A landmark First Amendment case, Citizens United v. Federal Election Commission, was decided in 2010 by the Supreme Court. The particulars of the case can be found all over the internet, but the gist of the case is that a political lobbying group made a film about Hillary Clinton and wanted to run ads about it during the presidential primary season, in violation of McCain-Feingold. The details are secondary to the legal precedent set therein, which affirmed that the government cannot restrict independent politically-focused expenditures by corporations, associations or labor unions. This decision set statists and liberals of all sorts to furious caterwauling and gnashing of teeth, and many on the Left continue to vigorously decry it. If you look past the veneer of their stated motives and complaints, you will inevitably find that their objections are rooted in the belief that corporations aren’t a sure bet to support liberal causes and take the liberal side of issues, so in essence the statists and liberals are simply looking to make the opposition shut up.
The Citizens United ruling has another component, however. In it the Court upheld requirements of public disclosure, meaning that expenditures associated with this form of free speech had to be disclosed. There was a dissent by Clarence Thomas, who noted that anonymity was part of free speech, that disclosure could open a speaker up to retaliation, and the fear of that could dissuade people from speaking freely. In my travels around the political blogosphere, I found this to be a minority opinion even among conservatives and free-speech defenders. The common attitude was “I want to know who’s spending money on what.” I argued back then that this information could and would have a dampening effect on speech, and that the meaning of “Congress shall make no law” is pretty stark. Counter arguments are that money isn’t speech, but how does one exercise one’s right to speak freely without money? Disseminating a message, whether it be by radio, television, Internet, or even pen and paper costs money. Even a soap box upon which to stand costs money. Yet concerns about corruption have been deemed to warrant and justify disclosure laws, no matter the adverse side effects, and people of many different political stripes believed and believe that they have a right to know how someone else is spending his money when it comes to the political arena, and the “purist” position has gotten little traction.
Fast forward to today. We’ve already been through the IRS scandal, where bureaucrats used governmental power to target conservative groups and hamper and dissuade them from engaging in political speech. One might think that the outrage that abuse of government power might dissuade our statists from further mischief. One would be wrong. The IRS is now coming out with all sorts of rules that affect political action groups that have organized themselves as nonprofits.
The rules are broad and vague, and very likely unconstitutional. Challenges, unfortunately take lots of time and lots of money to mount, meaning that the smallest and most organic protest groups are likely to be the ones most muzzled and most deterred. So, despite the affirmation of a group’s right to speak politically, despite the outrage voiced at past abuses, the government remains undaunted in its effort to stifle political dissent. A seemingly reasonable burden and restriction on one of our rights, one that objectors’ concerns were dismissed as fear-mongering, is proving to be a powerful tool for those who would infringe on others’ rights.
A tool, once created, will inevitably be used in a fashion apart from its stated intent. Sometimes, that’s a good thing. There are all sorts of creative ways to use a claw hammer apart from driving and pulling nails, and those uses can obviate the need for other tools. Tools can also be used for negative or nefarious purposes. A hammer can be a deadly weapon, for example. Still, the utility of a tool is not something to be foregone simply because it can be misused. However, if we cannot trust a user with a tool, perhaps we shouldn’t give him that tool in the first place. You don’t give a 5 year old a power saw, you don’t give a pyromaniac a jug of gasoline and a lighter, you don’t give a homicidal sociopath a machete. You don’t give a politician the means to silence his critics.
Disclosure laws are often rooted in noble intent and goal. However, time has proven, with countless examples available, that the goal of sequestering the corrupting influence of money is quixotic and utopian – money always finds a way. Disclosure is a nice idea in theory, but attempts to actualize that theory not only haven’t worked as intended, they’ve produced all sorts of adverse unintended consequences. These consequences grow in magnitude and in deleteriousness as government grows in size and power. With enough laws of sufficient vagueness on the books, we can all be found guilty of some transgression, intended or not, legitimate or not.
Perhaps there is a way to reduce the temptation to corruption that money in politics creates. Perhaps some laws can be written that keep ‘bad’ actors from overly influencing our elected officials without encroaching on our rights. It seems to me, though, that the solutions inevitably require good faith on the part of our pols, and that’s something we’d be fools to rely on. If the cure is worse than the disease, if treating the patient’s malady can only succeed by killing the patient, perhaps we should accept that there is no perfect outcome, no utopian world. Yes, it stinks that our pols can oftentimes be bought by those with deep pockets (and no, deep pockets and nefarious intent are NOT the sole province of the Right or of conservatives). But history has made it clear that disclosure rules aren’t an easy, uncontroversial, “reasonable” infringement on our liberties, and this latest effort by the IRS serves to reinforce that conclusion. So, next time a “purist” comes up with an argument against a minor infringement, give that argument a chance. The purist position might not be so extreme after all.
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