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Jack Ohman | The Oregonian

GOP declaring war on inconvenient facts

Bopp

It’s tough times for facts in America. First Mitt Romney – interviewing for the position of president – declined to release his tax returns because, as he explained, the Obama team’s opposition research will “pick over it” and “distort and lie about them.”

He isn’t actually claiming that his opponents will lie. He’s claiming he’s entitled to hide the truth because it could be used against him.

These are tax returns. Factual documents. No different than, say, a birth certificate. But the GOP’s argument that inconvenient facts can be withheld from public scrutiny simply because they can be used for mean purposes is a radical idea in a democracy. It has something of a legal pedigree as well.

Probably not coincidentally, Senate Republicans recently filibustered the DISCLOSE Act – a piece of legislation many of them once supported – again on the grounds that Democrats might someday use ugly facts against conservatives. The principal objection to the law is that nasty Democrats would like to know who big secret donors are in order to harass, boycott and intimidate them. The law requires that unions, corporations and nonprofit organizations report campaign-related spending over $10,000 within 24 hours and to name donors who give more than $10,000 for political purposes. Even though eight of the nine justices considering McCain-Feingold in Citizens United believed that disclosure is integral to a functioning democracy, the idea that facts about donors are dangerous things is about the only argument Senate Republicans can muster.

GOP senators aren’t brave enough to have true facts on display anymore. For Republicans, the truth is almost Nixon-esque now. Here’s Senate Minority Leader Mitch McConnell comparing the disclosure requirements to an “enemies list”: “This amounts to nothing more than member and donor harassment and intimidation, and it’s all part of a broader government-led intimidation effort by this administration. There are parallel efforts at the FCC, SEC, IRS, DoJ and the White House itself to silence its critics. The creation of a modern-day Nixonian enemies list is currently in full swing and, frankly, the American people should not stand for it. As I’ve said before, no individual or group in this country should have to face harassment or intimidation, or incur crippling expenses defending themselves against their own government, simply because that government doesn’t like the message they’re advocating.”

If those claims sound familiar, it’s because these are precisely the arguments donors from the National Organization for Marriage recently raised in an unsuccessful 2009 legal challenge to a California statute that requires political campaigns to disclose the identity of donors who contribute more than $100 to their cause.

Supporters of Proposition 8 – the California same-sex marriage ban enacted with substantial out-of-state financial support, and recently overturned by the Ninth Circuit – alleged that disclosing their identities would expose them to harassment by political opponents, and the contested statute cast a cloud of intimidation over the exercise of their protected First Amendment rights.

The plaintiffs in that case submitted dozens of sworn statements (many of them anonymous) to a federal judge in Sacramento, chronicling what they characterized as past abuse and harassment. While the court found their evidence to be somewhat exaggerated, it was quick to condemn the few genuine acts of violence and vandalism involved. Nonetheless, the court found those incidents too few and too isolated to outweigh the compelling interest California had in the public disclosure of contributions.

The California case was brought by James Bopp, a conservative Indiana lawyer, who has relentlessly challenged campaign disclosure laws in the courts with only limited success. McConnell borrowed a page from his playbook when he warned that forcing deeply established and well-funded groups to make their donations in the bright light of day would invariably bring howling mobs to their doors. In an effort to do away with transparency, McConnell needs to paint an apocalyptic image of wealthy donors in fear for their very lives.

When the Supreme Court sustained disclosure requirements of the Federal Election Campaign Act in 1976, in Buckley vs. Valeo, it held open the possibility that campaign disclosure requirements might be invalid to the extent that they cowed small and traditionally persecuted groups into political silence for fear of retaliation. Bopp raised those same arguments in California on behalf of the Proposition 8 crowd. But the federal district court was not persuaded. His clients, after all, backed the winners in that election, who spent millions of dollars and gained millions of votes in support of the long-established status quo. That is a far cry from the civil rights advocates of the 1960s who risked their lives fighting a centuries-old system of legal discrimination and whose plight the Supreme Court had in mind when it decided Buckley.

Some Proposition 8 advocates argued that disclosing their names would be bad for business. Those arguments did not go far in the courts. It’s hard to argue that one’s free speech (in the form of money) should be automatically privileged over the vicious free speech of those who would disagree.

Even boycotts of businesses and donors don’t constitute the kind of threats opponents of disclosure would suggest. For more than 70 years, the Supreme Court has recognized that nonviolent protests and picketing do not lose their First Amendment protections just because they may result in lost business. That principle got its strongest exposition 30 years ago, when the high court struck down a state court judgment against the NAACP, which had organized a boycott of white merchants in Claiborne County, Miss., to bring economic pressure to bear in support of integration. The court found both the boycott and the public pressure on those willing to violate it were forms of protected political speech.

There is a shameful irony in McConnell and Bopp attempting to shield the political contributions of the well-funded establishment from public gaze through a doctrine meant to protect the weak and disenfranchised; cynically invoking the legacy of the Edmund Pettus Bridge to let the Koch brothers write their massive checks in private. Overheated rhetoric is supported by no factual showing. It’s a fantasy used to obscure the truth about who is buying and selling our candidates and referendums.

Three years ago, Bopp sued the state of Washington, seeking to prohibit the disclosure of names on a ballot initiative that would have put the question of repealing domestic partner benefits just extended to same-sex couples to a vote. In 2010 the Supreme Court rejected the plaintiffs’ claim that making the names of those who sign petitions public always threatens to silence political speech because signatories might fear retribution.

Eight justices rejected that argument, none of them so strongly as Justice Antonin Scalia, whose distaste for political anonymity led him to write separately a warning that merits repetition here, both with respect to the DISCLOSE Act, and the argument that truth must be hidden because some people may be mean someday.

There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.

Someone should tell McConnell.

Dahlia Lithwick writes about the courts and the law for Slate.

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