminal activity--through an objective process of evidence gathering and judicial oversight, such as subpoenas. Demanding a general disclosure of all donors based on the mere suspicion that some of the donations are illegal foreign sources is akin to forcing all  citizens in a given community to submit to warrantless searches of all their property because one member of the community may be a thief. Declaring all community members guilty until proven innocent is the essence of injustice. For the same reason, NJ’s “dark money” bill is every bit as unjust. In my view, the bill is a thinly veiled move by the politicians to shield themselves from scrutiny and criticism, and a major attack on free speech.

Related Reading:

NJ’s ‘Dark Money’ Bill is an Assault on Free Speech

The Anti-Free Speech Fallacy of ‘Dark Money’

‘Dark Money’ is Free Speech. Protect It

The Intimidation Game: How the Left Is Silencing Free Speech--by Kimberley Strassel, especially Chapter 2, “Publius & Co.”