When they attack “black money”, they really attack freedom of expression
By adopt With Democrats’ strategy of attacking so-called black money groups during confirmation hearings this week for Supreme Court nominee Ketanji Brown Jackson, Republican senators are fueling efforts to undermine fundamental First Amendment protections.
Senator Chuck Grassley (R-Iowa), the top Republican on the Senate Judiciary Committee, denounced the “role of far-left black money groups like Demand Justice” in his opening remarks. And he wasn’t the only one doing it. Senator Lindsey Graham (R-SC) made vague references to “the most liberal people under the Arabella umbrella”. Before the hearing, Senate Minority Leader Mitch McConnell (R–Ky.) critical “black money” spent to “increase [Jackson’s] profile.”
Predictably, Sen. Sheldon Whitehouse (D–RI) responded to Republicans’ fear of dark money by to suggest that they support his legislation to “get rid of it”. No one should take the bait.
Whitehouse is a sponsor of the DISCLOSE, a bill that Republicans in Congress, including Grassley, happily opposed because it would require advocacy groups to publicly expose the names and addresses of their supporters. In today’s polarized political environment, that would be a recipe for disaster. This legislation, which is regularly repeated in the Democratic voting reform proposalsis a direct attack on the First Amendment right to associate in private.
The American Civil Liberties Union also acknowledges the threat, with senior officials in writing that these provisions “could directly interfere with the ability of many people to engage in political discourse about causes that matter to them and impact their lives by imposing new and onerous disclosure requirements on nonprofit organizations not-for-profit committed to advancing these causes”.
Armed with donor lists, powerful congressional politicians could shift the focus of their name-and-shame attacks from groups like Demand Justice and the Judicial Crisis Network to the individual Americans who support them. The result would be a loss of donations to speaking out groups, a cooling of political discourse and a shrinking of civil society.
The “solution” proposed by Whitehouse would significantly expand the federal government’s power over political speech by redefining many communications about legislation and judicial appointments as “campaign-related” speech. Actual campaign speech – which calls for the election or defeat of candidates – is already heavily regulated.
Under the DISCLOSURE Act, however, a “campaign-related disbursement” would include “a federal court appointed communication”, which is defined as any paid communication effort “that is not susceptible to any reasonable interpretation other than the promoting, supporting, attacking, or opposing the Senate’s nomination or confirmation of an individual as a judge or federal judge.” These communications “will be treated as campaign-related disbursements[s] regardless of the intention of the person making the disbursement.”
Put simply, the bill would turn nomination speech into a regulated form of campaign speech, even if neither a candidate for office nor an election is mentioned. Organizations that trigger the “disclosure of judicial appointments” regulations would have to submit donor lists to the Federal Election Commission, even if the judicial appointments and confirmation processes are not elections.
These intrusive and misleading disclosure warrants would push the judicial appointment process even further into the realm of partisan politics. Organizations that have always maintained a nonpartisan stance and have never participated in elections would likely be unwilling to engage in speech that could trigger the bill’s provisions. Nonprofits might be silent because they prioritize the privacy of their supporters over their ability to ask lawmakers to support or oppose a nomination.
Partisan campaign groups will not be scared off. They may be the only ones who still want to talk about nominees outside of politicians and mainstream media, as they are already legally obligated to expose their donors and comply with other reporting requirements.
The difficulty of complying with these laws and the risks of navigating vague new regulations will be enough to silence many small groups. Groups that take on these charges will likely suffer a loss of donations from Americans who fear retaliation for their beliefs or simply prefer not to be publicly associated with “campaign-related” speech.
The end goal of such legislation is to force any government speaking group to function as a political action committee, leaving people who support a cause to defend themselves against any harassment that comes their way. Democrats in Congress have long used the “dark money” smear to avoid engaging with their critics and to drum up support for new extreme restrictions on speech. Republican senators, by seeking to turn the tide, risk empowering a movement that endangers everyone’s First Amendment rights.