Column: Disclosure Laws Can Stifle Free Speech Through Intimidation
Revelations about the Internal Revenue Service targeting conservative groups have raised important questions about the Obama administration’s commitment to the First Amendment. Yet there is ample evidence to suggest that the culture of intimidation in which these tactics were allowed to flourish goes well beyond one agency or a few rogue employees.
For years, administration officials have used the power of the federal government to isolate their opponents. Meanwhile, the unionized employees who populate the IRS and other agencies across the country routinely take their cues from union bosses, whose political donations and speeches show their support for the White House. When it comes to rewarding friends and punishing enemies, the IRS is not alone.
In fact, recent efforts to revive the so-called Disclose Act suggest that these tactics are alive and well in Washington. This bill, which would force grass-roots groups to make their member and donor lists public, may seem benign to some. But as a longtime defender of the First Amendment, I have always seen it for what it is: a backdoor effort to discourage those who disagree with the Obama administration from participating in the political process.
The abuses at the IRS — which include selective sharing with left-wing journalists of confidential information about conservative groups — is just the kind of thing the Disclose Act was designed to enable.
The spread of the speech police under the Obama administration has long been apparent. We all saw the president’s re-election team using the politics of intimidation, with old-school “enemies lists” and explicit attacks on groups and other private citizens. At the same time, the administration has been extremely creative in employing throughout the federal government the sorts of intimidation tactics that were used at the IRS.
Democratic commissioners at the Federal Election Commission, for instance, have pushed for more than two years for a rule that would compel third-party groups to reveal their donors. Democratic commissioners at the Federal Communications Commission support a similar rule for disclosing the donors to groups airing advertisements on issues of concern to the public. This is on the heels of the FCC approving a rule last year that requires broadcasters to list the names of groups that pay for, or want to pay for, ads online. And the Securities and Exchange Commission is considering requiring publicly held companies to disclose political activities.
White House staffers have gotten in on the act. The president’s lawyers circulated a draft executive order in 2011 that would have required anyone bidding for a government contract to disclose political donations. The message was clear: If you want a government contract, be careful which causes or candidates you support because the White House will know.
These tactics are straight out of the left-wing playbook: Expose your opponents to public view, release the liberal thugs and hope the public pressure or unwanted attention scares them from supporting causes you oppose. This is what the administration has done through federal agencies such as the FCC and the FEC, and it’s what proponents of the Disclose Act plan to do with donor and member lists.
Oddly, some on the left are now arguing that the IRS scandal is reason to revive the Disclose Act. But if this scandal has taught us anything, it is that Washington’s ability to target individuals and groups is already too expansive. We should be looking at ways to limit, not expand, the government’s ability to target people because of their beliefs and the causes they support. And we should take a serious look at the culture that enabled this scandal.
Before the recent revelations, it may have seemed fanciful to some that government officials would use donor and member lists as a political weapon. Yet that’s precisely why the FEC has exempted the Socialist Workers Party from public disclosure since 1974. It’s also why the Supreme Court told Alabama in 1958 that it couldn’t compel the NAACP to disclose the names and addresses of its members: Compelling disclosure of such information infringes upon one’s freedom to associate and thus violates their First Amendment rights.
The First Amendment was not written to protect popular speech. It was written to protect speech that was not popular. The moment we lose sight of that, we betray the principle of equal justice that lies at the heart of our system.
We can hope the president and all who do the work of government have relearned that lesson in recent days, but we can’t count on that. The American people need to remain vigilant against any effort by the powerful to stifle speech — and do everything they can to prevent it.
Mitch McConnell, a Republican, represents Kentucky in the Senate, where he is the minority leader.