The Founding Fathers might have been unable to create the foundations of a new American nation had they operated in today’s climate of federal government harassment and intrusion into citizen privacy, a constitutional lawyer says.
“I don’t think it’s a stretch to say our Constitution probably never would have been ratified had it not been for private political speech,” said Jon Riches, director of national litigation for the Arizona-based Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.
Private political speech guaranteed by the Constitution is under assault by government regulators, activist judges, and media demanding greater disclosure of donors and members of private and nonprofit organizations, Riches said during a March 4 panel discussion at the Civitas Institute’s Conservative Leadership Conference in Cary.
“The ratification of our Constitution was debated primarily through a series of anonymous papers called the Federalist Papers. They were all published under the pen name Publius,” Riches said.
The anonymity shielded James Madison, Alexander Hamilton, and John Jay from publishing under their own names, a condition they sought because regional rivalries, and personalities, particularly Hamilton’s, might have led readers to focus on the authors rather than the arguments they were making, Riches said.
“Despite the fact that political giving or anonymous political speech has been essential in our democracy since its founding, we are seeing throughout our country donor disclosure mandates at all levels, federal, state and local,” Riches said.
“We’re seeing it come through legislators. We’re seeing it go through the ballot box. We’re seeing rogue regulators including attorneys general in both New York and California demanding the names of donors to nonprofit groups,” Riches said.
Private donors are often disparaged publicly for providing “dark money” for political activities by businesses, unions, and nonprofit groups, even though many of these groups are not required to disclose the identities of their donors, Riches said.
Riches challenged the notion that such privacy was nefarious, asking instead, “are we talking about you and your neighbor contributing to the causes you believe in by providing your money and your time?”
Depending on where the line is drawn, so-called dark money practitioners could include the ACLU, the local church, or a soup kitchen.
“In fact, some of these donor disclosure mandates are so broad that they’re sweeping in the activities of what are called 501(c)3 organizations,” Riches said. “There’s a million 501(c)3 nonprofit organizations. They include schools, churches, hospitals, art centers, public radio stations, research and education foundations, legal aid clinics.”
Carolina Journal’s parent organization, the John Locke Foundation, is a 501(c)3 nonprofit.
Riches said the escalating trend should concern Americans for several reasons.
“Public disclosure of information for political participation or charitable activity subjects speakers to harassment and retaliation, and privacy is one barrier to prevent this,” as has been long recognized by the U.S. Supreme Court, he said.
Forcing groups to disclose their contributors shifts the spotlight of public discourse from the message to the messenger, Riches said.
That allows retaliation against speakers who disagree with authorities, he said, including regulations that can make it difficult to determine what speech is allowed and what is not.
“As a result people just refuse to speak, or there [is] less political speech,” which is the antithesis of what the Founders intended for the country, Riches said.
Riches said the media frequently rely on privacy to perform their mission. Reporters use anonymous sources — the Deep Throat whistleblower of Watergate wasn’t identified until 40 years after President Nixon resigned. Editorials are published anonymously, as are commentary and op-ed pieces.
“Imagine the outrage if there was a law tomorrow that prohibited anonymous bylines in newspapers, and a law that said, by the way Wall Street Journal and New York Times, give us a list of all of your subscribers, including their address. The outrage would be swift, it would be severe, and it would be justified,” Riches said.
“These donor disclosure mandates are exactly that, and in fact, in some ways even more dangerous,” he said. But there are other ways to stifle political dissent.
To comply with the labyrinth of campaign finance rules and regulations, one study estimated, it would require $9,000 in up-front legal fees, and $2,800 in ongoing compliance costs for someone in a rural area to run one message on federal environmental policy, Riches said.
“Rather than assume those costs, rather than risk jail for engaging in political speech, most average citizens simply won’t speak. And of course the whole point of the First Amendment was to preclude that outcome,” Riches said.
“Be wary of a transparency argument” when the government comes after donor disclosure lists, said Lawson Bader, former president of the Competitive Enterprise institute, which is being sued by Pennsylvania State University climatologist Michael Mann. Mann said the organization defamed him as a fraud for his climate science work.
Transparency is not inherently wrong, but it has been used as an excuse for political manipulation in “an attempt to get at the privacy of our own supporters themselves,” Bader said. Charities are already highly regulated institutions with numerous disclosure mandates, and that should mute the call for donor lists to be made public.