THE ‘DARK MONEY’ INQUISITION IS COMING
And we could be next, friend. by Jon Cassidy,12/30/14
It’s a brilliant misnomer, “dark money,” the sort of thing
you’d expect from the consultant Frank Luntz, if Luntz were a Democrat. The
term is a work of semiotic genius, tapping into fears so powerful they manage
to convince Americans that free speech isn’t such a good idea after all. It’s
flagrantly pejorative, but respectable newspapers use it anyway. Reporters
rarely question transparency, of course. This sort of transparency, however, is
starting to look more like the Inquisition.
The common alternative term, “outside spending,” is better,
but only because it’s so unintentionally revealing of the proprietary attitude
that politicians hold toward their offices. They do the talking; we get to
press the red button or the blue one. The rightful course of political speech
is mudslinging depravity funded by official accounts. The rest of us are
outsiders, presumed suspect, and any views we might advertise about Obamacare
or collective bargaining should be seen as part of a plot by usurping
billionaires.
So the media call it “dark money,” never stopping to
consider that the reason they lack a decent noun is that they’re describing
something that isn’t quite real. Instead, dark money is an entire category of
spending, bordered by only vague notions.
The first border involves electioneering and campaign
finance, politics carried out under state control, all the things you can’t say
about public issues and figures without first consulting a lawyer and hiring an
accountant. This border is vague — “a line drawn in the sand on a windy day,”
as the Supreme Court has put it more than once — but it’s real enough. Use a
couple of magic words and pass one three-pronged test or another and you’ll
find yourself in front of the Federal Election Commission. This is the border that
gets all the attention from journalists, who worry about sinister operatives
working just over the line, mujahedeen among the civilians.
It’s the other border, however, that should concern the rest
of us. The problem is that there is no reliable line separating dark money from
everyday talk about politics. A definition many states are settling on in some
version is that two or more people plus some money equals a political group
that needs to disclose its affairs. So laws touted as the antidote to billionaire
influence end up ensnaring common citizens. You might say they’re meant to.
That’s why the states are setting such low cutoffs: any two people who collect
$500 or $200 or even expect a single political dollar had better register and
report, or face fines and even felonies.
Under the new rules, you’d have to revise that sappy
Margaret Mead quote beloved of undergrad activists about never doubting “that a
small group of thoughtful, committed citizens can change the world” to include
something about registration requirements. Hell, under these rules, Occupy Wall
Street probably counts as dark money.
There is no proper boundary for dark money because there is
no end to political speech. And, like anything else, political speech can be
seen in financial terms. You could be sitting alone in your room posting your
thoughts on abortion to Facebook, and some regulator might see that as dark
money at work. It sounds fanciful, sure, until you talk to Diana Hsieh.
Hsieh dared to post an essay on abortion to Facebook that
included a sentence about a measure on the ballot. She was fined by the state
of Colorado for missing one of the endless reporting deadlines. As the theory
went, she had a co-author, and she accepted a few donations, so she had to
report her political activity to the state. Federal courts ruled the
requirement constitutionally “invalid,” but the Democrats who’ve been running
the Colorado legislature refuse to amend the law.
Some states don’t even bother with the money requirement. In
2011, Dina Galassini of Arizona invited twenty-three friends to join her on a
public street to wave signs against a bond issue. A week later, she got a
cease-and-desist letter from city officials telling her that this sort of thing
wasn’t permissible unless she registered with the state as a political action
committee, and followed onerous recordkeeping and reporting requirements. A
federal court struck down Arizona’s definition earlier this month.
By one count, there are eighteen bills pending in state legislatures
to regulate dark money. In October, Ann Ravel, vice chair of the FEC, wrote
that the commission had “turned a blind eye to the Internet’s growing force in
the political arena” for too long, and that it was time to end exemptions for
“certain types of Internet communications from campaign finance regulations.”
What Ravel proposes is to treat freely provided Internet content as political
advertising subject to regulation; in her view, you don’t even have to spend
money to qualify as dark money. Of course, without that distinction, your blog,
your independent newspaper, and your Facebook page are all subject to
regulation, too. (If you want more examples, see a six-part series I’ve got
running at Watchdog.org this week.)
When Ravel was a regulator in California, she tried
unsuccessfully to require everyone who blogged about state politics, even those
outside the state, to disclose their personal finances. For these so-called
reformers, it’s not enough to regulate money donated to a candidate. If you
believe the problem is that “sham issue ads” are influencing elections, then
you need full disclosure from every group engaged in issue discussion of any
sort. If the reformers manage to shut down super PACs, they’ll target nonprofit
think tanks next, and any other dissenting political groups organized as
nonprofit corporations. The Internal Revenue Service already started in on Tea
Party groups, of course. That was no aberration. Lois Lerner came from the FEC.
She was just jumping the gun.
As long as there is privacy in politics, even way out at the
margins, such as with some home school coalition that mails out endorsements by
newsletter, then the progressives will call it a hiding place for subversive
elements and dark money. This is why their movement is coming to resemble the
Inquisition.
The first victims of the Inquisition were the heretic
Waldensians, proto-Protestants who insisted on Biblical primacy and rejected
the supremacy of the Pope and his priestly hierarchy. Much the same, the new
heretics are those groups who insist on Constitutional primacy and reject
presumptuous authorities and their self-serving doctrines written in strange
tongues.
The Center for Competitive Politics, along with the
Institute for Justice, is one of the leading national advocates for the
heretics, challenging state authority to go rummaging through the papers and
donation records of private associations that have little or nothing to do with
the campaigns of elected officials. So it’s fitting that California Attorney General
Kamala Harris, on no more textual authority than Torquemada had in the Bible,
is demanding that CCP turn over donor records filed in confidence with the
Internal Revenue Service. Federal law specifically prohibits state authorities
from accessing the 501(c)(3) donor records kept by the IRS, but Harris is
demanding them anyway from CCP and Americans for Prosperity, one of the free
market advocacy groups associated with Charles and David Koch.
In this, Harris closely resembles John Patterson, the attorney
general of Alabama in the late ’50s who fought the National Association for the
Advancement of Colored People for more than eight years with the support of the
state’s courts, who agreed this “foreign corporation” was doing “irreparable
damage” to the state. Patterson demanded that the NAACP turn over “charters in
Alabama, membership lists, names of persons who had contributed money in the
past year, records of property ownership, bank statements, and correspondence
dealing with civil rights activities.”
The NAACP turned over most of it, but refused to give up the
names of its members. Thurgood Marshall, then counsel to the NAACP, had to go
the Supreme Court four times over eight years to get compliance out of Alabama.
The high court, however, was unanimous that loss of privacy would have a
“chilling effect” that would “induce members to withdraw from the Association
and dissuade others from joining it because of fear of exposure of their
beliefs shown through their associations and of the consequences of this
exposure,” such as “economic reprisal, loss of employment, threat of physical
coercion, and other manifestations of public hostility.”
In these cases, Harris and her cohort argue that there’s no
evidence that anybody will face harassment or reprisal. But in AFP’s case, her
argument is ridiculous. The Koch brothers are at the center of a campaign of
vilification by association, the biggest and most vile such campaign that I’ve
ever seen. There is now a whole subgenre of shoddy journalism dedicated to the
proposition that any group within six degrees of separation from the brothers
must somehow be suspect. All this calumny over “dark money networks”
demonstrates exactly why donors are so interested in maintaining their privacy,
and why the Supreme Court may soon have to revindicate that right.
For thirty years, it was settled law that issue advocacy,
unlike “express advocacy” of a candidate, was constitutionally protected
speech; then Chief Justice John Roberts inserted a fussy little footnote into a
2007 ruling calling the venerable distinction a mere “intermediate step of
statutory construction.” It was a technically accurate but wildly misleading
way to describe the animating principle of Buckley v. Valeo (1976), and it was
all a few lower courts needed to decide that states now had the authority to
demand the donor rolls of national organizations that speak out on state ballot
issues.
Then, in Citizens United, Roberts did it again, dropping
this line with no explanation: “Disclosure is the less-restrictive alternative
to more comprehensive speech regulations.” The fact that the phrase is a
tautology is just one clue that it was unconsidered. More importantly: who
should have to disclose what and when? As you might expect, some liberal lower
courts are treating the phrase as a magic wand, unlocking whatever any official
wants to know.
I hope Roberts thinks the matter through, and soon, or we’re
going to end up with the deep-pocketed players running their operations through
for-profit corporations, just so that they can speak freely beyond the grasp of
the inquisitors.
Meanwhile, the Galassinis and Hsiehs out there are
overshadowed by uncertainty just for exercising their basic rights. As it
stands, state regulators are not yet big enough or corrupt enough to menace
everyone who speaks out. Your tweets do not threaten the powers that be — at
least until you start getting results. If you’re like Michael Quinn Sullivan, a
Texas conservative whose legislative scorecard has embarrassed the RINOs
running the statehouse and cost them dearly, you’ll find that just about
anything you say, tweet or email, is a potential violation of lobbying or
campaign law. For the last three years, a state commission controlled by
political appointees has been hounding Sullivan under evolving legal theories
about his scorecard: it's illegal lobbying; it's illegal campaigning; it's an
illegal Mexican cockfight ring. The problem with the law in Texas and many
other states is that it's broad enough to allow for a criminal interpretation
of just about any combination of money and influence; it's a standing
invitation to abuse of power.
In the end, the courts will likely uphold Sullivan’s speech
rights and reject the politically motivated rulings of the commission, but a
favorable court verdict after years of harassment is beside the point in these
cases, as Noam Chomsky of all people recognized.
“Surely it is clear that those who have the power to impose
their interpretation of legitimacy will so construct and construe the legal system
as to permit them to root out their enemies,” Chomsky wrote in 1973. “Judicial
persecution serves quite well to immobilize people who are a nuisance to the
state, and to destroy organizations with limited resources or to condemn them
to ineffectiveness. The hours and dollars devoted to legal defense are not
spent in education, organization, and positive action. The government rarely
loses a political trial, whatever the verdict of the courts, as specialists in
thought control are no doubt well aware.”
No comments:
Post a Comment