Campaign finance regulation has always been a threat to free speech. Dark money regulation is a different kind of danger.
For the zealots, ridding the world of dark money means sunlight and transparency, a block on billionaires buying elections in secret and hijacking our democratic system of government.
But if the dark money regulators are successful their victory will mean robust public debate only for those who comply with the government while carefully keeping records of everything they buy, say and do.
There will be no more privacy in political association. Every political nonprofit -- the National Rifle Association, the Brookings Institution, Mother Jones -- will need to make its books public. Every dollar coming in and out of those organizations will need to be accounted for to the government.
And, by extension, those dark money rules apply to you. Your group -- the one fighting annexation, opposing a ruinous school bond, or protesting some city budget atrocity -- is the one that has to comply, just the same as the NRA.
Screwing up in your registration and reporting can get you fined in most states. With the new Ethics Commission rules in Texas, you are now exposed to felony conviction.
The regulators talk about curbing big money, but the regulations invariably cover small money -- $500, $200, a single dollar spent advocating for an idea or issue.
Michael Quinn Sullivan, the conservative Texas activist who already has run afoul of the Ethics Commission to the tune of a $10,000 fine, said the low-dollar thresholds are meant to suppress political activism at the grass roots.
I think they want to go after all these little troublemakers, Sullivan said, because little troublemakers grow up to be big troublemakers.
Without the benefit of staff trained to handle the paperwork, most political activists, candidates or campaigns will never get to the starting line. Campaign finance documents are simply too complex. In 2006, Jeffrey Milyo tested 255 mostly graduate students in political science, public affairs or economics on their aptitude with financial disclosure forms used in three states.
Not one of the 255 people filled out the forms correctly. On average, students managed to complete just 41 percent of the tasks needed to make the forms correct. The experience, one of those tested said, was worse than the IRS.
In all, 89 percent of them agreed that jail time and punishments for their kind of mistakes would deter people from engaging in independent political activity.
The libertarian Institute for Justice recently argued just that before the Supreme Court, in a petition regarding Floridas political committee regulations.
These burdens fall hardest on political novices who are inspired to become active in the political debate but who do not have the experience, the time, or the money to comply with the host of regulations that their political speech will trigger.
Telling such groups -- which are often nothing more than loosely affiliated associations of like-minded people -- that they may speak only if they decipher and comply with hundreds of pages of campaign finance rules, regulations, and advisory opinions is, in practical effect, telling them that they may not speak at all.
While dark money prohibitionists despise the Citizens United ruling, few realize that courts already are using that landmark case to require more disclosure from private groups. Several federal appellate courts have forced private associations to disclose their donors for daring to talk about ballot measures, citing a phrase from the ruling that such disclosure enables the electorate to make informed decisions.
Its this vague informational interest that is supposed to outweigh a right to group privacy so substantial that the high court of the 1950s found that it outweighed the governments interest in national security threats from alleged subversives.
Justice Clarence Thomas picked up on the inconsistency in his partial dissent in Citizens United. Thomas summoned a Supreme Court decision in an Ohio school board case that Congress may not abridge the right to anonymous speech based on the simple interest in providing voters with additional relevant information.
There is only one legitimate governmental interest for restricting campaign finances, Thomas wrote, and that is preventing corruption or the appearance of corruption.
Independent expenditures, he continued, do not corrupt or create the appearance of quid pro quo corruption (and) contributions to groups that make only independent expenditures also cannot corrupt or create the appearance of corruption.
Thomas grew up in the Jim Crow South, and started his career in civil rights. Thomas was well aware that NAACP v. Alabama protected the right of associational privacy for civil rights and other political activists.
In his dissent, he recalled that supporters of Californias Proposition 8, a ballot measure to define marriage in traditional terms, suffered simply because their donations were published online.
Many supporters (or their customers) suffered property damage, or threats of physical violence or death, as a result Supporters recounted being told: Consider yourself lucky. If I had a gun I would have gunned you down along with each and every other supporter, or, we have plans for you and your friends, Thomas wrote.
The director of the nonprofit California Musical Theater gave $1,000 to support the initiative; he was forced to resign after artists complained to his employer. The director of the Los Angeles Film Festival was forced to resign after giving $1,500 because opponents threatened to boycott and picket the next festival. And a woman who had managed her popular, family-owned restaurant for 26 years was forced to resign after she gave $100, because throngs of (angry) protesters repeatedly arrived at the restaurant and shout(ed) shame on you at customers.
A majority of the justices acknowledged the abuse was cause for concern, but had nothing more to say.
This right to anonymous group speech still exists, by the way, but youve got to get a court to agree in advance that youll face persecution if you speak.
In Citizens United, the court made the bold decision to allow corporations to engage in political speech, not as individuals but as a collective. Then it left this line sitting there unexplained: Disclosure is the less-restrictive alternative to more comprehensive speech regulations.
From the context, the court appears to be talking about the disclosures one commonly hears at the end of political ads, but some federal courts are taking it to be a new general rule, applicable to anyone, potentially, and covering anything regulators might want to know.
This is why its not enough for the court to revindicate the speech rights of a specific form of collective -- the U.S. corporation -- without addressing the underlying issue, which has little to do with the formalities of a groups paperwork.
Its a simple question, though: May the many choose to be one?
May we get together and call ourselves the NAACP or the Klan or the Communist Party or the King Street Patriots and act in that name, not our own, for causes popular or despised?
May we contribute to a cause in private? Do we allow for political advocacy by group, even though some of those groups are the creation of one or two wealthy people?
Or should you forfeit the right to the privacy of your political conscience when you choose to act on it?
Jon Cassidy is the Texas bureau chief for Watchdog.org. He also writes a weekly column on politics for The American Spectator. Contact him at jon@watchdog.org or @jpcassidy000.
