Opposing NJ’s ‘Dark Money’ Ban is about Protecting Free Speech, Not Merely the Progressive Agenda

In Overriding dark money bill will cripple progressive groups, grassroots organization says,New Jersey Star-Ledger guest columnists Phyllis Salowe-Kaye and Marcia Marley rightly argued against a “dark money” bill that would force disclosure of private donors to political advocacy organizations. They make the valid point that such forced disclosure would amplify the power of the political class to dominate political discourse.

Unfortunately, they don’t argue from principle, only from partisan ideological motives.They call for favoring advocates of their Progressive liberal agenda, while stifling opponents’ ability to dissent.

Opposing NJ’s ‘dark money’ ban is about protecting free speech--everyone’s free speech, including “trade associations” and “powerful corporate interests.” 

So it’s a shame that Phyllis Salowe-Kaye and Marcia Marley have narrowed the issue down to merely protecting the Progressive agenda. 

But that’s exactly the point of freedom of speech, and thus the protection of donors’ privacy. Nobody’s political agenda should be exempt or “protected” from public scrutiny, dissent, opposing opinions, or accountability. Nobody’s political ideology or agenda should ever be the government’s job to protect. The government should protect everyone’s freedom to express their views equally and at all times.

By advocating forced disclosure on political donors of differing political views, Salowe-Kaye and Marley are exposing their, and more broadly Progressives', authoritarian impulses. They are explicitly and brazenly suggesting targeted government restrictions on free speech so as to protect and advance the Progressive agenda. In doing so, they inadvertently provide powerful evidence for why so-called  “dark money” should never be banned.

Related Reading:

Murphy’s Veto of NJ’s ‘Dark Money’ Ban Should Be Unconditional

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

Kill New Jersey’s ‘Dark Money’ Ban

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

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

The Anti-Free Speech Fallacy of ‘Dark Money’

N.J. AG Confirms: State’s Disclosure Law is about Stifling Political Accountability

Why Free Speech and Spending on Speech are Inextricably Linked

Can Wealthy Candidates Actually ‘Buy Their Way into Office?' No, and Yes

QUORA: ‘Did the Founding Fathers ever intend for the People to elect the President? Is there anything in the U.S. Constitution that requires an election for President to be held?’

In his otherwise relatively accurate answer to this Electoral College question, John Cates wrote:

The only fly in the ointment in modern politics is when extraordinarily wealthy people without merit manage to buy their way into office.  It doesn’t always work, but too often, it does. 

Here is my comment to John Cates:

Constitutionally, I think this answer is well explained, and based on that I upvoted it despite certain misgivings. E.G. I completely disagree that the Georgia election law is “horrendously discriminatory.” 

I also believe that the following statement needs clarification: 

“The only fly in the ointment in modern politics is when extraordinarily wealthy people without merit manage to buy their way into office.  It doesn’t always work, but too often, it does.”

Taken literally, it almost never happens that any politician buys his way into office. There was a recent case in New Jersey in which a City of Hoboken city council candidate was convicted of trying to buy his way into office by paying voters $50 bribes for their mail-in ballots. Vote buying does happen. But this is not a “fly in the ointment” of our political system. Electoral bribery has always been illegal. And it is very rare.

Much more common, and more insidious in this welfare state era of massive redistributive government, is a different form of politicians “buying their way into office” -- or buying their way to reelection -- and its all legal. Again in New Jersey, Governor Phil Murphy, who is up for reelection in 2021, conspired with Democrats in the legislature to, in effect, buy his and legislative Democrats reelection—with taxpayer money.  In 2020, they passed a budget bill that would send $500 rebate checks to most NJ voters right before the 2021 election. One Republican justifiably accused Murphy of “looking to buy his reelection with your money.” It wasn’t only Republicans. Tom Moran, editorial page editor for the Star-Ledger, NJ’s largest newspaper and generally Left-leaning, called the gimmick a bribe masquerading as a tax credit.

But the charge that “extraordinarily wealthy people without merit [can] manage to buy their way into office” is usually used to rationalize restrictions on private spending on political campaigns and causes. Such restrictions are unconstitutional violations of free speech. No matter how much money a candidate has to spend on his own campaign, he must still persuade enough voters to support him. In the 53 voting years since my first vote in 1968, I’ve never encountered anyone who justified his/her vote based on a candidate’s net worth or campaign spending account. When people fill out their ballots, I doubt very many have the amount the candidates spent on their campaigns on their minds. If a wealthy candidate manages to win, no guarantee, it is because voters were persuaded—not an easy task, even for deep-pocketed individuals. For every Donald Trump who manages to get elected, there are many more Michael Bloombergs or Tom Steyers who flop. Yes, buying their way into office happens. But it’s not wealthy individuals merely exercising their free speech rights. It’s corrupt politicians literally bribing people, in both lawful and unlawful ways. 

It’s true that modern campaigns require lots of money. Candidates, after all, have to reach a mass audience. But there is little substance or evidence to the charge that wealthy individuals have any special advantage in elections. Candidates have myriad ways to raise money. Even if they did, so what? It’s still up to voters to decide. There is no credibility to the charge that political spending constitutes buying into office.

Related Reading:

QUORA: ‘Why does the Electoral College of the United States of America exist?’

Voting laws: How Georgia compares to other states -- By David Wickert forThe Atlanta Journal-Constitution

QUORA: 'I haven't heard any valid reason to restrict other than felony crimes. Why are so many state legislatures trying to put restrictions?'

HR-1 is An Assault on Free Speech, Property Rights, Freedom of Conscience, and Privacy

Looming just over the political horizon is HR-1, which just passed in the House of Representatives. This bill is massive. Despite being peddled as a “voting rights bill”, HR-1 goes way beyond voting. As CATO’s law and constitutional scholar Walter Olson explains:

In fact H.R. 1 is a sprawling omnibus measure that would assert federal control over a broad array of areas of American life related not just to elections and campaigns but to the dissemination of opinion about politics and policy, as well as a range of matters yet further afield.

This is a dangerous, authoritarian assault on many of our freedoms. The biggest danger, in my view, is its provisions that undermine our First Amendment rights. This part, which concerns campaign finance, strikes at the heart of our freedoms of speech, conscience, and privacy, as well as property rights.

Here is a statement concerning the “Influence of Big Money’ from The Brennan Center for Justice,  a supporter of HR-1, under the heading “Why it Matters.” The Brennan Center claims to be a bipartisan institution dedicated to “uphold the values of democracy [and] stand for equal justice and the rule of law.” But as we can see in this statement, it is strongly statist and Left-leaning:

Today, thanks Supreme Court decisions like Citizens United, big money dominates U.S. political campaigns to a degree not seen in decades. Super PACs allow billionaires to pour unlimited amounts into campaigns, drowning out the voices of ordinary Americans. Dark money groups mask the identities of their donors, preventing voters from knowing who’s trying to influence them. And races for a congressional seat regularly attract tens of millions in spending. It’s no wonder that most people believe the super-wealthy have much more influence than the rest of us. 

These are talking points meant to obfuscate, not educate. There are two main reasons why this bill should be defeated. First, it is a massive violation of individual rights, including free speech and property rights. Second, it strips private citizens of a powerful tool to hold politicians accountable. This, in a bill also dubbed the “For the People Act” (seriously).

“Campaign finance”, whether to advocate or oppose a candidate or issue, is essentially a vital tool for delivering your viewpoints to others. It’s your means of realizing what’s in your mind in the material world. The ability to spend money on your expression is fundamental to free speech. Restrictions on spending is therefore a restriction on free speech. Let’s dig into some of the Brennan Center’s rhetoric.

Dark money groups mask the identities of their donors, preventing voters from knowing who’s trying to influence them.

The ability to keep your contributions and spending private and anonymous, if you choose, is a privacy right that is particularly critical to your freedom to speak out. Activists should not have to expose themselves publicly, with the threat of harassment or economic retribution being public often carries, as a price for exercising the right to free speech. Voters have no right to know “who’s trying to influence them.” The critical connection between free speech and privacy is so strong that two organizations that are typically on opposite sides, Americans for Prosperity and the ACLU, have both sued to defeat a law in New Jersey that forces political action organizations to disclose their donors. In the name of “the people,” HR-1 attacks our privacy. This, the For the People Act!

The idea that too much spending means too much influence is laughable. How could there be too much influence? Influence simple means persuasion. That’s it. Individual voters decide,and each of us has one vote regardless of how much we spend on political advocacy. The whole point of political speech, and the spending that enables that speech, is to seek to persuade. If your speech is not intended to influence others’ opinions, votes, and legislation, then what’s the point of your right to express yourself? The reason politicians want to reduce private money “influence” is to increase their own influence. This, the For the People Act! 

Super PACs allow billionaires to pour unlimited amounts into campaigns, drowning out the voices of ordinary Americans. 

It’s claimed that so-called “big money” “drowns out the voices of ordinary Americans.” This is probably the stupidest excuse for restricting private campaign spending. No “ordinary” American is ever stopped from speaking out in any number of ways, from voting, or from donating to political causes, including political action committees. For one thing, small donors vastly outnumber large donors, allowing individuals with modest means to compete with “big money” by sheer numbers. Bernie Sanders built a well-funded, almost-successful presidential campaign mostly on small donors. For another, not all  “big money” spending comes from billionaires. Large campaign expenditures often are made by political action organizations that have hundreds or thousands of small donors. Thirdly, large donors enhance the voices of we ordinary Americans, at no cost to us, whenever they advance candidates and causes we agree with. And individual voters have a powerful weapon that no campaign donor, no matter how large, can weaken--contacting one’s representative directly. Politicians listen to their constituents. They have to. They know they’d better.  Billionaires’ political spending does not “drown out” anyone.

It’s claimed that money corrupts politics and democracy. But the truth is the exact opposite. Money spent on campaigns and issues, by reaching mass audiences, fosters discussion and debate by exposing more people to differing viewpoints. Socially, this expression advances the beliefs of people who agree, offers the opportunity for rebuttal for people who disagree, and adds to the ability of everyone to sort out truth from falsehood, facts from lies, through vigorous debate. And that’s how it should be. The only “losers” are the politicians who have to answer to these expressions, which is why some politicians want to stifle the voices of ordinary people--the very “ordinary Americans” they claim are being drowned out billionaires. But as this contradiction shows, only the government has the power to drown out anyone. 

HR-1 and Brennan also call for public funding of elections. On the face of it, this is a strange position for an organization that supposedly stands for equal justice. Then again, maybe not. There is no mention of individual rights in the Center’s mission statement. Public, or taxpayer, funding of elections violates the property rights of individuals by forcing them to financially support candidates without consent, violating their right to direct their political spending, if any, as they choose. So much for equal justice under the rule of law. It also violates free speech rights. Free speech is derived from intellectual freedom, which includes the right not to support that which you do not agree with. And to the extent taxpayers are forced to financially support candidates they disagree with, their freedom of conscience is violated. Property rights, freedom of speech, and freedom of conscience are all to be sacrificed to public funding of elections. This is unconscionably immoral, and unjust. This, the For the People Act! This, in the name of “fixing our democracy.”

Finally, think of what public funding of elections does to pro-liberty, pro-free market politicians. A person who wants to run for office on a pro-liberty platform will be forbidden, or greatly limited, from taking private campaign donations. He’ll have to take taxpayer money, putting him in a position of having to violate his own principles and conscientious beliefs just to run for office. He would be open to false charges of hypocrisy. Public financing of elections is a statist idea that immediately discriminates against any pro-liberty politician, and gives a built-in advantage to statist candidates. So much for fairness and justice. So much for fighting the “corruption” of big money donations. This, the “For the People Act.”

The real reason politicians want public funding of elections while simultaneously placing limits on private political spending is to take control of the electoral process. They get to set the rules for who can run for office, and challenge incumbents. They get to make the rules governing who qualifies for funding. Further, relieving political candidates of the necessity to seek voluntary private funding from private citizens reduces their accountability to the private citizenry. Public funding strips citizens of a key ability to hold politicians accountable to the people they seek to govern, by withholding funding from politicians who don’t live up to their own promises. What good are voting rights if you have no choice on which candidate’s campaigns to fund, or even a choice of whether or not to fund any campaign at all? This, in the name “voting rights'' and democracy. If the democratic process is of any value, then it is right that people who want to hold political office should have to go, hat-in-hand, to the people they seek to govern for money they need to finance their campaigns. The last thing they should have the power to do is seize their campaign funds from citizens at legalized gunpoint.

It doesn’t matter whether public funding is added to private funding or completely replaces it. It’s wrong for all of the same reasons. And given the prominent role of precedent in law, along with the arguments advanced against private “money in politics,” it’s naive to think that once public funding gets a foothold, it won’t eventually become 100%. After all, if “money corrupts our democracy,” as the mantra goes regarding private campaign giving, why have any of it? The truth, in fact, is just the opposite. Public funding, not private funding, is inherently corrupt.

Public funding of electoral campaigns and/or limits on private political spending and/or banning anonymous so-called “dark money” accomplishes only one thing: It limits the necessity for politicians to answer to the people whose votes they seek. Politicians would prefer a less informed electorate more susceptible to politicians’ sloganeering and demagoguery. In the name of the “voting rights” of “the people,” HR-1 is a major attack on freedom and American-style democracy. In the name of “restoring our democracy,” it only empowers the people who hold the reins of the physical force of law, the politicians and the bureaucrats they appoint. It disempowers the rest of us--we, the people in whose name HR-1 is being pushed. That’s why only statists support it. It is probably the worst bill in the Democrats’ mostly anti-liberty ”progressive” legislative arsenal.

As Olson observes, this misnamed “Voting Rights Act”  is really “a grab‐​every‐​power‐​in‐​sight piece of omnibus legislation.” And it looks like the Democrats will succeed in ramming it through congress, and down the American people’s throats. It may be that the only hope of dismantling this totalitarian bill will be through the courts. Trump’s judicial appointments will be put to the test -- unless the Democrats manage to pack the courts, too.

Related Reading:

Dem Rep Malinowski Reprises Trump in Proposed Legislative Attack on Social Media and Free Speech.

Incumbents’ Fear of 'Wild, Wild West' Campaign Funding is a Good Thing

Yes, ‘Big Money’ in Politics Fosters Ideological Debate—and That’s a Good Thing

‘Finance-Free Politics’ Would Free Politicians from Accountability to the People they Legislate Over

Why Free Speech and Spending on Speech are Inextricably Linked

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.”

Campaign Finance: Free Speech, Not Disclosure, is the Main Issue

Making Private Donations Anonymously is a Right

Citizens United and the Battle for Free Speech, by Steve Simpson

N.J. AG Confirms: State’s Disclosure Law is about Stifling Political Accountability

Campaign Finance—Voluntary Contributions vs. Public Funding: Which is ‘Dirty?’

Corporate Halt to Political Donations Highlights Value of Private Campaign Funding

[Updated 3/7/21]

A major plank in the Democratic Party Platform includes a plank to ban all private funding of elections, saying “Democrats believe that the interests and the voices of the American people should determine our elections.” How will they do that? Through a constitutional amendment “eliminating all private financing from federal elections.” Who will then finance election campaigns? The government, with money seized from private citizens regardless of their consent. (Page 57)

Private funding of political campaigns is one of the best ways for citizens to keep politicians accountable to those they seek to govern. Politicians should have to go to the citizens, hat-in-hand, to ask for money to finance their campaigns. The Democrats’ want to take that accountability away, and give politicians free reign to grab their money away without their consent. As I wrote on this subject in 2016:

Public funding is a dream come true for the power-hungry political class. Imagine politicians being able to go on their unfettered way of regulating, taxing, and controlling our lives without having to put up with those pesky private citizens getting in their way? How many politicians would love to silence dissent and challenge? Nothing could be more contrary to democratic principles under constitutional republicanism than that.

The Democratic statists would enhance “the voices of the American people” by banning their voice in who gets funded to run for office, and switching that voice to the politicians who themselves would determine who gets the funding.

Well, we just got a lesson on the value of private financing. As The New York Times reported on 1/12/21:

Large corporations and their lobbyists usually try to steer clear of messy political fights. Companies prefer to work behind the scenes, giving money to both political parties and quietly influencing tax policy, spending and regulation. But President Trump’s effort to overturn the result of the presidential election — and the violent attack on Congress by his supporters — has created a dilemma for many companies. A growing number have decided that they are, at least for now, not willing to support members of Congress who backed Trump’s efforts to change the election result and promoted lies about election fraud.

Over the weekend, several large companies — Marriott, Blue Cross Blue Shield and Commerce Bancshares — announced a suspension of donations to members of Congress who voted against election certification. Yesterday, the list expanded to Amazon, AT&T, Comcast, Airbnb, Mastercard, Verizon and Dow, the chemical company. Hallmark has even asked for its money back from two of the senators who opposed certification, Josh Hawley and Roger Marshall.

The Times also noted that some companies announced halts on all campaign giving, while others announced no halt. These are major corporate donors. I suspect that many smaller donors are reconsidering their donations after the tumultuous lockdown and violent 2020.

Another example of how campaign funding gives private citizens a voice over the politicians came after the January 6th Capitol riot during Congress’s Electoral College certification vote for Joe Biden. In a 3/6/21 article, Chamber of Commerce declines to rebuke members of Congress who voted to overturn 2020 election, Aaron Gregg reports for the Washington Post:

America’s largest business lobby says it will not pull support for members of Congress based solely on whether they voted against certifying Joe Biden’s election win in Arizona and Pennsylvania.

In a memo released Friday, the U.S. Chamber of Commerce said that the organization would continue to evaluate the actions of individual members of Congress but would not withhold funds based solely on their vote.

"There is a meaningful difference between a member of Congress who voted no on the question of certifying the votes of certain states and those who engaged and continue to engage in repeated actions that undermine the legitimacy of our elections and institutions," wrote Ashlee Rich Stephenson, a senior political strategist at the chamber.

I don’t know what kinds of effects these private donor actions will have on the politicians affected. But they surely will have some effect. At any rate, the donor boycotts will surely send a message--a message that they would not be able to send without the leverage that comes with politicians having to depend on their private constituents for money they need to run their campaigns on.

Of course, people have the moral right to decide whether and who to donate money to in political campaigns. The politicians have no right to seize their campaign funds from American citizens through taxes. America is supposed to be a free country. The politicians are supposed to serve the people, not master them.

That said, these corporate boycotters have given us a practical demonstration on the value of private campaign funding. They demonstrate how private campaign financing makes politicians accountable to the governed. In the name of “believe[ing] that the interests and the voices of the American people should determine our elections,” the Democrats want to greatly reduce the American people’s voices in American politics.

Related Reading:

Campaign Finance—Voluntary Contributions vs. Public Funding: Which is ‘Dirty?’

Free Speech Wins in NJ

In my post of April 9, 2019—NJ’s ‘Dark Money’ Bill an Attack on Intellectual Freedom—I highlighted a New Jersey Star-Ledger guest column written by two activists who are normally on opposite ends of the political spectrum. David Keating, president of the Institute for Free Speech, and Amol Sinha, executive director of the American Civil Liberties Union of New Jersey, joined with Americans for Prosperity to express strong opposition to a so-called “Dark Money” bill that would force political activist groups to expose their donors.

The bill banning anonymous donations passed, but met a barrage of lawsuits opposing the law on free speech grounds. 

Good news: Free speech won. The bill is dead. As NJ.com reported, the Controversial N.J. law to unmask secret campaign donors is officially dead. As Brent Johnson and Ted Sherman reported on March 12, 2020:

Multiple groups filed lawsuits seeking to overturn the law. That included the conservative group Americans for Prosperity as well as more liberal groups, the American Civil Liberties Union and the Illinois Opportunity Project, a nonprofit that seeks to educate the public about policy.

The Liberty Justice Center, a nonprofit that aims to protect peoples’ First Amendment rights, called Wednesday’s development a major victory for free speech.

“Adopted under the guise of transparency, these laws are designed to allow opponents of advocacy groups to intimidate and harass the organizations’ supporters," said Patrick Hughes, the group’s president and co-founder.

“All Americans should be free to support causes they believe in without an invasion into their privacy through excessive government reporting requirements or retribution from their opponents.”

Jeanne LoCicero, the New Jersey legal director for the ACLU, also praised the death of the measure.

“All nonprofits should be able to communicate about issues of public concern without fear of being subject to invasive disclosure rules," LoCicero said.

Both Murphy’s office and the state Attorney General’s Office declined to comment.

This bill may be dead. But the battle to retain our free speech is not. Politicians are aching to curtail free speech, press, assembly, and petition. Fortunately, the courts are by and large on the side of the First Amendment. The fight to prevent the political class from neutering the First Amendment goes on. Kudos to the groups that went to court to kill this latest assault on free speech.

Related Reading:

Why Free Speech and Spending on Speech are Inextricably Linked

Murphy’s Veto of NJ’s ‘Dark Money’ Ban Should Be Unconditional

Kill New Jersey’s ‘Dark Money’ Ban

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

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.”

Campaign Finance: Free Speech, Not Disclosure, is the Main Issue

Making Private Donations Anonymously is a Right

‘Finance-Free Politics’ Would Free Politicians from Accountability to the People they Legislate Over

Former federal government economist Alan L Moss has posted a guest column for the New Jersey Star-Ledger calling for a constitutional amendment to outlaw private campaign financing. His motive is blatantly political: It’s “How we can avoid another Trump-type presidency.”

But deeper than that, he wants to “provide candidates with freedom from the need to raise enormous amounts of money”:

The Founding Fathers visualized an American republic that would provide enlightened respect for common citizens and require dedication, honesty, and virtue in its elected representatives. The ills that frustrate today’s voters are the result of the unchecked power of special interests and lobbyists, and their interaction with our method of campaign financing. Political representatives who serve special interests instead of the greater good of the nation are the predictable consequence of the absence of countervailing power to offset the impact of factions and their massive resources.

To rectify this dilemma, we must open the door to finance-free politics so our elected representatives return their focus to legislation and the quest to serve the public. To free our representatives to do what’s right, we must eliminate the corrupting influence of private campaign contributions. A constitutional amendment to restrict funding for all federal campaigns to resources administered by a federal government agency could provide candidates with freedom from the need to raise enormous amounts of money.

My emphasis. It’s shocking that he would think the Founding Fathers would approve. The Founders clearly believed that “do what’s right” should be up to the people as individuals engaging through intellectual freedom. That’s what the First Amendment is all about. That’s the Amendment Moss would partially repeal. I posted these comments:

Freedom of speech is a fundamental right, and money is fundamental to the freedom to express that right. Freedom of speech is not mere freedom of opinion, but freedom to express one’s opinions to others--as many others as you can reach at your own expense. Private campaign financing is a key form of free speech, and to eliminate private financing is to outlaw a crucial means to free speech.

A key way to keep politicians accountable is private campaign financing. Someone who seeks office must go hat-in-hand to the citizenry for money. That some candidates can self-finance is beside the point. It’s their money, and voters still must decide based on what they say. A lawmaker with “freedom from the need to raise enormous amounts of money” —his own or others’—is a lawmaker who is free from accountability to the people he represents.  

Politicians wield legalized force. That’s what legislation is. Law is force. And the people making law should be accountable to the people they legislate over, not to a federal government agency that they create, control, and fund with money they taxed away from the citizens whom they have stripped of choice regarding political spending. 

An Amendment to ban private campaign financing would let the most dangerous faction, the political class, monopolize who could run for office. Moss’s narrow personal aim is clear--to prevent the “mistake” of someone who opposes his political agenda from getting into office. Far from countering “the impact of factions”—and more ominously—it would empower victorious factions to stifle opposing factions via the federal campaign control agency. It would immorally force taxpayers to finance candidates they wouldn’t otherwise, protect incumbents from challenge, and partially repeal the First Amendment. 

The statists are getting more brazen. They are now openly declaring that if they lose an election, the people’s individual liberties must be curtailed.

Related Reading:

Why Free Speech and Spending on Speech are Inextricably Linked

Incumbents’ Fear of 'Wild, Wild West' Campaign Funding is a Good Thing

Yes, ‘Big Money’ in Politics Fosters Ideological Debate—and That’s a Good Thing

A Constitutional Amendment to "Limit" Campaign Spending Would Neuter the First Amendment

Free Speech is about Universal Free Expression, not “Elections” vs “Policy”

New Jersey’s new so-called “Dark Money” law, which forces mandatory public disclosure of financial donors to political action committees, is under attack in the courts. In a New Jersey Star-Ledger guest column, Matthew Smith and Karen Haskin argued that “progressives [should] help fix N.J.'s dark money law. If that sounds politically suspicious, you’d be right. Note the word “fix,” rather than repeal. Here are some excerpts:

Our planet is undergoing a climate crisis. President Trump pulled the United States out of the Paris Climate Accord – the first serious global attempt to set us on the right course toward a healthier and livable future.

After decades of denial and incrementalism, we are now left to do our part as New Jerseyans to build a healthy and resilient future for ourselves, our children, and our grandchildren. But just at the worst possible time, our lawmakers in Trenton are making it harder for us to do that work.

Furthermore, organizations like Food & Water Action and STAND Central New Jersey are supposed to have the opportunity to provide input on legislation affecting their community of grassroots advocates.

Yet that process broke down completely when the Legislature passed a disclosure bill, also known as a ‘dark money’ bill, that benefits large corporations and special interests that damage our environment and work against progressive interests, like LGBT rights and women’s reproductive freedoms.

The disclosure bill placed onerous new requirements on citizen-driven advocates working to protect the environment against polluters. Such advocates push for policies that will transform our bad energy habits into clean and renewable solutions.

At the same time, the law did nothing to increase disclosure requirements for 501c(6) trade organizations that promote business interests in Trenton, giving polluters and big corporate interests, like the Chamber of Commerce and the Petroleum Institute, an advantage in the policymaking process.

I don’t know if that last statement is true. But if the law is not balanced, it’s bad on “Equal Protection” grounds, if nothing else. That aside, if you smell the stench of political partisanship, rather than a defense of free speech, you’re political sense of “smell” is spot-on. This next excerpt is the tipoff:

We call on the Legislature to instead work with the progressive community on new legislation that protects the privacy rights of donors and treats citizen-backed groups and powerful trade associations equally.

In addition, new legislation must recognize the difference between political action committees that seek to influence our elections and citizen-backed non-profits that advocate for policy solutions in Trenton.

My emphasis. Note who are exalted as “citizens”—our beloved Left statists. Note who are not—the Left’s political opponents. I posted these comments:

“legislation must recognize the difference between political action committees that seek to influence our elections and citizen-backed non-profits that advocate for policy solutions in Trenton.”

Nonsense. There is zero distinction. Free speech to “advocate” for policy and free speech to “influence” elections are 2 sides of the same sacred free speech coin. Advocacy is influence. Influence is advocacy. Every person, whether individually or through voluntary collaboration with others, has a right to free expression for the purpose of political influence and persuasion and advocacy, whether involving policy or elections of politicians. Period. Elected politicians ARE the policy-makers.

Freedom of speech is an inalienable right of all voluntary associations, be it a Chamber of Commerce, a STAND Central New Jersey, a Petroleum Institute, or a Food & Water Action. 

Spending is integral to speech—an indispensable means to public expression—so mandatory disclosure is a violation of the First Amendment, not to mention an attack on privacy. Smith and Haskin are right to oppose the so-called “dark money” law. But what could have been a principled self-interested defense of free speech turned out to be a political hack rant for the purpose of self-aggrandizement at the expense of others’ inalienable rights to free speech. “I’m entitled to my free speech, but you’re not entitled to yours” is not a defense of free speech. Free speech for my opinions but not for your opinions is not a moral argument. It is a political diatribe.  

ALL political advocacy organizations are associations of citizens, and ALL citizens regardless of political opinions deserve protection of their free speech rights, equally and at all times. 

* [Matthew Smith is New Jersey state director for Food & Water Action. Karen Haskin is president of STAND Central New Jersey, a grassroots organization.]

Related Reading:

N.J. AG Confirms: State’s Disclosure Law is about Stifling Political Accountability

Why Free Speech and Spending on Speech are Inextricably Linked

Murphy’s Veto of NJ’s ‘Dark Money’ Ban Should Be Unconditional

Kill New Jersey’s ‘Dark Money’ Ban

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

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.”

Campaign Finance: Free Speech, Not Disclosure, is the Main Issue

Making Private Donations Anonymously is a Right